THE
JORDAN
DECISION
DISSENTING
OPINIONS
THE JORDAN DECISION: GOOD ON PAPER BUT CLASHING WITH REALITY
How the one size fits all approach may not be working
In Nunavut, over 38,000 people live in 25 remote communities, scattered over 2-million sq. km.
However, there is only one court in the territory and the Jordan Decision has made the administration of justice more difficult for Nunavut’s already resource strapped justice system.
“The Nunavut Court of Justice is based in Iqaluit and it travels regularly to each on of the other 24 far flung communities,” wrote Justice Paul Bychok in his decision to deny a Jordan Application for Lukasie Anugaa, a man from Sanikiluaq located on the north coast of Flaherty Island in Hudson Bay.
Bychok continues, saying that in order to get to Sanikiluaq the court must travel through Montreal first.
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Altogether the Nunavut Court of Justice travels to each community only a handful of times in a year. Nine of those communities, Sanikiluaq included, see court circuits three times a year. The rest of the northern communities may only get one or two visits in a year.
However, the unforgiving arctic climate can disrupt the courts ability to reach some of the most isolated hamlets. Blizzards can ground flights or force courtrooms to close their doors for weeks at a time.
“Every year, significant court time is lost due to the weather,” Bychok wrote.
The Nunavut Court of Justice travels across the territory to each community only a handful of times a year. To reach Sanikiluaq (above), the court must first travel through Montreal. Sanikiluaq only sees the court circuit three times a year.
“The cancellation of a Nunavut court circuit has an impact out of all proportion to a similar cancellation in the south. In Ottawa, for example, there are regular and frequent court sittings. A court closure there entails only a minor inconvenience and delay,” he continues.
“Not so in Nunavut.”
Back in Sanikiluaq, Anugaa was charged with two sexual offences on July 8, 2013. The offences are alleged to have happened in Sanikiluaq, between May 2, 1977 and May 2, 1978.
However, the judge wrote in his opening statement, “this case is about two allegations of indictable historic sexual assault. It has turned into a case about pre-trial delay.”
Over the 54 months this case has been in progress, there have been substantial challenges. The most recent trial started on Jan. 15, 2018 and is the fifth time Anugaa will be judged by a jury of his peers.
The first delay was caused in 2015 after Anugaa spoke to the community about the case over local radio, while Sanikiluaq was deciding on jurors. The second delay was again caused by Anugaa for refusing to agree to begin the trial during the Christmas period, and subsequently firing his lawyer.
On Nov. 30, 2015, the Court rescheduled the jury trial, setting Sept. 26, 2016 as the day when the trial would officially begin but the trial judge declared a mistrial over an unspecified disputed legal issue.
The second trial began on Dec. 19, 2016, but ended in another mistrial after Anugaa failed to notify the court that three members of the jury had been complainants in cases against himself, while the trial was in process. Proceedings for a potential Jordan Application were scheduled for June 9, 2017 but did not proceed. Instead, 20 days later the court offered to move the jury trial from Sanikiluaq to Iqaluit, starting on Sept. 25, 2017.
Again, Anugaa refused but the court scheduled the final jury trial for Jan. 15, 2018. Altogether, the trial for Anugaa was delayed by over 54 months but due to defence delays — such as refusing the trial during Christmas — and other exceptional circumstances, Bychok found the remaining time delay to be approximately 25 months, well under the 30-month time limit set out by the Jordan Decision.
Despite the decision to continue Anugaa’s trial, Bychok slammed the Jordan Decision in relation to the administration of justice in Nunavut, saying the Jordan framework does not take into account the problems faced by the territory.
“There is only one courthouse in Nunavut and it is located in Iqaluit. Outside Iqaluit, our Court sits in school gyms, community halls and even council chambers. Many of the community halls lack functioning washrooms. Invariably every year, heating systems fail in a community hall during a circuit, leaving court participants to conduct court in their winter parkas and mittens.
“In Ottawa, for example, there are regular and frequent court sittings. A court closure there entails only a minor inconvenience and delay.
Not so in Nunavut.”
—Justice Paul Bychock
“Realistically, there is very little, if any, extra money to be found in Nunavut for improving the frequency of court sittings. Communities which see the Court twice or three times a year will continue to see that level of service despite the new Jordan rules. We must make improvement with the resources available to us,” he concludes.
But the Jordan framework woes don’t end there for Nunavut. Bychok says the Jordan framework fails to respect the longstanding unwritten rule that each litigant is entitled to one adjournment — barring negligence — because this rule, “reflects the reality that we are all in this together.”
Located in Iqaluit is the Nunavut Court of Justice. Outside of Iqaluit, the court hearings happen in places like school gyms, community halls and sometimes council chambers.
