For a system that oft moves at speeds normally reserved for glaciers, it seems the courts might be able to find new gear if they need to.
There was a lot of talk in the Yorkton courtroom Monday about moving cases along. More than once the Crown requested the defence waive delay and the judge on duty was unusually strict about granting adjournments.
That’s because the Supreme Court of Canada (SCC) thinks the nation’s legal system has developed a “culture of complacency” with respect to a defendant’s right to speedy justice.
On Friday, in a unanimous decision, the SCC ruled to uphold a lower court’s stay of proceedings in a cocaine and heroin trafficking case that lasted more than 49 months from the time the accused, Barrett Jordan, was arrested in December 2008 until he was convicted in February 2013.
That was an unreasonable amount of time, the nine justices felt.
The Court also set a new standard that superior courts—in Saskatchewan that would be Queen’s Bench and the Court of Appeals—will have 30 months to complete cases. The Provincial Court must conclude their cases within 18 months, with an additional 12 months allowed where a preliminary inquiry is involved.
That, however, was a split decision, five to four. The majority wrote “the system has lost its way” and that the old guidelines—referred to as Morin after the 1992 case that established them—have been “interpreted to permit endless flexibility.”
The Morin appeal, in which a woman convicted of drunk driving spent 14-and-a-half months awaiting trial, was rejected by the SCC, but it did establish the former standard that trials should proceed within eight to 10 months of committal (as opposed to arrest) with an additional six to eight months where a preliminary hearing is involved.
In Jordan, Justice Thomas Cromwell writing for the minority argued the appropriate place to set firmer guidelines for what constitutes unreasonable delay is within the legislatures.
Of course, wherever they are established, the old rules and the new rules are founded on Section 11 of the Charter of Rights and Freedoms, which states: “Any person charged with an offence has the right… b) to be tried within a reasonable time.”
Just as important, though, from my perspective, is the public’s right to see justice rendered efficiently and quickly.
R. v. Jordan addresses that as well. At one point it references a speech by Chief Justice Beverley McLachlin in which she said: “In short, timely trials further the interests of justice. They ensure that the system functions in a fair and efficient manner; tolerating trials after long delays does not. Swift, predictable justice, ‘the most powerful deterrent of crime’ is seriously undermined and in some cases rendered illusory by delayed trials.”
But while Jordan speaks to these issues, it does not apply the same standard upon the defence to ensure trials are not unreasonably delayed. If the new deadlines are missed by the Crown, prosecutors will have to argue exceptional circumstances or prove the defence waived its right to speedy justice.
Ultimately, I don’t know how much of a game-changer this is. In the first place, I think more than 18 months in the provincial system and 30 at Queen’s Bench is the already the exception rather than the rule.
Secondly, the defence can still waive its right and delay pretty much as it pleases and anticipatory prosecutors will be quick to make sure defendants do so.
Thirdly, like Morin, Jordan establishes firm guidelines, not inflexible rules. Delay will still be subject to adjudication on a case by case bases because some cases are more complex than eithers and require more preparation time.
Finally, reasonableness is in the eye of the beholder. In the eye of this beholder, and likely most lay people, 18 to 30 months seems like a long time and not much different than what is already on the books.
