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Gabrielle Giroday

Editorial: Framework shifts

At times, there can be a tendency in journalism to add drama and flourish, as well as action phrases, to the written word.

That being said, it would be fair to say that when the SCC ruled in R. v. Jordan, a traditional legal  framework was shattered.

The ruling referred to a “culture of complacency towards delay that has pervaded the criminal justice system in recent years.”

Therefore, dismantling it meant creating a presumptive ceiling. Stretching beyond the ceiling meant trouble.

Law Times reports this week that the unavailability of a defence lawyer because of scheduling issues will not necessarily count against an accused in assessing whether the right to a trial in a reasonable time has been breached, according to a recent Superior Court ruling in Cornwall, Ont.

The matter involved three people accused of trying to smuggle Polish nationals from Canada to the United States.

The bench is hammering out the terms and conditions that Jordan imposed for the entire profession, with Justice Rick Leroy concluding that a delay was “institutional in nature.”

“These accused were caught in the consequence of complacency as to right to trial within a reasonable time cited by Justice Moldaver.

A symptom of the poor health of the criminal justice system in this jurisdiction is that we were unable to assign priority status to a serious case with serious consequences for the accused if convicted because the pipeline was/is full,” said the ruling.

“While judges should account for the reality of institutional delays because counsel’s behaviour is constrained by systemic delay issues, to disregard the breach of the accused’s rights to trial within a reasonable time feeds continued complacency over delay and recognition that resources are finite.”

Leroy ultimately ruled to stay human trafficking charges against the three defendants over a violation of their Charter rights.

Stand by for more inevitable shakeouts from Jordan.


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