Shocking the Criminal Justice System Into Action

We meant what we said, when we described in R. v. Jordan last year, “a culture of complacency towards delay in the criminal justice system.”  This could encapsulate what the Supreme Court of Canada signaled in its recent decision in R. v. Cody, where they rejected submissions by interveners by provincial governments to provide greater flexibility in applying unreasonable delay.

Section 11(b) of the Charter was always expected to be interpreted judicially as to what a reasonable delay in our justice system meant. The highly subjective nature of prejudice under the previous 1992 Morin framework was also unpredictable, as it created endless flexibility. The result was that complex s. 11(b) applications themselves were unnecessarily burdening the system, adding to the judicial strains and themselves creating further delays for other cases.

The bright-line rules created in Jordan then created a presumptive ceiling of 18 months for provincial courts, and 30 months for superior courts (or those tried in provincial courts after a preliminary inquiry). The Court indicated that delays attributable to the defence will not count to the presumptive ceilings, but those attributable to institutional delays will, even if they are not the fault of the Crown.

If these ceilings are exceeded, courts will automatically presume that a delay is unreasonable and stay the charges. Only on exceptional circumstances can the Crown rebut this presumption, namely where there is a discrete event that was unreasonably unforeseen and reasonably avoidable, or where a case is particularly complex given the nature of the evidence or the issues.

An accused can establish a delay was unreasonable even where the presumptive ceiling has not been reached where sustained efforts were made to expedite proceedings, and a case takes markedly longer than it should.

Finally, the Court in Jordan provided some guidelines for transitional cases where charges were instituted prior to the above framework. Courts will look at whether the parties justifiably relied upon the older Morin framework, which accepted institutional delays as valid and did not require the defence to be proactive.

Transitional cases were of particular concern to the Court in Jordan, as “tens of thousands of charges were stayed in Ontario alone as a result of the abrupt change in the law” when the Court released its even earlier decision in the 1990 decision of Askov. The minority dissent in Jordan were particularly concerned that the new framework would have a similar effect.

These concerns appear to be largely unfounded based on the information thus far. The Summer 2017 cover story in National Magazine by Doug Beazley focuses on Jordan, and interviews Stephen Coughlan of Dalhousie University law. Coughlan conducted a review of stay applications in the 6 months following, “and found only a mild uptick in the number of applications filed, with most of the successful applications happening in Ontario.”

Cody was one of these transitional cases from Newfoundland and Labrador, involving drugs and weapons offences from January 12, 2010. The trial dates were set for January 26, 2015, but the defence brought a s. 11(b) application in November 2014 under the Morin framework, and was successful in obtaining a stay in December 2014. The Newfoundland and Labrador Court of Appeal reviewed the stay and applied the new Jordan framework, reversing the stay and remitting the matter back for trial, on the basis that exceptional circumstances related to disclosure applied.

The Supreme Court of Canada’s recent decision overturned the Court of Appeal’s application of transitional Jordan cases, finding that the 5 year delay was unreasonable. The flexibility built into the Jordan framework was not intended to justify delays that would themselves be found unreasonable under the older Morin framework,

[69] To be clear, it is presumed that the Crown and defence relied on the previous law until Jordan was released. In this regard, the exceptionality of the “transitional exceptional circumstance” does not lie in the rarity of its application, but rather in its temporary justification of delay that exceeds the ceiling based on the parties’ reasonable reliance on the law as it previously existed (Jordan, at para. 96). The transitional exceptional circumstance should be considered in cases that were in the system before Jordan. The determination of whether delay in excess of the presumptive ceiling is justified on the basis of reliance on the law as it previously existed must be undertaken contextually and with due “sensitiv[ity] to the manner in which the previous framework was applied” (Jordan, at paras. 96 and 98). Under the Morin framework, prejudice and seriousness of the offence “often played a decisive role in whether delay was unreasonable” (Jordan, at para. 96). Additionally, some jurisdictions are plagued with significant and notorious institutional delays, which was considered under Morin as well (Jordan, at para. 97; Morin, at pp. 799-800). For cases currently in the system, these considerations can inform whether any excess delay may be justified as reasonable (Jordan, at para. 96).

…

[74] … the Crown cannot show that the 36.5 months of net delay in this case was justified based on its reliance on the previous state of the law. To the contrary, the trial judge’s findings under the previous law strengthen the case for a stay of proceedings. Where a balancing of the factors under the Morin analysis, such as seriousness of the offence and prejudice, would have weighed in favour of a stay, we expect that the Crown will rarely, if ever, be successful in justifying the delay as a transitional exceptional circumstance under the Jordan framework. We therefore find that the delay in this case was unreasonable.

The seriousness of an offence and its prejudice will still play a part in any analysis of reasonable delay. At para 70, the Court cited its decision in R. v. Williamson as an example of delays exceeding the ceiling which cannot be justified under any transitional exceptional circumstances, despite the serious nature of the offence. Indifference or lack of diligence by the Crown will not be used as a justifiable excuse.

