MASTHEAD-1The debate over how to achieve a speedy trial and who is responsible to do so is very old. But with the Supreme Court’s recent decision in Jordan we see a truly remarkable shift toward leadership by the Court that gives hope that all the actors in the justice system will leave behind our culture of delay.

By Geoffrey Cowper, August 12, 2016

Seemingly impatient with the chronic problem of delays in the criminal justice system, a majority of the Supreme Court in the recent case of Jordan v. Regina [i] pronounced a dramatically new framework for the constitutional right to trial within a reasonable time. From a policy perspective the judgment, and the judgment in the Williamson case handed down at the same time, has generated a fascinating debate on the role of the courts in overseeing the system of justice.

The debate in the judgments is principally about how constitutional rights and remedies should be framed regarding the goals of systemic reform, in this case aimed at achieving timely resolution of criminal charges. The heavy weight given by the majority in the Jordan case to standards which require active management of the system represents a significantly different institutional role assumed by the Court.

The decisions have now established two presumptive standards for timely disposition of criminal charges from the laying of the charge until commencement of the trial: 18 months in the provincial courts and 30 months in the superior courts. Under the new standard, cases which take longer than these limits to get to trial, for reasons other than delay caused by the defence, will be presumed to have breached the right to a timely trial under the Charter of Rights and Freedoms. Unless that presumption is overcome the cases will be stayed.

It is understood this will immediately affect thousands of cases across the country which are already past these time limits.

There may be cases concerned with undue delay before and after the timelines established by the court. Some guidance as to those was provided by the court but will doubtless be the subject of further development. The court also addressed the transition to the new standard as it relates to the many dated cases already within the system and how those should be addressed. It is understood this will immediately affect thousands of cases across the country which are already past these time limits.

The new approach was agreed on only by a slender majority of five judges, but there was broad agreement on the need to address the problem of delay in the system. The disagreement between the majority and minority was over what was the appropriate solution, with the majority preferring a dramatic reset of the framework for these cases, and the minority preferring an incremental amendment of the principles governing this area since the Court’s 1991 judgment in Morin.

Background

The constitutional right to trial within a reasonable time was included in the Charter of Rights and Freedoms without much comment or fanfare. Despite its quiet introduction, there has been little agreement even in developed criminal law systems on the scope of a right to a timely trial, or remedies for undue delay. The problem of delay in the courts is as old as the court system itself. For example, in 1537 Sir John Fortescue’s Commendation of the Laws of England[ii]  included a debate in which delays in personal and realty proceedings were criticised. He writes that “It is objected that the Laws of England admit of great delays in the course of their proceedings …”. The defence then offered was that some delay was inevitable and useful, that wrongful convictions had been known to flow from overly rapid justice, and that the French Courts were far worse – a criticism and defence which has parallels in many debates since. Fortescue records that within a year, a wife was executed for the murder of her husband and a servant later drawn and quartered for the same murder in which he confessed and exonerated the already executed wife. In Canada, the now reversed conviction of Steven Truscott for the murder of Lynne Harper in 1959 was obtained within four months of his arrest.

Prior to the Charter, extreme delay was featured only in rare cases in aid of an abuse of process argument[iii]. Otherwise decisions respecting delay have peppered the landscape of adjournments, stays of proceedings and other managerial decisions which indirectly affect the ability of the Crown to proceed.

Earlier attempts to address the issue included the Supreme Court’s 1990 decision in R. v. Askov[iv] which it was said caused approximately 25,000 cases to be stayed in Ontario alone. The decisions have explored the intersection of the accused’s private rights to a timely trial and broader social goals relating to timeliness.

Long delays can cause the public to view the system as remote and arbitrary, irrelevant to punishment or rehabilitation, and fundamentally unreliable.

There is now widespread agreement that both an accused and society may suffer prejudice from undue delay. An accused may suffer an unjustified deprivation of liberty and other restrictions on normal life during the pendency of charges, and the outcome may be affected by the natural erosion of memory, and the loss or degradation of evidence. Long delays can cause the public to view the system as remote and arbitrary, irrelevant to punishment or rehabilitation, and fundamentally unreliable.

The problem of delay has no doubt risen in prominence because of the shocks delivered to the system by the recognition of constitutional restraints on the institutional and other delays to which the system is prone. The public is understandably alarmed when it appears criminal charges are stayed arbitrarily because they were not processed in a timely way. This has included a high-profile motorcycle gang conspiracy case in Quebec and similar cases elsewhere.[v] Apart from the court decisions, there have been numerous reports touching on the chronic nature of delay in the system.

Jordan

The majority of the Court has firmly taken a managerial approach. There is now a hard deadline for the commencement of trial that the participants will have to plan to meet and which will not be easily released or forgiven. The support for this approach includes:

  • Rejection of the necessity of assessing timeliness after the fact, rather than establishing a time-related standard for delay;
  • Recognition that undue delay is itself a problem and should be presumed to be prejudicial;
  • Affirmation of the principle that efficiency and quality of justice concerns are interdependent;
  • Criticism of the experience under the former standard as unpredictable, retrospective, subjective, and complex;
  • The need to address the culture of delay in the court system by a standard that would provoke real action by other justice participants in relation to charging policy, resources and logistics generally.

