The Wheels of Justice in Exceptional Cases

Despite the pandemic, the wheels of justice continue to turn. With several hearings continuing to occur remotely due to social distancing protocols, the Ontario Court of Justice announced they are scheduled to resume in-person hearings on July 6, 2020.

The incremental plan includes the use of limited courtrooms for all trials and preliminary inquiries involving accused persons who are in custody and who are out of custody. All participants in a trial or preliminary inquiry, including the accused person(s), counsel and witness(es) will attend in person, are expected to attend in-person, unless a judge has directed otherwise.

In part, this is necessitated by s. 11(b) Charter considerations post-Jordan/Cody. A culture of complacency regarding delays is not going to improve during a pandemic. The Court in Jordan/Cody moved towards presumptive ceilings of 18 months for provincial courts, and 30 months for superior courts, to avoid the type of multi-factoral analysis relying on concepts like prejudice under the Morin framework.

A strict ceiling was intended to reduce the number of 11(b) applications, and provide some certainty to the justice system. Where the presumptive ceiling was not met, an accused could still claim an unreasonable delay, where they demonstrated that they took meaningful steps to demonstrate a sustained effort to expedited proceedings, and the case took “markedly longer” than it reasonably should have [Jordan, paras 84-90]. The presumption of unreasonableness above the ceiling could be rebutted where there was a discrete event that was reasonably unforeseen and reasonably unavoidable, or where the case was particularly complex with regards to the evidence or issues involved.

Previous judicial reformulations of what a “reasonable time” means, such as the shift from Askov to Morin, gave rise to concerns by the Court in Jordan about transitional cases, because the justice system cannot be shocked into action overnight [Jordan, para 102]. The Court therefore provided some guidelines for how to deal with these transitionary cases, with the hope that it would not result in thousands of cases of stays as it did in the previous transition.

The majority provided courts for some flexibility with transitional cases by allowing for a contextual approach, especially since these cases would have proceeded under the assumption that the Morin principles still applied [Jordan, paras 94-98; Cody, paras 25, 46, 68]. Previous factors such as prejudice and the seriousness of the offence could therefore still be taken under consideration during this period, as could the high level of tolerance for institutional delays in specific jurisdictions.

This approach was sharply criticized by Justice Cromwell in Jordan, who described this as a form of Charter amnesty,

[285] The transitional regime which my colleagues propose is intended to avoid the problems that would arise from immediate application of the presumptive ceilings. In my view, these transitional provisions will not avoid the risk of thousands of judicial stays of proceedings.

[286] Although my colleagues maintain that different criteria should not apply during the transitional period, they in fact establish different criteria for transitional cases. To take only one example, there will be a “transitional exceptional circumstance” if the parties reasonably relied on the law as it previously existed and have not had time “to correct their behaviour”: para. 96. In other words, the ceilings do not apply to some transitional cases.

[287] The basic problem with this is that transitional provisions create a Charter amnesty. What is unreasonable according to the Constitution is treated as if it were reasonable. The justification for this is that parties require time to correct their behaviour following the release of this decision. However, this sort of Charter amnesty is contrary to our s. 11(b) jurisprudence.

[288] Morin ruled against transitional provisions in s. 11(b) cases and explained why purporting to set up a parallel system of rules to govern existing cases is wrong in principle. Sopinka J. for the majority wrote, at pp. 797-98:

. . . the Court of Appeal purported to apply a transitional period to accommodate the situation in Durham. While a transitional period may have been appropriate immediately after the Charter came into effect, it is not appropriate any longer. This Court so held in Askov. The use of a transitional period implies a fixed period during which unreasonable delay will be tolerated while the system adjusts to a new set of rules. It imposes a general moratorium on certain Charter rights. For this reason and quite apart from the statement in Askov that the transitional period had ended, I would not find it appropriate in this case. It appears to me undesirable to impose a moratorium on Charter rights every time a region of the country experiences unusual strain on its resources. It is preferable to simply treat this as one factor in the overall decision as to whether a particular delay is unreasonable.
[Emphasis added by the Court]

[289] In my opinion, this teaching is both authoritative and sensible. I would continue to apply it.

One of these transitional cases was in R. v. K.J.M., which involved a young offender involved in a serious charge in a provincial court matter that took 18 months and 28 days, just above the ceiling provided in Jordan. Justice Abella, who sided with the majority in Jordan, sided with the dissent in this decision, stating that the courts require a distinct and lower presumptive ceiling for matters brought under the Youth Criminal Justice Act (YCJA). The majority denied a stay, because although 80% of the matter proceeded before Jordan, the defence did not engage proactive conduct, with particular emphasis on the accused arriving hours late for a court appointment, resulting in subsequent scheduling that added months to the proceedings. The delay involved was also not considered to be markedly longer.

