Conviction overturned

Supreme Court of Canada sets aside manslaughter and firearms convictions and stays proceedings after about 35 months of net delay

The Crown refused a judge-alone trial that would have finished on time. The Supreme Court held that the old "transitional" excuse for delay no longer applied, set aside the jury's verdicts and stayed the prosecution for breach of the right to be tried within a reasonable time.

R. v. Hanan, 2023 SCC 12; [2023] 1 SCR 467

Court: Supreme Court of Canada
Decided: Apr 17, 2023
Conviction to this result: 4 years
Sentence: Not stated in the decision

Appeal allowed, convictions set aside, stay of proceedings entered for breach of the right to be tried within a reasonable time The conviction was quashed or vacated. Read the brief for what happens next.

What happened

The events that led to the charges happened on December 23, 2015, and Mr. Hanan was charged the next day. A jury trial was set for November 2018. Both sides agreed that date fell inside the "Jordan ceiling", the time limit the Supreme Court set in R. v. Jordan in July 2016, after which delay is presumed to be unreasonable. On the eve of trial, changes to the Crown's case threatened an adjournment. The defence offered to proceed before a judge alone, which would have let the trial finish within the ceiling. The Crown refused. The trial judge then offered a trial date for June 2019, but defence counsel was not available. The trial was moved to October 28, 2019 and ended on November 28, 2019. Mr. Hanan asked for a stay of proceedings, meaning a court order ending the prosecution, because his right under s. 11(b) of the Charter to be tried within a reasonable time had been breached. The trial judge counted about 47.5 months of total delay. He subtracted about 10 months as defence delay before committal and about 1.5 months for a discrete problem with Crown evidence, leaving a net delay of about 35 months, above the ceiling. Even so, he refused a stay. He relied on the "transitional exceptional circumstance", a temporary excuse for cases already in the system when Jordan was decided, reasoning that the parties had reasonably relied on the old law. The jury convicted Mr. Hanan of manslaughter, discharging a firearm with intent to wound, and possessing a loaded restricted firearm without a licence. A majority of the Court of Appeal upheld the convictions. Nordheimer J.A. dissented, which gave Mr. Hanan an appeal as of right to the Supreme Court.

Procedural history

Dec 23, 2015
Events giving rise to the charges occur
Dec 24, 2015
Mr. Hanan charged with various offences
Jul 2016
R. v. Jordan decided, setting presumptive ceilings on delay (context)Supreme Court of Canada
Undated
Committal for trial; the trial judge later attributes about 10 months of pre-committal delay to the defenceOntario
Nov 2018
Jury trial scheduled for this month, within the Jordan ceiling; on the eve of trial, changes to the Crown's case threaten adjournment; defence offers judge-alone trial, Crown refusesOntario Superior Court of Justice
Undated
Trial judge offers a trial date for June 2019; defence counsel unavailable; trial rescheduled to autumn 2019Ontario Superior Court of Justice
2019
Application for stay of proceedings under s. 11(b) of the Charter denied despite net delay of about 35 months (2019 ONSC 320)Ontario Superior Court of Justice
Oct 28, 2019
Jury trial beginsOntario Superior Court of Justice
Nov 28, 2019
Trial ends; jury convicts of manslaughter, discharging a firearm with intent to wound, and possession of a loaded restricted firearm without a licenceOntario Superior Court of Justice
2022
Majority (Tulloch and van Rensburg JJ.A.) upholds convictions, finding no s. 11(b) breach; Nordheimer J.A. dissents (2022 ONCA 229)Court of Appeal for Ontario
Apr 17, 2023
Appeal as of right heard; judgment rendered allowing the appeal, setting aside the convictions and entering a staySupreme Court of Canada
May 5, 2023
Written reasons for judgment deliveredSupreme Court of Canada

The offence and its elements

Manslaughter

Criminal Code (section not cited in the decision; the decision does not say whether the conviction rested on an unlawful act or on criminal negligence)

What the prosecution had to prove:

The accused caused the death of a human beingnot addressedGeneral law: check the current text
Unlawful act route: the death was caused by an unlawful actnot addressedGeneral law: check the current text
Unlawful act route: the accused had the fault required for that underlying unlawful actnot addressedGeneral law: check the current text
Unlawful act route: a reasonable person would have foreseen a risk of bodily harm that was neither trivial nor transitorynot addressedGeneral law: check the current text
Criminal negligence route: the death was caused by an act, or by an omission to do something it was the accused's legal duty to donot addressedGeneral law: check the current text
Criminal negligence route: the conduct showed wanton or reckless disregard for the lives or safety of other personsnot addressedGeneral law: check the current text
Criminal negligence route: the conduct was a marked and substantial departure from what a reasonable person would have done in the circumstancesnot addressedGeneral law: check the current text

