The Jordan Decision seems to have a negative impact on how justice system responds to violence against women.
Have you heard about the Jordan Decision? R v Jordan is a decision of the Supreme Court of Canada that changed the framework previously used to determine whether an accused was tried within a reasonable time under the Canadian Charter of Rights and Freedoms, sending a strong message condemning the complacency around lengthy pretrial delays.
The nuts and bolts of the decision were to provide hard outer limits: 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. If the process exceeds those time frames, accused persons are presumptively entitled to have their charges stayed for “unreasonable delay”. No exceptions, except where the Crown can demonstrate “exceptional circumstances” or “particularly complex” matters. The decision highlighted that chronic delay or lack of institutional resources such as courtrooms or staff will not amount to “exceptional circumstances.” Tough news for a system that is already deemed maxed and resource poor.
In Jordan the Gravity or Seriousness of the Offence is Irrelevant
And then there’s violence against women…with conviction rates for sexual assault and domestic violence already very low combined with diminished trust in the ability of criminal legal system to deliver a measure of justice for victims and survivors of power based crimes, in Jordan the gravity or seriousness of the offence is irrelevant. Since Jordan, we have heard about cases involving violence against women, including homicide, being stayed. On the face of it, Jordan seems like a big win for the defence as a defence attorney’s logical first strategy is to seek a stay for “unreasonable delay” in assault and sex assault cases.
Since the implementation of the Violence against Women in Relationships Policy, policing agencies have developed their own protocols for investigating violence in relationships. In general, these policies are designed to leave little discretion as to whether or not criminal charges are laid once a 911 call or a domestic violence complaint is made. Police attend and conduct an investigation. Victims and survivors report their allegations to the police and the decision whether to lay a charge is then made by the police. Once the police receive a complaint of domestic violence, be it assault, criminal harassment, uttering threats, or some combination thereof, the recommending of a charge to Crown Counsel is virtually mandatory.
Jordan has had a direct impact on women who have experienced violence. Now Crown Counsel will not approve charges unless policing agencies have presented a mostly complete investigation because once charges are approved the 18 month (or 30 month) clock starts ticking. Survivor safety does not seem to be a factor or prioritized in Jordan.
Six Months Since Assault, Loads of Evidence and Still No Charge
Since Jordan at BWSS, we are advocating in instances where women are assaulted by their male partner, in some cases (not all) the men were arrested and released within a few hours with no charges. Then days, weeks and months lapsed before charges were approved. In one case, six months have passed and charges have not been approved by Crown Counsel. During follow up by our team members, police say the problem is “because of Crown”. When we speak to Crown, Crown Counsel says the problem is “because of the police”. It cannot be underscored the importance of advocacy with police, each case has required painstaking follow-up by our team members in order to keep the investigation front of their mind, in between their police shift rotation (four days on/four days off), their vacations and their other policing duties (including other domestic violence cases).
Violence against women routinely has life and death implications. Every six days a woman in Canada is killed by her male partner and already by the end of June 2018, 79 women have been killed by a partner. With Jordan, the interests and rights of the accused now translate into a delay for the survivor or victim. This delay impacts the protection measures available, reducing the available measure of protection within the criminal system to Police Release Orders of Promise to Appear (PTA) or Officer in Charge (OIC) recognizance with an undertaking given to a peace officer or officer in charge. Both a promise to appear and a recognizance can be accompanied by the requirement that the accused abide by certain conditions while the accused person is on a release and that release can include conditions. Failure to comply with the conditions is a criminal offence what in anti-violence lingo is called “a breach’ of conditions. Crown can act more swiftly on “a breach”, provided the police take the report of the breach seriously and there’s sufficient evidence of the breach.
For every woman who is killed, there are thousands more living in fear. If women are going to consider police and the criminal system as part of their safety plan, at this stage, Jordan does not appear to be helping. Now women have another reason to question the relevance of police involvement and express serious concerns regarding the possible outcomes of the court process adding another layer to the tasks for victim service, transition house and anti-violence workers, some of the hardest working and most underpaid workers in social services.
Recently, BWSS met with Vancouver Police Department Chief Constable Adam Palmer to discuss Jordan, the implications in violence against women cases and strategies to ensure women’s safety. In light of Jordan, BWSS believes Attorneys General should realign their policy guidelines to see Crown using discretion for violence against women and we have sent a letter to BC Attorney General, David Eby to that effect.
And we haven’t started assessing Jordan in the context of where criminal law intersects in family or immigration law.
As Elizabeth Sheehy, (Sexual Assault Law Professor, University of Ottawa Faculty of Law) wrote in October 2017, “it is unfortunate indeed that the Court failed to address the implications of its decision in Jordan for crimes of violence against women. Canadians, including those who work in the justice system, have been riveted by the recent accounts of sexist violence. They are engaged deeply in thinking about how the criminal law might better respond to the harms inflicted on half our population by male violence. 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.”
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