Access to Justice During COVID-19 and the Jordan Case

By Myrna El Fakhry Tuttle

Reposted from LawNow 46(3) with permission

How are delays in court processes due to COVID-19 considered when assessing the Jordan time limits for the right to be tried within a reasonable time?

In March 2020, the World Health Organization (WHO) declared COVID-19 a pandemic. Since then, the pandemic has affected the functioning of many institutions, including the courts given the lockdown on court staff, judges, prosecutors, and lawyers.

Across Canada, courts adjourned their activities and provided minimum service where trials and proceedings were cancelled or postponed. Consequently, a broad range of human rights were impacted, including the right to access justice in a timely, fair, and effective way.

Access to Justice

Access to justice is a basic principle of the rule of law. In simple terms, access to justice means the ability to appear in court. But it can also include the broader social context of the court system and the obstacles that some members of the community might face.

The Chief Justice of Canada, the Right Honourable Richard Wagner stated:

Access to justice means informing individuals of tools and services that are available. Access to justice allows individuals to get legal assistance when needed, it informs them of their right to counsel, and having courts that can settle their issues in a timely and efficient manner. Access to justice means getting justice for everyone not only a few.

Fair Trial and Reasonable Time

Section 11(b) of the Charter of Rights and Freedoms (the Charter) protects against excessive delays by saying the accused has the right to a trial in a reasonable time.

Section 11(d) of the Charter provides that “any person charged with an offence has the right to a fair and public hearing by an independent and impartial tribunal.”

Long delays can have serious consequences. When a judge finds that an accused has been denied their constitutional right to be tried within a reasonable time under section 11(b) of the Charter, that judge can order a stay of proceedings and dismiss the charges.

The Jordan Case

In 2016, the Supreme Court of Canada established a new framework in R v Jordan regarding court delays.  

In December 2008, Barrett Richard Jordan and nine others were charged with criminal offences relating to drug possession and trafficking in the lower mainland area of British Columbia. For different reasons, Jordan’s trial did not begin until September 2012 and did not end until early 2013. He waited over four years after being charged to learn his fate.

At the beginning of the trial, Mr. Jordan sought a stay of proceedings. He argued that his right to be tried within a reasonable time under section 11(b) of the Charter had been violated. The trial judge dismissed his application, and the Court of Appeal of British Columbia dismissed his appeal. Mr. Jordan appealed to the Supreme Court of Canada. The Supreme Court agreed to set aside Mr. Jordan’s conviction and granted the stay of proceedings.

The Supreme Court ruled:

The presumptive ceiling is set at 18 months for cases going to trial in the provincial court, and at 30 months for cases going to trial in the superior court (or cases going to trial in the provincial court after a preliminary inquiry).

If the total delay from the charge to the actual or anticipated end of trial (minus defence delay) exceeds the ceiling, then the delay is presumptively unreasonable. To rebut this presumption, the Crown must establish the presence of exceptional circumstances. If it cannot, the delay is unreasonable and a stay will follow. (at paras 46-47)

As a result of the Jordan case, there is a time limit for how long a case is allowed to continue before it is dismissed for delay under the Charter.

COVID-19 Delays

Court closures required by COVID-19 have led to serious trial delays, impacting the right to be tried within a reasonable time under section 11(b) of the Charter.

Measures that were taken to reduce the spread of the virus, including the lockdown, delayed decisions on many cases. But is the COVID-19 crisis an “exceptional circumstance” under the Jordan framework?

In the Jordan case, the Supreme Court stated:

Exceptional circumstances lie outside the Crown’s control in the sense that (1) they are reasonably unforeseen or reasonably unavoidable, and (2) Crown counsel cannot reasonably remedy the delays emanating from those circumstances once they arise. So long as they meet this definition, they will be considered exceptional. (at para 69)

The delay created by the pandemic has caused many cases to go beyond the time limits of 18 or 30 months set by the Supreme Court of Canada. However, courts must determine the reasons for the delay before dismissing charges.

Court Decisions During the Pandemic

In Kalashnikoff v Her Majesty the Queen, the three accused – Alexander Dimitri Kalashnikoff, Tara Lee Cartwright and Matthew James Roberti – faced charges of drug trafficking. They applied for a stay of proceedings under section 11(b) of the Charter because their trial was delayed from May 2020 to May 18, 2021.

They argued that only the period of time that the court was not conducting any in-person trials should be deducted from the total delay. That means that only the time between May 5, 2020 either to the end of June 2020 or September 2020 – when the court was able to hear in-person trials – should be deducted as delay attributable to the pandemic.

The Alberta Court of Queen’s Bench concluded that:

… the entire delay occasioned by the COVID 19 pandemic from May 5, 2020 to the anticipated completion of trial on May 21, 2021 is properly considered an exceptional circumstance and should be deducted from the total delay.

The delay in this matter from the date of the first Information to the conclusion of trial is 40 months (Jan 22, 2018 to May 21, 2021).

The total delay attributable to the pandemic runs from May 8, 2020 to May 21, 2021. That amounts to 12 months, 13 days. When that amount is deducted from the total delay, the remaining delay is below the 30-month presumptive ceiling in Jordan. (at paras 35-37)

In R v Walker, Richard Walker applied for a stay of his sentencing, staying the execution of his sentence or reducing the severity of his sentence, in line with section 24(1) of the Charter. He argued his right to be sentenced within a reasonable time under section 11(b) of the Charter was violated.

The application was dismissed by the Ontario Superior Court of Justice:

The delay caused by the suspension of court operations and the resulting backlog due to the pandemic has already been found to be reasonable because of the presence of exceptional circumstances. The pandemic was not reasonably foreseeable, and the Crown could not have reasonably remedied the delays that emanated from it. (at para 43)

Commentary

The International Commission of Jurists’ (ICJ) general guidance on the courts and COVID-19 mentions the important role the courts play in protecting human rights and the rule of law even when there is an emergency. According to the ICJ, courts need to always function effectively to have “the right to fair trial by an independent and impartial court; the right to judicial control of deprivation of liberty; the right to an effective remedy; and to ensuring that all branches of government act lawfully.”

The impact on the right to a fair trial and within a reasonable time should not be disregarded, even in these exceptional circumstances. During this public health crisis and when practical, courts should continue to operate to prevent any unusual backlog of cases that may result in further disruption of their activities in the future.