A lightning rod and a symbol of courage (from the archives)

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Corinne Sparks of Nova Scotia was Canada’s first black woman judge. She was also the object of a racial bias complaint that reached the Supreme Court and stunted her career.

To mark the International Day of Women Judges, we’re replaying this July 2025 interview about it with Constance Backhouse, a legal historian at the University of Ottawa. Her latest book is Reckoning with Racism: Police, Judges, and the RDS Case.

Verdicts & Voices is a legal current affairs podcast presented by the Canadian Bar Association. With her retinue of expert guests, host Alison Crawford keeps listeners up to date on news, views, and stories about the law and the justice system in Canada.

Views expressed are not necessarily those of the CBA.

Transcript

Hello, listeners. Welcome back to Verdicts & Voices. This weekly podcast focuses on legal news and views. It's brought to you by the Canadian Bar Association, and I'm your host, Alison Crawford.

This year marks the 10th anniversary of the Supreme Court of Canada's landmark decision in R. v. Jordan. The judgment was a blistering rebuke of delays and what was called a culture of complacency in the country's criminal courts. Ten years on, delays continue to plague Canada's criminal justice system. And when judges make the tough decision to stay charges because a case has taken too long to get to trial, Jordan gets the blame.

[news reports]

In 2016, the Supreme Court of Canada ruled that the accused must have their cases tried within 18 months for provincial court and 30 months for superior court. The time limit was meant to speed up proceedings, but some victims say it's actually working against them.

Baeleigh Maurice was hit and killed by a truck in September 2021. The accused was charged with impaired driving causing death, but those charges were stayed late last week after months of delays.

Ahmed Syed stood accused of the first-degree murder of two brothers and the attempted murder of a third. Now he's walking out of the Ottawa courthouse a free man. No trial, no verdict.

Joining me today to talk about the Jordan decision is a partner with Peck and Company Barristers in Vancouver, BC. Tony Paisana was co-counsel for Barrett Richard Jordan at the Supreme Court of Canada ten years ago. Welcome to Verdicts & Voices.

Tony Paisana

Thank you for having me.

Alison

It's really great to have you here. I think maybe the best thing for our listeners, perhaps, is for you to tell us a little bit about the original case of R. v. Jordan. How did this case end up at the Supreme Court?

Tony Paisana

It's kind of an interesting story because, frankly, the Jordan case became the Jordan case without us really anticipating that it would be such a sea change in the law. Jordan began as a case out of British Columbia and the jurisdiction of Surrey, which was a very busy courthouse in British Columbia at the time, in the mid 2010s. The case went to a delay application under the old framework, Morin framework, in 2010. And the case was dismissed. The stay of proceedings application was dismissed. It was appealed to the British Columbia Court of Appeal and then leave was sought to the Supreme Court of Canada and was granted.

At the time, the case was really about a kind of picayune difference about institutional delay or Crown delay, which were two old categories of delay that existed. And leave was granted to this case and another case called Williamson at the same time. And it was really in the course of exchanging factums in the hearing itself that it became apparent that the old system was one that many actors, including apparently the Court, or at least portions of the Court, wanted to really revolutionize. And that became apparent in the course of an exchange in the hearing itself.

And as the counsel were in the room, trying to contemplate the ramifications of such an interesting and revolutionary concept, it kind of unfolded in real time for everyone to see. And you can still see online how that unfolded with my co-counsel, now Justice Eric Gottardi, and Crown counsel at the time. So, you know, 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.

Alison

What I found interesting about rewatching the case – because I was there in the court at the time, but I'd forgotten – just that whole idea of institutional delay being… Your co-counsel made it very clear: Look here, it's the state that has the responsibility to try people. And so, you have to be able to rebuke the system as a whole. It's not just, say, a Crown fault or… Like, could you explain those different categories and what happened afterwards?

