This week, Battered Women’s Support Services wrote to the federal Minister of Justice and Attorney General of Canada, David Lametti to express our ongoing concerns with respect to the Jordan framework, and its implications for gender-based violence and femicide.
About the Jordan Framework
On July 8th, 2016, in a 5-4 ruling, the Supreme Court of Canada in R. v. Jordan introduced a new analytical framework for determining whether an accused has been tried within a reasonable time. The Court made clear that an accused’s right to be tried within a reasonable time is pursuant to Section 11(b) of the Charter. Section 11(b) of the Charter states that “Any person charged with an offence has the right to be tried within a reasonable time.” R. v. Jordan put forward some hard limits on ‘reasonable time:’ 18 months for one-stage provincial court trials and 30 months for two-stage superior court trials, counted from the date of Crown Counsel charging until the completion of trial. Any delays beyond this are presumptively unreasonable and will result in a stay of charges unless the Crown can establish the presence of exceptional circumstances or particularly complex matters.
The Jordan decision is a necessary indictment of a criminal legal system that is plagued with structural delays. Delays in the criminal legal system, including for many racialized women and gender-diverse people who face arrest and criminalization, lengthens the period of stress and stigma from having unresolved criminal charges. Delays going to trial can also mean that defendants have prolonged bail conditions that might restrict their movement and ability to associate with others. The Jordan framework ensures that institutional delays, such as chronic understaffing and legal aid cuts, do not unfairly affect defendants and people who are routinely criminalized. Indigenous women, for example, make up nearly 50 percent of the federal prison population, and the Jordan framework is one small way to disrupt the criminalizing pipeline to prison for Indigenous, Black, racialized, and poor people.
However, the Jordan framework is a blunt instrument, and it also has an adverse impact on survivors of gender-based violence who use the criminal legal system for redress. The criminal legal system does not provide the best path to safety and healing for all survivors; however, it does remain an important recourse to many. Rates of gender-based violence continue to climb, including against Indigenous, Black, and racialized women, femmes, and gender-diverse people. The pandemic has exacerbated gender-based violence, with 32 percent of Canadians reporting increased domestic violence, and crisis lines, like BWSS’s own hotline, reporting 400 percent increase in calls.
As Simon Lapierre, one of the founding members of the Feminist Anti-Violence (FemAnVi) Research Collective, writes:
“It is unfortunate indeed that the Court failed to address the implications of its decision in Jordan for crimes of violence against women… Nuance, complexity and commitment are needed urgently. The leadership gap left by the Court must be filled by federal and provincial legislators and attorneys general, in consultation with the independent women’s movement. Now is not the time to abandon such hard-earned gains for women who experience this form of violence.”
The Impacts of the Jordan Framework on Survivors
Since 2018, BWSS has been monitoring and researching the impacts of the Jordan framework on gender-based violence.
Importantly, BWSS also conducted our own survey to assess how the Jordan decision has influenced the choices made by police and the Crown with respect to carrying out investigations and pressing charges, and how this has impacted victims of gender-based violence offences.
In a review of cases stayed under the Jordan framework, BWSS’s Research and Policy team found that its use has appeared to favour perpetrators of gender-based violence. Across 140 cases reviewed in this study, we have found that between 2016 and 2020, defence counsel has invoked R. v. Jordan tactically, arguing for a stay of proceedings to help their clients escape culpability.
Nearly half a decade following R. v. Jordan, hundreds of cases have been stayed due to routine delays, including numerous cases involving violence against women and homicide (such as here, here, here, and here from the past year). Many survivors of gender-based violence have found themselves further victimized by Jordan-related stays in legal proceedings that have little regard for their need for justice, accountability, or safety.
This is also counter to the actual intention of Section 11(b), an important Charter right that is to be used as a “protective shield” and not an “offensive weapon.” As the Supreme Court of Canada held in R. v. Morin, “the purpose of s. 11(b) is to expedite trials and minimize prejudice and not to avoid trials on the merits.” Echoing this, the Supreme Court of Canada noted in R v. Jordan: “[W]e recognize that some accused persons who are in fact guilty of their charges are content to see their trials delayed for as long as possible. Indeed, there are incentives for them to remain passive in the face of delay. Accused persons may seek to avoid responsibility for their crimes by embracing delay, in the hope that the case against them will fall apart or they will obtain a stay of proceedings. This operates to the detriment of the public and of the system of justice as a whole. Section 11(b) was not intended to be a sword to frustrate the ends of justice.”
Canada’s political and legal institutions are built on gendered racism and colonialism: dispossessing Indigenous peoples of their land, subjugating women, and enforcing enslavement. The criminal legal system – including the web of police, Crown attorneys, and the judicial system – routinely fails survivors. Many survivors fear being blamed, stereotyped, or disbelieved when engaging the criminal legal system. The system reproduces a power differential between survivors, the people who abuse them, and the legal system. Further, given that survivors are not afforded an independent voice or legal standing in criminal legal proceedings, their participation towards “achieving reasonable prompt justice” – as set out in R v. Jordan – is illusory.
The Jordan framework creates another reason for survivors to fear re-victimization by our judiciary system and entrenches patriarchal dominance. For example, upon learning that the BC Court of Appeal had upheld a Jordan-related stay of proceedings against the man who was convicted of abusing her as a child, Jeeti Pooni told media,
“It was very disheartening, disappointing — you name it — when one has spoken their truth, testified and there’s a guilty verdict, and then you receive this news.” The Court itself acknowledged that “a stay of proceedings in these circumstances marks a failure of the justice system.”
Changes to the judiciary system are urgently needed to offer viable paths to survivors like Jeeti Pooni. If the federal government is serious about combatting gender-based violence and femicide, it needs to change the system that prevents effective and timely access to justice for survivors.