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R. v. Jordan – How much delay is too much delay?

RIPPLE EFFECTS OF SUPREME COURT’s DECISION IN R. v. JORDAN (2016)

Supreme Court of Canada may not envisioned the future effects of it’s decision in R. v. Jordan when it held that trials in Provincial Courts should be held within 18 months, while trials in Superior Courts should take place with in 30 months. Although the Honourable Court made it clear that the decision was not meant to make sweeping changes and should not result in stay of thousand of charges as was the case with Supreme Court’s decision in R. v. Askov (1990), it’s decision in Jordan has resulted in uncontemplated ripple effects.

Prosecutors in Ottawa are appealing stay of charges for first degree murder after the trial judge held that a delay of 40 months to trial infringed upon an individual’s right to trial within a reasonable time, protected under Section 11 (b) of the Canadian Charter of Rights and Freedoms. Prosecutors stated that the trial judge did not consider society’s interest and reputation of justice system while making the order to stay first degree charges of Adam Picard. Court of Appeal is scheduled to hear appeal in June. Elsewhere, in Alberta and Quebec similar stay of charges for first and second degree murder are also under appeal due to Jordan ruling.

Prosecutors in Toronto are seeking a removal of one of the two defence lawyers for two brothers committed to stand trial on first degree murder, alleging that one of the accused’s right to to fair trial will be infringed due to the other accused’s lawyer’s unavailability for trial within the 30 month limit set by Supreme’s Court’s decision in R. v. Jordan last year. Curtis and Corey Murray, two brothers were charged in March 2015 and are set to be tried together for a six week trial, but Curtis’s lawyer is not available for such a lengthy trial until March 2018. Crown is alleging that Corey’s right to fair trial will be infringed and crown’s case will be harmed if brothers are tried separately. As a result, an accused’s right to trial within a reasonable time is in conflict with co-accused’s right to counsel of choice, both rights protected by the Charter. Criminal Lawyers Association has intervened and has stated “that state interference in the lawyer-client relationship should be permitted only in the most compelling circumstances”. Supreme Court in Jordan could not have thought of circumstances such as above could have arisen from their decision.

The Federal Justice Minister has called for an emergency meeting with its Provincial counterparts, at the end of April, 2017, to address the concern of delay which has led provinces such as Alberta to withdraw or stay many charges in order to accommodate serious offences. Although, provinces have channeled millions of dollars to hire more provincial court judges, prosecutors, court staff and have expanded legal aid, federal government has not kept up with pace of ensuring trials can take place within reasonable time. There are more than four dozens vacancies for judges in Superior Court and federal government does not any framework in place that can help in fulfilling these positions in a timely manner.

Ironically, provinces such as Ontario and Manitoba are also planning to scrap an accused’s choice to have a Preliminary Inquiry in order to combat delay by arguing that Preliminary Inquiries take up court’s valuable resources without providing any real benefits. The Benefits of Preliminary Inquiry were discussed in previous posts and there are plenty for both the Crown and Defense.

In conclusion, it would be suffice to say that the Court of Appeal’s ruling in Picard will be eagerly awaited. However, it may well turn out to be an opportunity for Supreme Court to reconsider its 5-4 decision in Jordan and lay further framework that equally protects an accused’s rights and freedoms under the Charter, but also balances society’s interest in combating crime and reputation of justice system.

How long has it taken for your matter to get to trial? Are you still waiting? never hesitate to contact Smordin Law to review your options.

https://beta.theglobeandmail.com/news/national/ontario-murder-case-tests-courts-time-limit-dismissals/article34648763/

https://beta.theglobeandmail.com/news/national/fears-of-delay-prompts-bid-to-remove-lawyer-from-first-degree-murder-trial/article34573253/

https://beta.theglobeandmail.com/news/national/ottawa-schedules-emergency-meeting-as-court-delays-intensify/article34662280/?ref=http://www.theglobeandmail.com&service=mobile

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