The minority judgment rejected the need or principle of a hard stop and expressed as a starting principle that a time-to-trial standard cannot and should not be defined by numerical ceilings. The dissenting judges fully agreed with the need for solutions, but were concerned that the majority approach was disconnected from the process of judicially determining the breach of a constitutional right and by expressing a fixed standard, the Court was adopting an arbitrary measure which may prove too long and perhaps feed rather than change the culture of delay.

Old problem/new solutions

Is there anything different about this debate today and the social context of the long period since the 16th century? I believe so. In short, the public expectation of managerial performance by all public systems, the greater transparency and functionality afforded by modern information systems, and openness to innovation are all new features to the context of justice system delay. These modern features all seem to have contributed to this determination to change the gears of the system.

The majority’s preference for a constitutional standard that would be prospective and focussed on a numerical period reflects a preference for articulations of rights that require systematic and managerial performance. It also represents a different type of common law development; one which draws as much upon collective experience such as system performance as it does on individual cases. The cases have all featured different stories of delay with shifting types of causes and contexts, including prosecutorial indifference and negligence, institutional arrangements and resourcing decisions, local factors, and a host of case-related delays arising from personal and professional factors. The approach taken in Jordan sweeps all that complexity and variability under one presumptive standard. Finally, it represents the Court engaging in the process of changing rights, where action from the system as a whole seemed called for.

This shift is truly remarkable. Judges have always been reluctant to assume institutional perspectives and responsibilities. To the extent that a system of justice exists, judges have always seen their influence as indirect and contingent on decisions by other justice participants, and fundamentally centered on adjudicating cases. The right to a timely trial raised broader system-wide issues with a particular focus and obvious judicial interest, but it will be interesting to see how the attention to shared experience and outcomes affects other constitutional debates.

The judiciary and the Supreme Court speak with a moral and political force that is without equal in today’s culture.

Gradually the value of judicial leadership has come to be recognised in a system with several interdependent but independent actors.[vi] The judiciary and the Supreme Court speak with a moral and political force that is without equal in today’s culture. It is perhaps natural that in the face of an ongoing chronic problem affecting their very role the Supreme Court would use its constitutional role in a different way.

Calling out others

The Court also called on all justice system participants to work to achieve timeliness through structural and procedural changes within their respective remits. It hinted at changes within prosecutorial offices, the defence and the Courts. The Court urged the development of collaborative and efficient methods to achieving justice within a reasonable time.

From a policy perspective it is obvious that different actors will have preferences for different solutions. One solution attracting widespread support is additional funds for the system participants. Judges frequently refer to the shortage of appointments. In May of this year the Chief Justice of Alberta took the extraordinary step of saying that cases were being stayed because of the then 46-judge national shortfall in federally-appointed judges. Prosecutors often refer to the need for greater funds to manage large, complex cases. Legal aid systems point out the role that underfunding legal aid has played in lengthening delays in the system.

The case for additional funding has often been met with silence on the part of governments, or episodic freshets of additional money to address urgent circumstances. Indeed the governmental response to the earlier shock of Askov was to make additional judicial appointments and increase ministry funding.

There seems however very little widespread agreement as to how to assess the proper level of funding. In the result, participants are frequently encouraged to capitalise on opportunities presented by public alarm over particular cases or situations. It is clear that a broader consensus on the proper funding and management of the system may be encouraged by the Court, but is dependent on the decisions of senior levels of government.

A hard stop on lengthy trials as mandated in Jordan is not a solution in itself but an incentive to others in the system. The development of new information and management systems coupled with the recognition of both the possibility and necessity of really changing gears and leaving behind our culture of delay, offers real and new hope for enduring solutions to a very old problem.

Geoffrey Cowper is partner at Fasken Martineau in Vancouver. He was chair of the BC Justice Reform Initiative which delivered its report, “A Criminal Justice System for the 20th Century” to the Attorney General of British Columbia in 2012.

[i] Jordan v. Regina 2016 SCC 27; R. v. Williamson 2016 SCC 28

[ii] Translation from Latin by Francis Grigor, Sweet and Maxwell 1917, pp. 90-91.

[iii] Rare, it must be said, not because delay was rare, but rather due to the absence of any clear standards. See, R v. Falls and Nobes (1976) 26 C.C.C. (2d) 540; R v. Thorpe (1973) 11 C.C.C. (2d) 502.

[iv] R. v. Askov 1990 2 S.C.R. 1199

[v] Eg. R v. Auclair Quebec judgment affirmed by the SCC: http://canlii.ca/t/g0trw; http://canlii.ca/t/g2r8g

[vi] See for example, Achieving Timeliness Requires Judicial Leadership: A Perspective from the United States, His Honour Judge Kevin Burke, 2014.