Will the Grass Be Greener on the Other Side - Article Example

Will the Grass be Greener on the Other Side?

Reconsider how trial delays are worked out

Canada’s top court ought to offer clarification to judges on how they should accurately assess the delays of trials that were ongoing before a Canada’s Supreme Court ruling of July 2016. This sentiment is aligned with a hearing that might revisit sections of the Jordan decision, in the case pitting James Cody against Her Majesty the Queen. The Jordan decision that was handed down in July 2016, sent shockwaves throughout Canada’s justice system, resulting in staying of criminal charges in cases across the country and jeopardizing many cases.

The Jordan ruling outlined a firm threshold, after which trial delays were presumed not to be reasonable: 1 year and 6 months in provincial court and 2 years and 6 months in superior court. The solution for unwarranted delay is, as determined by a 1987 Supreme Court ruling, a stay of charges against the accused.

In my view, the cases that already existed within the system were in a transitional era.That is where the use of Jordan, the Jordan principles, should not be very strict. The question then arises: How does one deal with stay applications for cases that already existed within the system? Arguably, the Ontario factum posits that the old threshold in evaluating the legitimacy characterizing trial delays, which existed before the Jordan ruling – called the Morin decision – ought to apply to those previous cases under certain circumstances. Applying the Jordan framework – or the hybrid Morin-Jordan model – risks holding the parties up against a threshold they might not have been acquainted with.

The Supreme Court judges, in a 5-4 split year, stated if the parties within the cases already existing within the system might justify the delay, on the basis of ‘reasonable reliance’ on the old Morin threshold, then it needs to get what is considered a ‘transitional exception’ from having the Jordan standard apply.

What this implies, based on the superior court’s Jordan ruling, is that Jordan should not directly change what would previously have been regarded as reasonable delay into one that is unreasonable.

This does not imply all older cases ought to get the old rules, but rather, if each party was acting in good faith, the old rules must apply. I am of the view that the transitional era be treated with a more generous consideration of the fact that the parties were operating within a pre-Jordanian world, and it would be inappropriate to use a heavy hand on that.

Back in 1990, the Supreme Court ruled in a case known as Askov, also concerning trial delays, and Crowns immediately withdrew many criminal charges. In the factum, it could be argued that the role of the transitional exception, as it prevails in Jordan is to avert a repetition of Askov as well as the disrepute towards the administration of justice, which emanated from its aftermath.

The Jordan framework has witnessed, in Ottawa, the stay of a first-degree murder charges and the stay of charges in an alleged child abuse case. In Quebec, delays caused the stay of a second-degree murder charge. Another serious case, a prison killing in Alberta, was also stayed.

Provinces had been struggling to respond to the ruling in Jordan; the Attorney General had requested federal Justice Minister Jody Wilson-Raybould to remove preliminary investigations in all save for severe cases. Notably, In Alberta, attorneys sought to discard moderate cases, to allow serious cases to get to court promptly and avert stays.

In the case between James Cody versus Her Majesty the Queen was charged with weapons and drug offences on January 12, 2010. The trial was planned to end on January 30, 2015. Prior to the beginning of the trial, Cody filed an application under section 11(b) of the Charter, to seek a stay of proceedings because of the delay. Since the application preceded that of R. v. Jordan, the trial judge employed the former framework outlined in R. v. Morin, The judge accepted the application and let the proceedings stay. The Appellate Court majority adopted the Jordan framework and granted the appeal, setting aside the stayed proceedings and sent the case for trial.  Beyond retrospective delay accounting, a proactive approach is needed from all participants within the justice system to minimize and prevent delay. Trial judges should propose means of improving efficiency, utilize their powers of case management and not delay to summarily discard requests and applications the moment it becomes clear they are redundant.

A Turn in Tide: Carter versus Rodriguez

A few years ago, the ruling of Canada’s Supreme Court in Carter v Canada (Attorney General), became a top news story. Even though all the Supreme Court of Canada (SCC) decisions’ are crucial, this one appeared to impact the parties involved in the case. In the case, the Court abolished a 21-year old law that declared doctor-assisted death a crime punishable under the law. With the ancient law, once an individual was convicted he or she could be imprisoned for up to 14 years. Even though the judgment in R vs Rodriguez included a decision of 5 against 4 judges in support of doctor-assisted dying prohibition, in February, the SCC arrived at a consensus in the contrary.

