Ten years post-Jordan

It’s no secret that Canada’s courts have a problem with delays. 

When judges have to make the tough call to stay charges and let an accused walk free because a case has taken too long to get to trial, it can become a headline-grabbing event and a political lightning rod. 

Those looking to cast blame often point the finger at R v. Jordan.

The landmark Supreme Court of Canada decision, which marks its 10th anniversary this year, served up a scathing rebuke of delays and a culture of complacency in the country's criminal courts. 

“The Jordan case became the Jordan case without us really anticipating that it would be such a sea change in the law,” Tony Paisana, a partner with Peck and Company Barristers in Vancouver and co-counsel for the accused in the matter, tells host Alison Crawford on the latest episode of Verdicts & Voices.

Barrett Richard Jordan was arrested in December 2008, charged with various possession and trafficking offences, and released on bail in February 2009. After numerous delays, his trial finally got underway in September 2012. That’s when Jordan applied for a stay of proceedings, arguing his Charter right to be tried within a reasonable time had been violated. 

The application was dismissed, the trial was adjourned, and eventually concluded in February 2013 with Jordan convicted on five drug-related offences. The total time from his charges to the end of the trial was 49.5 months. The trial judge found that 32.5 months of that was due to institutional delay.

The case went to the BC Court of Appeal, where it was dismissed, and eventually to the Supreme Court of Canada, which set aside Jordan’s convictions and granted a stay of proceedings. 

“At the time, the case was really about a kind of picky indifference about institutional delay or Crown delay, which were two old categories of delay that existed,” Paisana says.

“It evolved slowly from a kind of run-of-the-mill delay application all the way to a completely revolutionary case with counsel along for the ride for the most part.”

Under the old framework established in R v. Morin, deductions and characterizations of delay included things like inherent time requirements, as well as Crown, institutional, defence, and exceptional delay. 

The court in Jordan remarked how the former system had created so many deductions and categories that it allowed for “endless flexibility.” Paisana says that’s part of what the appeal was about — whether there’s a difference when it comes to delay caused by Crown lawyers as opposed to delays caused by the institution or the system in giving you dates.

“What the trial judge had seemed to have done in the original Jordan trial decision was accord institutional delay less prejudicial effect because it was institutional in nature as opposed to the product of a Crown decision,” he says.

“We were making the argument that that's a distinction without a difference when it comes to prejudice to the accused.”

Paisana and his co-counsel figured that the outcome of the case would see the existing framework tinkered with. Instead, Morin was completely overturned. 

“That's a pretty stunning moment for any lawyer to see that a piece of jurisprudence that's existed in the law for 30-odd years is suddenly gone,” he says. 

The decision rejected the Morin framework for determining whether an accused person was tried within a reasonable time and replaced it with a presumptive ceiling of 18 months for cases tried in a provincial court and 30 months for cases in a superior court. 

Paisana says that while they were successful for their client, it became immediately apparent that the decision would change how criminal law operates. 

“Even then, I was not aware or could not have been aware of the scope of that change. But it was apparent that a big change was coming, and the Court was trying to make a dramatic statement.” 

Outcomes in the years since Jordan have been mixed. One downside has been what Paisana refers to as more posturing on the record, with people standing up in court to make pronouncements and statements to protect the record should a Jordan application arise in the future. 

“That has persisted in the 10 years since, and that was a pretty fundamental change in how the day-to-day operations of court practice work for lawyers,” he says.

As well, some practical considerations that really drive delays have been obscured or overshadowed by other debates that rage on.

“Some in the criminal justice system, me included, believe that preliminary inquiries were actually a great tool of efficiency. They allowed counsel to really test cases to weed out the weak and the strong cases, either for dropping charges or for plea resolution, and it had a net positive effect on delay.”

Paisana says there was debate about why preliminary inquiries should be held and whether they served the ends of justice, and ultimately, they were mostly eliminated.

“I think that's an example of an unintended consequence in another area of the criminal law that's still having an ongoing effect on delay.”

However, the upside was that the Court had called out the entire system for its culture of complacency, which immediately got people talking about Jordan. There was suddenly a raft of court directives and practice directions, along with institutional changes. Overall, in the years since the decision, he thinks access to justice has improved, particularly in terms of courtroom technology and case planning.

As a young lawyer, he says he often spent hours driving around his region to appear in various courts for only a few minutes.

“When you're dealing with clients, individual and private money, that wasn't the most efficient way to use those resources. I think overall, those changes have created a net positive when it comes to access to justice.” 

Tune in to the full episode to hear why Paisana jokes that he’s “just as hated” in civil law circles as he is in criminal law for his role in Jordan, and why he says the controversial Bill C-16 would actually reintroduce complacency into the system by restricting judges from issuing stays.