Discharging a firearm with intent to wound

Criminal Code (section not cited in the decision)

What the prosecution had to prove:

The accused discharged a firearmnot addressedGeneral law: check the current text
The firearm was discharged at a personnot addressedGeneral law: check the current text
The accused intended to wound, maim or disfigure, or to endanger the life of, a personnot addressedGeneral law: check the current text

Possession of a loaded restricted firearm without a licence

Criminal Code (section not cited in the decision)

What the prosecution had to prove:

The accused possessed a firearm, knowing he had it and knowing what it wasnot addressedGeneral law: check the current text
The firearm was a restricted firearm (or a prohibited firearm)not addressedGeneral law: check the current text
Either the firearm was loaded, or it was unloaded and ammunition capable of being discharged in that firearm was readily accessible to the accusednot addressedGeneral law: check the current text
The accused knew the firearm was loaded, or, for the unloaded alternative, knew that compatible ammunition was readily accessiblenot addressedGeneral law: check the current text
The accused was not the holder of an authorization or licence under which he could possess the firearm in the place where it was foundnot addressedGeneral law: check the current text
The accused was not the holder of the registration certificate for the firearm (absence of either the authorization or licence, or the registration certificate, satisfies the unauthorized-possession requirement)not addressedGeneral law: check the current text

The questions on appeal

Could the transitional exceptional circumstance excuse delay above the Jordan ceiling in this case?: No. The parties could not reasonably rely on pre-Jordan law after July 2016, and they did not in fact rely on it, because they deliberately scheduled a trial inside the ceiling. For delay after Jordan, the question is whether the parties and courts had enough time to adapt. Here they did.
What caused the delay that pushed the trial past the ceiling?: The Crown's refusal to agree to a judge-alone trial, after being warned of the consequences and almost two and a half years after Jordan. It was not disputed that had the Crown agreed, the trial would have ended within the ceiling.
Should the whole period from June to October 2019 count as defence delay because defence counsel turned down the June date?: No. The Court rejected the Crown's proposed bright-line rule. Defence delay means delay caused solely or directly by the defence, or waived by it. All the circumstances must be weighed, and in this case it was unfair to treat the whole period as defence delay.
Was the jury charge defective?: Not decided. Because the delay ground disposed of the appeal, the Court declined to address the alleged error in the charge.

The law the court applied

Jordan framework for unreasonable delay

Total delay from charge to the end of trial is calculated, defence delay is subtracted, and if the net delay exceeds the presumptive ceiling it is presumed unreasonable unless the Crown shows exceptional circumstances.

R. v. Jordan, 2016 SCC 27, [2016] 1 S.C.R. 631; Canadian Charter of Rights and Freedoms, s. 11(b)

Transitional exceptional circumstance

For cases already underway when Jordan was decided, delay above the ceiling may be excused where the parties reasonably relied on the previous law. For delay accruing after Jordan, the focus is on whether the parties and courts had sufficient time to adapt.

R. v. Cody, 2017 SCC 31, [2017] 1 S.C.R. 659, at para. 71

Defining and apportioning defence delay

Defence delay is delay caused solely or directly by the defence's conduct, or waived by the defence. Periods when the court and Crown are also unavailable are not defence delay even if defence counsel is unavailable. All relevant circumstances are considered in deciding how to share out delay among participants.

R. v. Jordan, 2016 SCC 27, at paras. 64 and 66; R. v. Boulanger, 2022 SCC 2, [2022] 1 S.C.R. 9, at para. 8

What the court decided

A unanimous five-judge panel, in joint reasons by Côté and Rowe JJ., held that no transitional exceptional circumstance applied. The net delay of about 35 months was unreasonable and breached s. 11(b) of the Charter. The Court also rejected the Crown's proposed rule that all delay following a defence refusal of an offered date counts against the defence. The appeal was allowed, the convictions were set aside, and a stay of proceedings was entered. Judgment was rendered from the bench on April 17, 2023, with written reasons following on May 5, 2023. The Court did not rule on the alleged jury charge error.

What happens next: The stay of proceedings entered by the Supreme Court ends the prosecution. The decision does not describe any further steps.

Analysis

This is our commentary, separate from the court’s reasons.

