Last summer, following its decision on a drug-charges case in British Columbia that took five years to come to trial, the Supreme Court codified what has been a longstanding principle in our legal tradition: the right for the accused to be tried in a reasonable amount of time. Our high court prescribed a hard ceiling of 18 months for provincial court cases and 30 months for those headed to federal court.
In mere months, what’s known as the Jordan decision — named after Barrett Richard Jordan, who was convicted in 2013 of selling cocaine and heroin 49 months after being charged — has reverberated throughout our criminal justice system. Six cases have been thrown out of court for failing to meet the time limits. There are reports of 60 more Jordan applications in the system, with another 11 hovering around the time threshold. Among the most high-profile Jordan decision was in November 2016, when an Ontario judge stayed a first-degree murder trial in Ottawa. The Crown has launched an appeal.
The immediate stakeholder response is not surprising: the system lacks the resources to deal with the current backlog of cases. There is merit to this argument, given the number of vacancies on the provincial and federal bench. In Alberta, for example, there are 7 official vacancies on the Queen’s Bench. The province believes that number would actually be 19 if the federal government used a per capita model in funding and appointing justices.
While the initial flurry of cases being thrown out has created panic in the system, we have not felt the full impact of the ruling. We have not experienced a rash of major criminal cases — for example, those involving child sexual exploitation, human trafficking or organized crime —being stayed by the courts due to an “unreasonable delay” in bringing the cases to trial. Hopefully that day will never arrive, but the criminal justice system will not be fixed with a hope and a prayer.
Additional resources for our courts may make a dent in judicial case backlogs, but they won’t address the broader challenges in balancing the safety and security of Canadians with the rights of the accused to have a fair and expedient trial.
To their credit, some provincial governments are looking at structural changes to expedite bringing cases to trial. Among the measures they’re pondering is the elimination of preliminary inquiries, a process by which the defence tests evidence before the court, and triaging cases based on the likelihood of successful prosecutions.
But incremental changes to the way we try the accused will not address the growing backlogs in our criminal justice system. We must acknowledge that the nature of crime is evolving very fast, and yet the way our institutions investigate and adjudicate these crimes has changed only marginally.
Human trafficking, for example, is increasingly multi-jurisdictional, even global in nature. And crimes like fraud, child exploitation and terrorism are enabled by the very social media tools we enjoy with our friends and family.
Yet there have been few innovations in the laws and investigative tools that our police agencies need to able to collaborate efficiently with each other, with Crown attorneys and with correctional officials. As well, emerging players like wireless carriers and technology companies house some of the most compelling evidence, some of it stored abroad.
The amount of time required to get court orders for critical evidence, and to procure that evidence from technology companies or from other police forces — whether they’re across the street or on the other side of the world — is increasingly challenging. And analyzing that evidence often requires highly sought-after technical expertise, which must be shared with the investigating officers who understand case context. The same process must be repeated with Crown and defence attorneys, before the evidence ever sees the light of a courtroom.
If our criminal justice system is to uphold its societal obligation to keep citizens safe and provide those accused of crimes with expedient trials, we need a broad rethinking of the processes by which crimes are investigated and adjudicated and suspects brought to court. We have to focus on new approaches and tools that decrease time lags and bring stakeholders together — virtually or in-person — and that leverage underutilized capacity within the system.
The Jordan ruling isn’t the root cause of cases being thrown out of court or stayed, in the months since the Supreme Court’s decision. Rather, it is a stark reminder that every moment in a criminal case — from investigation to arrest to trial — is critical, and requires co-operation among stakeholders, as well as an understanding and command of new innovations and technologies. This matters to the victim. It matters to the rightly and wrongly accused. And it should matter to society at large.
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