THE
JORDAN
DECISION
THE
EXPERTS
THE
EXPERTS
THE EXPERTS
We spoke to three experts about the Jordan Decision’s impact on the Canadian justice system. We interviewed Michael Nesbitt, an associate professor of criminal law and national security law at the University of Calgary, Balfour Der, the defence lawyer for Assmar Shlah, who was convicted in the murder of Lukas Strasser-Hird and we spoke with Kevin Stuart, the superintendent of the criminal investigation division of the Calgary Police Service. Each expert gave us a different and enlightening perspective on the Jordan Decision and how it has impacted how they handle certain situations in the Canadian law system.
Photo by Tyler Ryan
Michael Nesbitt
Associate professor of criminal law and national security law
University of Calgary
Before the Jordan Decision came into play, Canadian lawyers had to look at section 11(B) of the Charter of Rights and Freedoms which focuses that court cases need to be completed in a reasonable time period. However, it did not define exactly what that time period looks like.
“Culturally, it shifted for everyone within the system. There would not be just our old 11(B) focus on reasonable time limits but things were going to get very strict,” says Michael Nesbitt, a criminal law professor at the University of Calgary.
“Strict enough that we were going to put hard caps but they’re fairly strong caps on the maximum amount of time that we would allow trials to take in various court rooms.”
Michael Nesbitt - Law Professor
With the strict guidelines of the Jordan Decision, almost all the provinces in Canada have now implemented a triage system, says Nesbitt.
“So what [prosecutors] do is they’re starting to look at the cases, how long they’re taking, how serious they are and triage them into ones [they] are going to expedite, ones [they]are going to focus on and ones [they] are not going to go ahead with at all,” says Nesbitt.
“In other words, how can we speed up the system in ways that avoid taking court time for less serious offences, for example.”
This will bring challenges that all levels will have to figure out how to deal with, explains Nesbitt. Police will have challenges in getting disclosure — all the evidence that’s been gathered against the defendant — to the Crown prosecutors in a timely fashion. The Crown will then have to get the disclosure to the defence so they can redact information that needs to be kept out, such as a confidential informant. Then of course, delays that come through bureaucracies of institutions.
“I think the big one here that we have to keep in mind is the reason we have Jordan is because governments, successive governments, weren’t acting on this. So eventually the court decided we need to act to do something,” says Nesbitt.
“Behaviour and culture is slowly changing so that’s good but it’s never going to be perfect unless you see for example, quicker appointments of judges ... You probably need more money for crown prosecutors, frankly speaking, and unless we make a social decision to do that, we will continue to struggle.”
Nesbitt also sees two main challenges the justice system will face due to the implementation of the Jordan Decision.
“Short term, the biggest struggle is going to be cultural change for everyone. Long term, the biggest struggle is going to be it’s a half-measure,” says Nesbitt.
“The courts knew that. So part of this was to pressure the government. It’s now been a year and a half since the Jordan decision and we haven’t seen really any government action, at least from the centralized federal bureaucracy.”
Michael Nesbitt is a professor of criminal law at the University of Calgary.
“The reason we have Jordan is because governments, successive governments, weren’t acting on this. So eventually the court decided we need to act to do something”
—Michael Nesbitt, associate professor of criminal and national security law at the University of Calgary
Photo by Tyler Ryan
Balfour Der
Criminal defence lawyer,
Der Barristers
Balfour Der is a criminal defence attorney at Der Barristers and he was a senior trial prosecutor for the Crown Prosecutor’s Office in Calgary from 1981 to 1990. He has also written two criminal law textbooks as well as articles and papers about criminal law. According to Der, “I eat, drink and sleep criminal law.”
He represented Assmar Shlah in court when Shlah was charged in the beating death of Lukas Strasser-Hird in 2013. Shlah was found guilty of second-degree murder but the trial exceeded the Supreme Court’s 30-month ceiling for criminal trials and Der filed a Jordan application, which the judge rejected.
