The system will adapt to Jordan

By Justin Ling April 12, 201712 April 2017

The system will adapt to Jordan

Ever since the Supreme Court put a hard cap on trial delays, and the subsequent slew of stays of proceedings in a variety of high-profile cases, there’s been a spirited debate over where to point the finger: At the top court for fumbling the file? At Ottawa, for its lackadaisical response? Or at the Crown, for failing to prioritize serious offences?

The finger pointing has correlated with a rise in attention over the impact of R. v. Jordan, the case that led the supreme justices to shoulder the prosecution with an obligation to conclude the trial within 18 months, 30 for serious offences, barring certain circumstances.

A high-profile case in Montreal is the most recent one to shine the light, where the prosecution of a man accused of brutally murdering his wife was stayed because it passed the 30 month ceiling — a delay caused largely by the prosecution’s push to upgrade second-degree charges to first-degree, contended the accused’s counsel, Joseph La Leggia.

Dozens of other cases have been thrown out in a similar fashion.

The federal budget addresses some of these concerns by trying to tackle endemic delays and reduce stress on the court system — $55 million over five years to hire new judges, as well as some small pots of money to advance bilingualism in the courts and to expand Indigenous justice programs.

Some provinces have taken similar steps to boost the complement of justices on the bench, but there have been scant initiatives to move on to other recommendations that have been touted in recent weeks — from boosting legal aid services to softening the Criminal Code to allowing for more statutory or hybrid offences, and even doing away with the preliminary inquiry, which the CBA opposes.

Some lawyers are urging caution warning that radical reactions could be throwing the baby out with the bath water.

Kathryn Wells is a director with the Criminal Lawyer’s Association and a lawyer with the Wells Frost Litigation Group. She says, yes, there has been outcry over the number of high-profile cases stayed. And no, she adds, throwing out murder charges “obviously doesn’t benefit the administration of justice.”

But she adds: Jordan was an important case.

“The right to be tried within a reasonable time is not a procedural throwaway. It is a constitutional right,” she told CBA National.

And fundamentally, the concern might be overblown. “These bad cases make for big stories, but not I’m sure it’s quite as bad as it seems in the media.”

Wells says the most prominent proposed fixes for the delays are good ones, but needn’t be tied to addressing Jordan — they are things that have been requested in the judicial system for years. Things like more judges, more legal aid resources, and more support staff. Even dropping prosecutions for marijuana possession, which account for tens of thousands of criminal charges of year, will make an impact. “Sometimes there’s physically no courtroom available,” Wells adds.

“It’s going to take time for the government to actually do something,” she says. “But it’s about time they actually did something.”

Wells, like many criminal lawyers and the Canadian Bar Association, is not thrilled about the prospect of dropping preliminary inquiries.

“Cutting preliminary hearings will not rectify this situation. Preliminary hearings do not create delays, they help to prevent them. The mistake lies in thinking that a trial merely repeats the steps already taken in the preliminary hearing,” writes Ian Carter, Vice-Chair of the CBA National Criminal Justice Section. He suggested a slew of simple fixes that could make a huge impact — move time-consuming routine appearances to an electronic system, for example.

Fundamentally, Wells contends, this is a “transition period.” Jordan forced governments and courts to do better, and in the process it took a handful of cases — “that were moving at a snail’s pace” — with it as collateral damage.

But the system will adapt, and the stays will go down. In British Columbia, the government moved to aggressively cut down trial delays last year, and has already seen significant progress — so they may see minor effects from Jordan.

“Yeah, there’s some pressure on the crown,” adds Wells. “But, good, there should be.”

Nevertheless, the Supreme Court may take another kick at the can at the end of April, when it hears arguments on James Cody v. Her Majesty the Queen.

In that case, the accused waited 60 months and 21 days before the expected end of his trial. His charges were stayed under the pre-Jordan standard. Oddly, the Ontario Court of Appeal overturned the trial judge, and did so while employing the Jordan principles.

While the top court obviously has the opportunity to revisit its decision from 2016, it seems more likely that they will simply fill in some blanks about what, exactly, constitutes “exceptional circumstances.”

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