The Court’s rejection for calls of further flexibility by provincial Attorneys General intervening in the case might give some basis for defence to rejoice. However, Annamaria Enenajor of Ruby Shiller provides some concerns around Cody from a defence perspective:

1. The Court’s call for scrutiny of defence conduct may produce a chilling effect on advocacy, and hinder a rigorous defence
2. The Court’s tone towards delays attributable towards the defence is different than the tone of the Crown

Not only does the Court provide a highly discretionary and deferential approach to evaluating the reasonableness of defence conduct [para 31], but states that the standard for the Crown is that of reasonableness [para 54] while inviting courts to closely scrutinize the steps and the conduct engaged by the defence [para 32].

Enenajor explains the potential implications,

To ensure our clients’ rights to full answer and defence are protected, defence counsel must advance unpopular positions and take risks. We employ strategies that, at first blush, may not make sense to a trial judge. Latitude and trust are required in order to make some creative defences work. 

By inviting trial judges to scrutinize defence actions, Cody threatens to narrow that latitude and foster a culture of distrust.

What the Court appears to be achieving is full participation of the defence in expediting a matter,

[34] This understanding of illegitimate defence conduct should not be taken as diminishing an accused person’s right to make full answer and defence. Defence counsel may still pursue all available substantive and procedural means to defend their clients. What defence counsel are not permitted to do is to engage in illegitimate conduct and then have it count towards the Jordan ceiling. In this regard, while we recognize the potential tension between the right to make full answer and defence and the right to be tried within a reasonable time — and the need to balance both — in our view, neither right is diminished ‎by the deduction of delay caused by illegitimate defence conduct.

Beazley also highlights some of the stays post-Jordan as providing context for Cody,

…Adam Picard of Ottawa, accused of first-degree murder in the shooting death of Fouad Nayel, was looking at a wait of 48 months between the charge and the completion of his trial; the judge specifically cited the Jordan benchmark in granting him a stay in November 2016. In Quebec in early April, 2017, a judge granted a Jordan stay in the case of Sivaloganathan Thanabalasingham, charged with second-degree murder in the death of his wife. And the Crown in Montreal cited the Jordan standard as a key factor in its stunning decision in March to stay charges against 36 people arrested in an anti-Mafia probe.

The result, says Sen. Bob Runciman, chair of the Senate legal and constitutional affairs committee, has been a growing public crisis of confidence in the justice system — and a growing political crisis for provincial and federal governments.

“[It’s] having a very clear effect on public confidence in the justice system,” says Runciman. His committee is studying system delays and hopes to deliver a full report by the end of June. “Folks have been raising it with me in coffee shops. Serious charges are being stayed.

“It’s not one single element that’s at fault, and we’ve noticed that the various elements in the justice system have a tendency to blame one another. It is a culture problem, and it’s a culture that extends to the federal government itself.”

On June 14, 2017, Runciman released a 211-page report, Seeking Prompt Justice: An Urgent Need to Address Lengthy Court Delays in Canada, which provides 50 recommendations to address trial delays. Out of these recommendations, 13 are prioritized:

1. Create judicial alternatives to stays, especially for unreasonable delays in serious indictable matters
2. Expedite appointments of new judges for any current or upcoming vacancies
3. Improve case management to ensure matters move expeditiously
4. Implement Truth and Reconciliation Commission principles for Indigenous Persons in the justice system
5. Better utilization of diversion programs for persons with mental health
6. Reduce time spent on administration of justice for minor matters
7. Ensure full disclosure prior to trial
8. Amend the Code to allow pre-trial procedural matters to be handled by non-judge judicial officers
9. Establish computerized programs and systems to increase effeciency
10. Review legal aid plans to ensure appropriate representation
11. Eliminate or limit the use of preliminary inquiries
12. Designate certain social offences as dealt with administratively
13. Adopt scheduling practices from newer methods used in other jurisdictions

The report recognizes the lack of consensus on preliminary inquiries, which has been a contentious issue in Ontario, where the Attorney General released a letter on Feb. 21, 2017, indicating his interest in dispensing of this step,

In recent months, Ontario has been conducting a detailed analysis regarding the effectiveness of preliminary inquiries in criminal cases destined for the Superior Court. We have found that the vast majority of preliminary inquiries result in the accused being committed to stand trial, yet this step in the process typically adds many months to the length of a criminal case. Ontario officials are currently in the process of completing a summary of our findings, which will be forwarded to you and our provincial and territorial counterparts at the earliest opportunity.

The reaction from the bar has been swift. The Canadian Bar Association’s Criminal Justice Section stated on March 14, 2017,

Rather than being a source of court delay, preliminary inquiries save time and resources in superior courts. Before acting, we urge you to complete your careful and comprehensive review of the many challenges facing Canada’s criminal justice system, taking advantage of current research and hearing from all justice system participants.

Either way, it appears that a systemic review of the criminal justice system is needed. Tonda MacCharles of the Toronto Star cites Runciman in noting that the rate of serious crime is decreasing in Canada, but somehow the delays are increasing.

Beazley summarizes the effects of the recent reforms as following,

R v. Jordan was intended to deliver a shock to the system, and on that score it succeeded admirably.

The Court’s recent decision in Cody can therefore be understood as yet another example of why change is necessary.

Every actor in the justice system has a responsibility to ensure that these criminal proceedings comply with s. 11(b) of the Charter. Even though we some of us may have only minor roles behind the curtains, we all have our part to play.