After the Court’s decision had settled within our minds, it is imperative to consider why the supreme court of Canada made the decision. Why was there a sudden change after many years of having an opposing law? Was the decision too dramatic? Was there a “happy medium” alternative that was ignored? What factors might have contributed to a unanimous decision following many years of inability to successfully challenge the old law?

One thing must be set straight: to the public perspective, the facts in Carter and Rodriguez were quite identical. Both Gloria Taylor and Sue Rodriguez had been afflicted with Lou Gehrig’s disease (also called ALS), which is a motor neuron illness, which naturally reduces the ability of an individual to move. Both had voiced concerns that they would be incapacitated to take their own lives when the illness advanced, if they decided to end their lives and not live with the disease. Notwithstanding the identical fact patterns, Carter did not adhere to the precedent outlined in Rodriguez.

So what triggered this change? Simply put: it was a transformation (evolution) of the law. The two cases illustrate how society serves as an antecedent of the law and in turn, how the law may influence social change. Accordingly, prior to the SCC ruling on Carter, Dying with Dignity- an organization, which is an ardent proponent of physician-assisted dying-conducted a survey that involved 2500 individuals, which revealed that 84% were comfortable with the notion of abolishing the law. The outcomes of the case elicited widespread media focus-many articles were written and the story trended for weeks following the release of the judgment. Additionally, According to CADUMS (2008), Quebec has the highest rates of drinkers with 80.9% while the highest frequent heavy drinking is experienced in Labrador with 9.4% and New Brunswick with 7.3%. Additionally, the statistics show that in 2008, 8.7% of alcohol drinkers in Canada were harmed with British Columbia leading with 9.9% and Labrador, Newfoundland, and Nova Scotia had 9.6%. Another survey by Canadian Mental Health Association (2010), showed that an estimated 10% of young people aged between 13 and 19 cite suicidal ideas in the last 12 weeks, 34% of 7-12 grade students cite symptoms of social dysfunction, anxiety, or depression symptoms, about 15% of the youth and children have a diagnosable mental disease, anxiety is the most prevalent mental illness among the youth, 24% of youths aged 15-24 years who confessed to using drugs experienced harms emanating from drug use in the past year, 18% of them experienced legal, financial, or social harm due to alcohol use. Additionally, 22% of youths aged 15-24 years cite using cannabis in the last year whereas 71% of them cite alcohol use in the last year. Furthermore, adults aged above 65 years accounted for 13.5% of Ontario and by 2036 the population is anticipated to increase to about 23.2%. Additionally, mental health issue prevalence ranges between 17 and 30%.

News articles and surveys such as the aforementioned illustrate the potential for societal perspectives to influence how one perceives the world and the parity that is sought to attain in the justice system.

My point here is not that the survey or similar ones were what the SCC judges depended on to make the groundbreaking judgment. It might be that, since Rodriguez, our perceptions of equality and life have shifted in the past 2 decades. Perhaps, it is time to acknowledge that policy makers do not live in a cage bound by principles that do not include an individual having to contemplate taking their lives at all, illegally or legally.

Cases such as Carter allow an individual to question the role that courts play: should courts advocate against public opinion and retain consistent rulings among similar cases or should they adjust with time and break precedent when the need arises? To what magnitude is its legitimacy impacted when either mechanism is embraced? It is unsurprising that the court ruled to remove the ban on doctor-assisted suicide when viewed from the public’s perspective. The supreme court of Canada gave the public what it sought-is this not the whole premise on which both the democratic and justice systems are based?

If one concludes that the opinion of the society matters, even in the Supreme Court, then one should also have the capacity of affirming the significance of the public being informed about the law as well as basic notions concerning parity and justice. Consequently, this is related to the notion of access to information and justice-one of the recurrent thematic concerns debated in the legal profession, whether it pertains to a constitutional case as this, or in securities regulation laws, which require full disclosure to shareholders before a firm goes public. Legal development constitutes the platform upon which one can take on the imperfections of the world and its increased transparency and honesty in the system that will inevitably determine how the legal system will undergo evolution.

The Constitutionality of Drug Ban

The Constitution Act, 1867 does not specifically cite drugs. At initial glance, it would seem that the federal parliament owns the most obvious jurisdiction claim as it has been allocated power over the criminal law and other residual issues not assigned specifically to the regions, preamble – that is, good government, order, and peace power).

