Five Years Too Long – R v Thanabalasingham: The Jordan Rule Affirmed

The Supreme Court of Canada (“SCC”) or (“the Court”) released their decision on R. v. Thanabalasingham 2020 SCC 18 [Thanabalasingham] on July 17, 2020. This case has been consistent with the Court’s trend towards discouraging prolonged institutional delays. Mr. Thanabalasingham (“T”) was charged with second degree murder in August 2012 and had spent approximately 43 months awaiting his anticipated trial date, which was meant to take place in April 2017. T put forward a motion for a stay of proceedings before the trial could move forward after the decision in R v Jordan 2016 SCC 27 [Jordan] changed the framework regarding what it meant for an accused individual to be tried within a reasonable timeframe. The judiciary’s goal in Jordan was to address doctrinal and practical problems which contributed to a culture of delay and complacency within the judicial system.

Jordan established a definition for ‘reasonable time’ when the Court created presumptive ceilings, which stipulate a timeframe acceptable for cases to be tried within. The ceilings consisted of 18 months, between the charges and the trial in a provincial court without preliminary inquiry, or 30 months for cases tried in a provincial court after a preliminary inquiry or in superior court (Jordan, para 49). If the trial concluded after this point, the delay is presumed to be unreasonable.

The SCC in Thanabalsingham affirmed the Jordan Rule, indicating a development towards protecting not only the rights of the accused, but also the interests of the victim’s family and society. Justices Moldaver, Karakatsanis and Brown, forming part of the majority, recognized the importance of the accused’s Charter rights to be upheld for the betterment of the community by stating, “timely justice is one of the hallmarks of a free and democratic society” (Thanabalasingham, para 1). The aim of the criminal justice system in Canada is to protect society from violations of the law. It attempts to do this by identifying behaviours that are unacceptable and defining the nature and severity of the punishment for a given offence. When the institution allows delays that could lead to an innocent individual’s imprisonment without giving them access to a fair trial, or remedies delay by allowing an accused to walk free with no determination of actual culpability, the criminal system fails in its purpose to administer justice.

Charter Rights

Section 11(b) of the Charter of Rights and Freedoms (“Charter”) stipulates that any person charged with an offence has the right to be tried within a reasonable time. This right also embodies a number of related interests that are implicated when section 11(b) is infringed. These interests include: the societal interest in protecting the right of an accused person to humane and fair treatment; the interest in enforcing laws through ensuring that those who break the law are tried in a timely fashion; and promoting public confidence in the administration of justice. Section 24(1) of the Charter protects these interests by providing a remedy where any right, as guaranteed by the Charter, has been infringed or denied. A stay of proceedings is arguably the most drastic remedy available to a court because it can mean that charges that are stayed may never be prosecuted. 

History of Proceedings

Thanabalasingham was the first murder case in Quebec where the accused was granted a stay of proceedings. T was accused of murdering his spouse, Anuja Baskaran, after she was found dead in their shared apartment with her throat slit and evidence of her receiving approximately fifty stab wounds (R.c. Thanabalasingham, 2019 QCCA 1765 para 246). The police found T outside the family home with a blood-stained cloth in his hands and bloodstains on his clothes. According to Chief Justice (“CJ”) Duval Hesler in the Quebec Court of Appeal (“QCCA”) T had already confessed to the murder to his friend.

Following the trial judge’s decision, the Crown appealed to the QCCA, even though T had been deported to Sri Lanka three days after the trial judge’s decision. The 3-2 majority held that the appeal had become moot, meaning there were no reasons found to justify the court exercising its discretion to adjudicate the appeal. The SCC disagreed with the QCCA’s application of the test to determine whether the case was moot and remitted the matter back to the QCCA for a decision on the merits. When the matter was heard once again by the QCCA, Duval-Hesler CJ and Justice Claude C. Gagnan dissented further, remitting this case back to the SCC as an appeal “as of right.” This means the party wanting to appeal does not need the Court’s permission to do so due to the fact that at least one of the Court of Appeal judges has disagreed on a question of law.

The bulk of the case took place before the release of the Jordan decision in 2016. However, as the SCC emphasized, “Jordan sought to put an end to an era where interminable delays and the complacent “anything goes” culture that pervaded the criminal justice system were tolerated” (Thanabalasingham para 9). The Court held that part of the delay was due to the unsuccessful attempt by the Crown to change the charge of second degree murder to first degree murder during the preliminary hearing, which resulted in the hearing lasting for more than one year.

A preliminary hearing involves a judge reviewing evidence to decide if enough exists to have the defendant stand trial. The SCC recognized that all participants in the system are to take proactive measures at all stages of the trial process to move cases forward and bring accused persons to trial in a timely fashion. In dismissing the appeal, the SCC emphasized the expectation placed on the actors working in the criminal justice system to complete their jobs efficiently so that the accused’s s. 11(b) Charter right is upheld. The Court described section 11(b) of the Charter as, “a right that inures not just to the benefit of accused persons, but to the benefit of victims and society as a whole as well” (Thanabalasingham para 9).

