The courts in Ontario, particularly in major centres, are having difficulty meeting the time requirements laid down in the Supreme Court of Canada’s Jordan decision because they lack vital resources, says Toronto litigator Richard Shekter.
“It’s clear that the lower courts are struggling with Jordan, and there are judges who believe that the ruling was a bit too precipitous,” says Shekter, a partner with Shekter Dychtenberg LLP who practises both criminal and civil law.
“On the other hand, it forces the government to start doing its job in the justice system — and by doing its job, I mean creating additional court space, appointing additional judges, and appointing additional Crown attorneys — so that the history of delay that went back to another landmark case in 1990 doesn’t end up crippling the system and resulting in people who can’t get their cases tried,” he tells AdvocateDaily.com.
The application of the 1990 ruling, which was handed down by the Supreme Court to address unreasonable delay in the criminal justice system, “gave rise to variations across the country. We really can’t have that,” Shekter says.
He says Jordan, which was issued in July 2016, “sends a message to the government. Basically, it’s put-up or shut-up time. And so far, I’m not seeing, in the Toronto region, any significant government implementation to deal with what Jordanperceived, the 1990 case concluded, and I believe to be a crisis in the administration of criminal justice.”
The Supreme Court set limits on the amount of time it takes for a case to get to trial before an accused’s right to trial within a reasonable time is violated under s. 11(b) of the Charter. The court set a presumptive limit of 18 months at the provincial level and 30 months for the Superior Court, or for cases tried at the provincial level after a preliminary inquiry.
Since the ruling, some criminal cases have been stayed at trial because it was found the time taken to get to trial went beyond the limits prescribed by Jordan — only to be overturned on appeal and sent back for trial when an appellate court determined the delay had not been calculated properly. In one such case, the accused is seeking leave to appeal the decision to the Supreme Court of Canada while plans are underway for a new trial this year, CBC reports.
“What you’re seeing is a refinement of the principles in Jordan and the articulation of different criteria,” Shekter says.
“Jordan is a blunt instrument that provides a certain degree of discretion in cases where there are exceptional circumstances. And it’s important to realize that the 'hard caps' are those for which the Crown is responsible. So, if the defence counsel decides that its best shot is to drag his feet as much as possible so the case will go over the 18 months, that’s not going to cut it under Jordan.”
Judges and lawyers will have different views on whether a case is complex — which allows the Crown to rely on exceptional circumstances in calculating delay — and that can lead to stays, successful appeals and retrials, he says.
“If a number of Courts of Appeal come down in using different formulas to determine what a complex case is, in the meaning of Jordan, that could end up in the Supreme Court of Canada to clarify.”
The facts of the case can also play into a judge’s decision on whether delay is unreasonable, Shekter says.
“It’s hard to divorce the facts of a case from the legal principles applicable to it. So if it’s a really heinous case, you’re going to have a more receptive audience when you’re trying to persuade a judge that the nature of the case is such that the delay ought not to result in a stay.”
Criminal cases aren’t the only ones affected by Jordan, he says, noting that because of a continued lack of resources and a desire to abide by the Supreme Court’s time limits, “civil cases are getting bumped and postponed,” leading to delays of two or three years.
“What it means is there’s tremendous uncertainty in the entire system, not just the criminal justice system. To meet Jordan, they’re going to put all the criminal cases up at the front of the list and everybody else be damned,” Shekter says.
“If you try to stuff a pillow into a cardboard box and the box isn’t big enough, ultimately the box is going to split to allow the pressure to be released.”
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