The greater challenge with adding additional ceilings for different proceedings is that it would revert 11(b) analyses back to a contextual approach that was used pre-Jordan. The nature of this approach invariably attracted more challenges, and the steps taken by the Court in Jordan/Cody were explicitly intended to address this problem. Failing to create a separate ceiling though would not provide any meaning into the provisions of the YCJA, which state,

Policy for Canada with respect to young persons

 (1) The following principles apply in this Act..

(b) the criminal justice system for young persons must be separate from that of adults, must be based on the principle of diminished moral blameworthiness or culpability and must emphasize the following:

(v) the promptness and speed with which persons responsible for enforcing this Act must act, given young persons’ perception of time;
[emphasis added]

Penalizing the young offender significantly for delays that resulted from the late court appearance may not fully encapsulate this principle in relation to a young offender’s perception of time, but failing to hold criminally accused individuals accountable for their conduct would also defeat the principles in Jordan that all participants in the justice system, including young offenders, have a role to play in addressing the culture of complacency [Jordan, paras 116, 137].

The majority held that this enhanced need for timeliness under the YCJA could still be implemented under the Jordan framework, even for cases under the presumptive ceiling,

[74] Ultimately, like the other factors identified in Jordan, the enhanced need for timeliness in youth matters is simply one “case-specific factor” to consider when determining whether a case took (or is expected to take) markedly longer than it reasonably should have. 

[75] This approach recognizes that while the presumptive ceiling remains the same whether the accused is a youth or an adult, the tolerance for delay differs… By permitting a flexible, case-specific inquiry for cases falling below the ceiling, the Jordan framework recognizes that simply treating everyone alike is no solution. Context matters. While the presumptive ceiling provides a hard backstop that offers certainty, predictability, and simplicity, the test for a stay below the ceiling affords the necessary flexibility to ensure case-specific features — such as the age of the accused — are not lost in the analysis. Indeed, Jordan was not insensitive to the need for context-sensitivity. This Court emphasized that “‘the judge must look at the circumstances of the particular case at hand’ in assessing the reasonableness of a delay” (para. 58, citing Jordan, at para. 301, per Cromwell J. (concurring in the result)). It also stated the following:

While the presumptive ceiling will enhance analytical simplicity and foster constructive incentives, it is not the end of the exercise: . . . compelling case-specific factors remain relevant to assessing the reasonableness of a period of delay both above and below the ceiling. Obviously, reasonableness cannot be captured by a number alone, which is why the new framework is not solely a function of time. [para. 51]

[76] Despite Abella and Brown JJ.’s suggestion to the contrary, the Jordan framework, when properly applied, provides no less protection to young persons than its predecessor, which proved to be unpredictable, confusing, and complex (see Jordan, at para. 38). In fact, there is every reason to expect that young persons will enjoy stronger protection against prolonged delay than they did in the pre-Jordan era…

Young offenders would still benefit from the presumptive ceilings imposed in Jordan, and although stays below the ceiling may be rare generally for all criminal proceedings [Jordan, para 48], it may not be that rare for youth applications for stays under the ceiling.

However, if the same type of logic employed in Jordan was applied in KJM, a separate and distinct presumptive ceiling for young offenders would provide greater certainty, as opposed to creating another contextual analysis below the ceiling that may still be =unpredictable, confusing, and complex, and otherwise akin to a Morin approach.

These complex issues were discussed this weekend during the virtual Lions Cup Moot. What was clear is that the virtual forum is not easily conducive to hearing and inquiring about complex areas of legal philosophy or public policy. Counsel and judges need to speak more slowly. It is much more difficult to assess whether parties are following the proceedings. Referring to citations and references in different windows can be clumsy and awkward.
The Advocates Society has put together a comprehensive guide for Best Practices for Remote Hearings, which should help lawyers improve their advocacy skills in a remote context. However, these remote appearances may still fall short of the capabilities of an in-person proceeding, which could explain in part the move for the courts to resume on a limited basis next month.
The vast majority of proceedings, especially where simple procedural matters are being addressed, or dates for next steps are being determined, can and should occur online. That’s not just for the pandemic, but for all appearances that follow. These steps add a considerable amount of time and expense to proceedings, and can usually occur virtually without any concern or prejudice to any party.

The Jordan/Cody framework obviously did not account for delays during the pandemic, but there are serious concerns of a wave of stays in the future despite the creation of a transitionary period, if the courts are not able to maintain some momentum during the pandemic. The virus does not create a Charter amnesty that would be justifiable or instilled public confidence in the justice system, even if all cases before the court can now be described as exceptional. These circumstances also provide a unique opportunity to reconsider community justice models, with a shift in resources and emphasis into preventative activities rather than a reactive response relying on incarceration.

Positive change is still required in the justice system, and it is absolutely essential that the pandemic does not allow for a culture of complacency to persist. Virtual proceedings will invariably be one of the essential means to do so, and have the additional benefit of removing other logistical obstacles that may result in missed or delayed court appearance. The shift to online proceedings may even foster the type of expediency into matters in a way that the Supreme Court of Canada, despite multiple attempts, would never have been able to achieve.

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