He continues, saying Jordan fails to take into account accused persons, complainants and witnesses who must travel south to receive medical treatments that are not available in Nunavut and thus, cannot testify in court.
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Because of this reason, cases in the Nunavut Court of Justice are regularly adjourned.
Finally, Bychok highlights another problem with the Jordan framework: it does not acknowledge or attempt to reflect Inuit Qaujimajatuqangit — Inuit beliefs, laws, principles and values along with traditional knowledge, skills and attitudes.
“Nunavut’s communities are small and very closely knit. Deaths and suicides touch everyone. Circuits sometimes are cancelled out of respect for the grieving. The Nunavut Court of Justice stands down for burials and funerals. Sentencing hearings are delayed, permitting offenders to participate in seasonal hunts,” Bychok wrote.
“To apply Jordan justly in Nunavut, there must be a third subcategory of exceptional circumstance which reflects the territory’s unique cultural circumstances,” he continues.
In his remarks, Bychok wrote that the Jordan Decision fails to respect or take into account Inuit culture and lived experience when delivering justice in Nunavut. He continues, adding that in his lifetime he has seen how the Inuit have faced intergenerational trauma through forced resettlements, residential schooling, isolation, joblessness and despair — all factors that have driven Nunavut to have the highest suicide rate in the Canada.
“Inuit culture lives on and thrives in most areas despite the pressures of recent resettlement and technological revolution,” he writes. “For all these reasons, the Nunavut Court of Justice is not just another court; it is Canada’s principal Gladue court.”
Gladue refers to a right that Indigenous people have under a section of the Criminal Code, and is also a sentencing principle that instructs judges to take into account an offenders background while sentencing or setting bail, and to consider all available sanctions apart from imprisonment that are reasonable. For example, instead of sentencing an Indigenous person to spend time in a jail, a judge may instead sentence them to alternative restorative justice processes such as drug and alcohol rehabilitation.
“How, then, does one fit the square Jordan peg into the round Nunavut hole while doing justice to Nunavummiut?” he wrote.
“I do not believe the majority in Jordan intended trial judges to re-assert past colonialist attitudes and practices which ran roughshod over the Inuit … The Supreme Court is the highest court in the land. Therefore, I must apply Jordan. But, I must do so in a way that accounts for the unique cultural circumstances and exceptional challenges in delivering justice to Nunavummiut.”
In other words, Bychok says the Jordan framework needs to be applied differently because of the challenges and exceptional circumstances that beleaguer Nunavut’s justice system and ultimately, the one-size fits all approach brought forth by the Jordan Decision doesn’t fit Nunavut’s needs.
As for Anugaa, the fifth trial will go ahead in Iqaluit because Bychok points out that, “it would be highly unlikely to secure a Sanikiluaq jury with no knowledge of the case and its history before the Court,” because the community is tiny, hosting a population of just under 900 people.
“Mr. Anugaa is entitled to a jury of his peers; he is not entitled to a jury of his neighbours. It is necessary in the interests of justice to hold this jury trial in another community,” Bychok wrote.
As of press time, the jury trial of Lukasie Anugaa on two sexual offence charges is ongoing. It is unknown if his defence counsel will pursue a second Jordan Application if the trial pushes past the 30 month ceiling.
Justice C. Adèle Kent, the executive director of the Ottawa-based National Judicial Institute was contacted for this story to comment on how the Jordan Decision is impacting the administration of justice throughout the country. The institute is an independent, judge-led organization that provides “dynamic and relevant educational programs and resources to Canada’s 2,500-strong judiciary,” according to NJI’s webpage.
“To apply Jordan justly in Nunavut, there must be a third subcategory of exceptional circumstance which reflects the territory’s unique cultural circumstances”
—Justice Paul Bychock
Kent says the institute focuses on three dimensions when educating judges: judicial skills, social context, and substantial law.
“So in the context of Jordan, we would be educating [judges] on what that law is now,” she says.
However, she was unable to comment on the effectiveness of the Jordan Decision in part because she is on secondment to run the NJI and she does not have hands-on experience working with the Jordan Decision in her courtroom. Instead, she said the Calgary Journal should reach out to a chief justice for comment as she would be unable to speak about the new Supreme Court Decision..
The Calgary Journal then reached out retired Supreme Court Justice Beverley McLachlin, one of the four judges who dissented to the Jordan Framework.
Former Supreme Court Justice Beverly McLachlin was a dissenting voice along with three other judges who were against implementing the Jordan Decision. Photo courtesy of Flickr.
She has not returned the Calgary Journal's repeated attempts to contact her.
