Justice Delayed Is Justice Denied. When a person is charged with a criminal offence, they have a right to be tried within a reasonable amount of time. This principle is a cornerstone of Canada's justice system. It is found not only in the Charter of Rights and Freedoms (section 11(b)), but also binding international human rights laws (International Covenant on Civil and Political Rights).
But What Is a Reasonable Amount of Time to Conduct a Criminal Trial?
According to the Supreme Court of Canada's Jordan principle, it is either 18 or 30 months. Those are the numerical ceilings the Court established in R. v. Jordan 1 SCR 631 for cases going to trial in provincial court or superior court, respectively. Since the Court's decision in 2016, any delay beyond these ceilings is now considered presumptively unreasonable. The Crown may only rebut this presumption by demonstrating to the Court that there were exceptional circumstances outside of its control.
In many respects, the right to a speedy trial serves both the accused and society well. It limits the time the accused may spend in jail for a crime for which their guilt has not been proven, it ensures victims and their families do not have to wait exceedingly long periods before learning of the final decision, and it allows the public to see justice done.
But when court backlogs are causing cases involving serious charges (such as murder or sexual assault) to be stayed before a verdict is reached, is it really in the public interest?
In this blog post, I outline the Jordan principle, explain why it has created problems for survivors of sexual assault, and call for change in the criminal court system while reminding survivors of their options to achieve a sense of justice in civil court.
Before and After Jordan.
Prior to 2016, when judges were asked to stay proceedings due unreasonable trial delays, they conducted a judicial assessment. The court considered a variety of factors to determine if the length of delay was reasonable. The factors and framework to complete the assessment were outlined most clearly in R. v. Morin 1 SCR 771.
First, the court established the total length of the delay, less time waived by the accused.
Next, the court assessed how much of this delay was attributable to:
- (i) inherent time requirements of the case
- (ii) actions of the accused
- (iii) actions of the Crown
- (iv) limitations of institutional resources (systemic delay)
- (v) other reasons
Finally, the court weighed the potential prejudice this delay caused to the accused compared to the interests of justice.
In R. v. Jordan, the Supreme Court rejected the Morin framework for applying s. 11(b) because it had both doctrinal and practical problems which contributed to "a culture of delay and complacency towards it."
The Court stated: "Doctrinally, the Morin framework is too unpredictable, too confusing, and too complex. It has itself become a burden on already overburdened trial courts. From a practical perspective, the Morin framework's after-the-fact rationalization of delay does not encourage participants in the justice system to take preventative measures to address inefficient practices and resourcing problems."
The Jordan framework imposed numerical ceilings for presumptive reasonableness depending on which level of court would hear the case. Beyond these ceilings, the Crown must explain why there are exceptional circumstances that warrant such a delay. The circumstances must lie outside of its control, be reasonably unforeseen or reasonably unavoidable, and cannot reasonably be remedied.
The Court also explained: "the seriousness or gravity of the offence cannot be relied on, nor can chronic institutional delay. Most significantly, the absence of prejudice can in no circumstances be used to justify delays after the presumptive ceiling is breached."
The Problems With Jordan.
Almost immediately following this landmark ruling, legal observers began to highlight some of its potential consequences.
Although the Court implemented the Jordan principle framework to spur governments to tackle chronic institutional delay (preferably by investing in more judges, prosecutors, and court staff/facilities), it also suggested that existing resources must be managed effectively in the interim.
"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," the Jordan ruling stated. "It may also require enhanced Crown discretion for resolving individual cases."
When it comes to prosecuting sexual assault cases, the pressures that the Jordan decision has put to bear on the judicial system come clearly into focus.
As Simon Lapierre noted in his Policy Options article titled "The Jordan decision's impact on cases of violence against women," the move toward trauma-informed practice among police and justice officials results in outcomes that "require more time and more resources - not less."
In the wake of Jordan's strict timelines and call for efficient use of resources, when assessing whether and when to bring criminal charges against a person accused of sexual assault, police and prosecutors must now consider:
- how the facts of a particular case fit with the existing (and potentially new) standard to pursue charges. Lapierre wondered if "provinces that use a 'reasonable prospect of conviction' standard feel pressured to instead use a 'reasonable likelihood of conviction' standard in order to lessen their caseload."
