Supreme Court upholds Jordan framework in dismissing Crown appeal of stay in murder charge

In a pithy decision numbering just nine paragraphs, a unanimous Supreme Court of Canada has dismissed the Crown’s appeal of a Quebec court decision that stayed charges of second-degree murder against a Sri Lankan because of unreasonable delay.

In R. v. Thanabalasingham, the Supreme Court found that the Crown’s delay of 43 months in bringing the case to trial was excessive, and that the Quebec courts had been right to stay the charges.

Although most of the delay had accrued before the court’s 2016 decision in R. v. Jordan was released, the transitional exceptional circumstance did not justify the delay, the court found, and nor would the delay have been acceptable under the guidelines set in R. v. Morin.

“It’s good to see that the court is making a very strong statement, affirming the principles they set down in Jordan and Cody,” says Stephanie DiGiuseppe, a criminal lawyer and partner in Ruby Shiller Enenajor DiGiuseppe Barristers LLP in Toronto.

“And I think by writing a short, clear, unanimous decision authored by all of them, [it is] the court’s way of putting the decision in bold and underlined; it’s a way to reinforce the importance of their message by delivering it unanimously.

“The remedy in this case also underscores [the court’s] message,” she adds; “the fact that they upheld the stay of a murder [charge] indicates they want to strongly affirm the Jordan principles.”

Sivaloganathan Thanabalasingham, the respondent, a refugee from Sri Lanka and a permanent resident of Canada, was arrested and charged in August 2012 with the murder of his wife. Although the charge was eventually dropped to second-degree murder, the Crown pursued a first-degree murder charge at the preliminary hearing, which lasted more than a year and was one factor in lengthening the proceedings. Thanabalasingham’s trial was scheduled to begin in April  2017 — nearly five years after his arrest — but he applied for a stay of proceedings on the ground that his right to be tried within a reasonable time had been infringed.

By this time the Supreme Court’s decision in R. v. Jordan had been released, which set a 30-month ceiling for the length of time, from charge to the end of a trial, that a matter should reasonably take in a superior court or a provincial court after a preliminary inquiry. The Quebec Superior Court trial judge accordingly ordered a stay of proceedings for Thanabalasingham, and on July 5, 2017 the respondent was removed to Sri Lanka, a country with which Canada has no extradition treaty.

The Crown appealed the stay decision regardless of the respondent’s absence from Canada, while the defence held that the appeal was moot because of his absence. In February 2018 the Quebec Court of appeal agreed with the trial judge, in a split decision.

In April 2019 the Supreme Court allowed the Crown’s appeal and remitted the matter to the Court of Appeal for a decision on the merits, finding that the majority of the Court of Appeal had erred in concluding that the case was moot. The majority of the Quebec appellate court again dismissed the Crown’s appeal, holding that the Crown had not proven any errors that would open the door to intervention by the court. Two justices — Nicole Duval Hesler, then chief justice, and Guy Gagnon — dissented and would have returned the matter to the Superior Court for trial and ordered that Thanabalasingham be arrested if he were to return to Canada.

In today’s judgment the Supreme Court found that the delay in the case far exceeded the 30‑month presumptive ceiling established in Jordan, and that “[t]he preliminary hearing was not a discrete event, and its length was not outside the Crown’s control in the sense contemplated by Jordan.” As well, although most of the delay accrued before Jordan was released, the transitional exceptional circumstance did not justify the delay.

“Here, it bears repeating that the vast majority of the lengthy delay in this case stemmed from systemic delay that had reached epidemic proportions across many parts of this country — a key factor that motivated this Court’s decision in Jordan,” the court wrote. “Indeed, as the trial judge noted, this problem had ‘plagued the criminal justice system in the district of Montreal’ specifically.”

Even under the old framework, established in R. v. Morin, the case would have qualified for a stay, the court found, as Morin set ceilings of 14 to 18 months.

In a decision that noted “the culture of rampant and longstanding systemic delay” in the justice system, the Supreme Court missed an opportunity to address the issue of the “chronic underfunding” of the justice system, DiGiuseppe believes.

“In 2017, the [Ontario] government took notice of this and injected a small amount of money into the system, but not enough to make substantial progress,” she says. “Parliament gets a pass if the Supreme Court only talks about culture and not chronic underfunding. It’s open to the Supreme Court to say … the justice system needs more money and resources to keep up with the caseload and bring matters to trial within a reasonable time.”

The right to be tried within a reasonable time benefits not only the accused, said the court in today’s decision.

“In sum, practices that were formerly commonplace or merely tolerated are no longer compatible with the right guaranteed by s. 11 (b) of the Charter  — a right that inures not just to the benefit of accused persons, but to the benefit of victims and society as a whole as well,” the court wrote.

Victims and their families also suffer when cases are delayed for a long time, DiGiuseppe notes; “it prolongs a very painful period for the victim in the life of a trial.” As well, memories fade over time and the longer a trial is delayed the more “our ability to learn the truth through witnesses and come to a just result” is eroded. “That makes it more difficult for justice system actors — judges and juries — to do their job in trying to understand whether a person should be found guilty or not.”

In a statement sent to Canadian Lawyer, the Poursuites criminelles et pénales du Québec, which represented the Crown in this appeal, said: “The application of principles laid down in the Jordan case is now general practice in front of the courts.

“According to the latest data, very few Jordan-based motions are granted by courts in Quebec.

“Best efforts are currently being made to bring our files to a conclusion in a timely manner.”