Supreme Court clarifies the rules around Jordan exceptions

Given the “unavoidable reality that criminal trials take longer in practice than everyone might wish,” the Supreme Court of Canada has revisited the time limits it set out in Jordan a decade ago to reduce the number of cases tossed due to delays.

In reiterating that the time limits imposed on criminal trials before charges are thrown out of court are justified under section 11(b) of the Charter, the Court allowed a pair of challenges to the Jordan framework and clarified the rules governing when exceptions can be granted. Specifically, complex criminal prosecutions that involve voluminous disclosure, many witnesses, charges covering a long period of time, a large number of pre-trial applications or motions, novel or complex legal issues, or joint proceedings against multiple co-accused can be exempt from the timelines established in Jordan.

For cases tried in provincial court, the 2016 decision set out an 18-month ceiling from the date charges are laid to the conclusion of the trial.

In the first challenge of the framework, the accused was part of a large drug trafficking case involving 18 accused, which the Crown split up into 10 prosecution groups for greater trial efficiency. Robert Vrbanic and his co-accused were mistakenly placed in a group they believed would be part of a Garofoli application challenging the validity of the judicial authorization related to warrants and wiretap evidence. When that application wasn’t made, they applied for a stay, given their matter had extended beyond the Jordan ceiling by four days.

The stay was granted and upheld at the Ontario Court of Appeal, but overturned by the Supreme Court, which sent the matter back to trial in an 8-1 ruling, with concurring reasons.

The Crown had asked that courts be granted "residual discretion" to extend trials and keep matters from being thrown out for short overruns. In response, Chief Justice Richard Wagner said the Jordan framework already provides the necessary flexibility.

In the second challenge, Elijah Jacques-Taylor and his co-accused were charged with drug and firearms offences at a police traffic stop. The Jordan timeline was exceeded by two weeks when the accused’s and co-accused’s counsel were unable to schedule a trial until two months after the initial dates offered. 

The Ontario Court of Appeal upheld the stay of proceedings, but in a 6-3 decision, the Supreme Court found that delays arising from a joint trial could be excused under the discreet exceptional circumstance exemption in the Jordan framework and sent the matter back to trial. 

“In a world of finite resources, the Jordan framework constitutes a compromise,” Wagner wrote in Vrbanic.

“It reflects the unavoidable reality that criminal trials take longer in practice than everyone might wish. It balances the public’s interest in seeing criminal trials brought to their proper conclusion on the merits against the constitutional right of accused persons to be tried within a reasonable time.”

Wagner also held that reactive steps to minimize delay will not suffice on their own, but said “the Crown is held to a standard of reasonableness, not perfection.”

Writing for the majority in Jacques-Taylor, Justice Suzanne Côté said the delays flowing from the Crown’s decision to conduct a joint prosecution may sometimes amount to discrete exceptional circumstances. 

“In the instant case, I am of the view that the delay caused by the unavailability of the co-accused’s counsel amounts to a discrete exceptional circumstance,” she said. 

“It should therefore be deducted from the net delay. This brings the total delay to under 18 months, rendering it presumptively reasonable.”

Côté outlined four criteria for determining a discrete exceptional circumstance: it is in the interests of justice to hold a joint proceeding; the Crown can demonstrate that the delay arises directly from the joint proceeding; the exceptional circumstance was either reasonably unforeseen or reasonably unavoidable; and the Crown can demonstrate that it could not have ameliorated the delay stemming from the decision to proceed jointly.

Tony Paisana, a partner with Peck and Company in Vancouver and the former president of the CBA’s criminal justice section, represented the Independent Criminal Defence Advocacy Society as an intervenor in Jacques-Taylor. 

He was also co-counsel for the accused in Jordan, and says the Court seems to have reversed some of the elements of its 2016 decision. While Jordan also involved a joint proceeding, and the delays relating to the co-accused were counted in the delay calculation, they weren’t counted in Jacques-Taylor. 

“While not explicit in today’s judgment, it does seem to break from the application of the Jordan framework, which is curious,” Paisana says.

However, the Court noted the broad case management powers available to judges, which can be applied “proactively and creatively” to avoid delay. The court, the Crown, and the defence should collaborate to prevent those delays.

In Vrbanic, Paisana says the Court is advocating an approach in which, instead of simply counting days over the threshold, the totality of the case is considered, particularly its complexity. 

“It is an attempt to shift away from the idea that if it’s one day over and it’s a little bit complex, isn’t that enough?” he says.

Paisana is concerned by the suggestion in Vrbanic that the Court may be willing to reconsider whether stays are always the appropriate remedy for unreasonable delays.

“Collectively, these two judgments and the prospect of losing the stay of proceedings might have an eroding effect on the incentives of Jordan that were meant to galvanize change,” he says.

“That risk of a stay has undoubtedly contributed to the re-staffing of courts across the country in the way that it has over the last three or four years. If you remove the sword of Damocles, you lose all of the incentivizing power of Jordan and 11(b) and reintroduce much more complacency back into the system.”

In the jurisprudence since Jordan, there have been several examples of flexibility or exceptions that were not originally contemplated. Paisana warns that this could soon lead to the kind of lax framework that necessitated the ceilings in the first place.

Frank Addario, the founder of Addario Law Group in Toronto, represented the Criminal Lawyers’ Association as intervenors in Vrbanic. He agrees that the added flexibility risks incentives to ensure speedy trials.

“The more you expand categories of tolerable circumstances, the more you water down the constitutional right.”

It is incumbent upon governments to have a justice system in place that works effectively. That obligation doesn’t fall on judges or defendants.

“The judge is already doing their job, but somehow everybody has been hoodwinked into thinking that if a case is stayed for an unreasonable delay, it’s the defendant’s fault or the judge’s fault,” Addario says. 

“It’s that the government is not meeting its obligation to provide a speedy trial.”

While some provincial attorneys general were calling for the Jordan framework to be overturned, he notes the Court did not entertain those arguments.

Caitlin Ohama-Darcus, a partner with Lawson Lundell LLP in Vancouver, represented the Battered Women’s Support Services Association as intervenors in the Vrbanic hearing. She says her client is giving voice to survivors of sexual violence who have been told that charges weren’t recommended or approved amid concerns the case would not meet the Jordan threshold.

“They wanted the Court to hear those specific concerns about applying the existing Jordan framework. It’s commendable in its rigidness, but at the same time, that very rigidness can sometimes lead to significant consequences for people who are not the accused,” she says.

The Association wanted the Court to have regard for the impact of a revised framework on victims and survivors of intimate partner violence.

“Section 11(b) is not just about the accused’s rights. There are broader concerns underlying the Charter provision,” Ohama-Darcus says.

Paisana disagrees with this assessment, noting that 11(b) is supposed to be about the accused’s right to a speedy trial. However, it’s morphed into a collective societal right.

While the majority held that the existing Jordan framework is workable, Ohama-Darcus took heart from Justice Malcolm Rowe’s concurring opinion in Vrbanic, where he referred to the BWSSA’s concerns and acknowledged the framework may not be working as well as intended.

“Even if that is not the majority reasons, it’s helpful to have (it) in writing, if only to give greater confidence to lower courts in exercising their assessment of complex cases,” she says.