- whether media coverage of stayed charges in sexual assault cases that have breached the Jordan ceilings with further diminish survivor trust in the criminal justice system.
- the benefits of waiting longer before laying charges to collect as much evidence as possible compared to the consequences of survivors having to wait for months before they learn if the accused will be brought to trial.
Although the number of sexual assault charges has remained relatively unchanged since the Jordan decision, the number of cases stayed has noticeably increased. Moreover, a 10-year review of all criminal court cases in Ontario has found that since 2020, more cases end up being stayed or withdrawn than resulting in a decision. Prior to the Jordan decision, criminal cases in the province were much more likely to result in guilty verdicts (and occasionally acquittals) than to be dropped or stayed.
Media coverage of the troubling rise of sexual assault cases failing to reach a verdict has also made it much more likely that survivors hearing about the experiences of others will doubt they will receive justice from the criminal courts. For example, survivor Emily Quint told the CBC that if she had known how the criminal case against the man she alleges sexually assaulted her would end, she would have never pursued charges.
"The whole process was horrific," Quint told reporters Nicole Brockbank and Sarah MacMillan after learning the case was stayed. "The way that it ended, my whole world went up in flames…. There was so much anger, so much sadness. It was like, 'Who can I contact? What can I do? This can't be the end.'"
What Must Change and What Can Be Done in the Meantime.
Although criminal charges are pursued against someone for committing an offence against the state, when it comes to violent crimes such as murder or sexual assault, it's impossible to deny the personal connection victims of these crimes have to the outcome of the state's case.
As lawyers, my colleagues and I are observers who are on the outside of the justice system looking in. We are not privy to the intricacies of trial resource management practices and usually only see what has gone wrong with court scheduling, not why the problem has occurred.
While we've seen some promising developments in terms of appointing new criminal court justices to reduce vacancies, the apparent general lack of court resources remains troubling. Unfortunately, systemic change takes time and progress is not always uniform.
Until our criminal justice system has sufficient staff and facilities to meet the state's obligations to its public, we are likely to continue to read stories about survivors of violent crimes watching the accused walking away from charges as the clock runs out.
We must not shy away from larger discussions about how well our criminal justice system works for survivors of sexual assault, or whether it has ever truly worked for them at all.
Jane Doe, a sexual assault researcher and lecturer who can not be named due to a publication ban stemming from a 1998 case where she successfully sued the Toronto Police for using her as bait to catch a serial rapist, suggests that when survivors routinely report feeling as though they are the person on trial, and not the accused person of the crime, the system can't even be called broken. "Broken implies it worked at some point," she says.
It is worth exploring alternatives to the existing system, such as options for restorative justice and international experiences with separate courts for sexual assault cases.
Finally, it's important for survivors to remember aspects of our legal system which give individuals a greater sense of control.
Civil actions allow sexual assault survivors to pursue damages from the person or people they allege committed acts of sexual violence against them. Unlike criminal charges, which must be proven beyond a reasonable doubt, assertions made in civil claims must only be judged to be more probable than not for a plaintiff to achieve a favourable ruling.
Moreover, unlike the 18-month or 30-month ceilings in criminal court, civil courts follow a five-year rule before judges are likely to consider motions to stay proceedings due to unreasonable delays.
While there is no doubt that even civil proceedings can be emotionally and physically taxing for survivors - particularly as they recount their story - they will have a far greater sense of personal control over the direction of their case rather than as a witness to a criminal matter.
You Have Options.
If you or a loved one has survived sexual abuse or sexual assault and you are feeling frustrated, angry, sad, numb, or depressed as you read about court delays sidelining criminal cases, I want you to know how much I empathise.
When only a small fraction of sexual assaults result in criminal charges to begin with, every case stayed due to delay is a case of justice being denied. Survivors who have bravely come forward, shared their story, and participated in a trial are, in effect, re-traumatized when the state's actions lead to these kinds of situations.
But, there is more than one path to achieving a sense of justice and closure - and I would be honoured to speak with you to explain what else can be done. Please contact me or a member of my sexual abuse lawyer team for a free, no obligation initial consultation to learn about your options.