SCC Analysis

The Issues

In arriving at the decision to dismiss the appeal, the SCC considered two issues. The first issue was whether the Crown was able to rebut the presumptive ceiling and the second was whether a transitional exceptional circumstance applied(Thanabalasingham, para 5). Jordan clarified that the Court must consider how much of the delay was not the fault of the state and the onus is on the Crown to prove this by establishing a presence of exceptional circumstances (Jordan para 47).  

The Jordan Rule also provided for a qualification where the new framework would not apply. For cases that are currently in the system and the delay exceeds the ceiling, a transitional exceptional circumstance may arise where the charges were brought prior to the release of the decision in Jordan (Jordan, para 96). This was included to avoid problems that would arise from immediate application, namely potentially thousands of charges being dropped through judicial stays of proceedings (Jordan, para 285).

Issue one – rebutting the presumption

The Crown in Thanabalsingham urged the SCC to adopt the dissenting reasons of Gagnon, J. in the Court of Appeal, who arrived at a different calculation for the net delay. Gagnon J. applied Jordan and determined the net delay was under 35 months because the yearlong preliminary hearing was a discrete exceptional event that must be deducted from the total delay to trial (R.c. Thanabalasingham, para 254). In coming to this conclusion, Gagnon J. argued that the linguistic difficulties encountered during the testimony of some of the witnesses by both the defence counsel and the Crown could not have been foreseen, which resulted in delays that could not have been reasonably remedied (R. v. Thanabalasingham, para 254). The SCC held that Gagnon J. had erred in assessing of the length of the preliminary hearing as being outside the Crown’s control in the sense contemplated by Jordan (Thanabalasingham, para 5). The Court in Jordan held that delays outside the Crown’s control occur only where the circumstances are reasonably unforeseen or reasonably unavoidable, and Crown counsel cannot reasonably remedy the delays (Jordan, para 69).

Jordan qualified this by stating the Crown must take ‘reasonable available steps’ to avoid and address the problem before the delay exceeds the ceiling and left it to trial judges’ “good sense and experience” to determine whether the circumstances are exceptional (Jordan, para 69-71). The SCC in Thanabalsingham held that the delay in the preliminary hearing was not outside of the Crown’s control when the Crown attempted to change the charge from second degree to first. The SCC emphasized that if prosecutors choose to exercise prosecutorial discretion, they are responsible for any resulting delays, which must not infringe upon the accused’s section 11(b) Charter right (Thanabalasingham, para 5).

Issue two – transitional exceptional circumstance

The SCC dealt with the consideration of whether this case could be considered under the transitional exceptional circumstance exemption by referring to their judgement in R v Cody 2017 SCC 31 stating, “the Crown will rarely, if ever, be successful in justifying the delay as a transitional exceptional circumstance under the Jordan framework if the case would have warranted a stay under Morin” (Cody, para 74). The SCC found that this case would not have qualified for a stay under the previous guidelines in R v Morin 1992 1 SCR 771 [Morin] which allowed delays up to 14-18 months. The Court recognized the seriousness of the second degree murder charge against T, but also took note of the prejudice he had suffered, as well as his time spent in custody awaiting trial for almost five years (Thanabalasingham, para 5).

Concluding Thoughts

First and second degree murder both carry mandatory life sentences, with parole dates discretionary for judges only for second degree murder (Criminal Code, RSC 1985, c C-46). Allowing a stay of proceedings, especially with very serious offences, has the potential to let an accused walk free after not being held accountable for their actions nor fulfilling their sentencing requirements. Even though T spent approximately 43 months in custody, without reasonable access to a chance at a fair trial, if he were convicted, he would have served only 1/5 of his potential jail time. On the other hand, allowing an accused person to sit in custody for almost 5 years, while during that time only a preliminary hearing is heard, is an infringement to not only the accused’s section 11(b) Charter rights, but arguably also to his right to life, liberty and security as guaranteed by section 7 of the Charter. Depriving someone of their ability to live a normal life solely due to institutional delays divests a potentially innocent person of their day in court and diminishes the value of the administration of justice.

A system designed to allow for long processes while invoking a stay of proceedings as a potential solution is not serving justice for any party. The SCC decision in Jordan was crucial to defining the cut-off period so that institutional delays would no longer be acceptable. The Court in Thanabalasingham enhanced the Jordan decision by emphasizing the role of judges, prosecutors and defence counsel in working efficiently and jointly to achieve the same goal in a fair administration of justice (Thanabalasingham, para 9). Respectfully, I am of the opinion that the Court missed an opportunity to address institutional issues to Parliament, where government support in funding and staffing would allow for more assistance in ensuring cases meet the presumptive ceilings described in Jordan while addressing the current backlog. However, I agree with the SCC that this decision and the manner in which these proceedings were conducted will be unlikely to be replicated if the Jordan framework is heeded from the outset.