The Jordan Framework Works, but for Whom? -Nicholas Mark

It has been well established that the Canadian legal system is not a system guided by efficiency, despite the level of responsibility and influence it has on the people that engage with it. This is particularly true for the criminal justice system. This sentiment is especially highlighted in the Supreme Court of Canada’s (SCC) decision found in R v. Jordan, the case that preceded it, R v. Morin, and the many that followed the tests that came from both. In Jordan specifically, the courts intended to find the best way to force the legal system to deal with the issues of systemic delays, such delays have been plaguing the justice system for ages, leaving “the innocent in limbo and the guilty unpunished, thereby offending the community’s sense of justice”. (1) The Jordan decision and interpretation of s.11(b) breaches was not intended to be an empty promise, but rather an action to provide assurances to the accused, to the victims, their families, witnesses, and the public as a whole. (2) Though it has only been roughly four years since this case was heard, these delays are still ever-present, and still maintain to undermine the Canadian public’s perception of justice.

R v. Thanabalasingham happens to be the most recent case to follow the rule found in Jordan to be heard in Canada’s highest court. This case involved an individual charged for the second degree-murder of his spouse back in August 2012, and following a lengthy preliminary hearing was set to appear for trial 6 years later, though this was graciously expedited to only 5 years following the Jordan decision. (3) In Thanabalasingham, the SCC was tasked with the issue of deciding whether or not the unreasonable delay exceeded the ceiling of 30 months for cases tried in a superior court, as set out in Jordan. (4) Exceeding this ceiling of unreasonable delay would result in a stay of proceedings. Within that issue there was also discussion of the transitional exceptional circumstance of this case, meaning that the initial charge was well before Jordan, and a stay was sought only after the framework was transformed. It would be unfair to subject this case to a “standard of which they had no notice”. (5)

The SCC upheld the lower court’s decision, without much contention, and the unreasonable delay was correctly calculated at 43 months, one year and one month longer than the previously mentioned threshold. (6) They also rejected the transitional exceptional circumstance argument as even without the Jordan framework, a stay would have still been granted under the previous guidelines of 14 to 18 months as set out in Morin. (7) In this argument the SCC did find that the trial judge did err when they had stated that the seriousness of the offence was very limited in the analysis, though this was inconsequential as the same result would have been found regardless. (8)

R v. Thanabalasingham was a particularly short decision from the SCC, the above description demonstrating its relative straightforwardness from the point of view of the court. This simplicity was exactly what was sought when the Jordan framework was concocted, and by using that precedent set they reaffirmed the goals that were previously set out in that hallmark case for s.11(b) infringements. It was also explicitly endorsed in the decision when it was stated that all participants in the justice system, emphasis on trial judges, should take steps in all stages of a trial, to ensure that complacency and the delays that follow, are not tolerated. (9) Not only is this an endorsement of the Jordan decision, the goal behind that decision of rectifying the issue of systemic delay, but it also proves that Jordan is working as intended. This framework was drafted with the value heavily placed on simplicity, otherwise the applications for the stays would only further burden an already overwhelmed justice system. (10) Jordan represents a clear improvement on life prior to its decision for most cases, but there are still areas that require further analysis.

While simplicity is a value the Canadian criminal justice system should aspire to, it can be somewhat of a double-edged sword in the Jordan analysis, Thanabalasingham is one imposing example of this. Simplicity may usually seem like a good idea, but when it comes to large, complex, and systemic issues that have persisted over a long period of time, it may not be the best. It can leave out areas of nuance for the sake of simplicity, casting a broad net to reel in all cases of unreasonable delay regardless of their differences, only seeking the goal of correcting the issue. Thanabalasingham is a case that depicts the issue with this when you consider what was at stake there. The cost of the crime was a life, something so valuable that the punishment often involves a much longer prison sentence that Thanabalasingham had served pre-trial. I am aware of the deleterious effect of having delayed justice, but denying justice through stays of proceedings, particularly for more serious cases, is denial of justice in the true sense of the word. Do not take this argument for the advocacy for long pretrial detention sentences, it truly is an issue unto itself, but rather I argue for the seeking of justice where serious situations may require it.

The Jordan framework was said to create incentives for both sides, clarifying constitutional obligations on the crown to the accused, and igniting the crown to proceed at a reasonable pace regarding trials. (11) Though, this begs the question who pays for these incentives? When a family who had lost a loved one due to a crime like murder is left feeling cheated by the justice system these human costs are better brought into light, the general public who reads about a possible offender having their case stayed as a result of unreasonable delays would be justified in their outrage against such findings. Though I agree that such a framework is required for most crimes to ensure that rights set out in the Canadian Constitution are not infringed upon, I also believe that crimes of such severity require deeper analysis of the possible outcomes of staying the proceedings may be. Jordan seemingly discussed the ceiling without regard to the possible crimes that may be committed and subsequently impacted by it. When it comes to serious crimes where things like loss of life are considered, this broad and general framework needs to be reconsidered in light of the circumstances. Though I maintain that all stages of the criminal justice system should be dealt with as quickly as possible, with consideration of upholding due diligence, in some situations dealing with a case should be held in priority rather than sending this message. While the s.11(b) Charter right is a right that “inures not just to the benefit of accused persons, but to the benefit of victims and society as a whole”, (12) the effects of staying a serious and important proceeding negatively impacts the victims, those close to them, and society as a whole.

These deadlines were clearly intended as a message to bring a louder call for action from the courts, to fix the court system and end systemic delays. (13) Thanabalasingham was especially susceptible to these delays, as the epidemic of this systemic delay was particularly bad in Montreal where Thanabalasingham was charged. (14) With that said, I do not believe that the message that the courts send with these decisions in more serious cases is the best approach to tackling the issue at hand, if the purpose of rectifying the issue is maintaining public confidence in the system. By sending this message for serious cases like the one discussed here, allowing stays for serious crimes like murder would only negatively impact the public’s confidence. Though generally having the ceiling is ideal for most crimes, cases of more serious nature need to be re-evaluated. To mitigate this, I would propose that it would be ideal to better consider the context of the crime, for more serious crimes the ceiling should be raised while the justice system is still trying to make its way through the waves Jordan had created. Cases like Thanabalasingham, should not go untried in the interest of public confidence, safety, and for justice, albeit delayed, to take place.

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Endnotes

1 R v Jordan, 2016 1 SCR 631 at para 25 [Jordan].

2 Ibid at para 50.

3 R v. Thanabalasingham, 2020 SCC 18 at para 2 [Thanabalasingham].

4 Jordan supra note 1 at para 5.

5 Ibid at para 96.

6 Thanabalasingham supra note 3 at para 8.

7 Ibid.

8 Ibid.

9 Ibid at para 9.

10 Jordan supra note 1 at para 111.

11 Ibid at para 112.

12 Thanabalasingham supra note 3 at para 9.

13 Ibid.

14 ibid at para 7.