The COVID-19 pandemic changed almost everything, including putting millions of Canadians out of work. Schools shut down and business closed, leaving many wondering what life would look like once this pandemic is over.
Courthouses across Canada also shut down, tossing the entire criminal justice system into turmoil.
Will the coronavirus pandemic alter the Supreme Court’s interpretation of its landmark “justice delayed is justice denied” ruling in R. v. Jordan?
A series of upcoming assault and murder trials placed in limbo means we’re going to find out.
The core of the Jordan decision is our Charter section 11(b) right to a trial “within a reasonable time.”
Charter of Rights and Freedoms, Section 11(b)
Any person charged with an offence has the right (b) to be tried within a reasonable time;
The July 8, 2016, decision established strict guidelines to determine if a defendant’s Charter section 11(b) right to a trial “within a reasonable time” is violated to the extent all charges against them must be dropped.
From R. v. Jordan:
At the heart of this new framework is a presumptive ceiling beyond which delay — from the charge to the actual or anticipated end of trial — is presumed to be unreasonable, unless exceptional circumstances justify it.
The presumptive ceiling is 18 months for cases tried in the provincial court, and 30 months for cases in the superior court (or cases tried in the provincial court after a preliminary inquiry). Delay attributable to or waived by the defence does not count towards the presumptive ceiling.
Once the presumptive ceiling is exceeded, the burden is on the Crown to rebut the presumption of unreasonableness on the basis of exceptional circumstances. If the Crown cannot do so, a stay will follow. Exceptional circumstances lie outside the Crown’s control in that (1) they are reasonably unforeseen or reasonably unavoidable, and (2) they cannot reasonably be remedied.
Why This Matters
Courthouses across Canada shut down in the wake of the COVID-19 pandemic, delaying prosecutions for every defendant with a case currently before the courts. Many of those trials are nearing the deadline set by the Supreme Court.
I would hope the Supreme Court would interpret the government’s response to the international pandemic as “reasonably unforeseen or reasonably unavoidable, and … not reasonably be remedied.”
In his June 10, 2019 article on the Jordan decision, Andrew Russel estimated almost 800 criminal prosecutions were stayed as a result of the Supreme Court’s edict.
A partial list of outstanding criminal cases across Canada which may be in jeopardy of being dropped are below.
Trials On Hold Due to Coronavirus
In British Columbia:
- Thomas Kruger-Allen, who was sentenced to 18 months for another unprovoked attack in 2017, allegedly beat Bradley Eliason so brutally on May 3, 2019, it took over 50 staples to hold his scalp together months after the attack. Kruger-Allen faces charges of aggravated assault, breach of conditions, assault, and one count of sexual assault.
- Kevin Costin was arrested on May 26, 2017 and charged with the 2015 murder of Hazel Budiongan, his wife. Costin attempted to disguise his crimes by burning their home down with his wife’s body inside.
- Michael Bobin was murdered in Hope, BC, on April 19, 2017. His alleged killers, Ryan Watt, Joshua Fleurant, and Jared Jorgenson, face first degree murder charges.
- Tejwant Danjou, originally pleaded guilty to murdering Rama Gauravarapu on July 22, 2018, at the Kelowna Best Western hotel. He changed his plea a day later and is now awaiting trial.
- Troy Gold’s body was found on October 30th, 2018. His alleged murderers, Nathan Townsend, Jaden Eustache, Darian Rohel, John Davis and Sean Scurt, are all awaiting trial on second degree murder charges. Troy Gold, a career criminal himself, was found guilty of murdering a Penticton man in 2001, so it’s hard to feel too sorry for him.
- Dustin Duthie is charged with three counts of second-degree murder in the 2018 killings of his girlfriend, Taylor Toller, and his mother and step-father Shawn Boshuck and Alan Pennylegion.
- On April 17 or 17, 2019, Robert Leeming allegedly murdered Jasmine Lovett and her young daughter, Aliyah Sanderson. He was arrested and charged a month later and is awaiting trial.
- Blake Jeffrey Schreiner – charged with first degree murder for killing Tammy Brown, his wife in January 2019.
- Brandin Cole Brick – allegedly murdered James Chaisson on February 14, 2018.
- Habibullah Ahmadi – charged with second degree murder in 2017
- William Green – charged with first degree murder in 2018
- Abdirisaq Ali and Tanade Mohamed – their trial for allegedly murdering Tyler McLean and Zemarai Khan Mohammed in 2017 was suspended.