HomeCase CommentaryR. v. Jordan is Judicial Legislation
Under the new framework, there is a presumptive ceiling of 18 months for cases going to trial in provincial court.

R. v. Jordan is Judicial Legislation

On July 8, 2016, in R. v. Jordan, 2016 SCC 27, the Supreme Court of Canada overturned its decision in R. v. Morin, [1992] 1 SCR 771. The Court is supposed to be the gatekeeper of the Constitution. However, in R. v. Jordan, it ignored the separation of powers and legislated “ceilings” in establishing whether an accused’s s. 11(b) “right to be tried within a reasonable time” was violated. R. v. Jordan was not a reference case whereby the Supreme Court was asked to determine the constitutional legitimacy of legislated timeframes. Instead, the Supreme Court acted as a legislature and court in adopting ceilings to which a rebuttable presumption of institutional delay will be found. Judicial discretion is often the outcry exclaimed against the government imposition of mandatory minimum sentences, yet this decision of the Supreme Court effectively prevents judges from determining whether s. 11(b) was violated based on the reasoned approach of Morin and effectively imposes a mandatory minimum institutional delay.

In Morin, the Supreme Court determined that when determining whether or not section 11(b) was breached, a court ought to consider four factors: (1) the length of the delay; (2) defence waiver; (3) the reasons for the delay, including the inherent needs of the case, defence delay, Crown delay, institutional delay, and other reasons for delay; and (4) prejudice to the accused’s interest in liberty, security of the person, and fair trial.

The majority, written by Moldaver, Karakatsanis, Brown JJ. (joined also by Abella and Côté JJ.) begin their reasons by asserting that “timely justice is one of the hallmarks of a free and democratic society.” Both the accused and general public have an interest in trials occurring in a timely fashion. The majority then goes on to state that the Canadian justice system has come to tolerate excessive delays and a culture of complacency has developed. It should be noted that Mr. Jordan had experienced a 49.5 month delay.

The majority discussed the overall effects of delay on the criminal justice system and found that the Morin factors resulted in several problems. First, the application is highly unpredictable; second, the treatment of prejudice has become a highly subjective enterprise, leading to inconsistent results; third, the retrospective inquiry causes the parties to analyse the delay and not redress it; and finally, the framework is unduly complex. The majority continued, noting that the increased complexity of pre-trial and trial processes since Morin have further aggravated the delay and tolerance of it.

The majority went on to fashion a new framework for section 11(b) applications. A ceiling, “beyond which delay is presumptively unreasonable” was constructed. The presumptive ceiling was set at 18 months for cases going to trial in provincial court and 30 months for cases going to trial in the superior court. If the delay surpasses the ceiling, it is incumbent upon the Crown to establish the presence of exceptional circumstances. Failing that, the charges will be stayed.  If the delay falls below the ceiling, the onus of establishing undue delay falls upon the defence. In establishing the ceilings, the majority considered the guide in Morin (of 8-10 months for provincial court and an additional 6-8 for superior court) and added time to account for other factors that can add to the time it takes to prosecute a case.

Cromwell J., writing for McLachlin C.J. and Wagner and Gascon JJ., concurred in the result but disagreed with the overruling of Morin in favour of the new framework. Cromwell J. disagreed with the prescribed ceilings and asserted that reasonableness cannot be captured by a number. Cromwell J. noted that creating these types of ceilings is a job best left to the legislature. Further, Cromwell J. found that ceilings are not supported by the record or by an analysis of the last decade of s. 11(b) jurisprudence and have not been subject to adversarial debate. Cromwell J. asserted that there was a serious risk that the ceilings may cause thousands of cases to be judicially stayed. Cromwell J. concluded that the ceilings are unlikely to result in the simplicity imagined by the majority and finally stated that setting aside the past three decades of jurisprudence is unnecessary.

In my respectful view, Cromwell J.’s concurring opinion is the correct one. A fundamental problem with the majority’s decision is that  it overturns the reasoned and principled approach of Morin in favor of a strict ceiling of presumptively unreasonable timelines based on a single case (albeit one which involves an inherently lengthy prima facie institutional delay). The decision by the majority is cloaked in the interest of justice; surely, the many paragraphs dedicated to addressing the reputation of the justice system and the anguish experienced by the accused and victims due to delay would assure any reader that the court is merely issuing a strict timeline to ensure criminal trials occur without unreasonable delay. However, the Court’s departure from the traditional contextual approach to what is “reasonable” in favor of rigid ceilings exceeds the role of guardian of the Constitution and enters the realm of statute creation. While the courts may certainly consider factors in determining whether a trial has occurred in a reasonable time, by setting forth a rebuttable ceiling, the court has improperly entered the legislative and policy sphere, captured by Cromwell J. at paragraph 267:

Creating fixed or presumptive ceilings is a task better left to legislatures. If such ceilings are to be created, Parliament should do so. As Lamer J. stated in Mills: “There is no magic moment beyond which a violation will be deemed to have occurred, and this Court should refrain from legislating same” (p. 942; see also Conway, at p. 1697 (concurring)).

It is the duty of the legislature to enact legislation that complies with the Constitutions’ requirements. The enactment of legislation requires majority approval following three separate votes, and approval from the Senate. In the event the majority of elected officials determine that the issue of institutional delay required a statutory timeframe to which criminal actions must be brought to trial, a committee would be created to examine the issue. The committee would gather evidence and seek submissions. A major concern in the majority’s decision is that the change to the law was effected based on one case and without public consultation or thorough analysis of various public policy considerations. Indeed, as noted by Cromwell J., the imposition of ceiling was not supported by the record.

The approach of Morin, rooted in the underlying constitutional language of reasonableness, affords judges the judicial freedom to determine whether, in the particular case before them, the right to a trial within a reasonable time was violated. It is hard not to draw the close parallel between the majority’s imposition of timelines to determine violations of 11(b) and the imposition of mandatory minimum sentences. Both tie the hands of the court and it is quite possible that the strict “ceilings” may result in a patently unfair denial of an accused’s s. 11(b) rights, just as a mandatory minimum sentence may be patently unfair to a convicted individual.

The majority decision is replete with blanket assertions that are not proven. It is overly concerned with the “unpredictable” application of s. 11(b), but it did not flesh out the “unpredictability” that is supposedly apparent in the jurisprudence. The majority also noted that the treatment of the “prejudice” factor has become “a highly subjective enterprise”. Again, this was not discussed beyond the mere assertion. The majority also asserts, without any basis, that an individual’s rights are not redressed under the Morin framework. This is nonsensical. Indeed, the violation of s. 11(b) will result in a determination of whether charges may proceed. Finally, the majority fails to explain how the Morin framework is unduly complex or how the new “ceilings” are less complex, as rebutting the presumption established by these ceilings will clearly require complex analysis.

The assertion by Cromwell J. that reasonableness cannot be captured by a number is the true spirit of s. 11(b). It is unfortunate that this was not the principle to guide the majority decision.