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When Jordan meets provincial offences, COVID-19

Thursday, October 01, 2020 @ 2:55 PM | By Nathan Baker


Nathan Baker %>
Nathan Baker
The Supreme Court settled many uncertainties regarding the right to a trial within a reasonable time pursuant to s. 11(b) of the Charter of Rights and Freedoms in R. v. Jordan 2016 SCC 27. Ceilings for delay were quantified for the first time. Ceilings for matters proceeding to trial in Superior Court were set at 30 months while matters in proceeding in provincial court were capped at 18 months.

While these timeframes may be lengthened in specific cases which are overly complex or shortened where matters should have proceeded more quickly, it creates an onus on either the Crown or defendant to justify a timeframe which veers from the set timelines. These timelines were upheld and reiterated in R. v. Cody [2017] S.C.J. No. 31.

While Jordan and Cody created seemingly clear timelines, there were certain cases which under previous interpretations were often dealt with differently than regular adult matters. One type of case is youth matters. In R. v. K.J.M. 2019 SCC 55, the Supreme Court, in a 5-3-1 decision, considered the applicable timeframes in youth matters. Traditionally, youth matters were expected to complete faster than adult matters.

This reflected unique factors such as the added stress experienced by adolescents, the greater risk of loss of memory and the goal of the Youth Criminal Justice Act of providing more expeditious process for youth matters. The majority concluded that the Jordan timelines should be applied in youth matters. This reflects that Jordan timelines are ceilings, not floors and that it will be more difficult for the prosecution to justify exceeding these ceilings in youth matters. As youth matters proceed in the provincial courts, the 18-month ceiling is applicable in virtually all youth cases. The minority decisions supported a lower ceiling of 15 months for youth matters.

Another area where matters were traditionally expected to proceed in a more expeditious fashion was with regard to Provincial Offence Act (POA) matters. Similar to youth matters, POA matters were meant to be streamlined to encourage faster and more ready access to resolution of matters.

The applicability of the Jordan frameworks, specifically around the 18-month ceiling as these matters proceed in provincial court, had been considered in different ways by trial and initial appeal courts. In its judgment released Sept. 30, 2020, the Ontario Court of Appeal provided greater clarification in R. v. Nguyen 2020 ONCA 609.

The earlier case of York v. Tomovski 2017 ONCJ 785 (leave to the Ontario Court of Appeal refused, York (Regional Municipality) v. Tomovski [2018] O.J. No. 357) which had set a 14-month ceiling for Part 1 POA matters was rejected by the initial Appeal Court judge in the Nguyen matter. The Court of Appeal agreed and set the ceiling timeframe at 18 months in line with Jordan. In doing so, it adopted much of the reasoning from K.J.M. The majority in K.J.M. recognized that stays for delays below the presumptive ceilings are more likely in youth matters. This reflects the different interests at play in youth matters which reinforce the importance of proceeding expeditiously. The application of K.J.M. to POA matters suggests that stays may be more likely in POA matters below the ceiling given the principles governing POA matters.

The onus will be on the accused to argue why the prejudice in a specific case may justify a stay at a below-ceiling timeline but following K.J.M., this may be easier to establish in POA matters than criminal matters.

It is important to remember that Jordan sets out ceilings. There may be times where shorter time periods may justify a stay given the prejudice caused to an accused. There will be times where exceptional circumstances as recognized in Jordan, such as during the current pandemic, will allow for delay beyond the ceilings to be justified. Already, cases like R. v. Ismail 2020 BCPC 144 are dealing with delay occasioned by COVID-19.

While some delay will necessarily be considered exceptional in these times, it is incumbent on all parties to remember their duty to avoid the “culture of complacency” discussed in Jordan.

It is incumbent on prosecutors to not merely rely on the pandemic to justify delay. Prosecutors must work to move matters forward including prioritizing which matters will need all-too-precious trial time. Defence must not rest during these times either. They should be vigorous in taking “meaningful steps that demonstrate a sustained effort to expedite the proceedings” as suggested in Jordan. POA courts in Ontario remain closed at this time, even after other provincial courts have reopened. Issues surrounding s. 11(b) will undoubtedly be front and centre as they reopen.

Nathan Baker is a criminal defence lawyer in Peterborough, Ont., and is a sole practitioner at Nathan Baker Law. He takes special interest in impaired driving cases, especially those involving drug impaired driving and impaired boating. E-mail him at nathanbakerlaw@gmail.com.

Photo credit / Nuthawut Somsuk ISTOCKPHOTO.COM

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