The Supreme Court of Canada ruled in its 2016 Jordan decision that criminal trials in provincial courts must be completed 18 months after charges are laid, with a longer, 30-month timeline for cases in superior courts.Adrian Wyld/The Canadian Press
The Supreme Court of Canada has laid out new criteria to allow certain complex criminal prosecutions to stretch beyond the strict deadlines imposed by a previous landmark decision on trial delays – a decade-old ruling that has seen thousands of criminal cases tossed out.
In a decision released on Friday, the justices reaffirmed that some trials, such as those weighed down by reams of documents, large numbers of co-accused or thousands of hours of wiretap evidence, can be exempt from the timelines set in the court’s 2016 decision known as Jordan.
Friday’s ruling says that before allowing a trial to go into overtime, judges must consider whether a case is “particularly complex.” They will also have to take into account whether the Crown has done enough to mitigate any resulting delays, such as by assigning adequate staff to the prosecution. But it otherwise upholds the deadlines established in the Jordan case.
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“To the extent that jurisprudential and legislative developments in the past decade have increased the complexity of criminal trials, the Jordan framework can comfortably respond,” the decision, written by Chief Justice Richard Wagner, reads.
In its 2016 Jordan decision, the Supreme Court ruled that criminal trials in provincial courts must be completed 18 months after charges are laid, with a longer, 30-month timeline for cases in superior courts. However, the Jordan ruling did already allow for added delays in “exceptional circumstances.”
Friday’s decision falls short of endorsing calls from several provincial attorneys-general and federal prosecutors to further loosen the Jordan framework, such as by allowing judges broader discretion in stretching timelines for trials.
But the top court also shies away from arguments made by the Criminal Lawyers’ Association, which had called for a stricter interpretation of these deadlines to better protect the constitutional right to a speedy trial.
The Supreme Court had in fact already ruled on the underlying case in Friday’s decision, after a hearing back in December. In a unanimous oral decision, it ordered a new trial for two Hamilton-area defendants, Robert Vrbanic and Sarah Josipovic. They were among 18 people charged in 2021 in connection with an alleged drug-trafficking ring.
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The December decision overturned lower-court rulings that had stayed their cases because of the Jordan deadlines for trial delays. But the top court did not issue its written reasons until Friday.
The two co-accused were given trial court dates 21 months past the 18-month Jordan deadline, a delay tally a judge had reduced to 18 months and four days to account for COVID-19-related issues.
The drug investigation involved many pretrial procedures and more than 10,000 audio intercepts, making it “particularly complex,” the Supreme Court says. The ruling also says the Crown did attempt to mitigate the complexity, including by splitting the various accused into 10 groups.
Frank Addario, a veteran criminal lawyer who acted for the Criminal Lawyers’ Association, which was an intervenor and presented arguments in the case before the Supreme Court, said the decision will allow more exemptions from Jordan’s deadlines. He warns that any move to let more trials to drag on longer undermines fundamental Charter rights.
“The more exceptions you create to the hard ceilings, the more you water down speedy trial rights,” Mr. Addario said in an interview.
Lawyers for Ontario’s Attorney-General, who intervened in the current case before the top court, had argued that judges should only require prosecutors to make “all reasonable efforts” to proceed to trial quickly.
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Responding to this idea, the top court’s ruling says “the right to a trial within a reasonable time is more than a right to the Crown’s best efforts. If the Crown cannot, by making reasonable efforts, bring cases to trial within a reasonable time, then the state must step in and increase funding to the justice system.”
Julia Facca, a spokeswoman for Ontario Attorney-General Doug Downey, said the ministry was reviewing the decision and had no further comment.
Jeremy Bellefeuille, a spokesman for federal Justice Minister Sean Fraser, said the decisions “reaffirms that the Jordan framework already allows courts to consider case complexity.” He also pointed to a bill before the Commons next week that he said, if passed, would issue new guidance to the courts that ordering a stay doesn’t need to be the automatic result of a missed Jordan deadline.
Justice Malcom Rowe of the Supreme Court issued his own concurring reasons attached to Friday’s decision. While he agrees with the result in this case and the ruling’s clarification of the exception for complex cases, he would go further, calling for judges to be given “residual discretion” to determine if a delay is unreasonable.