In the summer of 2016, the Supreme Court of Canada made headlines
In the summer of 2016, the Supreme Court of Canada made headlines with their decision in R v Jordan, 2016 SCC 27. Within a year, they had been asked to revisit that decision and walk back the test they imposed. In June 2017 they declined to do that.
Jordan changed the law that deals with the right to trial in a reasonable time. Before Jordan, the test required a Court to categorize all periods of time, deduct periods caused by the defence and then evaluate the reasonableness of the overall length of the process against benchmarks provided by the court, and the nature of the file. It was a highly subjective process that resulted in very few stays.
Very few stays meant very few sticks to correct the bad habits, chronic underfunding and inefficiencies of our criminal justice system. Though the process is highly scrutinized and important to the public, this was not reflected in government behaviour around funding or improvements. Prior to Jordan, there were few visible consequences to letting cases languish for years because judicial vacancies weren’t filled, or Legal Aid was underfunded and self-represented defendants took up extra time in the system. The system still ran, and nobody was forced to account for the speed it ran at.
The Supreme Court was asked to do something about this in Jordan and they did. Instead of a flexible, contextual, subjective approach the new rules for delay set ceilings. If a case has exceeded the ceiling, it is presumed the delay is unreasonable. The Crown has to explain why the case should not be stayed, but the Court placed limits around how they can do this, to avoid an accidental creep back to the flexible, contextual approach that failed to create cultural change. Delay caused by the defendant, solely attributable to the defendant, gets deducted at the outset – a defendant cannot complain their case exceeded the ceiling if their actions are the exclusive reason this is the case.
Jordan’s new rules meant delay equalled consequences. Not surprisingly, the pushback was strong. Within a year, Crowns were back at the Supreme Court asking them to relax the rules and build in more explanations for delay. They suggested Jordan caused a crisis, and the Court needed to walk things back or justice would be in peril.
The Court did not back down. The evidence did not support that the system was in crisis, or that the problems with delay would be solved through flexible rules. In R v Cody, 2017 SCC 31, they reiterated that Jordan is the law of the land. They were presented with evidence that the overwhelming majority of stay applications after Jordan have not been granted. Courts are being cautious. Trial judges are being careful. Change is coming slowly.
It is coming, though. Jordan’s most significant impact has not been on stays of proceeding but on justice system leaders. More than ever, under filled judicial vacancies are in the news. New hires and increased funding have been announced. Ministers of Justice from across Canada met to discuss how to tackle the problems. Jordan gives prosecutors some leeway to account for cases that were begun, and incurred delay, before the law changed. The decision in Cody gave Courts some additional guidance about how to handle these cases while they are still ongoing. But justice system actors know that cases that began after Jordan are already a year old and if the system does not improve Jordan means there will be consequences. The Court in Cody was clear they understand change is a slow painful process, and the law needs to stay the course if it’s going to be achieved. Perhaps it will be enough to prompt the much needed changes we need.