BenchPress - Vol 41-3 - LawNow Magazine

BenchPress – Vol 41-3

  1. Intolerable Delay, 5 Years: Case 1

Barrett Jordan was charged with a criminal offence in 2008 and his trial ended with his conviction in 2013. He alleged that his Charter right to trial within a reasonable time had been breached and the Supreme Court of Canada agreed.  It set out a new standard for unreasonable delay: a ceiling of 18 months for cases tried in provincial court and 30 months for cases in superior courts such as Queen’s Bench. The ceiling is presumptive, meaning that it can be set aside in exceptional circumstances. Also, delays caused or waived by the defence do not count in measuring the time. “Exceptional circumstances” mean matters that lie outside the control of the Crown in that they are reasonably unforeseen or avoidable, and they cannot be easily remedied. The majority of five justices issued a rebuke to all parties in the judicial system. “All the parties were operating within a culture of complacency towards delay that has pervaded the justice system in recent years. Broader structural and procedural changes, in addition to day-to-day efforts, are required to maintain the public’s confidence by delivering justice in a timely manner. Ultimately, all participants in the justice system must work in concert to achieve speedier trials. After all, everyone stands to benefit from these efforts. Timely trials are possible. More than that, they are constitutionally required.”  They ordered that Mr. Jordan’s convictions be set aside and entered a stay of proceedings against him.

However, a minority group of four judges disagreed with the majority decision and wrote a rather stinging rebuke of their own to their colleagues. Noting that creating fixed ceilings is a task better left to Parliament, they concluded: “Ultimately, the majority’s new framework casts aside three decades of the Court’s jurisprudence when no participant in the appeal called for such a wholesale change, has not been the subject of adversarial scrutiny or debate, and risks thousands of judicial stays. In short, the new framework is wrong in principle and unwise in practice.”

R v. Jordan, 2016 SCC 26 (CanLII)

  1. Intolerable Delay, 131 Years: Case 2

Between 1885 and 1889 the Government of Canada unilaterally withheld $5.00 per person in Treaty 6 annuities from members of the Beardy’s and Okemasis Band in what is now Saskatchewan. This was because it deemed them to have been disloyal to Canada during the North-West Rebellion.  The Specific Claims Tribunal, which settles legal disputes between First Nations and the federal government, ruled in 2015 that the federal government was wrong to do so, and ordered it to pay equitable compensation. In December 2016 the Tribunal met again to determine the amount of compensation.  It stated that equitable compensation means a remedy applied by courts when there has been a breach of fiduciary duty. It aims to restore the beneficiaries to the position they would have been in had the breach not occurred. This assessment is made at the time of the trial, not at the time of the breach. After considering arguments from both sides, the Tribunal set the compensation to the band members at $4.5 million – 131 years after the event that triggered the legal action.

Beardy’s & Okemasis Band #96 and  #97 v. Indian Affairs and Northern Development, 2016 SCTC 15

  1. Demeaning, malicious, hostile.

A gay Toronto man convicted of aggravated sexual assault and forcible confinement took his convictions to the Ontario Court of Appeal. One of his grounds for appeal was that the jury foreman’s conduct gave rise to an appearance of unfairness.  While the trial was underway, the jury foreman was a guest on a “shock-jock” radio show. He and the show’s hosts made derogatory comments about sexual activity between men and made fun of the juror’s oath.  The jury foreman appeared on the same show after the accused was convicted and, again, laughed at the participants in the trial and made derisive comments about the lifestyles of the participants. The Crown alleged that a reasonable person would know that the juror was just joking.  Madame Justice Benotto retorted: “This submission presumes that jokes of this type are innocuous. They are not. They have a destructive side. They target marginalized groups often based on race, gender, gender identity or sexual orientation. They promote – and risk normalizing – negative stereotyping. They are demeaning, malicious, hostile and encourage prejudice.” The Court set aside the convictions and ordered a new trial.

R v. Dowholis, 2016 ONCA 801 (CanLII)


  1. No Custody Orders for Pets

Justice R. Danyliuk of the Saskatchewan Court of Queen’s Bench was asked to take a “custody approach” in a hearing about a divorcing couple’s two dogs. He declined to do so.  He cited a previous decision where the judge wrote “A dog is a dog. Any application of principles that a court might normally apply to the determination of custody of children are completely inapplicable to the disposition of a pet as family property. Any temptation to draw parallels between the court’s approach in this case to the principles applied to settle child custody disputes must be rejected.”  Justice Danyliuk noted the differences between how we treat our pets and our children:

  • In Canada, we tend not to purchase our children from breeders;
  • We tend not to breed our children with other humans to ensure good bloodlines, nor do we charge for such services;
  • When our children are seriously ill, we generally do not engage in an economic cost/benefit analysis to see whether the children are to receive medical treatment, receive nothing or even to have their lives ended to prevent suffering;
  • When our children act improperly, even seriously and violently, we generally do not muzzle them or even put them to death for repeated transgressions.

He concluded that he would not make what amounts to a custody order for dogs and that such an application should not even be put before the court. He dismissed the application for interim exclusive possession of the dogs and urged the parties to move along.

Henderson v. Henderson, 2016 SKQB 282 (CanLII)

See also: LawNow’s Family Law columns on “Dealing with Pets after Separation” written by our family law columnist John-Paul Boyd:


Teresa Mitchell
Teresa Mitchell
Teresa Mitchell is the Acting Editor and Legal Writer for LawNow Magazine at the Centre for Public Legal Education Alberta.

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