Before the Jordan Decision came into effect in 2016, Der says each instance of delay was dealt with on a case by case basis.
Balfour Der - Calgary Defence Lawyer
The Jordan Decision set arbitrary ceilings on criminal trials, with provincial courts placing a cap of 18 months and superior courts like Alberta’s Court of Queen’s Bench, placed a 30 month cap on trials.
Der says the hard number gave everybody certainty and everybody knows where the cut-off is now. “Certainty is good. The other side to it though is that, in some cases, it would be unfair to have a trial wait 30 months.”
He says he’s unsure about how he feels about the time limits, but prior to Jordan, Der says Calgary courts could never meet the time deadlines. This is an issue that Der attributes to a lack of judges and courtroom staff, even in a large courthouse like Calgary’s which has 73 courtrooms. However, the Government of Alberta is trying to address this problem.
“It was interesting because never before had we had these hard and fast ceilings...In criminal law for the most part we try to avoid hard and fast rules because there are so many exceptions, there are so many exceptions to every rule, and every case is different,” Der says..
“When you start drawing these hard ceilings, hard lines, then we’re always banging into the ceilings.”
According to Der, the decision to file a Jordan Application has never weighed heavily on his mind because, “If a case is delayed and it’s past its due date, any good defence counsel should make that application...that’s the individual’s rights, that’s what we’re there to protect.”
Der says it is his job as defence counsel to keep the system honest. Whether someone commited a crime or not isn’t the issue in this case; it’s whether or not the prosecution can prove that the person committed the crime beyond a reasonable doubt.
“There’s a difference between moral guilt and legal guilt,” he says. “Morally, a person may be guilty as all get out, but legally they may not be because we have rules that have to be abided by, we have to strictly follow the rules and if the prosecution can’t, if they can’t prove the case beyond a reasonable doubt, that person needs to be acquitted, regardless of whether they did it or not.”
Balfour Der, a criminal defence lawyer for Der Barristers, in his office in downtown Calgary.
“In criminal law for the most part we try to avoid hard and fast rules because there are so many exceptions, there are so many exceptions to every rule, and every case is different ”
—Balfour Der, criminal defence lawyer
Photo by Tyler Ryan
Kevin Stuart
Superintendent, criminal investigation division
Calgary Police Service
Police services across Canada had to review their files to determine how many cases were in jeopardy due to time delays when the Jordan Decision came into fruition in July, 2016, according to Kevin Stuart, the Superintendent of the criminal investigation division of the Calgary Police Service.
As of Christmas time, 2017, the numbers of these files dropped dramatically in provincial court and Stuart says he thinks this is because the police and the prosecution began to recognize the need for better disclosure packages, which would include all evidence before laying a charge.
When the CPS first heard about the Jordan Decision, they wanted to figure out what this meant for the service. “This was a decision that had an immediate impact right away. So reviewing those investigations, reviewing those files, holding off on charging people, until we had all that evidence that’s required, that’s the biggest immediate impact,” he says.
Kevin Stuart - Calgary Police Service
Kevin Stuart is the superintendent for the criminal division of the Calgary Police Service.
He acknowledges that while many victims did not see justice because of the Jordan Decision, the new rules will create a better system for victims in the long term.
“I think this gives an opportunity to provide a better professional, effective, efficient service to the citizens that we serve,” he says.
Stuart says that while it’s concerning that cases have been dropped due to the implementation of the Jordan Decision, he’s says he has seen cases dropped all the time in the past for a multitude of reasons. “I think what this decision does though, is it gives police and prosecution a set of rules they have to follow in regards to the time that the charge is formally laid to the time that it’s dealt with in court,” he says.
He says the CPS has always faced pressures when policing, “Whether it’s resourcing, budget, getting cases in front of the court in a quick enough manner so you know what, it’s just one more thing we have to deal with and we’ll deal with it.”