By Delon Shurtz on January 8, 2018.
In 1990, an appeal heard before the Supreme Court of Canada established the criteria and standards by which Canadian courts determine whether an accused’s rights under the Canadian Charter of Rights and Freedoms — to be tried within a reasonable time — has been infringed.
The case was R. v. Askov.
In 1983, Elijah Anton Askov was charged with extortion, brandishing and pointing a sawed-off shotgun, and assault with a weapon. However, 34 months spent waiting for a trial was ruled too long and unconstitutional, and all charges against Askov were stayed.
Following that ruling, in Ontario alone, lower courts dismissed more than 47,000 cases.
Up until July of last year, Askov was regularly referenced in court whenever there was a risk that an adjournment might contribute to an unreasonable delay and ultimately a stay of proceedings. Since July 2016, however, a new word has replaced Askov, and “Jordan” is now the name referenced on almost a daily basis.
In R. v. Jordan, the Supreme Court of Canada made broad and sweeping changes to the framework that determines whether an accused has been tried within a reasonable time under section 11(b) of the Charter. The issue, just like Askov, was whether there was too much delay in the criminal proceedings against the accused.
Barrett Richard Jordan was arrested in December 2008 and charged with offences relating to drug possession and trafficking. He was released with conditions two months later, and a preliminary inquiry was scheduled for May 2010. The hearing was adjourned, however, and finally in May 2011 Jordan was committed to stand trial. By the time the trial was over in February 2013, just over four years had passed from the time the charges had been laid.
During his trial Jordan applied for a stay of proceedings, but it was dismissed. It was also rejected by the British Columbia Court of Appeal. The Supreme Court of Canada overturned the appeal court’s ruling, however, in a 5-4 majority.
Lethbridge lawyer Greg White says the burden is on the Crown to prove there hasn’t been unreasonable delay, and the new framework takes away any guesswork and prevents both sides from being lackadaisical when it comes to moving matters along.
“I think it’s good,” White says of the decision. “It makes things easier.”
White has already successfully used the Jordan decision to get a stay of proceedings in a case that goes back to 2012.
Nearly six years ago Jorden Van Voorthuizen was arrested in Greece and accused of sexually assaulting two young boys in the late 1990s. The former Taber man was brought back to Alberta in April 2012 and stood trial in 2014. He was found guilty, and sentenced to nine years in a federal prison.
He was granted an appeal, however, and in November 2017, on the second day of his new trial in Court of Queen’s Bench, Justice D.K. Miller ruled the accused had not been tried in a reasonable amount of time, and he stayed the charges.
“Timely justice is one of the hallmarks of a free and just society,” Miller said.
The judge based his ruling on R v Jordan and determined that too much time had expired between Van Voorthuizen’s arrest and the new trial.
In the Jordan case, the Supreme Court of Canada rejected the criteria traditionally used to determine whether an accused has been tried within a reasonable time. The court replaced the old framework with a ceiling of 18 months between the time the charges are laid to the end of trial in provincial court without preliminary inquiry, and 30 months in higher courts.
There are some exceptions, however, depending on the circumstances. For example, any delay that is attributable to, or waived by, defence does not count toward the presumptive ceiling, and neither does any delay that is not the Crown’s fault.
When the ceiling is exceeded, it is automatically presumed that the delay is unreasonable. The Crown may only rebut this presumption by establishing that a “discrete” event occurred that was reasonably unforeseen and reasonably unavoidable, such as an illness or unexpected event at trial, or that the case was particularly complex and required an inordinate amount of trial time or preparation time.
Where the ceiling has not been exceeded, an accused may still claim delay and establish that it is unreasonable by showing that defence made a sustained effort to expedite the proceedings and that the case took markedly longer than it reasonably should have.
White is also defending a client in a drug case in which it took 18 months just to obtain disclosure from the Crown. By the time the case goes to trial in February, 22 months will have passed since the accused was charged, four months beyond ceiling set by Jordan.
White is working to resolve the matter with the Crown, but if it goes to trial, White will argue his client’s Charter rights were breached.
Despite lingering concerns that the new framework is too inflexible, it appears the superior court is standing by its decision. White points out that a number of provincial Attorneys General asked the Supreme Court to modify the Jordan framework, which would have provided for more flexibility in deducting and justifying delay relating to another case in R. v. Cody.
In that case the accused, James Cody, who was charged with possession of drugs and prohibited weapons, waited five years before his five-day trial was scheduled to begin. He argued the delay breached his Charter rights. The Court applied the Jordan framework and unanimously ordered a stay of proceedings.
Because the Crown is alive to the fact that it bears the burden of proof should a case exceed the Jordan ceiling, the name is referenced almost daily in Lethbridge provincial court. Sometimes a delay may be attributed to the Crown, but when it’s not, the Crown often requires defence to “waive Jordan.” If a case exceeds the new ceiling, and the court is faced with a Jordan application, the Crown can point out defence was responsible for some of the delay, which may be deducted from the total time.
White says courts, at least in Lethbridge, appear to be providing more trial time to help speed up cases, and prosecutors and defence lawyers seem to be handling the new rules without too much trouble. Because of that, he doesn’t believe there will be a lot of Jordan applications.
“It’s not going to happen very often,” he predicts.