However, via judicial interpretation and in practice, the provinces have obtained extensive power over public health, an issue not specifically explored within the 1867 Constitution. This was clearly ascertained in the unanimous decision of the SCC in Schneider v The Queen (1982). In the case, the majority of the Court ruled that public health ought to be read into the provinces’ jurisdiction over ‘all issues of a private or local nature (section 92(16)); nevertheless, the provinces’ express jurisdiction over health facilities (section 92(7)) and civil and property rights within the province (section 92(13)) have also been held to be appropriate bases for health-related legislation.

Both the therapeutic use of medicines and drugs, and their abuse and misuse, would seem to be public health concerns. Indeed, in the Schneider case itself, the SCC upheld the legality of a provincial law which provided for mandatory treatment of heroin addicts, despite the law having criminal law overtones towards it, that is, detention of individuals in relation to a federally banned substance. Additionally, despite exclusive federal jurisdiction over criminal law, the Constitution does empower the provinces to establish offences to enforce their laws on issues that are otherwise in provincial jurisdiction (section 92(15)).

In contrast, public health protection has been acknowledged as a legitimate and conventional issue of the federal criminal law power.

In the end, the courts have upheld exclusive legislative jurisdiction of parliament over drug control and prohibition, despite some questions as to the real origin of federal jurisdiction within the Constitution.

In 1953, the SCC concluded, in Industrial Acceptance Corp. v The Queen, that the Opium and Narcotic Drug Act constituted "criminal" law. However, in 1979, the Court in R. v. Hauser (1979), by a four to three majority, ruled otherwise, instead deciding that the Narcotic Control Act was legal under the banner “good government, order, and peace” parliament power.

However, the ruling in Hauser has come under heavy criticism. Judge Laskin, in another view in Schneider, indicated that ‘the majority judgment in the Hauser case should not have put the Narcotic Control Act under the banner of residual power" and that he would have perceived “the Narcotic Control Act” as an exercise of the criminal law power." Furthermore, with regard to the latest jurisprudence confirming an expansive scope for the legality of federal criminal power, there is a likelihood that the legislations associated with drug control in Canada fall exclusively within legislative competence of parliament over the criminal law as enshrined in the Constitution Act 1867.

As one of the drug-related cases explored below indicate, the conception of security of the individual endorsed by the SCC has implications for drug prohibition laws in Canada. The acknowledgement through a court majority in R. v. Morgentaler (1988) of the right to be freed from criminal bans blocking access towards beneficial medical treatments has clear implications for those that want to obtain illegal drugs for medical purposes. Indeed, such allegations have succeeded in Wakeford vs Canada (1998). Additionally, the even wider definition for security of the individual posited by Justice Sopinka for the majority in Rodriguez v British Columbia (Attorney General) (1993)- which proposes a more general independence with regard to decisions pertaining to a person’s body-appears at least prima facie appropriate to the discussion over personal use of illegal drugs.

The decision of British Columbia Supreme Court in R. v. Cholette (1993) was the first verifiable case that dealt precisely with a section 7- challenge to the marijuana ban. In the case, the accused alleged the ban infringed on his right to security of the person as stipulated in section 7. The accused mentioned the benefits, which he obtained from consuming marijuana and questioned the rationale of the government’s initial decision to prohibit marijuana in 1923 (on the basis that it symbolized stereotyping and anti-Asian bias) alongside its continued retention of the prohibition on grounds that there was no evidence of considerable harmful impact to society. Justice Dorgan dismissed the accused’s sentiment and concluded that the accused had not demonstrated that the marijuana ban interfered in any way with the right of accessing medical treatment for a condition denoting a danger to the health or life of the accused.

The above debate and review of the common jurisprudence regarding the Charter’s section 7 alongside its transformation is required to comprehend the manner in which the courts have handled the impediments under the provision towards substance prohibition laws in Canada as well as the legal frameworks wherein such cases are determined. Additionally, the cited cases wherein the ban on illegal drugs has been challenged under section 7 are few and all have been decided in the lower tier courts. Reviewing such cases in respect of a strong premise in section 7 of the Supreme Court jurisprudence is important in forecasting whether the rationale and results emanating from such lower court decisions have a likelihood of prevailing within the SCC.