Tony Paisana

So, before, there were all these subcategories of both deductions and characterizations of delay that included things like inherent time requirements, Crown delay, institutional delay, defence delay, exceptional delay. There were all sorts of different things that existed. And indeed, the court in Jordan remarked about how the former system had created so many deductions and categories that it allowed for “endless flexibility.”

And so, that was part of what the appeal was about, was is there 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, for example? And why that became relevant was again part of the old arcane system, because there was this question of prejudice that also had to be addressed. And 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 or what have you. And we were making the argument that that's a distinction without a difference when it comes to prejudice to the accused.

Alison

Yeah, no one's feet were held to the fire, so to speak.

Tony Paisana

Yeah. And so, it was illustrative of a problem that existed in the old system, this sort of doctrine of prejudice, which was fraught with difficulties, and which the majority in Jordan ultimately dispensed with entirely because again, it allowed for this kind of endless flexibility that they talked about.

Alison

So, what was your reaction at the end of the hearing, after hearing everything and hearing how the judges, the justices of the court had interacted with all of the different players?

Tony Paisana

Well, as a young lawyer at the time – it was my first time at the Supreme Court of Canada. Whether that's now today ominous or auspicious, I'm not sure. But, you know, it was an exciting time to be a lawyer and dealing with a section of the Charter that seemingly the court was entertaining a revolutionary change about. And so, it was exciting in that sense, but frankly, we did not really believe in the moment that this was a case that was going to suddenly change and revolutionize the criminal justice system, let alone just the test for 11(b). And so, we were left thinking we had a good hearing, it was an interesting exchange, but ultimately, we would be, in the end, likely tinkering with the existing framework.

Alison

Right. So, seven months later, I believe, it came out. What was your reaction when you read the decision for the first time?

Tony Paisana

You know, Eric and I exchanged a bit of shock. In terms of, you know, when you read the headnote and all of a sudden you see Morin overturned… You know, 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. And as we read through the judgment, two things I took away from it right away were, one, that we had been successful for our client, because of course that was why we were there to begin with. And it was nice to see that.

But two, it became immediately apparent that this would change how criminal law would operate. 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. And so, we kind of waited with bated breath to see how that would unfold in the months to come, and indeed it did so.

Alison

What were the first changes you noticed?

Tony Paisana

There was both good and bad. I think the first change on the bad side of the ledger that we noticed, particularly out here in BC, because it wasn't the practice until that case, was there was a lot more, kind of, papering of the record, if I could put it that way. So, people, in essence, standing up in court and making various pronouncements and statements to protect the record, in the event that a Jordan application would arise in the future. And so that has persisted in the ten years since. And that was a pretty fundamental change in how the day-to-day operations of court practice work for lawyers.

And it was somewhat unfortunate, because the decision itself made a point of saying that we should not be making needless inquiries into counsels’ calendars and other sorts of grandstanding activities. But unfortunately, one of the byproducts of Jordan has been a bit of this, sort of, posturing on the record has proliferated more than it used to.

On the good side of the ledger, it was apparent that people were talking about Jordan immediately, and its message. This idea that the court was calling out the entire system for a culture of complacency, was immediately responded to. There was suddenly a raft of court directives and practice directions and all sorts of institutional changes that I think, overall, over the time span since Jordan, have improved the access to justice question, particularly when comes to things like technology in the courtroom and case planning and things like that.

Alison

Yeah, those don't sound that revolutionary, and most of them happen only because COVID forced them to, right?

Tony Paisana

That is… It's an interesting debate. Like, what caused some of these updates to the system? Was it COVID? Was it Jordan? Was it a mixture of the two? You know, I don't think we'll ever know. The bill kind of straddled those two worlds. Most of the bills that dealt with those issues. All I can say is that they're welcome changes. You know, it was not unusual in years past to be driving around all over the lower mainland from where I'm from, and I'm sure the experience was the same in other jurisdictions, to do five-minute appearances here and there and everywhere for hours.

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

Alison

Yeah. Now, I know you don't practice civil law, but given the circles you run in, what has the effect been on your friends who practice civil law?

