Inside New Brunswick’s first post-Jordan Criminal law decision

NBCA

This past march, the New Brunswick Court of Appeal entered a stay of charges in the case D.M.S v R. This was the first case in New Brunswick which applied the controversial new “Jordan” framework. Courts use this framework to decide whether a proceeding has been subject to an Unreasonable Delay pursuant to s. 11(b) of the Canadian Charter of Rights and Freedoms.

 Jordan, released in July of 2016 creates a “presumptive ceiling” (time limit) for which the length of a criminal case cannot exceed. If the crown has contributed to the violation of this ceiling they face the possibility of seeing the charges stayed. The limit is 18 months from the date charges are laid to the end of the trial in provincial court cases, and 30 months for criminal cases tried in superior courts.

Navigating an unreasonable delay case can be a very delicate procedure, courts must balance the accused’s right with the public interest in seeing convictions stand. Staying charges can result in the perception that courts are saying: “even though we got it right, we actually got it wrong”. This can become even more controversial depending on the nature of the charges involved. Public outrage will likely be higher when serious, victim based charges (such as murder or sexual assault) result in a stay of proceedings. There is however, an important civil liberties interest in seeing a case tried within a reasonable time. The process of a criminal trial can be expensive, stressful, and emotionally draining for all involved and prolonging this experience can attach an unfair stigma to the accused. The importance of timely proceedings can is evidenced by the protection against unreasonable delay entrenched in s.11(b) of Charter.  

The NBCA, in their first application of the new framework, did not have an easy case to decide. D.M.S was convicted of six charges, three of which were sex crimes including a charge of incest. Trial in this case did not conclude until 5 years after the initial charge. The trial judge denied an unreasonable delay application early in the proceedings, but the NBCA overturned this decision and entered a stay on the charges calling the lower court’s ruling a ‘significant error’.

The NBCA deemed the delay in this case was the exact kind that Jordan sought to address. Considering the seriousness of the charges at play, this decision sends a strong message to prosecutors that egregious violations of an accused’s right to be tried within a reasonable time will not stand in the province of New Brunswick.

This blog post was written by a CCLA-PBSC RightsWatch student. Views expressed do not necessarily reflect the views of the CCLA or PBSC.