The wisdom of the Jordan decision shown by court ruling
I was recently involved in a high-profile case where charges against a member of the Canadian military accused of sexually assaulting a female corporal were stayed because it had taken too long to come to trial.
There was an outcry in some quarters but it was the right decision, according to a precedent-setting 2016 Supreme Court of Canada (SCC) ruling.
In what has become known as the Jordan decision, our nation’s highest court ruled that criminal trials must be completed in a reasonable time. It set that limit at 18 months for provincial court cases and 30 months for superior court trials.
My client was first charged under the National Defence Act and his court-martial was set for February 2022. But before that could occur, the government accepted an interim recommendation from retired SCC Justice Louise Arbour. She had been tasked with reviewing the Canadian military's culture in response to a sexual misconduct crisis that saw numerous military leaders charged with sexual offences.
Justice Arbour recommended that all cases of sexual offences alleged to have been perpetrated by military members should be transferred to the civilian court. My client’s case was one of the first ones to be moved and he was charged under the Criminal Code.
Early hearing not possible
Once I was his lawyer, I pushed for an early hearing, but nothing was available. So I warned the court I would file a Jordan application to have the case stayed since there were no exceptional reasons for the delay. True, the case was moved between the military and civilian judicial systems, but that was something the Crown had control over.
We were given two possible court dates in July or August of 2023. That meant my client would be facing charges for at least 29 months before the case would be resolved. Jordan sets the limit at 18.
The Crown attorney who was originally working on the file argued that the 10 months the case had been tied up in the military justice system should not count. He was later reassigned.
In May of 2023, I asked the prosecutor what evidence they were going to call concerning the Jordan application. It was never provided to me. They kept on telling me they would have it before the court date. When I was in front of the judge overseeing the case on another matter the week before the trial date, I told him I still didn’t have the Crown’s information.
Justice cannot be done ‘on the fly’
The day before the Jordan application was to be heard, the judge ordered the Crown attorney to attend court. The prosecutor said he would have his application information for the hearing the next day and we could “argue it on the fly.”
I would not agree since I needed time to study the Crown’s submission and reply if necessary.
The judge cancelled the next day’s court appearance. At the subsequent hearing, the Crown finally gave me his application. I responded to it but then another Crown attorney took over and said the first response was wrong, and gave me an amended reply.
Most of that response simply reiterated what Justice Arbour said about the need for military sexual assault cases to go to the civil system and nothing more.
The Crown also stated the impact of COVID-19 on the justice system should be considered an exceptional circumstance that would extend the Jordan deadline. The judge rejected that viewpoint. As I argued, at some point we must stop blaming everything on COVID. The judicial system had embraced virtual hearings during the pandemic so that was not a valid reason for the delay.
COVID is no excuse
The COVID excuse had also come up. The Crown said the backlog caused by the pandemic should be considered an exceptional circumstance under the Jordan rules. I argued that even if there is a backlog of cases, the wise alternative is for the prosecution to go through their files and decide if there are some charges that could resolve without a trial. At some point, we need to stop blaming COVID and just get things in gear.
During the hearing, I was able to show that there are still sexual assault cases being dealt with in the military justice system. Since that's the case, I argued the Crown cannot use the excuse of the transfer between systems as an exception to Jordan.
Reluctantly, I think, the judge agreed that this matter should be stayed under the Jordan timeframe.
It was not the decision anyone wanted. In any criminal matter, the defence wants to have a trial within a reasonable amount of time to present arguments to show why there should be an acquittal. We want cases settled on the evidence, not procedural rules.
But at the same time, it is not fair to require someone to wait years to have their day in court. Their life is on hold while they're waiting for their matter to be resolved.
This case illustrates that even when a retired judge of the reputational stature of Louis Arbour makes a recommendation, that does not mean it is followed to the letter. In this instance, it was a sad comedy of errors that led to the decision to stay the trial.