Tony Paisana

Well, just as much as I'm hated in the criminal law, I'm also equally hated in the civil law for what I've done. Of course, I'm being a bit facetious, but civil law practitioners often talk to me about the frustrations they experience in trying to get a matter on. Recently, I did a talk for the Advocates Society where we were talking about this very concept. And I think what they're frustrated about, and not unreasonably so, is that there seems to be a lack of an ability to balance the two systems. So, like, really, is it the case that a theft under $5,000 should be prioritized over a $100 million lawsuit? You know, they make those sorts of observations, which are fair enough. You know, one carries a constitutional right and the right to protect against the deprivation of liberty, and the other does not. But in reality and in practical terms, one may be much more important than the other when it comes to value and the effect on the individual litigants. But our system currently obviously makes a priority for the criminal system and they're frustrated with that.

Alison

Yeah. What has not gotten better since Jordan?

Tony Paisana

In my view, there are some practical considerations that really drive factors of delay that I think either have been obscured by the debate or have been taken over by other debates that rage on with the criminal law.

So, to give you a couple of examples: I think the question of preliminary inquiries is an important touchstone for this kind of discussion. That was a subject of great debate when it was severely curtailed by Bill C-75. 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 of charges or for plea resolution, and it had a net positive effect for delay. And a different struggle existed in terms of why we should have preliminary inquiries, including for victim rights activists and others that believe that the preliminary inquiry did not serve the ends of justice, and therefore it was mostly eliminated. And so, 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.

Other things include disclosure management. As technology and disclosure become more and more of a challenge for the system to cope with, I think we are struggling with keeping up with those demands, either within the police service or the Crown service. And there is a lot of room to use technology, I think, still, to streamline that process, which continues to cause a great deal of delay.

Alison

Yeah. I mean, I have a friend who's a Crown prosecutor, and just the amount of tape, you know, that she has to go through, from body cameras and whatnot, it's a huge burden for someone who also doesn't have a lot of administrative support.

So, just to ask you this, how many 11(b) applications have you made since Jordan?

Tony Paisana

I think my personal experience is a little skewed because I was counsel in Jordan, and so I think these things, sort of, the universe tends to bring them back to me. So, I personally have been involved in about 20 since Jordan, and I think that's an extraordinary number for a defense lawyer.

Alison

Yeah.

Tony Paisana

And so, I think it is in large part because I've become kind of known as the Jordan person, now that Eric has gone to the bench. And so, I see a disproportionate number of these.

In my practice, I don't think there has been a disproportionate number of Jordan applications. They seem to be about the same number anecdotally, I would say, than pre-Jordan. And the statistics seem to bear that out as well. There are fluctuations, of course, and I think post-COVID we're seeing a greater fluctuation because of the backlog of cases. But generally speaking, I probably see more than most people do.

Alison

Yeah, OK. That's a good note to have. Now, Jordan did become an issue during last year's federal election that we had in Canada. And the Bloc Québécois promised to use the notwithstanding clause to override the timelines that Jordan had imposed. More recently, Justice Minister Sean Fraser introduced Bill C-16, which would, as he put it, would restrict judges from issuing stays, and that they would have to seek alternative remedies. But the thing is that, at the time of that hearing at the Supreme Court in 2015, no one really had any bright ideas for other alternatives to stays. And I'd like to play a clip from Croft Michaelson, who was counsel for the Crown. And here he is interacting with Supreme Court Justices Brown and Cromwell.

Michaelson: The societal interest still compels a trial. And so, perhaps, having regard to the prejudice that was suffered by the individual, maybe that gets taken into account on sentencing.

Brown: In sentencing? That’s one of the options?

Michaelson: I think that that would be the only option. There's no other remedy that's possible. We're not going to be excluding evidence or anything like that. The only remedy is to address it on sentencing. And it would result in some form of mitigation of sentence.

Cromwell: So, we remedy an unreasonable delay with an unreasonable sentence.

Michaelson: And that's a very good comment, Justice Cromwell, and that may well be the reason why the remedy gets confined to the stay of proceeding.

