Law Times

Law Times • augusT 22, 2016 Page 7 www.lawtimesnews.com COMMENT What's an unreasonable delay? F rom charge to trial, how long is too long? On July 8, in R. v. Jordan, 2016 SCC 27, the Supreme Court provided a surprisingly specific answer: 18 months for a trial in provincial court, 30 months in Superior Court. Anything longer than that will presumptively breach the s. 11(b) right against unreasonable delay and trigger a stay of proceedings. Even though we've become used to the Supreme Court changing its mind on important issues — think assisted suicide — this one still came as a surprise. I don't recall another case in which the top court demolished its own doctrinal edifice so thoroughly and said, in essence: Let's start over and try something new. Why the persistent difficulty in decid- ing what counts as unreasonable delay? The text of s. 11(b) doesn't provide much help. It guarantees trial "within a reason- able time." What counts as "reasonable" was left up to the courts to figure out. In Askov and Morin, both from the early 1990s, the high court established a multi- factored test and administrative "guide- lines" for how much institutional delay was acceptable. It stressed that the guidelines weren't hard caps and insisted that each case needed to be decided on its own facts. Most importantly, a court deciding whether the total time to trial was unrea- sonable would need to consider who was responsible for each period of delay (the Crown, the defence or the court system) and determine the extent to which the ac- cused was prejudiced by the delay. After 25 years of experience with this model, I think few lawyers on either side were enamoured with it. It encouraged petty gamesmanship in set-date court over lawyers' availability, retro- spective micro-counting of days and weeks in order to assign blame for individual time periods and formulaic claims of prejudice by defen- dants. Askov applications were tedious to litigate and ad- judicate and unnecessarily complex. Sometimes, they had the ironic effect of producing delay in the name of redress- ing it. Despite the ambitions of the Askov court to wield s. 11(b) as a re- forming instrument, a culture of delay re- mained endemic in many jurisdictions. In Jordan itself, it took more than four years to try a fairly ordinary drug trafficking case. The majority of the Supreme Court saw this as emblematic of everything wrong with a legal culture that produces such de- lays, then deems them to be "reasonable" within the meaning of s. 11(b). So it decided to try something new: a stripped-down test pinned to a hard ceil- ing, above which delay will be unreason- able except for in "exceptional circum- stances." Academics distinguish between rules and standards. Rules say: "If A, then B." Standards say: "If A, then consider a non- exhaustive list of X,Y, Z." The modern Supreme Court is in love with standards. The phrase "totality of the circumstances" appears 61 times in the Supreme Court Reports, almost all of them since 1990. This pretentious way of saying "all the facts" is a hallmark of standards-based discretion over bright-line rules. The triumph of the "prin- cipled approach" to the hear- say rule over the old categori- cal exceptions is perhaps the most notable example of this orientation. But the relationship of stan- dards to rules is sometimes cyclical, despite the Supreme Court's general preference for the former. Consider its treat- ment of exclusion of evidence under s. 24(2) of the Charter. Early on, the top court laid out a f lexible multi-factored test, which in Stillman eventually congealed into something like a categori- cal rule. Another decade on, in Grant, the Su- preme Court recognized that this cat- egorical approach was leading to results that seemed arbitrary or unjust in indi- vidual cases. It reformulated a new multi-factored standard, reintroducing a large degree of discretion. Justice requires discretion — but it needs predictability, too. That's why we've seen in recent cases — such as the Ontario Court of Appeal's de- cision in McGuffie, which I wrote about here — an effort to set down a more stable framework for applying the open-ended Grant criteria. If Justice Doherty's weighting of the Grant factors doesn't amount to a rule, it's at least an effort to imbue the standard with some structure. This dialectic is per- vasive and perhaps inevitable. Jordan is a bold pronouncement of a bright-line rule. I like the majority's prag- matic approach to reform. Rarely is the Supreme Court so un- abashed in declaring its own jurisprudence a failure, and rarely does it exhibit less con- cern for precedent and tradition in an ef- fort to try something new. The majority doesn't pretend that it somehow divined its new approach from the wisdom of the common law or the con- stitution's framers. It candidly embraced its quasi-legis- lative role and laid out what seemed to be the most practical way to handle claims of unreasonable delay. I'm skeptical, however, that the new framework will do as much as its authors hope to curb delay and banish complexity and unpredictability from this corner of the law. It's an unavoidable reality that differ- ent kinds of cases simply have different time requirements. I know of no good reason why a simple impaired driving or assault case in pro- vincial court should take 18 months to go to trial. However, a complex fraud may well require that kind of time — both for the Crown and defence to prepare and for the case to be properly adjudicated. Jordan's "exceptional circumstances" escape hatch will no doubt get a workout. My sense is that it will be pressed into ser- vice far more