After conferring for about 25 minutes on May 16 following oral argument, nine Supreme Court of Canada judges dismissed from the bench the leave-to-appeal application of S.A., an Ontario man, who is out on bail, who faces a judge and jury trial on charges of assaulting and sexually assaulting his common-law partner in 2021.
As per the court’s usual practice for leave applications, it did not give reasons for its decision.
Supreme Court of Canada Chief Justice Richard Wagner
The would-be appellant, S.A., had asked the court to determine: how should delay caused by judicial vacancies be treated under s. 11(b) of the Charter, which states that “any person charged with an offence has the right to be tried within a reasonable time?”
Chris Sewrattan of Toronto’s Sewrattan Criminal Lawyers, who argued S.A.’s leave application, told Law360 Canada the chief justice’s observation that the case raised important questions for the justice system, and some comments by other judges during the 38-minute hearing, suggest to him that the high court will eventually accept to decide the question, albeit in a future case with a key difference, i.e., where the systemic lack of sufficient judges and under-resourcing pushes the cumulative net trial delay above the presumptive ceilings set by the Supreme Court of Canada in R. v. Jordan, 2016 SCC 27.
Chris Sewrattan, Sewrattan Criminal Lawyers
The fact that the net delay in S.A.’s case was below the Jordan ceiling was likely pivotal for the judges in denying S.A.’s leave application to the Supreme Court, Sewrattan said.
Still his takeaway “is that the Supreme Court, despite their decision here, has an appetite to deal with systemic delay caused by under-resourcing ... the court system generally, and judicial vacancies in particular,” he said. “I think if the case had come to them as an ‘over-the-ceiling’ case — which is most cases where the judge says, ‘I have no other choice, but I have to grant the stay [of proceedings based on Charter ss. 11(b) and 24(1)], and this could have all been avoided if there were more judicial resources’ — I think that’s the case they would take on.”
Sewrattan said that, so far as he knows, his client’s case marked the first time a stay of proceedings was granted, pursuant to Charter ss. 11(b) and 24(1), due to delays in filling judicial vacancies. The stay was overturned by the Ontario Court of Appeal last year, and a new trial was ordered.
Had the application judge’s decision below been upheld, it “would have sent a sharp message to governments across the country that you need to fill judicial vacancies at a reasonable rate, or you’re going to have serious prosecutions thrown out for unreasonable delay,” Sewrattan remarked.
Chronic delays by Ottawa in appointing judges to Superior Court vacancies have bedevilled Canada’s justice system for decades, sparking trial cancellations and postponements, backlogs and judicial burnout, as well as extra expense, stress and inconvenience for litigants, witnesses and counsel.
Starting in 2022, the Canadian Judicial Council (CJC), which comprises the country’s federally appointed chief and associate chief justices, spoke out on three occasions, decrying the crisis in the administration of justice and issuing a public communiqué in which judicial leaders “reiterated their concerns about the need for more timely judicial appointments and the impact that vacancies have on court operations.”
Chief Justice Wagner, in his role as the CJC’s chair, followed up in May 2023, writing to then-prime minister Justin Trudeau to point out that some courts routinely operate with vacancy rates of 10 to 15 per cent, with appointments taking many months.
(A Law360 Canada investigation that looked at 435 judicial appointments from 2019 to 2023 revealed that in 2023, for example, the Trudeau Liberal government took an average of 11 months to fill dozens of empty spots on the bench and that Ottawa took eight months, on average, to appoint judges during the five-year period.)
The “government’s inertia regarding vacancies and the absence of satisfactory explanations for these delays are disconcerting,” the Chief Justice of Canada wrote Trudeau, calling the situation “untenable” and warning that “the situation could undermine Canadians’ confidence in the justice system and in all democratic institutions, because a growing number of criminal and civil cases are at risk of falling apart.”
The judiciary’s stark public warnings (echoed by the Canadian Bar Association) have spurred recent improvements, with the Liberal government appointing judges at an unprecedented rate over the past two years. Consequently, as of May 1, 2025, just 18 of 1,002 full-time posts on the federal benches remained vacant, according to the Office of the Commissioner for Federal Judicial Affairs.
