Decision-making time should count towards Jordan deadlines
By AdvocateDaily.com Staff
Judges should be required to deliver their decisions within deadlines set by the Supreme Court of Canada (SCC) or risk breaching defendants’ Charter rights, says Toronto criminal lawyer Jill Presser, who will appear before the nation’s top court this month representing an intervenor in an appeal involving the issue of delay.
In its landmark Jordan decision, the SCC gave prosecutors hard deadlines for criminal matters to get to trial or risk dismissal for delay for a breach of s. 11 (b) of the Charter, after finding the existing framework was not working.
Under the new system, an unreasonable delay is presumed if it takes longer than 18 months for a case to be heard in provincial court or 30 months in Superior Court.
Presser, principal of Presser Barristers, is scheduled to appear before the SCC on Sept. 25, as counsel for the Criminal Lawyers’ Association (CLA), which has intervenor status in the matter of K.G.K. v. Her Majesty the Queen, arguing the nine-month wait for a verdict should count towards the cap.
“The whole point of the new Jordan framework is to create a more expeditious approach to moving cases through the judicial system,” she tells AdvocateDaily.com. “To undo the culture of complacency that was previously in existence, and move cases forward, we need to look at everyone involved. Nobody is exempt, including the judges making the decisions.”
The man at the heart of the case was convicted at a judge-alone trial of sexual interference and invitation to sexual touching following complaints made by his stepdaughter.
However, a day before the verdict was rendered, he brought a motion to stay proceedings, arguing his s. 11 (b) Charter rights had been breached, and that the nine-month wait for a decision should count in the calculation of the overall delay.
A motion judge dismissed the request, finding that a judge’s decision-making time only comes into play when it is “shocking, inordinate and unconscionable.” Acknowledging the wait in this matter was long, the motion judge found it fell short of that high threshold.
The case progressed to the Supreme Court due to the split on a point of law between the three panellists who heard the arguments at Manitoba’s Court of Appeal, with a two-judge majority dismissing the appeal. A third dissenting judge would have stayed the proceedings against the man.
Presser says she believes the dissenting judge got it right and will urge the SCC to follow her lead by rejecting the Manitoba Crown’s argument that it would be unfair to tag judges with responsibility for delay when faced with extenuating circumstances such as inordinately complex cases or family emergencies.
“The CLA’s position is that allowances for those kinds of issues are already built into the Jordan framework,” Presser says. “Cases can go over the presumptive ceiling in circumstances that are truly unusual or extenuating, and we don’t need to create a whole separate category of delay for judicial decision-making.”
The case took another twist when the Manitoba Crown presented its Supreme Court factum, suggesting an alternative remedy in the event the judges decide the delay in the case was unreasonable and breached s. 11 (b) of the Charter.
Presser says the Crown raised the issue of the alternate remedy of a reduced sentence, as opposed to a stay of proceedings, for the first time in its responding factum. It had never been argued before — not before the motions judge or the court of appeal.
Having raised it for the first time on appeal meant that the appellant could not respond, she says.
Presser explains that the Crown's approach would run counter to a lifetime’s worth of s. 11 (b) jurisprudence, which holds that the only remedy for a Charter breach for unreasonable delay is a stay of proceedings.
In its own factum, the CLA urged the SCC to ignore the Crown’s request for an alternative remedy altogether because it was raised at such a late stage and with no notice to the defendant in the case, she says. Alternatively, the CLA said the judges could emphasize that a stay of proceedings is the appropriate remedy for an s. 11 (b) breach.
“If we had known that the issue of remedies was going to be dealt with, there may well have been other advocacy groups who would have wanted to intervene in support of the defence perspective,” Presser says.