After R v Jordan: Reflections on the R v KJM, R v KGK and Subsequent Policy Changes
Updated: 17 hours ago
Author: B Sheppard
R v Jordan was heard on July 8th, 2016 and has significantly changed the practice of criminal law. However, with any significant change, there are still growing pains. The issues regarding delay and the timeline ceilings in Jordan raise more questions than it answers. One of those issues was recently addressed in R v KJM, 2019 SCC 55. KJM addresses the issue of whether or not the Jordan 18-month ceiling and the presumption of unreasonable delay was also applicable in youth justice court proceedings or whether, given the nature and interests of the youth, there was a need for more enhanced timelines.[1]
While the Court does not establish a separate ceiling for youth matters, the need for timeliness does factor in to whether delay falling below the presumptive ceiling is unreasonable and when considering whether a case took (or is expected to take) markedly longer than it reasonably should have.[2] The Court also reiterated that the Jordan framework applies to all criminal matters, not just youth matters which clarifies its future applicability.[3] In KJM, the majority found despite the closeness to the presumptive 18-month ceiling (after removing defence delay) and unusually length of time it took, a stay of proceedings was not warranted because defence was not proactive enough[4] and, that when considering the context in which the case occurred, institutional delay was more tolerated and constrained the Crown’s ability to move the case in a timely manner.[5]
However, the Court was split 5-4. Abella, Brown and Martin JJ. state that the YCJA requires an entirely different ceiling as the criminal proceedings should be resolved more quickly for a multitude of reasons.[6] A different ceiling not only ensures the protections afforded by the YCJA but it also ensure clarity and predictability regarding the “below the ceiling” test of unreasonableness.[7] The application of Jordan ceilings in youth proceedings would undermine the Jordan decision which states that prejudice was only one factor, not a consideration, and stays would only be granted in rare cases.[8] Youth proceedings would require more weight to be given to prejudice and the YJCA protections seem to suggest that more stays ought to be granted.
Karakatsanis, while not disagreeing with the application of the Jordan ceiling, disagreed with the requirement for proactive conduct throughout instead of just acting reasonably and expeditiously.[9] The classification that failed attempts at diversion or extrajudicial sanction programs should be attributed to the defence is also problematic since the YCJA encourages these measures and there is no support for the claim that the Crown would decide not to offer such programs.[10]
KJM shows the very different applications of the Jordan timelines and the different aspects considered in the application of the timelines by the Supreme Court Justices. It also raises additional issues which the dissent highlighted about the extent to which defence counsel must be proactive. What is considered proactive enough? As well, since failed diversion may constitute delay by defence, should that be a consideration for defence counsel when duly advising their client about the process of diversion?
KJM was heard on February 19, 2019 and several months later on September 25, 2019 R v KGK was heard in Winnipeg as a part of the Supreme Court of Canada’s R v KGK, briefly stated, was an appeal on the issue of whether or not the Jordan ceiling include the judge’s decision-making time.[11] Post-conviction delay is not currently addressed in legislation nor does Jordan address it.[12] The appellant raises the issue of sentencing delay as engaging Section [11] Charter rights to justify the extension of Jordan timelines to include judicial decision-making.[13] The appellant references the Canadian Judicial Council outlines for reserve decisions should be delivered within six months barring special circumstances.[14] The Criminal Lawyer’s Association (Ontario) was an intervener and raised similar arguments that the failure to clarify timelines for judicial decision-making extends the bounds of reasonableness and undermines the predictability sought by the Jordan decision.[15] There are some limited avenues of recourse in Ontario for when a judge fails to give a decision in the case of a judgement within six months or any other case within three months.[16] However, that is more of an accountability provision which permits complaints to the Chief Justice and subsequent investigation regarding judicial delay; it is does not provide a remedy for a breach of rights under Section 11(b) of the Charter.
However, as the Respondents and Interveners for the Respondents have emphasized, there are significant concerns surrounding judicial independence and the right to a fair trial including practical issues such as caseload and ensure a complete and due consideration.[17] Several of the Supreme Court Justices also raised questions about the practicality of inclusion of judicial decision-making and proving any delay caused in decision-making would be reasonable. While the decision will likely be released until 2020, KGK has the ability to impact the practice of criminal law significantly as well as the internal processes of the Courts.
