How an 'invented' Supreme Court ruling has rocked the Canadian justice system


Eric Gottardi had been on his feet for about 10 minutes in front of the nine justices of the Supreme Court of Canada, talking about his client and trial delays, when Justice Michael Moldaver posed a question.

The judge, sitting on the nation’s top court since 2011, wanted to know about “drop dead numbers or ceilings.” In other words, just how long should it take to bring an accused to trial?

“I said, ‘Having thought about it for two minutes, it’s probably better than what we have right now,’ ” Gottardi, a Vancouver-based lawyer, told the Star in a recent interview. “He said, ‘What do you think about 30 months?’ I said ‘I don’t know, what about 24?’

“So I got the sense they were thinking of doing something creative, but when they came out and did it, it was actually a bit of a surprise, and I still don’t know if the decision is a good one or not.”

That decision, released last year, was R v. Jordan, which takes its name from Gottardi’s client, Barrett Jordan, a Surrey, B.C., man who was arrested on drug charges and whose case took four years to get to trial.

PART 2: Scrapping prelims ‘not going to solve’ court delays

PART 3: Defence lawyers ideas for reform being ‘met with silence’

It was good news for Jordan himself, as the top court’s 5-4 decision stayed the charges against him, finding his constitutional right to a trial in a reasonable time, enshrined in section 11 (b) of the Charter of Rights and Freedoms, had been violated.

But a good decision for the country? It depends on who you ask.

Along with staying the charges against Jordan, the majority went further and completely revamped the legal framework that guides judges in deciding if a person has been tried within a reasonable time.

They implemented new so-called “numerical ceilings” after calling out what they described as a “culture of complacency” in the Canadian justice system.

The five judges found that the period between an accused person’s arrest and the anticipated conclusion of their trial in provincial court should not exceed 18 months, and should not go over 30 months in Superior Court, which handles the most serious crimes such as murder.

Once those ceilings have been breached, the delay is considered “presumptively unreasonable” and the case is tossed unless the Crown can prove there are exceptional circumstances, such as the complexity of the case. Delay caused by the defence does not count in the calculation.

Already, dozens of cases in Ontario alone have been stayed under the Jordan framework, with the public becoming particularly familiar with the name when an Ottawa judge threw out a first-degree murder charge against ex-soldier Adam Picard, who was accused of killing 28-year-old Fouad Nayel, after it took four years to bring his case to trial.

The Crown has appealed the Picard decision, seeking clarity on how to properly evaluate delay in so-called “transitional cases,” meaning cases that were already in the system before the release of the Jordan decision.

“A presumptive ceiling is required in order to give meaningful direction to the state on its constitutional obligations and to those who play an important role in ensuring that the trial concludes within a reasonable time,” Moldaver, along with Justices Andromache Karakatsanis and Russell Brown, wrote for the majority.

“It is also intended to provide some assurance to accused persons, to victims and their families, to witnesses, and to the public that s. 11(b) is not a hollow promise.”

Almost anyone who regularly toils in courthouses across Ontario — judges, prosecutors and defence lawyers — would say that despite previous rulings on delays from the Supreme Court and judicial warnings from lower courts, successive federal and provincial governments have failed to properly resource the justice system in a way that would ensure its fairness and efficiency.

“It is time for our senior levels of government to commit to a strategy that will ensure that these constitutionally guaranteed objectives are met,” Judge Peter Wright of the Ontario Court of Justice wrote in a decision in January 2010, staying drug charges due to delay.

“Government has had more than 20 years to improve upon the systemic deficiencies which continue to erode the constitutional rights protected by s. 11(b) of our Charter — for the benefit of persons charged and for our society alike. Yet the situation only grows worse by the day.”

So Jordan was, in principle, a necessary jolt to the system, legal observers say. The resulting stay of charges, particularly in the Picard case, has in turn incensed the public, which has pushed politicians into action.

“If victims are mad at anybody, they should not be mad at the courts, they should be mad at governments, which have consistently made business decisions to underfund the system in the expectations that judges will let them off the hook,” said lawyer Frank Addario, who represented Ontario’s Criminal Lawyers’ Association as an intervener in the Jordan case.

“All the Supreme Court of Canada has done is say that when you continually violate the constitution, we’re obliged to give the defendant a remedy. It’s not a reward. It’s a remedy for a past violation . . . It’s easy to avoid if you don’t make the business decision to violate the right to a speedy trial.”

In the aftermath of Jordan, provincial governments have poured millions of dollars into beefing up the justice system. In Ontario, Attorney General Yasir Naqvi announced that the government would appoint 13 new judges to the Ontario Court of Justice and 32 new Crown prosecutors, among other changes, though critics say that still falls short of what is needed.

Naqvi is also pleading with federal Justice Minister Jody Wilson-Raybould to fill the 11 judicial vacancies in the under-resourced Superior Court.

He told the Star that he’s hearing more and more stories of it taking much longer now to schedule civil and family matters in Superior Court — cases which do not carry the same constitutional right for a trial in a reasonable time.

“All because resources are being diverted to deal with criminal matters in response to Jordan timelines,” Naqvi said. “The issue has a domino effect. As much as we are focused on the criminal justice system, we also have a responsibility to civil and family law. That’s why I feel it’s even more imperative that we find an expedited way of filling those vacancies.”

