Resolving R. v. Jordan linguistically: Why the dissent was right

It was the most significant Supreme Court of Canada decision of 2016, and it continues to dog the justice system.  Last July, R. v. Jordan set 18 months as the presumptive ceiling for criminal cases in the provincial courts, and 30 months in superior courts (or cases in provincial courts after a preliminary inquiry).  Canadian courts do not have the power to legislate, and these time limits do not exist in the Criminal Code.  Rather, the 5-4 majority in Jordan arrived at these ceilings by interpreting s. 11(b) of the Charter of Rights and Freedoms (English / French), which prescribes the right of a person accused of an offence “to be tried within a reasonable time.”

As courts scramble to meet the new time constraints for completion of criminal cases, we have to ask ourselves whether the decision once again suffered from its institutional blindness to the constitutional primacy of linguistic equality under s. 16.

Last year, in Guindon v. Canada: Does the s. 11 Charter analysis stand up to bilingual construction? I commented that the Supreme Court’s ruling that proceedings under s. 163 of the Income Tax Act are not subject to the protection of s. 11 of the Charter was questionable because the court failed to reconcile the linguistic tension between the English word “offence” and the French word “infraction.”  The court, referring to the English word without regard to the French, construed the provision more narrowly than a bilingual construction would have warranted.  From a bilingual jurist’s perspective, the court’s discussion of the need to distinguish “which statutory infractions are criminal offences and which are administrative penalties” (emphasis added), blatantly overlooked the fact that ‘infraction’ was in the French version of the very text under scrutiny.  (While the French word ‘infraction’ does have a slightly different meaning than the English one, it does include regulatory breaches such as the one under the Income Tax Act.)

The tension in Jordan between the two texts of s. 11(b) is a bit more subtle, but more functionally significant than it was in Guindon.  The English right of an accused “to be tried within a reasonable time” is to be the equivalent of the French right “d’être jugé dans un délai raisonnable.”  The tension arises between time and délai.  In French, the word délai has two very different meanings.  The meaning employed in s. 11(b) is different contextually from the one used in s. 11(a), the right to be informed of a charge “without unreasonable delay,” or “sans délai anormal“.  In s. 11(a), the same word is used to mean ‘delay.’  This contrasts with the equivalence in s. 11(b) between délai and time.

Modern dictionary entries support the opposition of the two meanings set out in the classic Littré entry, one being the time to do something, the other being the measurement of lateness.  When one contrasts these French meanings, the right to be tried within a reasonable time is clearly to be determined by the proportionality of institutional exigencies and the hardship to the accused, i.e. what is reasonable is determined by the circumstances of the steps in the criminal proceeding.  The French version of s. 11 helps us understand the English better, because of the opposing uses of the word délai as delay in s. 11(a) and as time expected in s. 11(b).  Délai under s. 11(b) requires the court to consider the duty of the state, as it performs its prosecutorial functions.  Jordan, however, views it in terms of a presumed breach of the duty and a shift of the burden from the accused to the Crown.  This is simply reading into s. 11(b) elements that are not there.

By placing ceilings on the time, Jordan interprets s. 11(b) as if s. 11(b) read like s. 11(a), i.e., as if s. 11(b) stated: “to be tried without unreasonable delay.”  The fact that s. 11(a) and s. 11(b) work with temporality in very different ways indicates that it would be wrong to conclude that a right to be tried within a reasonable time is not the same as the right to be tried without unreasonable delay.  Otherwise, the drafters of the Charter could have employed the existing wording of the U.N.’s International Covenant on Civil and Political Rights (referenced at para. 142 of Jordan), which calls for trial “without undue delay.”

If there be any doubt about the way in which the majority misconstrued the section in terms of unreasonable delay, consider its articulation of the “New Framework for section 11(b) Applications,” at paras 46-47:

[46]   At the heart of the new framework is a ceiling beyond which delay is presumptively unreasonable. The presumptive ceiling is set at 18 months for cases going to trial in the provincial court, and at 30 months for cases going to trial in the superior court (or cases going to trial in the provincial court after a preliminary inquiry).

[47]   If the total delay from the charge to the actual or anticipated end of trial (minus defence delay) exceeds the ceiling, then the delay is presumptively unreasonable. To rebut this presumption, the Crown must establish the presence of exceptional circumstances. If it cannot, the delay is unreasonable and a stay will follow.

The significance of the emphasis on unreasonable delay is that, when read as “reasonable time” as opposed to “unreasonable delay,” s. 11(b) provides no constitutional basis for imposing a fixed pair of ceilings.  As the minority stated, at para. 267:

[267] Creating fixed or presumptive ceilings is a task better left to legislatures. If such ceilings are to be created, Parliament should do so.

In fairness to the majority, the minority did not construe s. 11(b) as a bilingual text, either.  A fixed set of numbers also helps to guide the lower courts, in the long run.  However, it is not the role of our courts to rewrite the constitution.  The bilingual reading of s. 11(b) very clearly supports the minority view that the functional and circumstantial legal tests developed in the earlier case law such as Askov and Morin are faithful to the meaning of “reasonable time.”

Guindon involved a fairly obscure regulatory offence, and so the chances of the same issue rising up to the Supreme Court again, any time soon, are not high.  In contrast, the Jordan scenario will certainly be revisited, sooner rather than later.  When our top court does get to reconsider the application of s. 11(b), we can hold a pious hope that the court will also consider s. 16, thus overcoming this unfortunate detour in s. 11(b) jurisprudence.

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