The current vacancy rate of under two per cent is far below the norm. By way of comparison, there were 75 federal judicial vacancies on Feb. 1, 2024, and 92 empty positions on Feb. 1, 2023, i.e., nine per cent of full-time federal judicial posts at that time.
Soon after Joanne Stuart, counsel for the respondent Ontario Crown, began her argument against S.A.’s leave to appeal application, Chief Justice Wagner interjected, “What’s the reality in criminal court in Canada? Everything is fine? There are enough judges? There are enough resources? The delays are normal? Is that really the situation?”
Stuart replied that the Superior Court in Toronto is now at full complement “and everything is fine,” prompting the chief justice to observe, “We’ll see if it will stay that way.”
“But if you put that aside, is it your statement and your submission that everything is fine in Ontario so far as the criminal [justice] system?”
“The criminal justice system is never fine, chief justice,” Stuart answered.
“Why, because of lack of resources?” he asked.
Stuart noted that where the time taken to bring a case to trial falls below the Jordan ceilings applicable in Superior Court (30 months) and provincial court (18 months), the delay is therefore presumptively reasonable.
“There’s always a possibility that delay may be unreasonable,” even when it falls below the Jordan ceiling, she said, “but the Crown’s position is that it can’t be on the basis of resources.”
Supreme Court of Canada Justice Andromache Karakatsanis
“The Crown is not suggesting that [for delay] above-the-ceiling, that a resource problem could excuse delay. In fact, quite the opposite,” Stuart said.
“Are you saying there is no chronic under-resourcing in the criminal justice system that causes Jordan delays?” Justice Karakatsanis said.
“Above the ceiling, yes,” answered Stuart. “Below the ceiling, it’s not a factor of consideration” in assessing the constitutionality of delays.
The trial in S.A.’s case was not reached on its first scheduled trial date due to overbooking. The applications judge entered a stay of proceedings for unreasonable delay. She found that both the defence and the Crown had done “everything possible” to move the case forward, but the case still took “markedly longer” than it should have, based on her projection of what would have happened had seven judicial vacancies in the jurisdiction been filled.
Ontario Associate Chief Justice Michal Fairburn
Justice Fairburn noted that when the majority in Jordan set presumptive ceilings on trial delays, it “was alive to the real world within which the administration of criminal justice operates and well aware that ‘resource issues are rarely far below the surface of most s. 11(b) applications.’ ... To this end, the ceilings set in Jordan were said to ‘reflect the realities we currently face.’”
Jordan signalled that stays of proceedings under the applicable ceiling will occur only in “rare” cases where there is “clearly unreasonable delay.”
The burden on the accused to establish unreasonable delay below the ceiling requires the defence to establish that it took meaningful steps that demonstrate a sustained effort to expedite the proceedings, and that “the case took markedly longer than it reasonably should have.”
In determining whether a case took markedly longer than it should have, case-specific factors inform how to characterize the delay, including the complexity of the case, any local conditions that may be operative, and whether the Crown took reasonable steps to expedite the proceedings, Justice Fairburn said.
In assessing the local conditions, Jordan states trial judges “should ... employ the knowledge they have of their own jurisdiction, including how long a case of that nature typically takes to get to trial in light of the relevant local and systemic circumstances.”
Justice Fairburn agreed with the Crown that, properly considered, S.A.’s case did not take “markedly longer” than it should have in the Toronto region — contrary to the application judge’s conclusion.
At “the root of the problem is the application judge’s use of a hypothetical scenario — a situation in which there were no judicial vacancies — as a yardstick for measuring the reasonableness of the below-ceiling delay,” Justice Fairburn explained. “In assessing the reasonableness of the delay, the application judge considered, not what was typical in her region, but what would be typical if the court were not under-resourced.”
Justice Fairburn said the application judge raised “a valid practical concern” about judicial resources and the detrimental impact that delays in filling judicial vacancies have on the administration of justice and the functioning of courts.
