Someone’s Got to Do It

Was the Supreme Court right to change the law on the right to a speedy trial?

In my last post, I summarized the Supreme Court’s decision in R. v. Jordan, 2016 SCC 27, in which the Court, by a 5-4 majority and over the vigorous disagreement of the concurrence, held that criminals prosecutions in which a trial does not conclude by a set deadline will be presumed to breach the right to be tried within a reasonable time, protected by paragraph 11(d) of the Canadian Charter of Rights and Freedoms. (The deadline is of 18 months from the day charges are laid for cases that proceed without a preliminary inquiry, 30 months otherwise.) This decision, I said, raises a number of significant questions regarding constitutionality of the majority’s decision, the soundness of its approach as a matter of policy, its choice to implement this approach by judicial fiat, and the process it has followed in doing so. I addressed the first of these questions in my last post, saying that while one aspect of the majority’s decision was clearly at odds with constitutional text, I am not sure that this is true of its main feature, the fixed presumptive ceilings. Here, I address the other questions.

* * *

I will start with the one on which I have a pretty firm view ― that which concerns the court’s decision-making process. The concurrence castigates the majority for having imposed its presumptive “ceilings” ― and thereby transformed long-standing understanding of paragraph 11(b) ― without having been asked to do so by the parties and without adversarial debate. It adds that there was limited evidence in the record about both the current state of affairs ― which the majority characterized as “a culture of delay” ― and about the potential consequences of the new approach. I think that these criticisms are justified.

There is no question that the majority’s decision is a fairly radical departure from the existing law. Indeed, the majority is clear that it wants to change the way all the actors in the criminal justice system operate, and that governments may well have to spend more to meet their new constitutional obligations. Whether or not this new departure is a good idea, and whether or not it is consistent with the Court’s constitutional role ― questions to which I will come shortly ― it should not have been taken lightly. And while I have no doubt that the majority did consider it seriously, I do not think that it has done enough. Given the magnitude of the change it was considering, and the fact that it was not canvassed by the parties in argument, the Court should, it seems to me, have re-opened the argument and invited the parties to make submissions that would have addressed its concerns. Indeed, I wonder if the Court could have invited Attorneys General, only one of whom (Alberta’s) intervened, to participate in the debate.

Alternatively, the Court could have decided the case on the basis of the existing framework (perhaps modified as suggested by the concurrence), and suggested ― in its reasons ― that it would, in a future case, be willing to entertain submissions on whether that framework should be overhauled in the future. This would of course have delayed the implementation of any proposed changes, but it would also have allowed for any decision on whether these changes are a good idea to be made on the basis of a record put together and tested by the parties, and not only of the majority’s own limited research.

Speaking of the the research, Michael Spratt points out that the majority “did not do what every elementary school student is taught to do — show his or her work.” He calls the majority’s framework “a product of judicial alchemy and … entirely unprincipled.” I would not go this far, but an opinion that doesn’t show its authors’ work makes them vulnerable to such charges. As I said here after the Court’s decision in Carter v. Canada (Attorney General), 2015 SCC 5, [2015] 1 S.C.R. 331, “I am happy to assume that the Court did its work, but others may not be, and neither they nor I should have to take that on faith.” Sure, the reasons in Jordan are very long, but the majority could have produced some sort of annex to explain the results of its research much better than it has done. It is a question of transparency, and arguably even simple respect for the public over which the Court is exercising a considerable power.

* * *

Put these (significant) concerns about process to one side, and the question whether the majority was right to decide the case the way it did gets much trickier. Admittedly, I am not especially well qualified to answer it, so take what follows with a generous helping of salt. And admittedly, more qualified people have been quite critical of the majority decision in Jordan. Mr. Spratt is especially scathing, arguing that “[t]he Supreme Court’s latest decision pays lip service to the constitution while doing little to improve the pace of Canadian justice.” In a very well argued interview with Jim Brown, on the CBC Radio’s The 180, my friend Joanna Baron has defended “incrementalism,” in preference to the majority’s approach that risks allowing too much time for trials in provincial courts, and not enough in the superior courts. Lauren Heuser, in a National Post op-ed, calls “the ceiling on trial times … worryingly firm,” especially in that it prevents courts from making exceptions on account of the “the depravity of an offence.” She writes that “[m]ore than a few people will be uncomfortable when suspected perpetrators of serious crimes walk free on perceived legal technicalities.”

Ms. Heuser’s suggestion, at least, is easy enough to dispose of. The Charter does not speak of “a right to be tried within a reasonable time, except for those accused of depraved offences.” The Jordan majority is quite right to say that only the complexity of the legal or factual issues, rather than the gravity of the charge, can justify a prosecution taking longer to conclude. Those who think otherwise need to amend the constitution.

