The time limits were intended to speed up justice. They also stopped hundreds of criminal cases – Kelowna News

When police showed up at Melanie Hatton’s Kelowna, BC home in November 2021, she says they found her in the bathroom covered in blood, with her then-husband Jeffrey Maclean standing over her “in an aggressive manner” .

She describes a terrifying scene in a court filing, with blood from her head wound allegedly smeared onto Maclean’s mouth from his whispers in her ear. The filing of a civil suit against Maclean says he said a 911 operator, his wife was “bleeding like a pig.”

Hatton said police and prosecutors told him the criminal case against Maclean in BC Supreme Court would be a “slam dunk,” and he was charged with assault causing bodily harm and resisting arrest.

But the case was dismissed in August 2023 – not for lack of evidence, but because the Crown took too long to try it under a set of strict deadlines that have reshaped the way criminal cases are handled since a ruling by 2016 Supreme Court of Canada reference.

Supporters say Jordan’s so-called ruling sped up proceedings and strengthened Charter rights to prompt justice.

But Jordan’s legacy is mixed, and some victims say the time limits work in criminals’ favor. Eight years after the rules began, cases continue to collapse as deadlines are breached, although they represent a small fraction of all cases.

An analysis of statistics provided by the provinces and territories shows that since the beginning of last year, more than 400 criminal cases nationwide have been dismissed, suspended or withdrawn as a result of the provocations in Jordan.

Among the defendants were some accused of sexual assault, child exploitation, fraud and drug trafficking; murder cases were also cleared in previous years.

The case against Maclean was among those dropped.

Hatton said she was thrown “into an absolute pit of despair and shame” after the case was thrown out.

Prosecutors blamed factors including COVID-19 and the availability of Maclean’s lawyer for the delays and failure of the case.

Hatton thought otherwise and sent a one-line email to the Crown attorney.

“I said ‘this is from you,'” said Hatton, who now lives in Ontario with the couple’s two children.

None of the allegations in Hatton’s civil suit against Maclean have been proven or tested in court, and in his response, Maclean “denies every allegation”.

A “REVOLUTIONARY” DECISION.

Jordan’s ruling imposed a “presumptive ceiling” of 18 months between indictment and the actual or anticipated conclusion of a trial in provincial court and 30 months in higher courts.

Except in “exceptional circumstances,” exceeding these limits has been deemed by the country’s highest court to be a violation of the Canadian Charter, which requires criminal defendants “to be tried within a reasonable time.”

Exactly how long “reasonable” meant was not clear until the high court’s decision in RV Jordan.

The case would change criminal law practice nationally, but BC attorney Tony Paisana, who was involved in the trial, didn’t know how important it would be at the time.

“Looking back, it’s certainly difficult to say that we, any of us, really expected it to come out the way it did and how revolutionary it was going to be,” he said in an interview.

The case began modestly in December 2008, with the arrest of an alleged drug dealer named Barrett Jordan in Langley, BC, along with other people whom police accused of running a dial-a- dope”.

It took more than four years from Jordan’s indictment to the end of his original trial.

He unsuccessfully argued that his Charter rights to a timely trial were violated by both the BC Supreme Court and the Court of Appeal before reaching the Supreme Court of Canada.

Paisana and colleagues Eric Gottardi and Richard Peck argued that the right to a timely trial went back hundreds of years, citing the 1215 Magna Carta in their remarks.

Paisana said the Jordanian High Court’s decision “completely achieved its intended objective, which was to speed up criminal trials.”

“And to have diverse participants in justice, that being the judge, the Crown, the defence, the accused, everyone starts paying attention to the expediency of trials,” he said.

“It was a chronic problem that existed in our system, and Jordan was what we call in law a ‘clarion call’ to change the culture surrounding criminal trials.”

He said cases had been suspended for unreasonable delays before this case, but Jordan set new thresholds.

“There’s just more confidence in the justice system when things get resolved faster,” he said. “I think it’s a net positive effect that the ruling has had. It’s not without controversy, but nothing we do is without controversy, frankly.”

The debate over Jordan reignited in BC this summer after a case was dismissed against a man accused of molesting a six-year-old child.

Premier David Eby said at the time that it was due to a “perfect storm” of delays and that “no case should be dismissed in this way”.

