How Bill C-16 could undermine the Jordan decision

This year marks the 10th anniversary of Jordan, the Supreme Court of Canada decision aimed at shocking lower courts and governments into finding ways to ensure timely justice.

The decision set out a framework with strict, presumptive limits on the lengths of criminal trials — a maximum of 18 months for provincial court cases and 30 months for superior court cases — aimed at reducing court backlogs and eliminating a "culture of complacency” in the justice system. When these limits are exceeded, criminal cases should be stayed for violating the right to be tried in a reasonable time, as set out in section 11(b) of the Charter.

As part of the federal government’s sprawling reforms to the Criminal Code set out in Bill C-16, there are directives to courts to find alternatives to stays if certain trials pass the thresholds set by the Supreme Court. Lawyers and advocates worry that this undermines the very intent of Jordan. 

The problem is that in the decade since Jordan, provinces have not made any concerted efforts to properly resource courts. In some cases, the delays are worse than ever. Lawyers have complained that, due to under-resourcing, courts have prioritized criminal cases to ensure they don’t cross the Jordan thresholds, leaving civil matters to languish for years.

Alternatives may exacerbate delays

“This [bill] seems antithetical to the spirit of the Jordan decision,” says Melanie Webb, a criminal lawyer and chair of the CBA’s criminal justice section. 

“We’ve had an increasing problem with delays over many, many years, particularly in certain regions of the country that have a particular challenge with this. That problem with delay has been fostered by what the Supreme Court has called a culture of complacency.” 

She practices in Toronto and says things are getting worse there. That’s why introducing an alternative remedy to a stay for unreasonable delay is concerning, as it may exacerbate the problem. 

Webb says Jordan was supposed to be a jolt to the system, forcing all players to do whatever they could to make things more efficient.

“For a justice system to function properly, it must be properly funded at all levels,” she says, noting this includes timely judicial appointments, sufficient Crown staffing, and dealing with the overwhelming volume of digital disclosure, which adds to delays.

The Canadian Civil Liberties Association says the Jordan provisions in C-16 overturn nearly 40 years of Supreme Court of Canada precedence that a stay of proceedings is the remedy for unconstitutional trial delay, removing the strongest constraint requiring the justice system to run on time.

“The federal government’s proposal to gut the s. 11(b) Charter right to be tried in a reasonable time is unconstitutional and punts the hard work of resolving delay,” Shakir Rahim, director of the CCLA’s criminal justice program, said in a statement.

“Governments have been on notice of the Jordan decision for a decade. Yet they have failed to ensure the justice system is properly funded and run to ensure timely trials. The solution to that is not to water down our Charter rights, but for governments to step up and do their job."

He said that C-16 would keep accused, complainants and communities in “legal limbo” for even longer. 

“The government is trying to legalize proceedings routinely running over two and a half years in length. Even a person who will be ultimately acquitted of their charges could spend years of their life behind bars with no end in sight.” 

Webb points to pre-Jordan decisions, including Morin and Askov, and recalls getting stays of proceedings based on that jurisprudence. She says Jordan got a lot of publicity because of the hard-and-fast deadlines the Court set. 

Unclear options

Cassandra Richards, an associate with Bayne Sellar Ertel Macrae in Ottawa, and the co-chair of the Criminal Lawyers’ Association’s legislation committee, says she is still unclear about what alternatives there are to a stay.

“A judge can’t force restorative justice, so I’m not sure what other than a sentence deduction would be available to a judge,” she says. 

“When a lot of these Jordan applications are being heard, it’s when the person is still presumed innocent, not after conviction.”

Richards says when it comes to court delays, the government has added so many considerations for judges that it throws the door open and ignores the Jordan test.

In reality, only a very small proportion of cases are stayed, and an even smaller portion are sexual assault cases that Bill C-16 prioritizes. Richards says that while some accused may hope to benefit from a stay under Jordan timelines, most just want their matters dealt with so they can move on with their lives.

