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Playing the Jordan ‘Trump’ card

Canada’s 150th birthday also marks a darker anniversary. It’s been one year since the Supreme Court of Canada ruled in R. v. Jordan.

The controversial case, which turned the justice system on its ear, drew an arbitrary line in the sand, setting 18 months for provincial court and 30 months at the superior court system as the outside deadline for bringing cases to trial.

Justice department bureaucrats have been scrambling to triage cases, while defence lawyers have lined up to bring forward Jordan motions; at mid-May, Jordan had been cited in other rulings 335 times.

The fallout is notable. Dozens of cases have been tossed or withdrawn, including three involving murder.

There has been a flurry of announcements this spring dedicating more resources to the justice system. In March, the federal government announced $55 million to hire 28 new judges.

Alberta promised $14.5 million to hire 35 more prosecutors; Ontario will spend $25 million to hire 13 more provincial judges, 32 Crown attorneys, 16 duty counsel and 26 court staff.

Quebec is adding 16 judges, 52 new prosecutors and hundreds of court staff, part of a $200-million investment into the justice system.

That’s a quarter-billion dollars and counting. Putting accused murderers back on the street has that kind of impact with politicians.

However, it’s based on one ruling where the court didn’t hear expert evidence on what should constitute a reasonable delay. Why 18 months and not 12 or 24?

If you think you’ve seen the Jordan movie before, you’re right. Jordan is the sequel (or a bad a remake) of an older s. 11(b) feature flick, R. v. Askov, a 1990 ruling that stated eight to 10 months of institutional delay was too much, which led to thousands of cases being purged.

Almost 30 years have passed since Askov, yet the underlying problem remains — systemic delay.

The justice cast and crew in Jordan is different, but the plot remains the same. The solution now, as then, is to spend more and hire more people, as if that changes a bad script. It didn’t work then and it won’t work now.

Little is said about overhauling antiquated processes or addressing how police lay unnecessary multiple charges. Why does it typically take five court appearances to clear a criminal case? Hiring more people doesn’t equal greater efficiency or better justice.

Are we spending enough on our criminal justice system (police, prisons, prosecutions and courts)? Most lawyers and judges would tell you no. Comparative figures for justice spending are hard to find and compile. A Parliamentary Budget Officer report in 2013 found that Canada spent $20.3 billion on the criminal justice system in 2011-2012, about 1.1 per cent of our GDP or $478 per Canadian (the Canadian dollar was near par with the U.S. dollar).

U.S. statistics show that in 2012, Americans spent US$274 billion on criminal justice, about 1.6 per cent of its GDP or US$872 per citizen. In 2011, Australia spent AU$12.5 billion on its criminal justice system (about US$12 billion at then exchange rates), just less than one per cent of its GDP or about US$537 per Australian. So Canada seems to be at the low end when it comes to investment in its justice system.

For what it’s worth, court backlogs and delay are not a Canadian phenomenon.

Australia faces a growing backlog of criminal cases. More than 25 per cent of caseloads in some jurisdictions take longer than 12 months to get to trial.

Ontario’s southern neighbour, New York State, has issues in places such as the Bronx, where cases languish for more than a year. That state’s benchmark for hearing a case is 90 days for a misdemeanor and 180 days for a felony. That’s lightning speed compared with Ontario.

The United Kingdom’s ministry of justice has a ticker on its website that averages the days it takes to complete a case from charge to outcome. Overall, it’s 24 weeks or six months. For the Crown Court, it’s 51 weeks, or almost a year.

Clearly, Canada needs to do better. My concern is that the Supreme Court, by setting an arbitrary limit with scant comparable evidence on trial delay, has stirred up a hornet’s nest in political circles, where justice spending doesn’t have the same political cachet as hospital spending.

In May, Saskatchewan said it would once again invoke the Charter’s notwithstanding clause in a fight over Catholic school funding; it’s the fifth time a province has used it to override a fundamental right.

How long before a provincial government invokes the notwithstanding clause to get around trial delays? The PQ in Quebec called on the provincial Liberal government to do such, as did at least one Conservative leadership candidate.

It would be a crass card to play, but we seem to live in crass political times. If Jordan is putting accused murderers back on the street, it might be the “Trump” card in someone’s election deck.

Jim Middlemiss is a principal at