frequently than the "excep- tional" label would imply. The exception may end up swallowing the rule as courts try to do justice in indi- vidual cases. Indeed, if they're actually going to at- tack the "culture of delay" decried by Jor- dan, courts may need to apply the Jordan rule more f lexibly than its authors intend- ed. LT uMatthew Gourlay handles crimi- nal and regulatory matters at Henein Hutchison LLP with an emphasis on appellate litigation. He's available at mgourlay@hhllp.ca. The roots of the articling crisis BY RYAN HANDLARSKI S ince the Great Recession of 2007-2009, there has been a lot of media commentary blam- ing the sometimes-bleak economic pros- pects of young lawyers on law schools. In this coverage, you'll also hear complaints about the lack of utility of a law degree, the high tuition for the law school and the debt it creates, as well as the competi- tiveness of the job market for lawyers upon graduation. Having graduated from law school in 2008 and gone through the process myself, I have followed this cover- age with interest. However, I believe the problems that young lawyers face has its root cause in the unnecessary need for people to obtain a four-year undergraduate degree before being admitted to law school. A four-year degree is a practical requirement for the vast majority of law students, though not officially a requirement for all law schools in Canada. Obtaining an undergraduate degree delays a per- son's entry to a competitive job market, with the only reward being a degree that is utterly useless to the prac- tice of law, in my contention. By the time a young law- yer is able to enter the job market, following law school, it is at a time when the consequences of a competitive job market cannot be borne socially or financially. Having chosen to go to law school and become a criminal lawyer, I could not have possibly conceived of how useless my undergraduate degree would end up being in terms of my ability to generate an income or practise law. People I speak to about this present a variety of reasons that these degrees are useful — but I respectfully disagree. For example, people will often argue that an under- graduate degree teaches critical thinking. However, I didn't attend the Platonic Academy or Oxford or Har- vard. I actually learned critical thinking by reading au- thors such as Christopher Hitchens. People will also argue that I became educated at uni- versity. However, I did not become "educated" in the traditional sense at university. The original intended concept of a B.A. was that, once a person finished a four- year degree, with the rigours attached, it was a symbol that the person was part of an elite educated class. The concept of becoming part of an educated class is very appealing — so appealing that university is no longer limited to an educated elite. There are non-rigorous en- try requirements for the vast majority of programs and all kinds of creative ways to get a degree that did not exist at the time the idea became entrenched. Another argument is that people who are 18 years old are not mature enough to go to law school. I concede this point, but this is not an argument to continue with the traditional four-year degree. If others continue to insist on some form of the B.A. requirement, why does it have to be four years? Who preordained that a four-year B.A. is necessary in order to get into law school and why? There may be various excellent reasons to attend university and complete an undergraduate degree, but to prepare for law school and the practice of law is not one of them. The requirement must be reassessed in light of the drastically different financial and emo- tional strains on young lawyers today compared with a generation ago. The abandonment of an undergraduate degree as a prerequisite for law school is a reasonable solution to the unemployment and underemployment crisis young lawyers face. It is not the escalating tuition or the lack of utility of a law degree to be blamed for this crisis — it is the fact that you are nearly 30 years old by the time you get rooted into your employment situation (or lack of it). Thirty-year-olds can no longer bear the possibility of unemployment or underemploy- ment as lawyers, especially in an era when tuition at law school can be $30,000 per year, followed by a lack of ar- ticling positions and law jobs. Upon graduation, young lawyers face the daunt- ing and demoralizing proposition of paying off debt and delaying financial independence well beyond the situation of many of their peers. Meanwhile, those who have not attended law school have already purchased a home and have a young family or are established in jobs and careers. Such despair and frustration caused by the late entry into the job market truly has the potential to destroy a young lawyer's confidence and become a life- altering event. The problem of despair and frustration could be nearly completely solved by removing the use- less four-year degree requirement — or cutting it down to one or two years. The four-year B.A. requirement is an unnecessary impediment for young lawyers to establish themselves, given the economic reality facing Millennials today. For law students and young lawyers to survive the ar- ticling crisis and the current competitive job situation, the undeservedly vaunted and anachronistic concept of the four-year B.A. must yield to reality. LT uRyan Handlarski is a criminal lawyer practicing in Toronto and surrounding areas since 2009. He can be reached at ryan@rhcriminaldefence.com or 416- 837-4500. u SPEAKER'S CORNER A Criminal Mind Matthew Gourlay

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