The Jordan Decision

LOST IN TIME

HOW THE JORDAN DECISION

HAS AFFECTED ALBERTA’S JUSTICE SYSTEM

HOW ONE B.C. ARREST CHANGED THE LEGAL LANDSCAPE OF CANADA

New legal framework places immediate strains on the system — with the goal to improve justice in the long run

In the later part of December 2008, Barrett Richard Jordan was arrested following an RCMP investigation into a “dial-a-dope” operation in both Langley and Surrey, B.C. The officers wouldn’t know at that time that Jordan’s arrest would set off a chain reaction of legal events that would lead to a Supreme Court decision in Jordan’s name.

During the pretrial, Jordan remained in custody until February 2009 and was then released on bail where he needed to adhere to strict bail conditions including house arrest as the trial dragged on.

The Provincal Supreme Court of British Columbia

A Google Maps viewpoint of the Provincial Supreme Court of British Columbia in Vancouver, B.C.

A preliminary inquiry — the initial inquiry that occurs at the demand of an accused person, wherein the judge screens the proposed criminal charges against the available evidence — was scheduled for May 2010, but the Crown did not realize it would take longer than the four days that was originally outlined. Scheduling issues and delays pushed the court proceedings back a year because an additional five days was required for the inquiry.

By the time the preliminary hearing was complete, over two years had already passed.

After getting convicted on a prior drug charge and sentenced to a 15-month conditional sentence, Jordan’s trial for the dial-a-dope operation began again after a new prosecutor had taken on the file in July 2011.

The trial was scheduled to start again in September 2012 and was only supposed to last six weeks. By February 2013, he was convicted on five drug-related charges.

The decision was then appealed in the B.C. Court of Appeal, but the Court of Appeal upheld the ruling.

The next step brought the case before the Supreme Court of Canada after Jordan and his legal counsel argued that his legal right to be tried in a reasonable time was violated because of the length of time taken to complete the trial.

In a landmark decision, the Supreme Court of Canada narrowly agreed with Jordan.

Dial-a-dope:

A drug-dealing operation where the drug dealer is contacted through phone via call or text in order to distribute drugs

For 49.5 months, Jordan had traversed the legal system. Canada’s highest court learned that four months of that delay were attributed to Jordan because he had changed counsel, and another month and a half were, “caused for the adjournment of the preliminary inquiry because [Jordan’s] counsel was unavailable for closing submissions on the last day,” according to Supreme Court files.

The remaining 44 months of Jordan’s life stuck in legal limbo were deemed to be the fault of the crown prosecutors who handled the case.

After much debate, the Supreme Court justices made up their minds and on July 8, 2016, a 5-4 majority vote meant the Jordan Decision would be written into Canadian law despite the challenges that loomed on the horizon.

In their ruling, Supreme Court judges Rosalie Abella, Michael Moldaver, Andromache Karakatsanis, Suzanne Côté and Russell Brown wrote, “while the case against [Jordan] may have been moderately complex given the amount of evidence and the number of co-accused, it was not so exceptionally complex that it would justify such a delay.”

Headlines from various news outlets on the Supreme Court of Canada's Jordan Decision ruling.

Dissenting judges acknowledged the delay in writing, noting that the trial should have taken 28.5 months to complete when compared to similar cases.

Ultimately, due to the Supreme Court’s judgement that Jordan’s right to a timely trial was violated, the charges against him were dropped and a stay of proceedings was entered.

But even though Jordan was now a free man, there were bigger problems in the justice system highlighted by the trial.

“All the parties were operating within the culture of complacency towards delay that has pervaded the criminal justice system in recent years,” the judges wrote. They advocated for structural and procedural changes — in addition to day-to-day efforts — that would deliver justice in a timely manner.

A Google Maps viewpoint of the Supreme Court of Canada in Ottawa, Ont.

“Ultimately, all participants in the justice system must work in concert to achieve speedier trials,” they continued.

“After all, everyone stands to benefit from these efforts.”

It was settled that a time limit would be implemented: 18 months for cases before provincial courts and 30 months for cases that went to the Court of Queens Bench.

But a handful of judges were not sold on the changes the Jordan Decision would bring.

“A reasonable time for a trial under s.11(b) cannot and should not be defined by numerical ceilings, as the majority concludes,” writes now retired Supreme Court judges Beverley McLachlin and Thomas Cromwell. Included in the dissenting remarks are current judges, Clément Gascon and Richard Wagner.

“The right to be tried in a reasonable time is multi-factored, fact-sensitive and case-specific; its application to specific cases is unavoidably complex,” they continue, outlining the challenges of the newly minted framework for the Jordan Decision.

At the end of their dissenting remarks, the justices provided a scathing review of what the Jordan Decision may mean for the application of justice throughout the country.

“Ultimately, the majority’s new framework casts aside three decades of the Court’s jurisprudence when no participant in the appeal called for such 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.”

Under section 11(b) of the Canadian Charter of Rights and Freedoms, everyone who is charged with an offence has the right to be tried within a reasonable time.

Less than one year later, as reported by the Globe and Mail in February 2017, lawyers across the country would begin trying to suspend 800 criminal cases under the new framework, including a handful of murder and manslaughter cases.

The Edmonton Journal then reported in June 2017 that 1,400 cases were at risk of being tossed in Alberta alone due to the Jordan Decision’s trial time limits.

Since Alberta Justice has started keeping track in October 2016, 162 Jordan applications have been received, and some of the pending applications include charges of robbery, hostage-taking, murder and the distribution of child pornography.

However, even though a case reaches the ceiling it doesn’t mean the charges will be automatically dropped and the case tossed out. In some exceptional circumstances, a judge may outright reject an accused’s appeal to make a Jordan application on a case-by-case basis depending on factors such as the gravity of the charges and the circumstances surrounding the trial.

"In short, the new framework is wrong in principle and unwise in practice."

But even then, there seems to be more questions than answers.

Where does this leave everyone who was dragged through the system for 18 to 30 months? For both the victims and the accused, is it possible to return to normal life?

Are police services, Crown prosecutors and defence lawyers properly equipped to handle what the new decision brings? Apparently not, as Alberta Justice looks to fill vacant Crown prosecutor positions adding 50 positions to the already 310 prosecutors that had been working since the first quarter of 2017.

Both Calgary Police Service superintendent Kevin Stuart and University of Calgary law professor Michael Nesbitt both acknowledge that although there are challenges in the immediate future, in the long run the new decision will be good for Canadians. However, they both contend that there wasn’t much for law enforcement and judicial services to do except brace for impact and figure out how to deal with the new law moving forward.