The deadlines for Jordan, he said, were “very restrictive” and “devastating in other provinces.”

Among at least 409 challenges from Jordan that ended cases in Canada since the beginning of last year were 26 in BC involving charges ranging from fraud to theft, drug and weapons offenses and sexual assault.

“Every case suspended due to delay is a concern. Victims and the public expect to see cases determined on the merits and not dismissed due to unreasonable delays,” BC’s Ministry of the Attorney General said in a statement.

“We have taken this issue seriously and have invested in transforming processes and increasing resources to prevent judicial stays,” the statement said.

In Maclean’s case, the BC Supreme Court found in August 2023 that his trial was set “well beyond the borders of Jordan” through no fault of the defense and no delay caused by the COVID-19 disruptions to court operations.

“If the Crown had not failed in its disclosure obligations,” the judge wrote, “it would probably have ended within the borders of Jordan.”

“A HUGE NEGATED IMPACT”

Stacey Purser, a criminal defense lawyer in Edmonton, said Jordan did not lead to “the culture of urgency that I think the Supreme Court was trying to create.”

“Unfortunately, I don’t think that much has changed since Jordan, other than to say that, you know, once you get past these supposed deadlines, people seem to panic to get things done.” , she said.

Vancouver defense lawyer Kyla Lee, who specializes in impaired driving cases, said Jordan had a “huge negative impact not just on my practice, but on the practice of law in general for criminal lawyers.”

“The problem is now, every time you go to court, no matter what the purpose of the appearance is, there’s always a discussion about Jordan,” she said. “It appears at every appearance and it has reached the point where the ceilings in Jordan are effectively used as weapons against accused persons.”

With a busy schedule, finding court dates that work for both her and the prosecutors is a challenge, and the inability to agree results in arguments over who is to blame. Judges must conduct “microscopic analysis” to determine the length and cause of the trial delay, Lee said.

“It’s made everything much more complex, much more contentious and it’s really done a disservice to the timely administration of justice because it takes more time in court to deal with these issues,” she said.

Former Toronto resident Cait Alexander, a Canadian model and actress now living in Los Angeles, founded the group End Violence Everywhere after an abusive relationship nearly ended her life, alleging that her ex-partner brutally beat her with a rolling pin of wood in July 2021.

Several charges were dropped because of the delays, and Alexander said he felt “disgusted” after receiving assurances from prosecutors that the case would proceed.

She said the only consequence against her ex-boyfriend – who was originally charged with assault causing bodily harm, uttering threats, obstruction and other offenses – was a peace bond and he left the country out of fear for her safety.

“That’s all they could give me because they didn’t have time to try my case,” she said.

Alexander testified before the House of Commons Standing Committee on the Status of Women last July, recounting the stories of survivors, including Hatton, whose experience she called “eerily similar” to her own.

In her testimony, Alexander told committee members that “the government doesn’t care” about survivors and victims of intimate partner violence.

“We as Canadians have Charter rights that are essentially a get-out-of-jail-free card for criminals, but what about the rights of survivors? Why are our Charter rights never considered?” she testified.

Like Hatton, she is suing her ex-boyfriend because it is “the only form of legal justice I have left,” she told the commission.

Alexander testified before the committee again last week, telling members that the Jordan terms should not apply in cases of sexual assault or intimate partner violence.

“There should be no time limit or stay allowed for man-on-man murders,” she testified, later tearfully describing Jordan’s rules as “sickening” and “terrifying.”

Paisana said it was important to consider the “big picture” of Jordan, the importance of timely trials and the rights of accused persons who are presumed innocent until proven guilty.

“It benefits society as a whole in a very dramatic way, as opposed to one or two individual cases in a given year in a given jurisdiction that might be suspended as a result of it,” he said.

For Hatton, the collapse of the case against her ex-husband was devastating and continues to affect her life. She now has multiple security systems in her new home after fleeing her old life in BC

In October 2023, Hatton filed a civil suit against Maclean in BC Supreme Court, alleging a “history of abuse” throughout their relationship, seeking damages for assault, intentional infliction of emotional distress and defamation.

She said getting a relocation order to allow her to move out of BC with her children was “a bit of justice”.

But now he lives in a state of hyper vigilance.

“I sleep with a golf club next to my bed,” she said.