Jordan’s lawyers, along with the Criminal Lawyers’ Association and others, had asked the Supreme Court to “recalibrate” the rather flexible legal analysis around delay, arguing that far too often cases were still going to trial despite having spent years in the system.

And while the court certainly did proceed to recalibrate, they also came up with their own numbers: 18 and 30.

Therein lies the problem, experts say, not to mention the four Supreme Court judges who did not agree with Moldaver and company. None of the lawyers proposed those numbers. None of the lawyers were asked for submissions on those numbers.

“They invented them,” Addario said of the numerical ceilings.

The majority explained that they reached the new framework after conducting a “qualitative review” of almost every reported decision on delay from appeal courts in the last 10 years, and many rulings from trial courts.

“By reading these cases with the new framework in mind, we were able to get a rough sense of how the new framework would have played out in some past cases,” the majority wrote. “Indeed, we note that in the seminal case of Askov, the delay was in the range of 30 months, as it was in Godin some 19 years later, and in both cases, this court found the delays to be unreasonable.”

The now-retired Justice Thomas Cromwell, writing for the minority, which included Chief Justice Beverley McLachlin, pulled no punches in calling out the majority for swooping in with the new numbers without any debate. (The minority also concluded that in Jordan’s case, specifically, the delay was unreasonable and they agreed his charges should be stayed.)

Cromwell said he “fundamentally” disagreed with the approach of the majority, calling it “both unwarranted and unwise.”

“Based on the limited evidence in the record, the presumptive time periods proposed by my colleagues are unlikely to improve the pace at which the vast majority of cases move through the system while risking judicial stays in potentially thousands of cases,” he wrote.

“One of the themes that appears throughout the court’s jurisprudence on the right to be tried within a reasonable time is that reasonableness cannot be judicially defined with precision or captured by a number. The proposed ceilings are deeply inconsistent with this constant in our jurisprudence.”

The focal point of Cromwell’s reasons is that determining whether an accused has been tried within a reasonable time is “inherently case-specific,” and should take into account a balancing of several factors, including society’s interests in bringing a case to trial, especially when a very serious offence has been committed.

“If there are exceptionally strong societal interests in the prosecution of a case against an accused which substantially outweigh the societal interest and the interest of the accused person in prompt trials, these can serve as an ‘acceptable basis’ upon which exceeding the inherent and institutional requirements of a case can be justified,” Cromwell wrote.

The Supreme Court majority noted that the ceiling is not an “aspirational target,” and that the public should expect that most cases are still resolved before coming close to 18 or 30 months.

They left the door open to the defence to still argue unreasonable delay even if the ceiling has not been breached, as long as the defence can prove they took “meaningful steps that demonstrate a sustained effort to expedite the proceedings” and that the case took “markedly longer” than it should have. But the majority also admitted that stays in such cases would be “rare.”

Defence lawyers, as well as the Supreme Court minority, took issue with this, as the onus to bring an accused to trial in a reasonable time has always been on the Crown.

“It’s the Crown’s obligation, and yet the defence lawyer needs to essentially participate or take a significantly active role in bringing their own client to trial,” said Toronto criminal defence lawyer Daniel Brown.

“That wasn't the law before, it said we can't forget that it's the Crown's duty to bring an accused to trial, and as long as the defence lawyer wasn’t standing in the way of that, there wasn't this obligation imposed on them.”

Criminal defence lawyers in Ontario have said the 18-month ceiling in provincial court is too high, saying the average time in the Ontario Court of Justice is closer to the 12-month range.

As for Superior Court — where the seriousness of offences, jury trials and other factors add to the complexity — some have voiced concern the 30-month ceiling may be too low.

While the Supreme Court majority may have said the ceilings are not “aspirational targets,” that would not appear to be the actual reality in the lower courts post-Jordan, as defence lawyers have spoken of the prosecution and the courts putting off dealing with their cases in a quicker fashion because they’re not close to the ceiling.

Brown said the new reality is that an accused person who isn’t nearing the ceiling can actually be penalized for taking every step to get to trial as quickly as possible.

“You’re the first case to get bumped,” he said. “Because their case is no longer in jeopardy of being delayed, they’re easily moved to a new court date, meaning the accused has to re-prepare their case, their life remains on hold, the defence lawyer has to charge an extra fee.”

For example, Brown spoke of a client charged with sexual assault two years ago who was set to go on trial last month, but the case got pushed to August. “They said there are other cases that have taken longer than yours,” Brown said.

Defence lawyers have also complained of important procedural rights for their clients being bypassed to save time, such as the Crown seeking what are known as “preferred indictments” to send an accused straight to trial without first having a preliminary hearing.

“My view is that the (Jordan) decision is going to do far more harm than good for accused individuals,” said Toronto criminal defence lawyer Sean Robichaud. “Protections that accused persons would otherwise enjoy are being sacrificed, or waived under coercive circumstances, to avoid a problem they often did not contribute towards.”

The lasting impact of R v. Jordan may not be known for several years. Appeals of stays of proceedings, such as the Picard murder case, are moving through the courts. One or more of them will likely end up before the Supreme Court, where the majority said that the numbers they imposed may need to be revisited one day.

“I still don’t know what to think of it,” Gottardi, Jordan’s lawyer, told the Star.

“I really do think it took some courage to write it. Whether they’re right or wrong, time will be the judge of that. It threw out 20 years of jurisprudence and we need a better way. This might not be a better way, but it’s thinking outside the usual box, and courts don’t often do that. They get credit for that in my books.”