Benjamin Perrin is a professor at the University of British Columbia, Peter A. Allard School of Law, and the author of the upcoming book Victim Law: The Law of Victims of Crime in Canada (Thomson Reuters, 2017).
Murder, sexual assault, drug trafficking – all manner of serious charges are being tossed out in growing numbers because of the Supreme Court of Canada's brash new test in R. v. Jordan, a raft of judicial vacancies and a culture of delay in the justice system. What should concern us most about this appalling situation is the impact on the victims of these crimes.
An estimated 2.2 million Canadians suffer from violent crime annually. The total cost of crime has been assessed at almost $100-billion a year, with the majority of costs (83 per cent) borne by victims, including medical costs, lost wages, stolen/damaged property, pain and suffering and loss of life.
Canada is facing an epidemic of unreported crime. The latest Statistics Canada victimization survey reveals that less than one-third (31 per cent) of all alleged offences are reported to the police. More disturbing is that a staggering 95 per cent of alleged sexual assaults are suffered in silence.
Victims have many reasons for not going to the authorities, including a belief that the police would not help, that the offender would not be punished adequately and a lack of confidence in the criminal-justice system. There's increasing evidence to verify these fears as well founded.
The Supreme Court's test in R. v. Jordan is on the verge of causing hundreds of charges to be stayed for "unreasonable delay" under the Charter. Under Jordan, criminal charges have a best-before date of 18 months in provincial court and 30 months in superior court. When I explained the test to a group of trial judges several months ago, looks of shock and surprise were exchanged between them.
While delays in our justice system must be addressed, Jordan may be a cure worse than the disease. Its problems are numerous.
First, the deadlines it sets were not based on any comprehensive data – the majority judges were limited to information about case duration from provincial court in Surrey, B.C.
Our Report Card on the Criminal Justice System released last fall found wide variability in average case length across the provinces and territories, ranging from 63 days to 271 days. In 2014-15, more than 50,000 criminal cases took longer than one year to conclude. How many exceed the thresholds set by Jordan? The Supreme Court majority judges had no idea when they set them. How can you set a test about what is a "reasonable" delay without knowing such information? That's irresponsible and foolhardy.
Second, the test in Jordan allows for some allowances to be made for "exceptional circumstances," or where there are obvious defence delay tactics or waivers of delay. Yet, the test explicitly excludes any consideration of the seriousness of the offence. Why should shoplifting and sexual assault be treated the same way? It seems absurd. There's a far greater public interest in seeing more serious charges dealt with by the courts and that should factor into the unreasonable delay test.
Third, the majority judges in Jordan ignore the impact on victims of stayed criminal charges. It is irrelevant in their calculus. The majority pays lip service to victims by saying they suffer due to delays, but surely the greater harm comes to victims when charges are stayed. Victims also have no formal role or ability to participate when an accused brings a motion seeking a stay of charges.
Our criminal-justice system must respect the rights of the accused, but it must also uphold the legitimate rights and interests of victims of crime. Victims are not evidentiary fodder for the machinery of justice. Treating them that way has led to alienation, disillusionment and tragedy. This secondary victimization – the harm caused to victims by the justice system itself – cannot be discounted as an unavoidable side effect of it.
In R. v. L. (D.O.), then-Supreme Court justice Claire L'Heureux-Dubé wrote, "[i]n our quest for the truth, if the defendant's rights must not be infringed, neither must the complainant be further victimized." Likewise, then-justice Louis LeBel, writing for a majority of the Supreme Court of Canada in R. v. Regan, recognized that sexual-assault victims must be able to come before the courts "without further undue trauma."
Victims already face an uphill battle to see justice done for the harms they have suffered. Tossing criminal charges based on arbitrary timelines without regard to the seriousness of the offence and the impact on victims is profoundly unjust to victims and threatens to undermine the very foundations of our criminal justice system.