Charter Rights · Defense

Jordan: Is It Really About Defendant’s Rights?

Speedy-Trial-ClockIn July 2016, the Supreme Court revisited the accused’s right to a speedy trial, protected by section 11(b) of the Canadian Charter of Rights and Freedoms and framed Jordan as a landmark decision for accused persons’ rights. But the policy implications of this decision may, in fact, negatively affect the rights of the accused.

In Jordan, the Supreme Court created a presumptive ceiling beyond which an accused’s trial is unreasonably delayed and the accused’s section 11(b) Charter rights are violated. Now, criminal trials exceeding 18 months in provincial court or 30 months in superior court presumptively violate the accused’s right to a speedy trial.[1] Courts calculate the length of the accused’s trial from the date the accused is charged to the end of the trial and exclude any delay attributable to defence.[2] When trials exceed these limits, the Crown must prove that the delay was reasonable or the Court will stay the accused’s proceedings.[3]

Why did the Supreme Court overturn 25 years of speedy trial jurisprudence? Justice Moldaver explained that the old Morin framework required a contextual approach that, in practice, was unpredictable and ultimately contributed to the very delays section 11(b) was supposed to prevent.[4]

But Jordan gives the Crown more time to prosecute straight-forward criminal offences. As Chief Justice McLachlin (dissenting in Jordan) explained, most trials don’t come close to the new presumptive ceiling.[5] In fact, the 18-month ceiling for provincial court cases is 8 to 10 months longer than courts accepted under Morin.[6] So if the accused is not pushing the case forward, the Crown has no incentive to advance the case. Defence counsel complacency in the Jordan framework will, therefore, undercut the accused’s section 11(b) rights: a court will only stay an accused’s proceedings below the Jordan ceiling if the case took markedly longer than it should have and the defence tried to expedite proceedings.[7]

And so the Jordan framework primarily benefits accused persons charged with complex offenses—i.e., white-collar crime and corruption. The presumptive ceiling means courts no longer require these accused persons to prove the delay caused them prejudice.[8] In effect, Jordan’s inherent preference to white-collar crime worsens racial and social-economic divisions since white-collar criminals are overwhelmingly white.[9] Jordan, therefore, unintentionally prefers white accused persons’ section 11(b) rights over those of visible minority or Indigenous offenders, even though most Canadian defendants are not white.[10]

The Jordan framework will further direct Crown resources to more complex cases—to bring these cases to trial within the 18 or 30-month time limit—and leave less Crown resources for the straight-forward criminal matters.[11] This seems backwards. Pragmatically, the Crown should move straight-forward criminal charges through the system quickly. Why hold up easily resolvable cases when the justice system is stretched to its breaking point?[12] By prioritizing complex cases to follow Jordan, the Crown will, in effect, unnecessarily drag out clean-cut criminal matters.

So some trials take longer—what’s the big deal? First, accused persons are not financially compensated for lengthy pre-trial detention that may cause the accused to lose their job/housing, damage their personal relationships, and incur added legal costs. Then, if the judge finds the accused is not guilty, they will have endured months of stigmatization and lack the resources necessary to rebuild their lives.[13]

And worse, lengthy pre-trial detentions can lead to wrongful convictions. 65% of people detained at the Ottawa-Carleton Detention Center—where eight by ten-foot cells designed for one person are holding three; broken showers prevent inmates from bathing for weeks at a time; and inmates are indefinitely segregated—have not been convicted of a criminal offence.[14] These degrading conditions may incentivize guilty pleas in exchange for time-served, even when they accused is innocent.

Jordan also prompts prosecutors and judges to actively push cases forward, even when the defence does not have all the information necessary to make their case.[15] The new stringent deadline forces the Crown to insist that the defence waives section 11(b) rights and viciously protect the record, even during routine adjournments, to stall the Jordan clock. So while Jordan’s aim is to safeguard the accused’s right to a speedy trial, in effect, it limits the right to answer and defend against their criminal charges, a right protected by section 7 of the Charter.

