When the Supreme Court of Canada released its reasons in R. v. Jordan, the criminal justice system was taken by surprised. The creation of a presumptive delay ceiling of eighteen months for cases in provincial court and thirty months for those in superior court had judges, lawyers, and court staff scrambling to hurry matters along.
And in the weeks and months following the decision, some cases were thrown out due to unreasonable delay. But not that many. In reality, the number of cases tossed for unreasonable delay did not increase that much.
So after all the scrambling and panic, what really did change?
Again, not that much.
As lawyers with a very busy criminal practice, we have felt the effect of the Jordan decision. But we have not seen a corresponding effect on the other side of things. The purpose of this blog post is to outline some of my concerns about how things have – or have not – changed since the decision in Jordan and what should be changing.
Crown Counsel’s Position
Obviously, since Jordan, Crown Counsel have been much more concerned with the impact of adjournments. But in some circumstances, this has resulted in untenable positions being taken by Crown in relation to delay.
“Why is the defence bar the only one expected to adapt?”
For example, there have been several occasions in which Crown Counsel have said “we are ready to arraign” at the first appearance. This is the appearance at which the accused is given his disclosure. Crown cannot be in a position to arraign a matter where an accused has not had a chance to know the case, review the disclosure, and ensure that it is complete or request additional material. And even if Crown were ready to proceed to trial, it is obvious that an accused person is not. Taking such a position is akin to “playing games” to try to eliminate the “intake period”.
It should be noted that the Jordan decision accounts for a reasonable time in the intake period in the calculation of the ceiling. So taking that position serves no purpose other than being obstinate to the point of absurdity. Nevertheless, some Crown prosecutors continue to take such a position notwithstanding the realities of a trial.
Jordan also suggests that Crown Counsel should change their position when it comes to the reasonable resolution of files. This is where we have a much greater concern. In Jordan, the Court states as follows:
[137] Real change will require the efforts and coordination of all participants in the criminal justice system.
[138] For Crown counsel, this means making reasonable and responsible decisions regarding who to prosecute and for what, delivering on their disclosure obligations promptly with the cooperation of police, creating plans for complex prosecutions, and using court time efficiently. It may also require enhanced Crown discretion for resolving individual cases. For defence counsel, this means actively advancing their clients’ right to a trial within a reasonable time, collaborating with Crown counsel when appropriate and, like Crown counsel, using court time efficiently. Both parties should focus on making reasonable admissions, streamlining the evidence, and anticipating issues that need to be resolved in advance.
The notion that enhanced Crown discretion is used to resolve individual cases appears to be lost a great deal of the time. There are cases with real problems, serious issues with the prosecutions, being set for trial because “your client has a bad record” or “policy” prevents the early non-criminal resolution of certain charges.
Should Crown policy not adapt in light of Jordan?
The examples of the Crown Counsel Policy Manual that relate to some of the more common offences do not mention accommodations in light of Jordan. Look at the impaired driving resolution policy, which contains no mention of consideration of the Court’s comments in Jordan in determining whether to resolve. Rather, the only circumstances allegedly permitted by the manual are where there is no longer a likelihood of a successful prosecution or where there are very exceptional circumstances.
This has been the policy for some time, even before Jordan. Jordan has apparently changed very little.
And while we can understand the valid reasons for not resolving files in British Columbia, including our high “substantial likelihood of conviction” charge approval standard, this policy appears to be often more lenient than the rest of the country.
So what gives? Certainly, nothing gives way in light of Jordan. In my opinion, Crown Counsel policy should be updated to reflect the concerns iterated in Jordan: that Crown should be encouraged to arrive at reasonable resolutions of files based on a consideration of issues that may arise and potential triable issues that may make a prosecution otherwise difficult or lengthy, rather than whether there is or is not a substantial likelihood of conviction.
Changes At The Courthouse
One of the biggest issues arising after Jordan has been a really troubling one of finger-pointing. Who is responsible for the delay, and how much delay are they responsible for is now the discussion at nearly every intake appearance, and the applications for stays often involve poring over dates, determining who wanted a date adjourned and why.
But very little has changed in the practical realities of setting dates to permit this to happen.
Let us explain.
