For the second time since the Supreme Court created time limits for criminal cases, a murder charge dropped over delay has been reinstated, as provincial appeal courts object to the ground rules changing on prosecutors in the middle of a case.
Lance Regan, a prisoner in the Edmonton Institution, was the first person accused of murder to have his charge thrown out over delay, by a judge who cited the Supreme Court's 2016 ruling in a case known as Jordan. And he is the second to have his first-degree murder charge reinstated by a higher court.
The Supreme Court had taken a hard line on delay, establishing time limits on criminal proceedings of 30 months in superior court, and 18 months in provincial court. The court said it was time to rid the criminal-justice system of complacency.
But the Alberta Court of Appeal ruled unanimously that a lower-court judge had been overzealous in throwing out the murder charge against Mr. Regan.
"Strict retrospective application of these changes would be unfair," Alberta Court of Appeal Justice Sheila Greckol and Justice Barbara Veldhuis wrote in their 2-0 ruling. (A third judge who heard the case, Sheilah Martin, has since been appointed to the Supreme Court and did not participate in the decision.)
"Jordan did not provide the parties with a time machine they could use to go back and re-litigate the case."
The ruling from Alberta, like a similar one from the Ontario Court of Appeal last September, softens the impact of the Jordan ruling – but only for the transitional period of cases already under way when the ruling came out.
In the first case, Adam Picard of Ottawa spent four years in jail without a trial in connection with the killing of 28-year-old Fouad Nayel in June, 2012. The Ontario Court of Appeal ordered a trial for Mr. Picard, overturning a lower-court ruling.
Toronto criminal lawyer Daniel Brown, who was not directly involved in either the Ontario or Alberta cases, said that in Jordan, the Supreme Court tried to avoid a chaotic result in which thousands of cases would have been tossed out, as happened in 1990, after an earlier ruling on delay.
"The Jordan decision was intended to wake up the justice system by addressing the culture of complacency towards delay," he told The Globe. "It was not intended to retroactively impact extremely serious criminal cases operating under the previous delay framework."
"The trial judge did not adequately take into account the seriousness of the charges," University of Calgary law professor Lisa Silver said.
The Supreme Court had said, in Jordan, that for such cases, a "transitional exception" would apply: If prosecutors acted reasonably, under the rules as they were at the time, cases could exceed the time limits.
Even so, a brief flurry of homicide cases being thrown out over delay quickly followed in Alberta, Ontario and Quebec. These cases first ignited public concern about the Jordan ruling, leading the three provinces in which they occurred to pour millions of dollars into hiring new judges and prosecutors. Eventually the federal and provincial justice ministers met twice and reached a consensus on legislative changes needed to speed up the justice system. Ottawa is expected to introduce those changes soon.
Mr. Regan is accused of stabbing to death a fellow prisoner, Mason Tex Montgrand. The case took 62 months. Justice Stephen Hillier of the Alberta Court of Queen's Bench, who presided over the case, blamed 24 months of that delay on defence tactics. That left a delay of 38 months, and Justice Hillier said the case did not fit into the "transitional exception" – it was neither especially complex, nor did the prosecutors try especially hard to keep it moving.
If convicted, Mr. Regan faces an automatic life sentence.