Delay issues are the most important criminal justice reform.

The 2016 Supreme Court of Canada decision in Jordan set a benchmark of 18 months between the laying of charges and a trial in provincial court and thirty months between charge and trail in superior court. Delays beyond this have been found to violate the Charter rights of the accused. As a result of this decision we are beginning to see more criminal proceedings stayed as a result of failure to bring the matter to trial in a timely manner.

I expect that this is all likely to come to a head in the SNC-Lavalin matter where one of the executives has already seen charges stayed on this basis. We are already past the Jordan threshold as charges were laid in February of 2015.

One interesting question is going to be whether a corporation is entitled to the same Charter rights as an individual. It is important to remember that the as initially conceived the Charter was intended to protect the rights of individual persons. Corporations do not have rights to life, liberty and security of person but they can raise the Charter when they are a defendant in a criminal or civil proceeding initiative by the state (R. v. Big M Drug Mart Ltd.[1985] 1 S.C.R. 295 at pages 313-14; R. v. Wholesale Travel Group Inc.[1991] 3 S.C.R. 154). One court has already found that corporations have resort to the caps set out in Jordan. This was the decision from Ontario in R v Live Nation Canada (2017).

It is apparent to me that any party in the next election is going to have to seriously address this issue. No criminal reform package can be allowed to go unquestioned if it does not address the delay issues. What use is it to lay charges if the system cannot process them in a timely manner that allows for the merits to be determined?

We should look for:

  1. Disclosure reform. One of the challenges with moving matters forward is that there are expansive and very poorly defined obligations for disclosure by the Crown to defense. I know that the Department of Justice has worked on proposals in this area. Crystallizing disclosure obligations, including how material will be disclosed, would give all involved a benchmark to work to. Standardized disclosure methods would also allow the Crown and defense counsel to develop techniques and technology that would serve them in every case.
  2. Standardized disclosure would also be part of the next step which is modernize the courts. Court administration is a constitutional responsibility of the provinces. However, Criminal Code matters come about as a result of choices made by the federal government. It is time for the federal government to make a serious investment in the administration of the Superior Courts. Administering trials with paper files must come to an end. We have heard horror stories from Justices who have had to try and find the paper files that were on their docket.
  3. Let’s answer the question of exactly ‘what rights are corporations entitled to?’. Corporations are not entitled to the full suite of Charter rights, but Parliament has been silent in general on this. Given that a corporation cannot go to jail it is time to examine whether the same procedural rights should apply to corporations as apply to humans.

Author: Tom Jarmyn