It should be simple. A person accused of a crime shouldn't have to be under the shadow of a serious charge hanging over his or her head for too long. The Charter of Rights and Freedoms says as much – it guarantees the right "to be tried within a reasonable time" – but it doesn't say how long is unreasonably long. That's up to the courts, and ultimately the Supreme Court.
Last July, in the case of R. v. Jordan, the Supreme Court shook up the law, and redefined the meaning of "reasonable time." Defence lawyers have since applied to suspend more than 800 criminal cases across the country – including charges of murder, attempted murder and manslaughter.
This is the third time since the creation of the Charter that the Supreme Court has tried to figure out a rule on how long of a wait is too long. It's a contentious issue. In the Jordan case, the judges on Canada's top court were split, five to four.
The majority decided that the previous rules, known as "Morin," were confusing and failing to ensure speedy trials. They ordered that from now on, trials must be completed within a firm timeline: 18 months for cases in provincial court, and 30 months in superior court. Exceptions can be made for delays caused by the defence, or due to "circumstances that are genuinely outside the Crown's control." Otherwise, the onus is on the Crown to prove that a delay beyond the time limits is necessary. A case that goes on past the time limits risks being thrown out of court.
Chief Justice Beverly McLachlin and three other justices disagreed with the majority. They thought that Morin needed only to be refined and better articulated, rather than revolutionized. They think the majority is junking nearly three decades of good jurisprudence, and imposing a simplistic and inflexible deadline that could hamstring the prosecution in complex and difficult cases.
But like it or not, R. v. Jordan is now the law of the land. There's no appeal from the decisions of Canada's top court. Which means that governments and lower courts have no choice but to respond. They have to figure out ways to make some cases move faster.
That could mean tinkering with court procedure. Or freeing up court time by encouraging plea bargains in lesser cases, as Nova Scotia is contemplating. Or speedily filling empty seats on the bench: There are currently 60 vacancies for judges on federally appointed courts. Or spending millions of extra dollars to hire more judges and prosecutors, as Quebec and Ontario are doing.
But we also suspect and hope that in a few years the Supreme Court of Canada will have no choice but to revisit the issue, and refine its rules. The concerns of the four dissenting judges are likely to prove prescient.