Post Jordan Mentality vs. Humanity: Who Wins? - LawNow Magazine

Post Jordan Mentality vs. Humanity: Who Wins?

criminal law

After the Supreme Court of Canada’s ruling in R. v Jordan, 2016 SCC 27, which clarifies and streamlines the Charter of Rights and Freedoms delay of proceedings applications pursuant to section 11(b), “Jordan issues” in the courtroom are still alive as ever. Crown Attorneys, judges and court staff all have instituted protocol, mandates, better practices and directives to ensure the swift movement of matters through our criminal justice system.

However, if you are a defence counsel, beware. Each and every request for time to accomplish tasks on a file, even when reasonable, is often met with aggressive opposition from the Crown Attorney and/or a grand inquisition by the presiding jurist. But what can ya do? Everyone is doing their respective jobs. Everyone has to protect the court record by clearly suggesting or declaring whose fault it is for the “delay.”

What is in issue is when the interest of justice— and the stern cautions from the Supreme Court in Jordan— trump the humane treatment of circumstances beyond the control of the defence. Yes, we all have a job to do and a court record to protect, but have we lost our humanity all together when defence counsel’s request to adjourn a matter due to the tragic and unexpected death of loved one is opposed? Yes, we have a duty to protect the record, but don’t we also have a duty to respect and dignify the tragedy of our learned colleagues— as humans?

What we all need is a deep breath, and a moment of reflection before offensively and unnecessarily attacking our colleagues when serious personal issues are brought to the attention of the court.I would fathom a guess that, in the name of justice, the Supreme Court of Canada in Jordan was not instructing the judiciary to give defence counsel’s student a hard time when they attended to adjourn a trial date because the defence counsel was in a coma. I would fathom a guess that the Supreme Court of Canada in Jordan was not instructing Crown Attorneys to oppose the adjournment request of a colleague who had to undergo surgery unexpectedly on the date of the trial for serious medical reasons. I would fathom a guess that the Supreme Court of Canada in Jordan was not instructing judges to cross-examine defence counsel on who died, and how affected they are by that recent death in order to substantiate the adjournment request.

The irony is that in those cases, should an accused’s delay rights come into issue, what would the defence counsel say? I was in a coma therefore my client’s rights were breached because I couldn’t conduct a trial? I had to attend a funeral but the Crown is responsible for the new trial date? I was in a hospital having my appendix removed, therefore it’s the Court’s fault that my client had to reschedule the trial date?

It appears as though we have all lost a piece of our souls in this post-Jordan hysteria. The illogical and offensive questions into defence counsels’ personal lives— at a time when they are dealing with personal hardship or tragedy— is unwarranted. We need not trade in our humanity in order to satisfy the direction of the Jordan decision by the Supreme Court. Rather, a respectful and personal approach should be taken when requests are made that involve serious and personal reasons. The disclosure of that highly personal information by defence counsel should be sufficient to warrant the necessity of an adjournment request, especially since we too are officers of the court. The nature of that information should be respected and considered, instead of discounted and qualified.

What we all need is a deep breath, and a moment of reflection before offensively and unnecessarily attacking our colleagues when serious personal issues are brought to the attention of the court. Reprimanding defence counsel or inquiring into the nature of their relationship when someone in their life has passed away brings justice to no one. Rather, it clouds our criminal justice system with the smog of inhumanity, and indignity: two words that should never be used to describe our system of justice.

Authors:

Melody Izadi
Melody is a criminal defence lawyer with the firm Caramanna Friedberg LLP, located in Toronto, Ontario.
 


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