And, in the wake of Jordan, the government is looking for ways to get cases to trial quicker. For example, Ontario’s Attorney General, Yasir Naqvi, recently asked federal Minister of Justice Jody Wilson-Raybould to scrap preliminary hearings in criminal cases altogether.[16]

But preliminary hearings can play a vital role in the criminal trial and allow the defence to test the Crown’s case—for example, during a preliminary hearing, the defence may learn that police acted improperly or that a key witness is either unreliable or not credible.[17] Removing the preliminary inquiry could, therefore, limit the accused’s right to answer and defend against their criminal charges.

Preliminary hearings are not available to the defence in every case. Only when the accused is charged with a serious crime can the defence elect to have a preliminary hearing. And in fact, the defence only exercises its right to a preliminary hearing in 3% of criminal cases.[18] But, it’s the principle that’s important. When faced with serious criminal charges, the defence can choose to have a preliminary hearing if beneficial for their case. Policy decisions in the wake of Jordan, however, risk depriving the accused of this opportunity.

I have no doubt that the Supreme Court had the best intentions with the Jordan framework. The accused’s right to a speedy trial is constitutionally protected and is an integral part of our justice system. But the unintended consequences of this decision are jarring—dragging out otherwise straight-forward criminal offences, impairing the accused’s right to answer and defend against their criminal charges, worsening racial/socio-economic disparity in the criminal justice system, and perhaps even depriving the accused of a preliminary hearing.

Can post-Jordan responses mitigate this harm? Only 8 months post-Jordan, it’s too soon to tell how Jordan will change criminal prosecutions in the long term; cases being tried in the provincial and superior courts won’t hit the Jordan ceiling for another 10 and 22 months respectively. But it’s important to remember that the policy decisions made now will shape the future landscape of the accused’s criminal rights.

[1] R v Jordan, 2016 SCC 27 at para 48, [2016] 1 SCR 631 [Jordan].

[2] Michelle Cook, “Overthrowing Precedent: R v Jordan’s Impact on the Crown and the Right to a Trial Within A Reasonable Time”, theCourt.ca (23 September 2016) [Cook].

[3] Jordan, supra note 1 at paras 68-81.

[4] Jordan, supra note 1 at paras 31-45.

[5] Jordan, supra note (dissent).

[6] Alyshah Hasham, “Courts Scramble Under New Rules on Trial Delays”, Toronto Star (16 October 2016) [Hasham]; “Speed Trial 2016”, Addario Law Group (17 March 2017).

[7] Cook, supra note 2; Peter Brady, Michael Rosenberg, & Trevor Courtis, “R v Jordan—The Supreme Court of Canada Dramatically Alters the Framework Applicable to the Right to Criminal Trial Within A Reasonable Time”, Canadian Appeals Monitor (15 July 2016) [Brady, Rosenberg & Courtis].

[8] Brady, Rosenberg & Courtis supra note 7.

[9] See Staton Wheeler, “White Collar Crimes and Criminals” (1987-88) 25 Am Crim L Rev 331; DO Freidrichs, “White Collar Crime and the Class-Race Gender Construct” in Race, Gender, and Class in Criminology: The Intersection, Martin Schwartz and Dragan Milovanoch, eds (New York: Garland Publishing,1996)

[10] Brady, Rosenberg & Courtis supra note 7.

[11] Ibid.

[12] See Sean Fine, “Alberta Prosecutors at ‘Breaking Point’ as Abandoned Cases Pile Up”, in Globe and Mail (2 March 2017); “Growing Demands on Courthouses Will Reach Breaking Point”, Advocate Daily (2014).

[13] Honourable Bob Runciman & Honourable George Baker, “An Urgent Need to Address Length Court Delays in Canada” Report of the Standing Committee on Legal and Constitutional Affairs (August 2016) at 5.

[14] See Chloe Fedio, “Former OCDC Inmates Launching Lawsuit over ‘Degrading Treatment,’ Lawyer Says” CBC News (26 May 2016); Ashley Burke, “A Look Inside the Ottawa-Carleton Detention Centre”, CBC News (28 October 2016).

[15] Hasham, supra note 6.

[16] Jaques Gallant, “Ontario’s Attorney General Calls on Federal Counterpart to Speed up Justice System”, Toronto Star (21 February 2017).

[17] Daniel Brown, “Making the Case for Preliminary Hearings: Opinion”, Toronto Star (24 February 2017).

[18] Ibid.

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