Reasonable Time for Unreasonable Crimes

As the court system in Canada has progressed over time, the Charter of Rights and Freedoms has been called under review numerous times to ensure that it is being appropriately applied and that Canadians basic rights are being fairly applied. Most individuals in society would not question that this does good for society, but occasionally when making a point, the Supreme Court of Canada uses extreme examples to highlight the importance of these rights.

Section 11(b) of the Canadian Charter of Rights and Freedoms states “Any person charged with an offence has the right … to be tried within a reasonable time”. Prior to R v Jordan, which was decided July 8, 2016, “reasonable time” was highly contested and debatable under the common law. The Jordan case defined for the courts what a “reasonable time” was in more specific terms than the previous Morin test. This case updated the previously vague Morin test to now consider “reasonable time” as 18 months for a trial in provincial courts, and 30 months for a trial in a superior court. This notion of the right to a fair trial was introduced in the common law through R v Jordan and upheld in a second case that was released the same day, R v Williamson.

Jordan introduced the notion that if a trial takes beyond 18 or 30 months depending on the level of court, the charges will be stayed. The general public seemed to have little contention with R v Jordan. Jordan was charged with 14 counts of various drug and drug trafficking offences, he was arrested in 2008 and his first trial was 5 years later in 2013. In a parallel and less publicized case, the Supreme Court of Canada affirms not only the case law from Jordan but also takes a very strong stance on how important section 11(b) of the Charter is for Canadians in R v Williamson.

Unlike what can be viewed as simply a drug case, Kenneth Gavin Williamson was initially charged with sexually abusing a minor. Williamson was found guilty in 2011 two years after being charged in 2009. Williamson, who was 26 at the time of the assault, was not only 14 years the child’s senior, but also in a position of authority over the child and was considered a “big brother” to them. Williamson was convicted of “gross sexual misconduct” and when the case came before the Supreme Court of Canada, there was no question of his guilt, but was solely an administrative issue which led to Williamson’s charges being quashed.

At the time of both R v Jordan and R v Williamson the legal test from R v Morin was in effect. This test outlined that the length of a courts delay had to be weighed against societies interests in the crime and the accused. R v Jordan modified this test and the new test was then also applied inWilliamson which resulted in a convicted pedophile having his charges stayed. While the principle of Jordan has held over the years, many individuals remain unaware of the Williamson case that was published concurrently with Jordan. A speculative thought is that the rationale behind this decision to hold the principle as the Jordan principle and not the Willamson principle is because having a stay of proceedings on a drug trafficking cases is less controversial and questionable than a stay of proceedings on a sexual assault of a minor case.

Whatever the reason for publishing the principle under the Jordan case, the application and ramifications of the strict 18- and 30-month deadlines are being felt by the courthouses across Canada. There is a notably higher strain on courts to function at high levels of efficiency and strong communication between crown and defense lawyers. Constitutionally, the right to a fair trial in a reasonable amount of time is imperative for Canadians, practically speaking though, this is difficult to orchestrate. It also raises a pressing concern that convicted criminals, such as Williamson, can be released by a court due to what is effectively, though controversially a technicality.

The current system offers protection of Charter rights, which is imperative, yet no longer considers societies interests in the case. Williamson was released over a five-month difference between his trial length and the Jordan maximum. Williamson’s trial took 35 months, with the Jordan limit for this type of trail being 30 months. Due to Jordan changing the Morin test, "society's interests" are not assessed when viewing the delay in proceedings. It is important to note at this point, that during the delay, Williamson was not in custody, did not have onerous bail restrictions placed on him as per section 515(2) of the Criminal Code, yet had all charges stayed over a five-month delay. This is not to discredit the importance of Canadian’s section 11(b) rights, it simply offers some insights as to why perhaps the Supreme Court of Canada prefers Jordan to highlight and be the leading case law to defining what is “reasonable time” as opposed to Williamson. While both cases reach the same conclusion, were published on the same day, and either could have been used to illustrate the importance of this Charter right, Jordan not only offers a more dramatic illustration of delay – 5 years versus 5 months, but, it is also safe to say, in the eyes of most Canadians, it is easier to accept the stay of proceedings over drug possession and trafficking, then that of the sexual assault of a minor.