Complacent Culture and Delay After Jordan

About six years ago, in 2016, the Supreme Court of Canada recognized that the criminal justice system was not delivering consistently on it promise for timely justice and was eroding the trust that Canadians had put in it. Changes were needed. R. v. Jordan¹ , a medium-complexity drug case, took over 4 years for the trial to conclude. Mr. Jordan’s complaints about the delay were twice dismissed. First, by the trial judge and again by the Court of Appeal for British Columbia². The Supreme Court, tired of excessive delay plaguing the criminal justice system across the country, stayed the charges. It also set upper boundaries on how long criminal cases can take – 18 months in provincial court and 30 months in superior courts³.

The Culture Argument

None of this is news at this point to anyone involved in the criminal justice system in Canada. But the Court went further. It argued, somewhat convincingly, that the root cause of the criminal justice system’s woes was a “culture of delay and complacency” that had taken root. Fed by the complex framework about finding unreasonable delay prosecutors, defence counsel and judges were all tolerating the pervasive delays found across the country⁴:

Our system, however, has come to tolerate excessive delays. The circumstances in this appeal are
illustrative. Notwithstanding a delay of over four years in bringing a drug case of modest complexity
to trial, both the trial judge and the Court of Appeal were of the view that the appellant was tried
within a reasonable time. Their analyses are reflective of doctrinal and practical difficulties plaguing
the current analytical framework governing s. 11(b). These difficulties have fostered a culture of
complacency within the system towards delay.

This line of thinking, blaming a common culture across every province and territory, has been very sticky. Courts of appeal across the country have adopted it and routinely (See e.g. R v Albinowski, 2018 ONCA 1084, R v Gowenlock, 2019 MBCA 5, or Javanmardi c R, 2019 QCCA 576) cite this culture of delay and complacency as the root cause of the problematic cases they review. Trial judges, faced with cases breaching the upper bound, bemoan the culture that is plaguing their own courthouses and the delay that it brings. By so doing, these judges lay the blame on a faceless, nameless, and formless “culture” and pray that staying cases will shake this culture from their respective courthouses. The Supreme Court’s did identify individual actors within the criminal justice system as having roles to play – all of them⁵:

... participants in the justice system - police, Crown counsel, defence counsel,
courts, provincial legislatures, and Parliament - are not encouraged to take preventative
measures to address inefficient practices and resourcing problems.

The Frailties of the Explanation

In my view, the Court stopped its causation analysis one step too early and its complacency explanation is at best an incomplete explanation for what’s causing system-wide delays. The Supreme Court stopped analyzing the root cause of widespread issues with delay, when it declared that a country as vast and diverse as Canada fostered a common, and problematic, culture in almost every jurisdiction. If such a common culture exists, what caused it to appear so broadly and so consistently? The argument appears to be that this culture was universally created by a complex mechanism for determining unreasonable delay and as a result, this culture is ubiquitous. As attractive as a cultural explanation might be for approaching the problem of delay in the criminal justice system, it can also be toxic. By shifting the blame for delay to a faceless group of listless participants, the courts risk obscuring other possible root causes. This means that trial courts might be investing energy in stomping out a complacent culture rather than taking a more analytical approach.

Data Collection

In 2021, I spent a couple months reviewing reported cases that cited Jordan. It was a tedious job of gathering a list of all trial-level cases that cited Jordan, looking for cases that included detailed information about the progression of that case from pre-trial through to the Charter application. I used CanLII’s API for this request. Big props to CanLII for maintaining an API that allows this sort of analysis. From that group I selected about 180 cases at random and reviewed them to see if they included sufficient information about their progression through the courts to provide a complete picture; about 35 did. I annotated those with tags for each date and event mentioned in the decision. All told, I annotated about 860 court dates. I read through cases from every province and territory and most levels of court for each. It was a tedious, if fascinating, way to spend a pandemic springtime⁶.

There are some unreliable aspects to tagging the data this way besides the biases introduced by being a solo researcher and annotating alone. Judges, understandably, self-select the details to include in their appearance summaries. For example, in a case where disclosure took a long time they will make note of every defence request for additional disclosure. That information might not be made available in a case that was delayed by changing defence counsel or by a witness conflict. To mitigate the impact of this on any developed conclusions, cases were only tagged if it appeared, on the face of the decision, to be a complete record of that type of delay. For instance, if disclosure was only referenced in passing, then the “disclosure provided” could have been used but the “disclosure complete” tag would be absent for that data set.

There is also a selection bias issue. I selected only cases that were citing Jordan and thus has already taken a long time. It is possible that some events only happen with cases that have gone on for a long time. I would be blind to that information. I continue to try to chase down a fuller data set so that I can produce a more accurate picture. For now though, I can provide a couple of insights on the limited data I had.

The Two Big Observations

There were two major observations made:

• The pre-trial process routinely consumes over half of the Jordan threshold time
• Just about any failure, at any stage, could cause a breakdown and unacceptable delay

The mean time with these cases between the first appearance and setting a trial date was 336 days - nearly a full year. That, by itself, was a surprise. This was often time waiting for complete disclosure or waiting for pre-trial and plea negotiations to happen. This means that if anything happens to the trial date - a witness is missing, or a piece of disclosure is discovered - then the case is already treading on thin ice from a delay perspective. But what was more surprising to me was that routinely, roughly 9 appearances on average, there was no mention of any progress at all. These were probably just wasted appearances. A couple cases (see eg: R. v. Tsekouras, 2017 ONSC 7112 or R. v. Ladouceur, 2016 CanLII 94975 ) clocked in at well over 20 wasted appearances. That is a lot of wasted court and lawyer time.

There does not seem to be a common thread that connected these cases to each other. Single accused cases appeared in the data alongside multiple accused cases. I don’t have a comparator data set with non-delayed cases so it is impossible for me to say whether they appear more often than they would be expected to. Cases that were not delay are not usually reported with detailed timelines. I also had expected that disclosure delay would be a far more relevant signal. While it was certainly a problem, there were also cases in the dataset that failed (or nearly failed) when disclosure was provided entirely on day 1 and when prosecution efforts are focussed entirely on mitigating delay.

One of the cases brought as part of Project Patton⁷ happened to be in the dataset described above. It was a massive project involving more than 100 accused persons and over 250 charges. Much of the disclosure for the project was provided at the first appearance, multiple prosecutors were assigned, and the court was warned ahead of time of the influx of charges. In spite of all of this, clearly non-complacent work, this case still exceeded the Jordan threshold. The judge only dismissed the application because the Crown demonstrated ``exceptional circumstances’’, namely multiple accused and a complex project, Not because of the effort involved to barely scrape by.

Conclusion

If cases like Allegro failed to make the deadline and any issue, whether complacency-related or random chance, could derail cases with the timelines that were observed in the dataset then this suggests that complacency is at least not a complete explanation for the creeping problem of delay.