It has now been almost a year since the Supreme Court of Canada released its decision in R v. Jordan, overhauling the test for a right to a trial in a reasonable time. Last week, the Court revisited the issue of delay in the case of R. v. Cody and confirmed its ruling in Jordan, upholding the 18 and 30 month ceilings for a trial. (As a colleague succinctly put it, the Court essentially re-iterated: "We meant what we said.")
The coverage following the Cody decision, which has coincided with the release of the Senate's report on delays in the justice system, has used the same tropes of sad victims and malicious offenders escaping scot-free. The Senate's press release I found particularly inflammatory:
Offenders found guilty of heinous crimes like murder or child sexual assault can have, and recently have had, their convictions totally erased and can roam Canada's streets with impunity as a direct result of court rulings that their trials took too long to complete. Similarly, persons accused of those same crimes can have their charges dropped because their trials would take too long to complete.
To be clear, I am sympathetic to complainants and their families who have had to wait for trials only to have the matters not proceed. But framing issue in this way ignores some fundamental principles of our justice system that are crucial to the proper functioning of court system.
The Jordan case did not create the right to a trial within a reasonable time.
Section 11(b) of the Charter is a constitutional right which has existed since the creation of the Charter. Cases were stayed due to unreasonable delay before the Jordan case, but the test that courts followed was different. The Supreme Court in Jordan recognized that the test needed to be clearer and have firmer guidelines, specifically to respond to a 'culture of complacency' that was allowing unacceptable delays in getting matters to trial.
Defence lawyers are not running the clock.
The Court in Jordan very cleared stated that defence delay is to be subtracted from the overall calculation of delay, which means that a defence lawyer can't just run out the clock to avoid her client being prosecuted. The Cody decision reiterates that defence counsel are expected to actively advance their client's right to a trial in a reasonable time, and found that 'illegitimate' conduct will be deducted from the delay.
Individuals charged with an offence are presumed to be innocent.
The difficulty with the language used by the Senate is that it ignores the presumption of innocence. A stay of proceedings is meant to be a remedy for someone whose rights have been breached by the State. The solutions offered, such as a reduction of sentence as a remedy for this Charter violation presume that a person will be found guilty eventually given the opportunity for a trial, which simply isn't the case.
The solution to one Charter violation should not be another Charter violation.
Again, the right to have a trial in a reasonable time is a constitutionally protected right. If this right is being violated, then the solutions moving forward should not be at the expense of this same person's other rights. Recommendations such as the elimination of the preliminary inquiry reduce an accused's person's capacity for full answer and defence.
Instead, the urging of the Supreme Court should be taken as a sign that we need to revamp our outdated technology, revisit policies that eliminate discretion (mandatory minimum sentences, for example) and encourage the diversion of minor charges away from the criminal justice system. As we approach the anniversary of this new Jordan era, hopefully we will start moving towards more effective changes to the justice system that will allow for more efficient and effective courts.