There have been several significant Supreme Court decisions that have come out since I first joined the police service back in 2008. The case that stands to have the greatest effect on the justice system is arguably the Jordan decision released in July 2016.1 As I took leave from work to attend school beginning in September of 2016, I did not have the opportunity to necessarily see the effects immediately. There are however numerous potential ways that I see the Jordan decision impacting the justice system from a police perspective.
For those unaware, the Jordan Decision set out a new framework for the right to be tried within a reasonable time under section 11(b) of the Charter. In doing so, the Supreme Court identified specific time frames for a case going to trial from the time the charge is originally laid, those being 18 months for provincial court trials and 30 months for superior court trials.2
The first thing that jumped out to me is the wording of the Court when it specified that the delay stems from the time of “the charge.”3 There are many instances where a suspect will not be located and arrested immediately following an offence. On those occasions, police will subsequently seek a warrant for arrest of that person. To obtain the warrant, police must also swear the Information laying the charge and this in turn becomes the date that the accused was charged.
Now, simply because an accused has been charged and a warrant has been issued does not mean the suspect will be arrested immediately. Suspects in these situations are not usually banging down the door of the police station. That means that police need to attempt to locate these people.
In my personal experience, and I feel safe speaking for a variety of police services, apprehending suspects with outstanding warrants is not always the highest priority. This may vary depending on the seriousness of the offence, whether is was a person or property crime and other factors. However, on a basic charge such as mischief, it would not be uncommon for very few attempts to be made by police to locate a suspect. The fact is that police are simply busy dealing with higher priority matters and once a file hits the warrant stage, it is virtually concluded. Sure, the suspect still needs to be picked up but that usually takes care of itself at one point or another (most people that have police involvement are regular in their interactions).
I believe the Province of Manitoba did a good thing a few years ago when they created the Integrated Warrant Apprehension Unit, a combined Winnipeg Police Service and RCMP section that focuses on addressing the backlog of outstanding warrants throughout the province. But even with this unit, I am confident that there are still numerous outstanding warrants throughout the province.
This plays into the Jordan decision because interpreting Jordan strictly, an accused person’s clock starts running from the time of “the charge.” Therefore, in the case of a warrant, the clock would start running from when the charge is laid and the warrant is issued. If an accused is arrested on the warrant four months after the charge is laid, the presumption is that the time frame now has 14 months remaining until the actual or anticipated time of trial.
The Court did leave some leeway in the framework for issues such as “defence delay.”4 If an accused was actively avoiding police and this can be proven, it would seemingly extend the time frame. However, the question then becomes, what constitutes the accused actively avoiding police? If the police attend to the accused’s home once or twice a month and he or she is not home, does this turn the burden back onto the defendant? What exactly is the frequency of checks required by police to waive the burden of delay from falling on the feet of the Crown? I think these are all good questions that no one yet knows the answers to.
Beyond just the wording relating to the time of “the charge,” I do see some other additional potential issues regarding time lines. Frequently, more complex files may require the use of forensic analysis, whether that is DNA analysis, drug analysis, firearm testing or some other type of lab work. Unlike CSI where the results are immediate, these things take time.
Firstly, a request needs to be sent off to the lab, who will approve which exhibits to send. The exhibits are then sent off and the lab will conduct tests to determine if there is any DNA and if there is enough to find a sample suitable for a comparative analysis. These tests take a significant amount of time. Assuming a sample for comparison is located, police then need to write a warrant to obtain a DNA sample from the suspect and then send that sample off to the lab to see if it matches up. This again all takes a decent amount of time. If the case is something like a sexual assault where the accused was arrested and charged immediately, these tasks all need to be carried out within the time frame set out in Jordan.
Finally, and arguably most importantly, there is the issue of the impact on victims and their families. Jordan dealt with the case of an alleged drug trafficker. His charges being stayed ultimately had little direct impact on any citizen except for himself. That is significantly different than charges of murder or sexual assault being stayed because of systemic delays in the court system.
I feel changes were needed to address some of the issues plaguing court delays but I am not sure such finite and strict time lines are the answer. It appears the Supreme Court has had an opportunity to revisit their decision in the recently heard R v James Cody 5 case and I hope that they take the time to consider the impact that Jordan has had in the short time since its release and in turn tweak the presumption to better strike a balance in the overall administration of justice.
1 R v Jordan, 2016 SCC 27
2 Ibid at para 49.
4 Ibid at para 63.