Unreasonable Delays in Criminal Trials: the Impact of the Jordan Decision

(Disponible en français : Délais déraisonnables lors des procès criminels : les suites de l’arrêt Jordan)

For a summary of the Jordan decision, see Maxime Charron-Tousignant, Unreasonable Delays in Criminal Trials: New Legal Framework, HillNotes, 17 August 2016.

The Supreme Court of Canada’s landmark decision on 8 July 2016 in R. v. Jordanhas rocked” the Canadian justice system. Its key message: encourage all participants in the criminal justice system to “cooperate in achieving reasonably prompt justice” (R. v. Jordan, para. 5).

In its 5-4 ruling in Jordan, the Supreme Court established a new analytical framework to determine whether the right of the accused to be tried within a reasonable time, pursuant to section 11(b) of the Canadian Charter of Rights and Freedoms, has been infringed.

The Supreme Court set ceilings beyond which delays are presumed to be unreasonable (from the charge to the actual or anticipated end of trial): the ceiling is 18 months for cases tried in a provincial court and 30 months for cases in a superior court (or cases tried in a provincial court after a preliminary inquiry). In addition, a transitional scheme applies to cases that were already before the courts on 8 July 2016. In cases where the court determines that the delay is unreasonable, the only remedy is a stay of proceedings, pursuant to R. v. Rahey (1987). A stay of proceedings ends the process without a completed trial on the merits of the case.

On 16 June 2017, the Supreme Court unanimously confirmed its decision in R. v. Cody:

The Jordan framework now governs the s. 11(b) analysis and, properly applied, already provides sufficient flexibility and accounts for the transitional period of time that is required for the criminal justice system to adapt. (R. v. Cody, para. 3)

Post-Jordan: The Impact

According to data obtained by The Canadian Press from various jurisdictions and published in July 2017, 1,766 applications for charges to be stayed due to an alleged infringement of the right of the accused to be tried within a reasonable time were filed between July 2016 and April–June 2017. Of this number, 204 stays of proceedings have been granted (including for cases involving homicide[i] and sexual assault on a minor[ii]). However, this data is publicly available in only some jurisdictions. For example:

  • In Alberta, between 25 October 2016 and 23 November 2017, 148 applications were filed and 12 stays of proceedings were granted by the courts, while the Crown proactively stayed proceedings in 13 other cases; and
  • In Quebec, between 8 July 2016 and 9 November 2017 [available in French only], 1,221 applications were filed (of which 649 were for criminal matters), and stays of proceedings were granted in 68 cases (as of 20 June 2017) [available in French only].
To address the issue of delays, a number of jurisdictions announced system reforms and additional resources. For example:

  • Ontario announced a plan in December 2016 that includes appointing 13 more judges and hiring an additional 32 Assistant Crown Attorneys and 16 duty counsel, as well as additional court staff; a new bail directive to “make the bail system faster and fairer” was also announced on 30 October 2017.
  • In Quebec, a strategy [available in French only] was announced in December 2016 further to the action plan presented by the Table Justice-Québec [available in French only] in October 2016; a $175.2-million investment over four years was also announced, earmarked for adding new judge positions and for hiring 69 Crown prosecutors.
  • Alberta announced a $14.5-million investment to hire 35 new Crown Prosecutors and court support staff.
  • Ontario and Manitoba called for reform to limit the use of preliminary inquiries.
  • In some provinces, including Nova Scotia, the preferred strategy is now to prioritize cases so they can be dealt with more efficiently by proactively negotiating plea bargains early in the process in exchange for reduced sentences.
  • At the federal level, amendments to the Judges Act made under the Budget Implementation Act, 2017, No. 1 (Division 10 of Part 4), created new positions for federally appointed judges (11 at the Alberta Court of Queen’s Bench, 1 at the Yukon Supreme Court and 15 additional judges).


Post-Jordan: Challenges for Parliament

When studying a bill that addresses criminal matters, key factors to consider, now more than ever, include respect for the right to be tried within a reasonable time and the issue of delays. These are factors consistently raised by witnesses and parliamentarians. For example, during the study of Bill C‑46, An Act to amend the Criminal Code (offences relating to conveyances) and to make consequential amendments to other Acts, some witnesses pointed out that impaired driving is an area of criminal law that is very extensively litigated, and that any changes to the applicable law and procedures are likely to increase the number of challenges and delays (see the brief from the Canadian Bar Association’s Criminal Justice Section, pp. 1-2). However, the Minister of Justice said that the proposed reforms would reduce delays instead.

Reviewing the criminal justice system is one of the key priorities listed in the mandate letter for the Minister of Justice and Attorney General of Canada, the Hon. Jody Wilson-Raybould. When the federal, provincial and territorial ministers responsible for justice and public safety met in September 2017, they agreed, following discussions about reducing delays, that there was a “need for urgent and bold reforms to reduce these delays.” In addition, in its June 2017 report, Delaying Justice is Denying Justice: An Urgent Need to Address Lengthy Court Delays in Canada, the Standing Senate Committee on Legal and Constitutional Affairs made 50 recommendations, including 13 that it identified as priorities, to reduce delays in the Canadian justice system. In her response to this report, the Minister of Justice outlined the measures taken by the government, in collaboration with the provinces and territories, and the priorities put forward. She also mentioned that many of the recommendations made in the Senate report aligned with her multi-pronged comprehensive strategy to reduce delays in the criminal justice system.

Respect for the Constitution and Charter rights is one of the key concerns parliamentarians have when studying bills, especially ones addressing criminal matters. This commitment has been at the forefront since the Minister of Justice and Attorney General of Canada began publishing Charter statements, which identify the rights and freedoms that may be engaged by a bill. This initiative will become mandatory if Bill C-51, An Act to amend the Criminal Code and the Department of Justice Act and to make consequential amendments to another Act is passed (see clause 73 of the bill).

As regards the courts, it would be interesting to examine how cases brought before them after 8 July 2016 (to which the transitional scheme no longer applies) are treated, to see whether the changes called for by the Supreme Court have in fact been implemented. If not, the consequences for society could be very serious, especially in regions experiencing issues with significant institutional delays.

In this post-Jordan era, Parliament must evaluate the consequences of criminal law reform proposals through the lens of this new analytical framework. At the same time, criminal law and its administration must be modernized to achieve the important objectives addressed in section 11(b) of the Charter (the right of the accused to be tried within a reasonable time).

Author: Maxime Charron-Tousignant, Library of Parliament

[i]            R. v. Regan, 2016 ABQB 561; R. c. Thanabalasingham, 2017 QCCS 1271; R. v. Manasseri, 2016 ONCA 703; Nguyen c. R., 2017 QCCS 2047; R. c. Wolfson, 2017 QCCS 1503.

[ii]           R. v. Williamson, 2016 SCC 28; R. v. J.M., 2017 ONCJ 4.