“I can’t remember if I cried when I read about his widowed bride, but something touched me deep inside, the day, the music died.” Don McLean
I’m not sure what day it was when the music died but I do recall the day Canadian justice did.
It was July 8, 2016.
That was the day the SCC (Supreme Court of Canada) delivered it’s decision on R v Jordan – a British Columbia case that started out as a fairly uninteresting dial-a-dealer drug investigation that has now morphed into arguably the most significant decision ever made by the lofty court.
The Back Story
In December 2008, the accused, identified as Barrett Richard Jordan, was arrested in an RCMP “dial-a-dealer” operation in Langley, British Columbia.
He was charged with nine other players on a fourteen count indictment alleging various drug trafficking offences. Jordan remained in custody until February 2009 when he was released under strict house arrest conditions.
He spent close to four years under those conditions.
Well not really four years…
In July 2011, Jordan was convicted of prior unrelated drug charges and was the beneficiary of a fifteen (15) month non-custodial conditional sentence order.
So in reality, he was a sentenced prisoner for that fifteen (15) month period.
Like any other criminal case, the usual delays came into play and were identified as;
- Delays attributable to the Defence – 4 months
- Delays attributable to the Crown – 2 months
- Institutional delays – 32.5 months
In September 2012, Jordan brought an application for a stay of proceedings alleging a breach of his Section 11 (b) Charter rights – specifically, the right to be tried within a reasonable amount of time.
The application was dismissed.
In making the decision to dismiss the application, the trial judge found that institutional delay should be given less weight than Crown delay in the final balancing. As a mitigating factor, the trial judge appropriately noted a significant part of the delay coincided with Jordan’s fifteen (15) month conditional sentence order.
As such, the judge found that Jordan’s liberty interest was not significantly prejudiced by the delay.
In February 2013, Jordan was convicted of five (5) drug related charges.
A total of 49.5 months elapsed between the time of arrest to the time of conviction.
Jordan appealed the decision.
The British Columbia Court of Appeal dismissed the appeal indicating the trial judge did not err in his attribution of the delay or in his weighing of the institutional delay.
Unfortunately, the Supreme Court of Canada disagreed.
The Supreme Court ruled Mr. Jordan’s section 11 (b) right was breached and set aside his convictions and entered a stay of proceedings on all charges.
The Court wrote, “In this case, the system was undisciplined. It failed. All parties were operating within the culture of complacency towards delay that has pervaded the criminal justice system in recent years.”
In arriving at their decision the SCC provided a new analytical framework to assess delays in criminal matters. That framework identified “presumptive ceilings” when applying Section 11 (b) of the Charter of Rights;
The Presumptive Ceiling
- Provincial Courts – 18 months from charge to conclusion of case
- Superior Courts – 30 months from charge to conclusion of case
It’s important to note the decision was not unanimous, in fact, it was a close – 5 t0 4.
The dissenting Justices identified serious concerns with the new framework;
- Reasonableness cannot be captured by a number – the ceilings substitute a right for “trial under a ceiling” with the previously held right to be “tried within a reasonable time”
- Creating these types of ceilings is a task better left for legislation
- The ceilings are not supported by the record or by analysis of the last 10 years of section 11 (d) jurisprudence and have not been the subject of adversarial debate
- There is a serious risk that the introduction of these ceilings will put thousands of cases at risk of being judicially stayed
- The ceilings are unlikely to achieve the simplicity that is claimed for them
- Setting aside 30 years of jurisprudence and striking out in this new direction is unnecessary
In summary the dissenters wrote;
“In contrast, my view is that a reasonable time for trial under s. 11(b) cannot and should not be defined by numerical ceilings. The accumulated wisdom of the past 30 years of jurisprudence, modestly clarified, provides a workable framework to determine whether the right to be tried in a reasonable time has been breached in a particular case.”
Real World Application
It seems the dissenting Justices were visionaries.
They saw the dangers inherent in their colleagues decision and spelled it out for all of us;
“There is a serious risk that the introduction of these ceilings will put thousands of cases at risk of being judicially stayed.”
That ominous prediction has come to fruition.
In October 2016, an Edmonton Judge stayed a 1st degree murder charge against an accused killer citing the R v Jordan SCC decision.
The Judge blamed most of the 38 1/2 month delay on Alberta’s backlogged court system but did suggest 24 months of the delay was attributable to the accused who fired his lawyer at the last-minute.
The killing took place at the Edmonton Maximum Security Penitentiary in August 2011.
The accused killer was identified as Lance Matthew Regan (24), a known gang member from Saskatchewan. Regan was doing time for robbery, extortion, aggravated assault and other violent offences.
The victim was identified as Mason Tex Montgrand (21) a rival gangster doing a 13 year sentence for manslaughter and an impressive list of other charges. He died of multiple stab wounds.
It’s important to note, the case against Regan was exceptionally strong.
The killing was caught on video tape and it took place in front of a number of witnesses.
In November 2016, an Ontario Superior Court Judge stayed a 1st degree murder charge against Adam Picard (33), a former Canadian soldier accused of killing Fouad Nayel (28) in what police described as a drug related killing.
Nayel disappeared in June of 2012.
His body was found in a wooded area near Calabogie, Ontario in November of that year.
Justice Julianne Parfett stayed the charge based on a section 11 (b) Charter breach as the case had been before the courts for four (4) years, a time frame that far exceeds the framework supplanted by the SCC.
According to Nayel’s mother, “They had so much evidence and now its down the drain.”
The decision meant Picard simply walked out of the courtroom a free man.
The case sparked outrage and protest.
The Crown promptly appealed the decision.
Bringing the Administration of Justice into Disrepute
The repute of the criminal justice system is something all Judges take very seriously.
The term “bringing the administration of justice into disrepute” has many applications in modern-day criminal justice.
It’s a principle used by Judges to assess police conduct, specifically methods or techniques used to gather evidence during criminal investigations.
The Judge must scrutinize the police conduct to determine if the admission of evidence gathered in a criminal case would maintain the integrity of, and public confidence in, the justice system.
So what happens when the highest court in the land lacks the self-awareness required to see the impact of a decision that has the potential, in cause and effect, to bring the administration of justice into disrepute?
When Killers Walk Free
The most serious crime in the Criminal Code of Canada is murder.
The unlawful killing of one human being by another.
What could be more serious?
How the most serious crime is adjudicated is an important measure of the functionality of any criminal justice system.
In light of the SCC decision on R v Jordan, and the foreseeable judicial stays – exactly what grade would you assign to our justice system?
Under the current Canadian criminal justice system;
- accused killers walk free, with no trial or finding of guilt or innocence.
- families, relatives and friends of victims of homicide are left with no resolution, no closure and no justice.
- public safety is unquestionably compromised
It seems that the application of the law in R v Jordan has done precisely what the dissenting Justices feared.
There is no denying our criminal justice system has long been under achieving in the context of section 11 (b) of the Canadian Charter of Rights and Freedoms.
The delays experienced in bringing criminal matters to conclusion are unacceptable.
That said, I don’t believe the SCC Justices gave full consideration to the colossal impact a retroactive ruling like R v Jordan could have, not only on public perception, but also on the administration of criminal justice.
How many more accused killers will walk free?
Absent in the Jordan decision was any assessment regarding the strength of the Crown’s case against the alleged offender.
The cases against the killers explored in this article were extremely strong.
The time it took to bring these cases to conclusion only represented between 13 – 16% of the global sentence the alleged killers would have received if they had been convicted.
In the big picture, some might call that an inconvenience.
There had to be a better way.
July 8, 2016…
The day, the music died.