Canada: Courts will have to be cognizant of the “Jordan Clock” in all future matters

Update: see previous post – July 7, 2017 Sections 11(b)a> & 24(1) of the Charter and the SCC Jordan decision = 204 Court Cases Thrown Out

The Supreme Court of Canada, located in Ottawa, Ontario. photo by fightyourtickets.ca

Canadian Charter of Rights and Freedoms

Section 11(b): Any person charged with an offence has the right “to be tried within a reasonable time”

In R. v. Jordan, 2016 SCC 27, [2016] 1 S.C.R. 631, this Court identified a culture of complacency towards delay in the criminal justice system. This culture was fostered by doctrinal and practical difficulties plaguing the analytical framework then applicable to the right of accused persons, guaranteed under s. 11 (b) of the Canadian Charter of Rights and Freedoms , to be tried within a reasonable time.

The Jordan decision handed down by the Supreme Court of Canada on July 8, 2016,  served as a wake-up call for all criminal courts in Canada and those who participate in it, in one way or another. It was not a unanimous decision by the Supreme Court justices, but 5 in favour and 4 against was sufficient enough to create new standards, consistent with an accused person’s right to a trial within a reasonable time within our criminal courts.

The Jordan decision, as it has come to be known, was issued on July 8, 2016, when the high court ruled the drug convictions in British Columbia of Barrett Richard Jordan must be set aside due to unreasonable delay.

In a 5-4 ruling, the court said the old means of determining whether proceedings had taken too long were inadequate. Under the new framework, unreasonable delay was to be presumed if proceedings topped 18 months in provincial court or 30 months in superior court.

Inside the Supreme Court of Canada’s courtroom. In July 2016 the Court handed down the Jordan decision which sets out the Jordan framework and sets a presumptive ceiling for hearings case in compliance with section 11(b) of the Charter to be:18 months Provincially and 30 months at Superior Court. photo by fightyourtickets.ca

This evolution should not have come as a surprise to any level of government.

The Charter of Rights and Freedoms came into being on April 17, 1982. It forms the first part of the Constitution Act, 1982. Canadians needed this Charter, given the limitations and weaknesses of the Canadian Bill of Rights enacted by Parliament on August 10, 1960. The Bill of Rights provided Canadians with quasi-constitutional rights, but the courts were reluctant to declare laws inoperative.

Canadians needed the Charter and that is what we received over thirty-five (35) years ago.

The Supreme Court of Canada grappled with sections 11(b); and 24(1) of the Charter with the question of unreasonable delay in 1990 (27 years ago) in Askov et al. This was the first time that governments and courts were put on notice about unreasonable delays and the consequences associated with ignoring the Charter and their decisions related to it. Two years later in 1992 (some 25 years ago), Askov was followed by the Morin decision. The Morin decision has stood as the seminal decision related to the courts responsibility to move matters to trial quickly, without unreasonable delay in compliance with the accused rights under section 11(b); of the Charter.

This issue was first dealt with by the Supreme Court in 1990 in Askov et al and again in 1992 in Morin.

Canada has had 150 years to mature and the Jordan decision demands that we demonstrate our level of maturity, thirty-four (34) years after the Charter was signed into law by Queen Elizabeth II of Canada.

The doorway into the interior of the Supreme Court courtroom. photo by fightyourtickets.ca

Canadians will have to adjust and adapt to the new Jordan framework.

The applicable presumptive ceiling set out in Jordan:

  • unreasonable delay was to be presumed if proceedings exceeded 18 months in provincial court, or
  • exceeded 30 months in superior court

This is what the Supreme Court said in a decision (R. v. Cody, 2017 SCC 31) released on June 16, 2017, some eleven (11) months after delivering the Jordan decision:

“After the total delay from the charge to the actual or anticipated end of trial is calculated under the Jordan framework, delay attributable to the defence must be subtracted. Defence delay is divided into two components: delay waived by the defence and delay caused by defence conduct. The only deductible defence delay under the latter component is that which is solely or directly caused by the accused person and flows from defence action that is illegitimate insomuch as it is not taken to respond to the charges. Illegitimacy in this context does not necessarily amount to professional or ethical misconduct, but instead takes its meaning from the culture change demanded in Jordan. The determination of whether defence conduct is legitimate is highly discretionary, and appellate courts must show a correspondingly high level of deference thereto. Defence conduct encompasses both substance and procedure — the decision to take a step, as well as the manner in which it is conducted, may attract scrutiny. To determine whether defence action is legitimately taken to respond to the charges, the circumstances surrounding the action or conduct may therefore be considered. The overall number, strength, importance, proximity to the Jordan ceilings, compliance with any notice or filing requirements and timeliness of defence applications may be relevant considerations. Irrespective of its merit, a defence action may be deemed not legitimate if it is designed to delay or if it exhibits marked inefficiency or marked indifference toward delay.

Beyond a retrospective accounting of delay, a proactive approach is required from all participants in the justice system to prevent and minimize delay. Trial judges should suggest ways to improve efficiency, use their case management powers and not hesitate to summarily dismiss applications and requests the moment it becomes apparent they are frivolous.

After defence delay has been deducted, the net delay must be compared to the applicable presumptive ceiling set out in Jordan. If the net delay exceeds the ceiling, then the delay is presumptively unreasonable. To rebut this presumption, the Crown must establish the presence of exceptional circumstances, which fall into two categories: discrete events and particularly complex cases. Discrete events, like defence delay, result in quantitative deductions of particular periods of time. However, case complexity requires a qualitative assessment and cannot be used to deduct specific periods of delay. Complexity is an exceptional circumstance only where the case as a whole is particularly complex. The delay caused by a single isolated step that has features of complexity should not be deducted under this category.”

The Supreme Court of Canada. The long term effects of the Jordan decision will depend on the actions or lack thereof, of the different levels of government. photo by fightyourtickets.ca
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