The “problem is that the application judge allowed her practical concern to cloud her legal analysis,” Justice Fairburn wrote, citing several flaws.
Notably, in answering the key question whether the case took markedly longer than it reasonably should have, “the application judge should not have started from the position that the state acted unreasonably in failing to fill every judicial vacancy,” Justice Fairburn explained. “Instead, she should have started from the position that the state brought the respondent to trial within a presumptively reasonable time, and, from that starting point, should have asked whether the respondent had rebutted the presumption of reasonableness.”
Moreover, the reasonableness inquiry under s. 11(b) engages with a very specific legal framework, the judge pointed out. “Although delays in filling judicial vacancies may be understandably described as ‘unreasonable’ in a colloquial sense, it is not unreasonable, in and of itself, within the meaning of s. 11(b) of the Charter. Conflating those uses of the term unreasonable constitutes error.”
Justice Fairburn said that Jordan does not require a judge to ask whether the case could be heard when first scheduled, but rather whether it took markedly longer than it reasonably should have.
Some jurisdictions in Ontario, including Toronto, schedule on the basis that not all trials will proceed on their trial dates, especially their first trial dates. A first trial date may be more aspirational as to timing than realistic, given the practical reality that first trial dates are often set optimistically when it is uncertain whether the parties will in fact be ready for trial, and given the pressure on parties to set dates in order to keep the case moving forward.
Last-minute resolutions, sickness and other reasons may result in a case not going ahead as scheduled. “As a direct result of the collapse rate and the desire to achieve maximum efficiency by not having courtrooms left empty, trial coordinators will deliberately overbook or ‘stack’ trial lists,” the associate chief justice acknowledged.
However, “a judicious use of stacking is to be encouraged, not discouraged, because it avoids leaving courtrooms empty and judges without trials,” Justice Fairburn wrote. “Done properly, stacking will generally reduce trial delays. Of course, there is a risk that, from time to time, such as in this case, not every trial will be reached as the collapse rate that week is less than anticipated. Where this happens, it is reasonable to expect that cases will be triaged taking into account constitutional demands. One would expect that those cases that risk breaching the Jordan ceiling will likely be given priority over cases such as this one, which was well below the ceiling and, therefore, presumptively reasonable.”
Justice Fairburn observed that “in the real world, where resources are in fact finite, this is precisely the way that the administration of criminal justice must operate, with a view to meeting the constitutional requirements of each individual case within the context of the system as a whole.”
She also noted that although those responsible for filling judicial vacancies “must work with all diligence, the aspirational goal of a full complement of judges is not always realistic.”
“Not only is it not realistic to expect that there will necessarily be a full complement of judges at all times, but that is not the constitutional yardstick for determining whether there is unreasonable delay below the ceiling,” the judge explained. “Quite simply, if the accused was brought to trial within a reasonable time, it does not matter how many judicial vacancies there were and, conversely, if the accused is not brought to trial within a reasonable time, the fact there was a full complement of judges will not necessarily save the prosecution.”
The Court of Appeal concluded that almost every factor in S.A.’s case “pointed away from a stay of proceedings,” such as: the well-below-ceiling net delay of 26.5 months; the Crown and defence both acted responsibly and diligently to move the case forward; the Toronto region had an increase in complex cases, and was still experiencing the aftereffects of the pandemic; the appellant had been on bail since the day he was charged; and there was nothing in the case that compelled urgency, such as if S.A. were a young person or the case was a retrial; and the original trial date for the anticipated two-week jury trial was ambitious and, if the trial had proceeded, would have been completed in less than 17 months, i.e., even below the ceiling for a trial in the Ontario Court of Justice.
Photo of Supreme Court of Canada Chief Justice Richard Wagner: SCC Collection
Photo of Justice Andromache Karakatsanis by Jessica Deeks: SCC Collection
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Correction: This story has been updated to reflect that the word “not” was inadvertently dropped from this sentence: Some jurisdictions in Ontario, including Toronto, schedule on the basis that NOT all trials will proceed on their trial dates, especially their first trial dates.