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Other Jurisdictions
Since the implementation of the Jordan Decision, provinces and territories have been reeling, trying to get everything in order to properly address the Supreme Court’s ruling.
As of July 2017, the Canadian Press reported that since the ruling, approximately 1,766 applications had been filed across Canada for charges to be stayed due to unreasonable delays. Of those, 204 cases have been granted while 333 have been dismissed. The remainder have either been abandoned or are before the courts.
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As reported in the Toronto Star, provincial governments have subsequently been pouring millions of dollars into their judicial systems to address the time frames set by Jordan.
The Quebec government, for instance, is investing $175-million over four years to recruit new judges, prosecutors, legal aid lawyers and support staff, as well as create new courtrooms. Thanks to that funding, 449 positions have been filled and several new hearing rooms are now operational.
British Columbia’s Supreme Court recently called for “mega-trials” or “large or complex criminal cases that have the potential to occupy a significant amount of court time or risk delays. The directions call for a case management judge to be appointed early in the process and for tight time limits for disclosure, pre-trial applications and the trial itself.”
Whereas in Ontario, it was announced there would be 13 new judges appointed to the Ontario Court of Justice along with 32 Crown prosecutors.
Ontario’s Attorney General, Yasir Naqvi, told the Star that he’s hearing of more and more instances where it takes longer to schedule civil and family matters in court, as they don’t face the same timeframe as criminal cases put in place by Jordan.
A point of contention for many lawyers, reports the Star, is that the Supreme Court came up with the 18 and 30 month ceiling for criminal cases. None of the lawyers in dealing with the Supreme Court’s decision proposed those numbers nor were the lawyers asked for submissions on those numbers.
The majority on the Supreme Court, however, say they “conducted a ‘qualitative review’ of almost every reported decision on delay from appeal courts in the last 10 years, and many rulings from trial courts,” which is how those numbers were decided upon.
“By reading these cases with the new framework in mind, we were able to get a rough sense of how the new framework would have played out in some past cases,” the majority wrote. “Indeed, we note that in the seminal case of Askov, the delay was in the range of 30 months, as it was in Godin some 19 years later, and in both cases, this court found the delays to be unreasonable.”
Even Jordan’s own lawyer, Eric Gottardi, is unsure of what the future may hold given the outcome of the Supreme Court’s decision.
“I really do think it took some courage to write it. Whether they’re right or wrong, time will be the judge of that. It threw out 20 years of jurisprudence and we need a better way. This might not be a better way, but it’s thinking outside the usual box, and courts don’t often do that. They get credit for that in my books,” Gottardi told the Star.
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Alberta’s Average Grade
Despite dissent surrounding the Jordan Decision, there’s no denying provincial justice systems still have a lot of work to do in terms of efficiency, especially in Alberta.
On March 5, 2018 Alberta received a B grade from the Macdonald-Laurier Institute, which released its second annual report that measures the strengths and weaknesses of the criminal justice system in each province and territory. The report is based on five criteria; public safety, support for victims, costs and resources, fairness and access to justice and efficiency.
Of the 13 provinces and territories, Alberta dropped to seventh place from sixth despite improving its overall grade from a C+ to a B.
"Nationally, there are some positive trends, including declining crime rates, fewer police officers required per capita, and rising criminal legal aid expenditures per crime," said Benjamin Perrin, MLI munk senior fellow and law professor at the UBC Peter A. Allard School of Law.
With respect to efficiency, the report also states “Alberta has a higher than average proportion of criminal charges stayed or withdrawn, and relatively more accused persons on remand per 1,000 crimes than other provinces.”
In 2016, more than 35 per cent of cases in Alberta had charges stayed or withdrawn. The worst offender is Ontario at 43 per cent whereas Quebec is at 7.4 per cent.
“We hope this report card will spur necessary reforms to make our criminal justice system more efficient, fairer, and better serve the needs of victims,” said Perrin.
In response to the B grade, Alberta’s Minister of Justice and Solicitor General Kathleen Ganley said in an emailed statement that “protecting Albertans’ safety and providing a fair, efficient justice system is one of the main duties of government.”
“Court backlogs have been building for decades and timely access to trials is a concern across Canada right now.”
Ganley also reiterated the point that the provincial government has created 10 new judge positions which they are pushing to have the federal government fill.
“Over the last year, we’ve worked to increase efficiency as well as hire 50 more Crown prosecutors and 30 court staff, and we will continue to work to improve the justice system for all Albertans,” added Ganley.
The Macdonald-Laurier Institute measures the strengths and weaknesses of the criminal justice system in each province and territory. Its 2017 report gave Alberta an overall B grade.