It has now been just over six months since one of the most important cases of 2016, R v. Jordan, was released. In it, the Supreme Court of Canada established a presumptive ceiling of 18 months delay in getting a case to trial at the provincial court level. If a case takes longer, then the Crown must prove that the delay is not unreasonable given the circumstances of the case. Otherwise, an accused person’s right to a trial in a reasonable time under s. 11(b) are breached, and the case should be stayed.
As more s. 11(b) applications are making their way through the system, we are starting to get a better sense of how lower courts judges are interpreting and applying the case. And so far, some cases have resulted in stays of proceedings. Of course, defence lawyers are only cautiously optimistic about this, knowing that many of these decisions are being appealed and that successes at lower levels of court still stand to be overturned.
As the law around s. 11(b) develops, there seems to be a public unease with having more cases thrown out of court for reasons of delay. I say this on the basis of my wholly un-scientific study of speaking with friends and family and getting their take on the issue. Still, this sentiment of the failure of the justice system to get a matter to trial was most prominently evidenced in the case of Adam Picard. In this high-profile Ottawa case, Justice Parfett of the Superior Court of Justice stayed the charge of murder given that the case had taken over four years to get to trial. The family of the victim was outraged and drew a lot of media attention.
The outrage in this situation is completely justified and was in fact acknowledged by Justice Parfett. In her decision, the judge was mindful that the delays in the system had failed both the accused and the public. But the idea still lingers that the remedy of a stay of proceedings is too expansive for such a serious crime, and that the accused person is walking away on a technicality.
So, the question then arises: are Charter rights a technicality? On the face of it, it’s easier to assume that someone is factually guilty and then to move to the idea that a conviction should automatically follow. But Charter rights aren’t just technical or trivial. They form the basis of our justice system, setting out guidelines of appropriate behaviour of all of the players within it. The Charter is often the only tool that a judge has to send a message to police that the community standards do not permit the behaviour seen in a case, and the same goes for the institutional problems that have become pervasive with delays in having matters get to trial.
In Charter cases, such as matters involving searches and seizures, it is understood that a judge is supposed to look not only at the facts themselves, but also consider what kind of a message that their decision will send. What actions do we want to condone? In this sense, the Charter is understood to be prospective: it must look to future cases with an eye to ensuring the confidence of the public and the fair administration of justice.
The same must be true with the right for an individual to be tried within a reasonable time. The growing delays in getting matters to trial needed to be addressed in a comprehensive way with a more clear-cut analysis for courts to undertake. The Court in Jordan noted how the justice system is now tolerating excessive delays, which has created a culture of complacency. The decision in Picard emphasizes that this culture of complacency cannot be acceptable, and that trial times have to be reined in. In doing so, while acknowledging the failure of the system on all fronts, Justice Parfett is following the Supreme Court in recalibrating the acceptable timelines for these cases to be tried.
As more of these cases are decided, we will see how the issue of delays in trial will evolve, hopefully ensuring public confidence and the Charter rights of accused persons.