But the underlying critique ― that (relatively) firm ceilings are not an appropriate response to the problem of delay due to the infinite variety of the cases to which they will be applied is serious. I do not know nearly enough to reject it. But I would like to raise a question for those who endorse it. It is, quite simply this: what makes you think that a few tweaks to an approach that appears to have thoroughly failed are enough? Ms. Heuser writes that “[w]hile one can question whether this ruling was the best way to light a fire under Canada’s court system, few would dispute that a fire needed to be lit.” The Jordan concurrence does not seem to address the majority’s claim that the system suffers from a “culture of delay” directly ― which seems like a concession. The concurrence does argue that the majority’s radical approach is unnecessary, because the case isn’t even a close one under the old one, at least as modified in its opinion. But there remains the fact that both the trial court and the unanimous Cour of Appeal thought that the delay which the concurrence thinks is clearly unconstitutional was just all right. I share Ms. Baron’s general preference for incrementalism, but I’m not convinced that the time for incrementalism on this issue has not run out.

Now, that doesn’t mean that what the Supreme Court did was right. Just because something must be done, and x is something, it doesn’t follow that x must be done. But what other options were there? Mr. Spratt agrees that “[c]hange is indeed needed,” but insists that “we should hold little hope that a cynical judgment from the Supreme Court will change anything.” Well, maybe ― though I think it’s unfair to describe the majority opinion in Jordan as “cynical,” despite its flaws, and would be unfair even the majority is ultimately wrong. But while it is easy enough for a blogging defence lawyer to rail against the practices of police and prosecutors, and the policies of governments, and accuse the courts of complicity, such tirades, even if justified, hardly answer the question of what a court ought to do when it does recognize the existence of a problem, even if belatedly.

* * *

Sometimes, though, the answer to the question of what one is to do even in the face of a situation crying out action, is “nothing.” The courts’ role, like that of other institutions, is limited. The Jordan concurrence has suggested that numerical ceilings should only be imposed, if at all, by legislation. Ms. Baron is also of that view. The concurrence has also criticized the majority for overturning settled precedent. So has Ms. Heuser. Both these critiques amount to a contention that the majority overstepped the proper judicial remit. I am not persuaded of this.

I agree that the majority’s decision is essentially legislative. The fact that it felt the need to lay out a transitional framework underscores this ― transitional provisions are common in statutes, but almost unheard-of in judicial decisions. But that alone isn’t enough to show that it is not appropriate for a court to make such a decision. Some judicial decisions are essentially legislative: one that comes to mind is Andrews v. Grand & Toy Alberta Ltd., [1978] 2 S.C.R. 229, in which the Supreme Court imposed a hard cap on the amount of damages that can be awarded for pain and suffering in personal injury cases. Pace such legal philosophers as Ronald Dworkin and F.A. Hayek, courts do on occasion introduce new rules of law that cannot be derived in any straightforward way from either legal principles or from the practices prevalent in society, and most people seem prepared to live with these decisions. Legislatures often accept them even when they could overturn them.

So it’s not enough to say that the Court effectively made new law and thus usurped the legislatures’ prerogative. And of course, even if the legislatures had enacted statutes to impose ceilings on delays in the justice system, the courts would still have the last word on these statutes’ constitutionality. Ruling on ceilings in the context of a constitutional challenge to a statute is almost certainly better from a process standpoint, as such a case would likely feature a substantial record of the sort that was missing in Jordan. But in terms of institutional legitimacy, it would not be that different. Indeed, such a ruling would come with complications of its own, because it would confront the courts with very difficult questions under section 1 of the Charter, which are avoided when, as in Jordan, the constitutional challenge is not aimed at a rule or regulation ― most fundamentally, about whether delays that are intolerable if produced by a “culture of delay” can be saved as “reasonable limits” to the section 11(b) rights, under section 1, by a legislative ratification.

Ultimately, though, the issue is not whether, in a perfect world, the legislatures would act to limit delays, and how the courts should respond to such legislation. Rather, the issue is that legislatures have done nothing at all to remedy the problem of unconstitutional delays. If, the lack of evidence in the record notwithstanding, it is the case that delays are endemic, and that there is a “culture of delay” ― which no one denies ― the issue is the existence of widespread and ongoing violations of the constitutional rights of thousands of people. These violations have to be remedied. Sure, it’s not the courts’ job to pursue policy objectives to which the elected officials fail to attend. But we’re not talking about mere policy here. Sure, courts should beware of disregarding procedural constraints because doing so undermines the Rule law. But doesn’t systematic disregard for the constitution undermine the Rule of Law too? If the governments will not bring themselves in conformity with their constitutional obligations, shouldn’t the courts try to make them? And if the courts do not, who will?

* * *

For all that, I am not certain that the Supreme Court got Jordan right. Its interpretation of the Charter is not beyond question; its procedural careless is disturbing; its chosen solution to what is admittedly a grave problem may be a bad one; and perhaps, all things considered, it should not have endeavoured to do more than mitigate that problem’s worst manifestations. But it is far from clear that this is so. There is more to be said in defence of the majority opinion in Jordan than most observers seem to think. Getting the government to comply with constitutional obligations is hard ― but someone’s got to do it.

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