Our country’s systemic failures are not visible to the public, so they do not incite public outrage. If the public is not outraged, the government does not have to act.
In late June, the Standing Senate Committee on Legal and Constitutional Affairs released a comprehensive report with 50 recommendations to alleviate the strain on our court system entitled “Delaying Justice is Denying Justice: An Urgent Need to Address Lengthy Court Delays in Canada." Among the solutions offered by the Senate Committee is the proposal that where an accused’s constitutional right to be tried within a reasonable time has been violated, a stay of proceedings should not be the only remedy available to courts. It recommended that the government codify less significant remedies such as adjusting sentences and allowing for costs — both of which assume the accused person is not innocent.
This proposal should be rejected. Not only does it fail to address the true causes of court delays, it reflects a failed approach — it attempts to make a problem disappear rather than solve it.
The report was not motivated by delays that have been plaguing the justice system for decades but rather by the Supreme Court of Canada’s most recent attempt to tackle such delays with yet another new framework. In the now-infamous 2016 R. v. Jordan decision, the court established time limits for the prosecution of cases from the laying of charges to the conclusion of a trial. Any delays exceeding these time limits are presumed to be unreasonable and a violation of an accused’s Charter right to be tried within a reasonable time. If a court finds that a delay is unreasonable, a judicial stay of proceedings will result.
The Senate Committee’s proposal to extend remedies beyond judicial stays stems not from a concern over high ceilings, but from its conclusion that an entry of a stay of proceedings for those persons charged with crimes “shocks the conscience of the Canadian community and brings the administration of justice into disrepute.” This outrage, however, is necessary for change. As the court pointed out in Jordan, the delays in our courts are the result of a “culture of complacency.” Shifting this culture will take a large injection of resources. Allowing for remedies other than judicial stays to quell public outrage will ease the pressure on the government to address the causes of delay and remove the sense of urgency necessary to change a culture of complacency.
The Senate Committee’s proposal to extend remedies beyond judicial stays also stems from a floodgates argument that is neither supported by the language in Jordan nor by the way it has been interpreted by courts. The court’s framework in Jordan allows for additional contextual considerations for cases currently in the system. This is to prevent unjust results that might occur when actors within a system are forced to rapidly adjust to standards of which they had no notice. These “transitional exceptional circumstances,” as the court calls them, will apply when the Crown satisfies the court that the time the case has taken is justified based on the parties’ reasonable reliance on the law as it previously existed.
In the press release announcing its report, the Senate Committee represented to the public that these “transitional provisions” prevent the full implementation of the Jordan time limits. The Senate Committee further stated that these “transitional provisions” run out for provincial courts in January 2018, at which time “the flood gates will open for tens of thousands of stays.”
This is simply incorrect. The transitional exceptional circumstances do not prevent the full implementation of the time limits in Jordan. The Supreme Court was quite clear that even for transitional cases, the presumptive ceilings of 18 and 30 months apply. The transitional exceptional circumstances only contextualize the analysis of reasonableness where a delay exceeded the ceiling.
Also, the transitional exceptional circumstances do not “run out” for provincial courts in January 2018 or on any other date. The Jordan decision does not place temporal limits on a court’s ability to consider transitional circumstances. Rather, these considerations continue to be appropriate in assessing the reasonableness of delays in all cases that were in the system prior to Jordan. Contrary to the assertions in the Senate Committee report, they do not operate as floodgates holding back the deluge of judicial stays.
Finally, it is important to recognize that allowing for remedies other than judicial stays when an accused’s right to be tried within a reasonable time has been violated shifts the burden of systemic failure on to the accused. We must remember that waiting years to have your case tried is not merely an inconvenience, it is illegal. It is a violation of the Constitution, which binds the state and is the most important law in the country. The burden of constitutional compliance should be borne by the state. While entering judicial stays of proceedings when serious crimes are alleged can constitute a blow to the public conscience, that blow should not be softened by deflection toward the accused.
Deflecting the consequences of Charter violations removes the impetus for reform. The state must focus on eradicating Charter violations rather than making the consequences of such violations more palatable to the public. Such solutions lack ambition, are constitutionally suspect and continue to reflect the very culture of complacency that has characterized our justice system for so long.
Clayton C. Ruby, B.A., LL.B., LL.M., LL.D. (honoris causa) is one of Canada’s leading lawyers who specializes in criminal, constitutional, administrative and civil rights law. He is an outspoken proponent of the rights of the accused and has devoted his professional career to ensuring that those who are underprivileged are treated fairly by the legal system of this country.
Annamaria Enenajor, B.A., M.Sc., B.C.L., LL.B is an associate at Ruby Shiller Barristers, practicing criminal defence, constitutional, administrative and civil rights law. She is a former Supreme Court of Canada clerk and a recovering New York litigator. She frequently writes and provides commentary to the media on justice and equality issues. Follow her: @aenenajor