A transitional excuse with an expiry date

The transitional exceptional circumstance was always meant as a bridge, not a permanent shelter. This decision shows how short that bridge had become by late 2018. The Court separated two ideas that had been run together below: whether the parties actually relied on the old law, and whether the system had time to adjust. On the first, the answer was plainly no, since both sides had booked a trial inside the ceiling with Jordan in mind. On the second, the Court treated two and a half years as ample. The practical message is that, for delay accruing well after July 2016, the transitional excuse will rarely carry weight unless something specific about the case or the local court shows a genuine inability to adapt.

Crown choices and the clock

The pivot of the case is a single decision: the Crown declined a judge-alone trial that everyone accepted would have finished on time. The Court did not describe this as misconduct, did not suggest bad faith, and did not examine whether the Crown had good reasons for its position. Its holding is narrower and tied to the facts. The delay past the ceiling was explained by that refusal, made after a warning and long after Jordan, rather than by any lack of time for the system to adapt, so the transitional excuse could not apply. Some context helps. The choice between trial by judge alone and trial by jury generally belongs to the accused, subject to statutory limits, and in some situations a change of election requires Crown consent. Hanan does not rewrite that law. Nor does it create an automatic rule that the Crown absorbs all delay whenever it declines such a request. What it does show is that the Crown's scheduling choices are part of the picture when a court asks why a trial ran past the ceiling.

Defence unavailability is not a blank cheque

The Crown's proposed bright-line rule would have made every defence refusal of a date automatically absorb all delay until the next opening. The Court rejected that, agreeing with both the majority and the dissent below. The holding is fact-sensitive: the Court said it was unfair to count the whole June to October 2019 period against the defence in the circumstances of this case. It did not say defence unavailability can never count. Counsel on both sides should therefore build a record about why dates were refused, what alternatives existed, and whether the court or Crown were also unavailable.

What a stay is, and what it is not

This is not a case about factual innocence, and it should not be read as one. A jury found Mr. Hanan guilty of serious offences including manslaughter, and the Supreme Court did not examine whether those verdicts were sound. A stay for unreasonable delay is a remedy for a breach of a constitutional right; it ends the prosecution without an acquittal and without any finding about what happened. A person died, and nothing in this decision lessens that loss. The case illustrates a different kind of systemic failure: a conviction that cannot stand because the state took too long to reach it.

If this feels close to home

Counting months is only the start of a delay claim. The result also depends on how each gap is attributed, whether the Crown can show exceptional circumstances, and which legal framework applies. In this case the dispute over the transitional exception, not the count itself, decided the outcome. A precise record of every adjournment and every date offered and refused supports each of those questions.
Offers to shorten or simplify a trial, such as agreeing to a judge-alone trial or making admissions, should be made on the record. If the Crown declines and delay follows, that record is relevant to who is responsible for the delay, though each case turns on its own circumstances.
The transitional exceptional circumstance is now largely historical. For delay that accrued long after July 2016, the Crown must show that the parties and courts genuinely lacked time to adapt, not just that Jordan was still new.
Defence counsel's unavailability does not automatically make all following delay defence delay. Courts look at all the circumstances, including whether the Crown and court were also unavailable.
A stay for unreasonable delay ends a prosecution but is not an acquittal or a declaration of innocence. Anyone weighing this route should understand that distinction.
A dissent in a provincial court of appeal on a question of law can open a route to the Supreme Court of Canada as of right, as happened here.

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What went wrong

Trial judge error

How this was checked

Written by Claude Fable 5.1 (Anthropic AI) from the source below, then independently audited against it by GPT-6-Astra (OpenAI AI) on Oct 30, 2026. Every citation here was confirmed by software to appear in the decision or an official text. No lawyer has reviewed this brief. Our standards

Citations

R. v. Hanan, 2023 SCC 12, [2023] 1 S.C.R. 467 The decision under review
R. v. Jordan, 2016 SCC 27, [2016] 1 S.C.R. 631Source of the presumptive ceilings and the definition of defence delay (paras. 64 and 66)
R. v. Cody, 2017 SCC 31, [2017] 1 S.C.R. 659Focus for post-Jordan delay is whether parties and courts had sufficient time to adapt (para. 71)
R. v. Boulanger, 2022 SCC 2, [2022] 1 S.C.R. 9All relevant circumstances considered when apportioning delay (para. 8)
2022 ONCA 229, 161 O.R. (3d) 161Court of Appeal for Ontario decision appealed from; majority upheld convictions, Nordheimer J.A. dissented
2019 ONSC 320Trial judge's ruling denying the stay application
Canadian Charter of Rights and Freedoms, s. 11(b)Right to be tried within a reasonable time

Sources

R. v. Hanan, 2023 SCC 12; [2023] 1 SCR 467

This brief is general information about one case. It is not legal advice, and it may not reflect later developments. Read the full reasons and speak to a lawyer about your own situation.