In its 2016 R v Jordan decision the Supreme Court of Canada (SCC) narrowly ruled that Section 11(b) of the Canadian Charter of Rights and Freedoms, which states that “any person charged with an offence has the right to be tried within a reasonable time,” was to be interpreted so as to require specifically set maximum amounts of time between charges being laid and the trial of those charges. Those presumptive time ceilings were set at 18 months for provincial court trials and 30 months for superior court trials or cases tried in provincial courts after a preliminary inquiry. When those ceilings are exceeded, an assumption that the delays are unreasonable is adopted, and the burden of proof shifts to the Crown to show that any delays were instead reasonable and resulted only due to exceptional circumstances that were beyond its control. If the Crown cannot establish this, however, a stay of proceedings is ordered. Indeed, this is what happened in R v Jordan, where despite the Crown achieving a conviction for multiple drug offences, Jordan’s appeal was allowed because his right to a trial within a reasonable time was violated. A stay of proceedings was then issued, and Barrett Jordan was free to go.
The SCC’s decision has not been without criticism. Notable, however, is the fact that both defence lawyers and prosecutors have an incentive to make great effort to have trials within a reasonable time. Defence lawyers want to keep their clients happy and remove any uncertainty surrounding their charges, meaning they often want to achieve a quick legal conclusion. This is especially true when their clients are innocent since such clients often seek nothing more than a comfortable return to their regular life. Likewise, prosecutors wish to give victims of crime a similar sense of relief and certainty, and they certainly do not wish for their cases to be stayed by a court. Because of this shared desire to achieve trials within a reasonable time, many observers are rightly critical of the failure of federal and provincial governments to afford sufficient resources to the justice system. Because of a general lack of funding, trials are increasingly less fair and efficient, and the justice system often continues to suffer as a result. Ultimately, timely justice is often unattainable. In this light, the SCC decision can be seen as forcing politicians to act, in the hope that they will better fund the system.
In Manitoba, however, the potential consequences of the R v Jordan decision have recently become all too apparent. On December 12, 2017, a man and woman living near Morden who were both found guilty of repeated sexual assault and interference against a minor had their convictions overturned due to unreasonable delays in their trial. The sexual assault victim was a girl under 16 years of age who was continuously assaulted by the couple between 2005 and 2010. The couple cannot be identified, however, because of a publication ban put in place to protect the identity of the victim. From a Portage la Prairie courtroom, Justice Sandra Zinchuk noted that although the couple was guilty, the 46-month delay between the charges and trial was simply too long. She concluded by saying that “I have balanced the applicants’ rights to have their trial within a reasonable time against societal interest in bringing an accused to trial … I find the delay in this case is unreasonable.” As a result, the couple, like Barrett Jordan, were free to go.
The result of this case calls in to question the practicality of the R v Jordan decision. In many respects, the SCC’s decision may be more idealistic than realistic, since it has clearly resulted in allowing some criminals to escape responsibility in the name of a mere attempt to force political action towards better resources for the justice system; resources that may not even materialize. Although ensuring trials within a reasonable time is certainly an important goal, whether set ceilings of 18 and 30 months are realistic is also an important question. Truthfully, the ceilings seem somewhat arbitrary and invented, especially considering that none of the lawyers involved in R v Jordan suggested them to the Court. Ultimately, the right to a trial within a reasonable time must still be balanced with all other rights, in particular, the rights of victims to a fair and just result. It thus seems extremely questionable that set ceilings are appropriate in determining “reasonableness,” something which has traditionally been case-specific in the law. Justice Thomas Cromwell spoke of this when writing for the 4-panel dissent in R v Jordan, in which he said that “reasonableness cannot be judicially defined with precision or captured by a number. The proposed ceilings are deeply inconsistent with this constant in our jurisprudence.”
Justice Cromwell carried on in his dissent to note that “if there are exceptionally strong societal interests in the prosecution of a case against an accused which substantially outweigh the societal interest and the interest of the accused person in prompt trials, these can serve as an ‘acceptable basis’ upon which exceeding the inherent and institutional requirements of a case can be justified.” Indeed, it seems clear that both preventing and punishing the sexual assault of minors should certainly be considered such an important societal interest. Justice Cromwell’s dissent ultimately concluded that the majorities decision was “wrong in principle and unwise in practice.” Unfortunately, this lack of practical wisdom may mean many more guilty parties will manage to avoid being held responsible for their actions unless the justice system is given the resources it needs to run more efficiently. Scott Newman, speaking about the recent case on behalf of the Criminal Defence Lawyers Association of Manitoba, stated that “this will happen again unless you have the criminal justice system running efficiently and running appropriately and delivering timely justice for everyone.” Hopefully then, the Manitoba justice system will be able to make efforts to achieve better efficiency in the near future.
This blog post was written by a CCLA-PBSC RightsWatch student. Opinions expressed do not necessarily reflect the views of the CCLA or PBSC.