This past summer, the Supreme Court of Canada released one of the most significant decisions in the history of Canadian criminal law: R v Jordan, 2016 SCC 27. This case marks a seismic shift in the prescribed approach for matters to work their way through the justice system, re-imagining the concept of delay in the context of criminal files.
Shortly after the decision was rendered, I wrote and published a blog entry about the case on our partner website (http://www.torontocriminallawyers.com/article/reasonably-prompt-justice-a-new-framework-for-the-right-to-be-tried-within-a-reasonable-time).
To briefly summarize the decision in R v Jordan, the Supreme Court of Canada, in a 5:4 ruling, held that “[a] change of direction is…required” (paras 4-5) in order to ensure “a more efficient criminal justice system” (para 45).
The Court explains the impetus for the change of direction at para 19 of the decision: “[T]he right to be tried within a reasonable time is central to the administration of Canada’s system of criminal justice. It finds expression in the familiar maxim: ‘Justice delayed is justice denied.’ An unreasonable delay denies justice to the accused, victims and their families, and the public as a whole.”
In order to achieve the desired institutional shift, the Court established a new delay framework. The most significant feature of the new framework is a “presumptive ceiling” on the time it should take to bring a case to trial.
‘Justice delayed is justice denied.’
Provincial court matters should be concluded within 18 months of the charge being laid, while superior court cases should be concluded within 30 months. (Delays attributable to the defence should not count toward the delay calculation.) Beyond these time periods, there is a presumption of the existence of an unreasonable delay. The Crown may rebut this presumption by showing that there were “exceptional circumstances” leading to the delay. This exceptional circumstances provision “is the only basis upon which the Crown can discharge its burden to justify a delay that exceeds the ceiling” (para 81). There are two broad types of exceptional circumstances that there courts may consider legitimate for the purposes of excusing a delay beyond the time frames set out: 1) discrete events (such as illness of a justice system participant) or 2) the particular complexity of an individual case (para 71).
It is worth noting that charge seriousness or the gravity of the offence would not be a legitimate justification for excessive delay, though the Court notes “the more complex cases will often be those involving serious charges, such as terrorism, organized crime, and gang-related activity” (para 81).
Although this sounds like a rather “hard-line approach” to addressing the issue of delay in the criminal justice system (and it is), the Court made it quite clear that it was not prepared to issue widespread stays with respect to cases in the system at the time of the decision (July 2016) that feature delays in excess of the new timelines established by the judgement (para 96). The Court held that judges should take a contextual approach to existing cases to determine whether the parties were adhering to the previous understanding of the law around delay. Of particular importance is this passage from para 96: “This [transitional approach] requires a contextual assessment, sensitive to the manner in which the previous framework was applied, and the fact that the parties’ behaviour cannot be judged strictly, against a standard of which they had no notice. For example, prejudice and the seriousness of the offence often played a decisive role in whether delay was unreasonable under the previous framework. For cases currently in the system, these considerations can therefore inform whether the parties’ reliance on the previous state of the law was reasonable. Of course, if the parties have had time following the release of this decision to correct their behaviour, and the system has had some time to adapt, the trial judge should take this into account.”
Canadians have recently had a stark demonstration as to the significant practical impact of the Jordan framework.
On October 11, an Edmonton judge, Justice Stephen Hillier, ruled that a murder case had suffered from excessive delay and issued a stay in the prosecution of Lance Matthew Regan. Mr. Regan, an inmate at the Edmonton Institution, allegedly killed a fellow inmate, Mason Tex Montgrand, in 2011 (http://www.cbc.ca/news/canada/edmonton/first-degree-murder-charge-in-prison-slaying-stayed-due-to-lengthy-delay-1.3800810).
evidence obtained through a Charter breach is still often permitted to be used by the prosecution at trial.
It is likely that the Crown will appeal this decision, arguing that Justice Hillier failed to properly apply the transitional framework, which would include a consideration of the seriousness of the offence. (Additionally, one wonders whether this would have been the result had the victim been a member of the broader community as opposed to an inmate at a correctional facility.)
However, the Crown’s concerns would apply on a go-forward basis as well, once all cases that were in the system at the time of the R v Jordan decision being issued are concluded, meaning that the transitional framework would no longer apply.
It seems somewhat counter intuitive that, under a Grant analysis (which is applied once it has been established that an individual’s Charter rights have been breached to at least some degree), in many cases, evidence obtained through a Charter breach is still often permitted to be used by the prosecution at trial. This means that—depending on the circumstances—illegally obtained breath sample evidence, for instance, may still be used at trial to convict an individual of “driving over 80.”
In R v Grant, 2009 SCC 32, the Court held: “When faced with an application for exclusion under s. 24(2), a court must assess and balance the effect of admitting the evidence on society’s confidence in the justice system having regard to: (1) the seriousness of the Charter-infringing state conduct (admission may send the message the justice system condones serious state misconduct), (2) the impact of the breach on the Charter-protected interests of the accused (admission may send the message that individual rights count for little), and (3) society’s interest in the adjudication of the case on its merits. The court’s role on a s. 24(2) application is to balance the assessments under each of these lines of inquiry to determine whether, considering all the circumstances, admission of the evidence would bring the administration of justice into disrepute” (para 71).
If the criminal justice system is prepared to tolerate some Charter breaches in the name of ensuring that impaired drivers are punished, it seems odd that there would be less flexibility afforded to a delay analysis in the context of the most serious charge in the Criminal Code—murder. Such rigidity threatens to bring the entire administration of justice into disrepute—which is exactly what the principles espoused in Jordan, amongst many other cases, are intended to avoid.
It seems quite important to emphasize an oft-overlooked passage of R v Jordan: “Section 11(b) was not intended to be a sword to frustrate the ends of justice… [T]he interests protected by s. 11(b) extend beyond those of accused persons. Timely trials impact other people who play a role in and are affected by criminal trials, as well as the public’s confidence in the administration of justice” (paras 21-22).
Staying a murder charge due to “unreasonable delay” in a case such as this in order to protect against bringing the administration of justice into disrepute seems to do just the opposite of what is intended. We must not cut off the nose to spite the face.