When a date is set, it is done so by the Judicial Case Manager, or JCM. The JCM has a computer system that lists available court dates, available dates for police witnesses, and sometimes Crown Counsel. It does not reliably record the dates that defence counsel is available, though sometimes those will also show up. It does not record if defence counsel is junioring a matter, if they are in Supreme or Traffic Court, or the Court of Appeal.
Dates are then offered based on the JCM’s computer system indicating what the first available date is for the police witnesses and the Court. This means that if the Court has time to hear a matter in January, and defence and Crown are also available, but the police officer is in another trial or on annual leave or on a training course, that date is not offered.
This obviously creates an unfair advantage in the calculation of Jordan timelines for the prosecution. Dates are shown as not available when the only reason for their unavailability is a Crown witness’s schedule. And because defence does not have access to the system, there is no way for the defence to know what dates were available for them but unavailable due to a police witness’ schedule.
An easy fix for this is for the system to be structured such that dates where there is court time are offered first, followed by an inquiry into the availability of police witnesses, and a clear and mandatory record on the scheduling slip that the date was declined due to police unavailability.
The next issue that arises is the acceptance or declining of dates. When a date is declined by Crown, either due to witness unavailability or Crown’s own unavailability, that is not routinely recorded on the scheduling slip. Some JCMs do, some do not. However, all dates declined by defence are recorded on the slip. This results in an unbalanced picture of what was offered.
If defence offers a date that is declined by the court, this is not recorded on the scheduling slip as an offered date. For example, if the court only conducts trials on Thursdays and Fridays but defence has six months of availability on Monday through Wednesday only, the scheduling slip does not consider that.
Despite the fact that Jordan says we must all do better when it comes to delay, the record-keeping by the Court doesn’t give that picture. It gives the picture of additional pressure placed on defence, who are already overworked and underpaid and no corresponding pressure to the Court.
If the dates are offered by defence and declined by the Court, it should be the case that the scheduling slip reflects that. That is not the case. That must change.
And while some courthouses do not have the resources to offer trials five days a week, or even each week of the month, that cannot be a burden an accused person must bear. Circuit courts, smaller courthouses, and busy locations all face an institutional problem when it comes to delay that has not been rectified since Jordan.
Where are the special sittings? Why are there not “floating” judges available to hear cases in circuit courts or courthouses where there are no local judges available a few days of the week? Could we not use an abundance of judicial resources in one location to make up for a scarcity of them in another location as a routine solution for these problems?
I understand that JCMs are often trying to find creative solutions to these issues, but from the defence perspective being repeatedly told “that date isn’t available because we don’t do trials that day” is not encouraging. If we were to take the position that we only conduct trials on Thursdays and Fridays then my unavailability from Monday through Wednesday would be factored in as defence-caused delay in an analysis.
Continuing legal education
And then there’s the issue of continuing legal education. This is another area in which the structure of the system unfairly prejudices the defence. Every six months, the courthouses across this province are shut down for two or three days. No trials happen in any courthouse, anywhere.
During this time, Crown is shipped off to a conference somewhere exotic, like Winnipeg! And judges are sent to somewhere probably a lot less fancy to learn about how to be good judges. Which is great, and necessary. But what is not great about this is that these conferences are not stacked.
It would be possible to have fewer judges and more conferences. Four sessions a year instead of two, or one every two months, so that the judges can still preside over trials during this time and the court does not need to completely shut down the possibility of trials. This would be fairer to everyone and seems a reasonable compromise in light of Jordan.
But instead of that, these dates are simply not available. And despite the fact that defence counsel may well be available on those dates (and probably most are, given that there are no trials) defence counsel is not permitted to offer those as available dates and have them considered in the Jordan timeline. They are not reflected as offered and declined by the Court on the scheduling slip.
And all this would be fine if the Court considered that defence counsel also needs to attend their continuing legal education. Indeed, defence lawyers just like everyone else, are required to complete twelve hours a year and two hours of ethics. That time comes from somewhere. And the somewhere is right out of the Jordan timeline. Yes, that’s right. Despite the fact that availability is not counted against the Court or Crown for their continuing education requirements, the defence still unfairly bears this burden.
These are problems that can easily be fixed. They may require substantial changes, but they are not impossible changes. They are changes that require hiring a few more judges, opening a few more courtroom doors, and changing a few policies and practices in relation to setting dates.
But that’s what the Supreme Court of Canada demanded in Jordan. So why is the defence bar the only one expected to adapt?