By Heather Cross
“May you live in transitional times” could be the modern criminal defence bar’s equivalent of the ancient Chinese curse, “May you live in interesting times.”
The Ontario Court of Appeal’s decision in R. v. Picard illustrates the level of uncertainty that exists and will continue to exist in the criminal justice system while the “transitional exceptional circumstances” set out in R. v. Jordan remain in play. Jordan was a Supreme Court of Canada decision released last summer that reworked the framework for determining Charter applications for stays of criminal charges based on unreasonable delay.
Under the transitional regime, courts dealing with cases that were in the system prior to the release of Jordan have to apply both Jordan and Morin, the leading case prior to Jordan. If the court determines that it was reasonable for the Crown to have relied upon the law as it existed under Morin in regard to the delay in question, the delay will not count against the Crown.
Picard was a case that got caught between Morin and Jordan. While the trial judge dismissed the first-degree murder charge against Mr. Picard on the basis of unreasonable delay, the Ontario Court of Appeal overturned the decision, finding that the trial judge erred in her application of Jordan’s “transitional exceptional circumstances.” While conceding that the charges would have been stayed under Jordan, the Court of Appeal found they would not have been stayed under Morin, and it was reasonable for the Crown to have relied on Morin.
Incarcerated for nearly four years, released for nearly nine months after the charges were stayed, re-incarcerated after the Court of Appeal decision and now facing a trial set for April 2018, it has been a long road for Mr. Picard.
However, the general public likely has little sympathy for this “accused killer”, as he is referred to in the media. It is amazing what a difference the type of crime involved makes to people’s attitudes. When I was working on the Supreme Court of Canada case of R. v. Cody, most people immediately wanted to know what charges Mr. Cody was facing. After they discovered that Mr. Cody had been charged with relatively low-level drug dealing, they were ready to at least entertain the argument that the charges against him should be dismissed due to delay. However, their attitude changed when discussing charges for violent crimes. While they could understand the import of speedy trials, they could not accept people “getting away with murder” on a “technicality” like delay.
I understand the sentiment; however, it is important to recognize that it is sentiment, not logic. Logically, the level of Charter protection applied to a case should not depend upon what the accused individual has been accused of doing. When people read “accused killer”, they too often skip over the “accused” part and focus solely on the “killer” part, forgetting that accused people, whether they have been accused of shoplifting or murder, are legally innocent.
While the Court of Appeal’s decision focused primarily on other factors, the seriousness of the offence was certainly one of the factors it considered:
First degree murder is the most serious offence in the Criminal Code. Given the serious nature of the alleged crime, there is a heightened societal interest in a trial on the merits. The trial judge appears to have interpreted the Supreme Court of Canada’s decision in Williamson as standing for the proposition that the seriousness of the offence was neutral. As a result, she failed to take this interest into account. In Cody, the court makes it clear that, when doing the Morin analysis in the context of the transitional exceptional circumstance, the seriousness of the offence remains a significant consideration: paras. 70-71.This passage highlights what I consider to be one of the most positive changes made by Jordan: whereas under Morin, the seriousness of the offence could be taken into consideration as part of the 11(b) analysis, under Jordan it cannot.
In my opinion, if anything, 11(b) of the Charter should be applied even more strictly in cases involving serious crimes than those involving lesser crimes:
Unfortunately, Mr. Picard’s case has been caught in the transitional maelstrom.* However, the Court of Appeal’s statement that the charges would have been dismissed under Jordan provides a ray of light for defence counsel bringing 11(b) applications in murder and other serious cases under Jordan. Now that the seriousness of the offence can no longer be considered, hopefully 11(b) will be applied equally to all charges. Whether we are dealing with an “accused killer” or an “accused shoplifter,” the focus should remain on the “accused” part.
* Word on the street (and in CBC News) is that Mr. Picard will be applying for leave to appeal to the Supreme Court of Canada. It will be interesting to watch how this plays out.
Heather Cross is a Flex freelance lawyer who assists other lawyers and law firms in the area of criminal law (drafting facta, appeal books, legal research and drafting) and assists with Supreme Court of Canada agency work.