BenchPress--Vol 41-3.

Author:Mitchell, Teresa

Intolerable Delay, 5 Years: Case 1

Barrett Jordan was charged with a criminal offence in 2008 and his trial ended with his conviction in 2013. He alleged that his Charter right to trial within a reasonable time had been breached and the Supreme Court of Canada agreed. It set out a new standard for unreasonable delay: a ceiling of 18 months for cases tried in provincial court and 30 months for cases in superior courts such as Queen's Bench. The ceiling is presumptive, meaning that it can be set aside in exceptional circumstances. Also, delays caused or waived by the defence do not count in measuring the time. "Exceptional circumstances" mean matters that lie outside the control of the Crown in that they are reasonably unforeseen or avoidable, and they cannot be easily remedied. The majority of five justices issued a rebuke to all parties in the judicial system. "All the parties were operating within a culture of complacency towards delay that has pervaded the justice system in recent years. Broader structural and procedural changes, in addition to day-to-day efforts, are required to maintain the public's confidence by delivering justice in a timely manner. Ultimately, all participants in the justice system must work in concert to achieve speedier trials. After all, everyone stands to benefit from these efforts. Timely trials are possible. More than that, they are constitutionally required." They ordered that Mr. Jordan's convictions be set aside and entered a stay of proceedings against him.

However, a minority group of four judges disagreed with the majority decision and wrote a rather stinging rebuke of their own to their colleagues. Noting that creating fixed ceilings is a task better left to Parliament, they concluded: "Ultimately, the majority's new framework casts aside three decades of the Court's jurisprudence when no participant in the appeal called for such a wholesale change, has not been the subject of adversarial scrutiny or debate, and risks thousands of judicial stays. In short, the new framework is wrong in principle and unwise in practice."

R v. Jordan, 2016 SCC 26 (CanLII)

Intolerable Delay, 131 Years: Case 2

Between 1885 and 1889 the Government of Canada unilaterally withheld $5.00 per person in Treaty 6 annuities from members of the Beardy's and Okemasis Band in what is now Saskatchewan. This was because it deemed them to have been disloyal to Canada during the North-West Rebellion. The Specific Claims Tribunal, which...

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