“This idea that people are just hoping to benefit from this delay principle is not the reality for the majority of people.”

Webb worries that the bill’s proposal to find alternatives to stays could make hearings even longer and ultimately lead to more appeals, arguing that the alternative remedy should have been a stay of proceedings.

Safety valves = shorter terms

Bill C-16 also proposes restoring mandatory minimum sentences for several offences, particularly those related to child protection, with “safety valves” to ensure they are found constitutional. That comes in the wake of a Supreme Court decision last fall, which struck down mandatory minimum sentences for child pornography.

Webb says one concern with what’s proposed is that the legislation mandates a term of imprisonment, while the “safety valve” is merely a shorter term.

“That would completely remove the possibility of a conditional sentence, because one of the preconditions is that there cannot be a mandatory minimum sentence,” she says, adding it would also preclude any other kind of sentence, like a suspended sentence or a discharge. 

She says that's ironic given that the majority of the Supreme Court in Senneville found that in some limited or rare circumstances, a conditional discharge may be appropriate.

While the CBA has not reached a final position on this legislation, Webb says it has largely opposed mandatory minimum sentences, as they’re not conducive to plea bargains and can be coercive by forcing deals for pleas that may not be appropriate. In addition to removing judicial discretion, they also disproportionately affect Indigenous and racialized offenders.

Richards says mandatory minimums reduce the ability to ensure a sentence fits the crime and the person. Ultimately, the push to restore them is premised on the idea that longer jail sentences make society safer.

“They don’t make our society safer, because unless you’re convicted of murder or other very serious offences, you will come back to the community,” she says. 

“The position of the CLA is that jail generally doesn’t make society safer. It’s a temporary, band-aid solution that can remove people temporarily, but these people will come into society, and they won’t necessarily be rehabilitated in jail.”

Ultimately, many observers say the proposed new mandatory minimums will likely lead to a raft of litigation challenging them.

“This is another issue that will just add delay,” Richards says. 

“It will make things more complex and wear people down. We don’t think about the human cost of this. Lawyers and judges are human, and we have a finite amount of emotional and intellectual energy.”

Including animals

For others, there are bright spots in Bill C-16 that improve gaps in existing legislation.

Kerri Thomson, the manager of justice and legislative affairs at Humane Canada, is particularly pleased the bill will finally criminalize sexual exploitation and abuse images of animals, which will also help with child protection.

She points to a case law study by the Canadian Centre for Child Protection, which found several situations where bestiality and child sexual abuse were happening at the same time, and often bestiality was occurring more frequently.

“Eighty-two per cent of bestiality cases in Canada have involved the sexual abuse of a child, and that was as of 2018.”

Thomson says that the internet has made the problem exponentially worse. It was covert before, but now people have entire chat rooms and threads on certain websites. While a lot is on the dark web, not all of it is. 

In addition to sexual abuse, images of animal torture are becoming more prevalent, particularly with nihilistic violent extremist groups who seek to radicalize children into violence.

“Sexual abuse images and videos are used by groomers to desensitize children to sexual contact, and try to normalize it,” Thomson says. 

“That’s why it’s dangerous. Animals can’t report being sexually abused, and like very young children, they make ideal victims for predators. Most of the abuse of an animal occurs in the home where no one else is witnessing it, by someone who is supposed to be caring for them.”

While Thomson says they can work with the bill as it stands, she thinks some of its language could be amended. She would have preferred to see it worded more along the lines of the child sexual abuse materials offence in the Criminal Code, where it criminalizes the possession, which it currently does not do for animal abuse images.

“(The bill) does criminalize quite a bit, and theoretically it’s supposed to be covered under the illicit materials definition. I would have preferred it to be more explicit because we’ve found that unless animals are explicitly included in the language of the law, they will get ignored.”

While the definition of illicit materials in the bill is a good start, she says many people who collect child sexual abuse materials have bestiality in their collections as well, so she believes possession should be included as an offence.