So, I have to ask you, you know, I haven't heard any amazing ideas since then, as well, and the bill doesn't point to any. So, what do you think would happen if Parliament passes C-16 without amendment to that particular idea?

Tony Paisana

Ironically, I think this is entirely counterproductive. So, if you talk to anyone with any real experience in the criminal justice system, they'll tell you that what really drives efficiency, and/or efforts to make the system better in terms of efficiency, is the fear of the state of proceedings. It's the Sword of Damocles that is hanging over everyone. And if you take away the teeth from that remedy, you really are encouraging more complacency.

And you really have to ask yourself: When it comes to moving heaven and earth to have a trial heard within a reasonable time, and/or actually making fundamental changes to the system, whether a sentence reduction or a cost award or other sorts of suggestions that have been floated would really drive and motivate the actors in the criminal justice system. And obviously, by the way, I'm putting that question – I think it's no, and it's a strong no.

And you will have seen a colloquy probably between Justice Brown and an attorney from the Ontario government in a subsequent hearing where this kind of blew up in a very real way, in terms of that concept, that motivating concept that's behind the stay of proceedings.

And I say that this bill is ill-advised as a result of that. It reintroduces several concepts, including prejudice and other things, that I think counter-productively will actually reintroduce complacency into the system, as opposed to addressing the concerns that animate 11(b).

Alison

Yeah. The public, generally, when they hear about a case that's been delayed and they hear about Jordan, they tend to sometimes blame the Supreme Court for putting in these timelines. How would you explain it to someone in terms of how these delays affect everyone, not just victims or alleged victims of crimes?

Tony Paisana

Well, I think the best way to explain it is to read the first couple of paragraphs of Jordan that really talk about this. You know, 11(b), unlike many charter rights, has been interpreted over the years as being reflective of society's values in a number of ways. Firstly, in values about protecting the accused, and I'll explain that in a minute. Secondly, protecting victims of crime. And thirdly, promoting confidence in the administration of justice by the public. And all three of those things have to be balanced and considered when crafting the appropriate remedy and the thresholds for achieving a stay of proceedings.

And what I mean by that is this: When an accused person sits, presumed to be innocent, waiting for months and months and months and sometimes years, either in pretrial custody or subject to strict conditions, they really lose a lot in their lives. They are completely ostracized, they are often isolated from everyone in the community, and the stigma of the criminal prosecution, let alone the restrictions on their liberty, mount and compound over that period of time.

Meanwhile, you have a victim of crime, or a potential victim of crime, who is suffering and labouring under the uncertainty of what will happen. As months turn into years, they start to wonder whether or not they're going to be believed or, you know, is the system working for me or not? And while that's all happening, the public is watching. They're wondering to themselves, is this person who's out on bail, should they still be out on bail? Is this person who came forward, are they really telling the truth or not?

And all of a sudden, this entire system becomes a conflict between these three actors who should be actually working together towards the same goal, which is a timely trial. And that's what the judgment was really aimed at trying to rectify on a more global, macro level, which can sometimes be obscured when you're focusing on an individual case, where someone tragically either has waited a long time or doesn't have their day in court because of individual actors who fail to live up to the expectations of Jordan.

Alison

Yeah. Even witnesses, right? Their memories might become more unreliable over time.

Tony Paisana

Yeah.

Alison

Well, look, it has been a real pleasure to have you reminisce with us for a bit, and to explain your thinking on Jordan, then and today. And I really want to thank you for taking the time to speak with us today on this topic.

Tony Paisana

Absolutely. My pleasure.

Alison

Tony Paisana is a partner at Peck and Company Barristers in Vancouver. He's also the editor of CanLII's criminal law e-book, and he teaches a course at the University of British Columbia on preventing wrongful convictions.

I hope you've enjoyed today's edition of Verdicts & Voices. This legal affairs podcast is produced by the Canadian Bar Association, and I am very happy to be your host, Alison Crawford. Enjoy the rest of your week.