The unforeseen consequences of R. v. Jordan, the Supreme Court of Canada's decision on trial delays, are getting curiouser and curiouser.
In principle, the Jordan decision is meant to protect accused people from having serious criminal charges hanging over their heads for too long – by setting hard time limits on criminal proceedings.
But an accused also has the right to choose his or her lawyer. What happens if that lawyer's schedule causes a case to take too long to come to trial? The Supreme Court didn't fully think such conundrums through.
Which brings us to the case of Curtis and Corey Murray, two brothers accused of first-degree murder. The men were promptly charged; there was a preliminary inquiry, and last fall, they were committed to trial. A six-week trial was proposed for September or October, or January, 2018. So far, so within the Jordan time limits.
However, Curtis Murray's lawyer says she is not available until March. If the trial is postponed until then, that would appear to violate the Supreme Court's hard deadlines. A deadline violation could mean that charges would have to be dropped.
The Criminal Lawyers Association says the state shouldn't get in the way of the client-lawyer relationship, and Ontario Superior Court Justice Todd Ducharme agrees. Fair enough. But what about the Crown's legitimate concern, and society's, that a murder case risks being thrown out because of a delay?
The case against the Murray brothers has not yet gone on too long, and the charges have not been dropped. The Jordan deadline in this case isn't yet past – but a schedule is being proposed that appears to ensure it will be. The Crown is worried, and with reason. Given the large number of criminal charges that have already been throw out, the Jordan ruling has created a big, difficult problem.
Of course an accused should be able to hire the lawyer he wants. And of course the Crown should let him have that lawyer, even if it results in a delay of a few months. How did the Supreme Court turn this into something potentially unconstitutional?