Different jurisdictions throughout Canada are already taking steps to address the concerns with timelines and delay in the Court System, both in civil and criminal proceedings since Jordan. The Manitoba Department of Justice is committed to publicly report quarterly the average time to disposition for criminal cases in the Provincial Court of Manitoba as measured in days from first appearance to final disposition.[18] Likewise, Ontario Court of Justice Criminal Justice Modernization Committee compiles an impressive amount of statistics since 2016 regarding the criminal justice matters in Ontario by specific court regions and courthouses.[19] Overall, more information is being collected and analysed on the efficiency of the criminal justice system.
Alberta has a publicly available Prosecution Service Practice Protocol that includes as delay as a factor in the triage’s principled approach and a consideration for efficient file management.[20] This is another important potential shift for the criminal law profession. There are now more rigid timelines but the staffing level and caseload of prosecutors have presumably not changed that significantly. Priority will be given to offences of a more serious nature which may mean an increase in willingness to offer diversion or a decrease in willingness to prosecute crimes of a less serious nature (such as theft or limited property damage). While more research would need to be conducted in order to track potential shifts in trends in prosecution, the publication of policies with specific references to Jordan suggests at very least some serious consideration of timelines in prosecuting offences.
While the Court is still deciding KGK, the decision will likely have significant effects on the policies of the Courts in all jurisdictions as well, just as Jordan has had on the various Provincial Departments of Justice in how they track and address delay in prosecutions.
Endnotes:
[1] R v KJM, 2019 SCC 55 at para 37.
[2] Ibid at para 68.
[3] Ibid at para 78.
[4] Ibid at paras 83, 89 and 97.
[5] Ibid at paras 117-119.
[6] Ibid at paras 150-152. Reasons for a quicker proceedings include the heightened vulnerability, their diminished blameworthiness and the more robust protections offered to youth offenders.
[7] Ibid at paras 153-155.
[8] Ibid at para 154.
[9] Ibid at para 220.
[10] Ibid at paras 225-227.
[11] R v KGK, 2017 MBQB 96 at para 42.
[12] R v Jordan, 2016 SCC 27 at para 49, ff 2.
[13] “Factum of the Appellant” at para 137. Online: Supreme Court of Canada. https://www.scc-csc.ca/WebDocuments-DocumentsWeb/38532/FM010_Appellant_K.G.K..pdf <https://perma.cc/5CRC-6XR9>
[14] Ibid at para 156.
[15] “Factum of the Intervener, Criminal Lawyers’ Association (Ontario)” at paras 6-7. Online: Supreme Court of
Canada https://www.scc-csc.ca/WebDocuments-DocumentsWeb/38532/FM060_Intervener_Criminal-Lawyers'-Association-(Ontario).pdf <https://perma.cc/85L8-GZM6>
[16] Courts of Justice Act, RSO 1990, c C43, s 123(5).
[17] “Factum of the Respondent” at paras 42 and 44-47. Online: Supreme Court of Canada https://www.scc csc.ca/WebDocuments-DocumentsWeb/38532/FM020_Respondent_Her-Majesty-the-Queen.PDF <>
[18] See: “Time to Disposition”: Manitoba Justice, https://www.gov.mb.ca/justice/cjsm/ttd.html
[19] See: “Ontario Court of Justice Criminal Justice Modernization Committee Dashboard” online: Ontario Court of Justice http://www.ontariocourts.ca/ocj/stats-crim-mod/ <https://perma.cc/7KYL-CUKU>
[20] “Triage Practice Protocol,” at 2 and 5. Online: Government of Alberta: Jordan Applications
https://open.alberta.ca/dataset/0e128f8d-6aa1-433f-bb7f-f9fc299b331d/resource/fba50a35-6454-4932-9bf6-0067e776d601/download/2017-triage-protocol.pdf <https://perma.cc/NL7Y-DPV9>
