In 2016, the Supreme Court of Canada (“SCC”) condemned the “culture of complacency”1 within the legal system that led to lengthy and excessive pre-trial delays and strained the Canadian Charter of Rights and Freedoms’2 protection of the right “to be tried within a reasonable time.”3 In a 5-4 majority, the SCC in R. v. Jordan4 created a new framework for determining whether a delay between the date of a charge and the actual or anticipated end of trial is presumptively unreasonable according to s. 11(b) of the Charter. While the intention of the SCC was to “further the interests of justice”5 through putting pressure on the actors within the legal system to ensure fair and efficient trials, the impact of the decision has undermined those interests. The criticism of the Jordan decision by Justice Bychok in R. v. Anugaa6 emphasizes the danger of judicial overreach and “one-size-fits-all”[refererence 7] solutions to the access to justice problem.
II. “JUSTICE DELAYED IS JUSTICE DENIED”:8 THE JORDAN FRAMEWORK
Ultimately, the issue before the courts in both Jordan and Anugaa did not concern the accused persons at all. Instead, the courts were concerned with the framework surrounding the reasonableness of pre-trial delay. The previous R. v. Morin9 framework10 was criticized by the majority in Jordan as unpredictable, unduly complex, and reactionary instead of proactive.11 In turn, the Jordan framework was criticized as too simplistic and general to account for the realities of the legal system in Nunavut.12
A prominent feature of the Jordan framework was the creation of the “presumptive ceiling,”13 which dictates the time when the delay between the charge and the end of the trial becomes presumptively unreasonable. In order to rebut this presumption of unreasonableness, the Crown must establish that there were exceptional circumstances that lead to the delay or else a stay of proceedings will be entered.14 The majority stated that exceptional circumstances will generally fall under two categories: (reference 1) discrete events, such as unforeseeable or unavoidable developments in the case, and (reference 2) particularly complex cases.16
The minority in Jordan argued that the creation of a presumptive ceiling was a “task better left to legislatures”17 because it went beyond giving meaningful content to the s. 11(b) constitutional right and entered the realm of legislating safeguards that comply with the Charter requirements.18 In Anugaa, Bychok J. echoed that assessment by noting that the Jordan framework limits the ability of a court to structure the timing of a trial to reflect the cultural practices of the local community.19
III. THE ANUGAA MODIFICATION
Bychok J. felt bound by the Jordan decision20 but modified the framework through a broad interpretation of “exceptional circumstances.” In doing so, he created a third category to justify delay: “unique cultural circumstances and exceptional challenges.”21 This category is intended to reflect the geographic, economic, and cultural realities of the legal system in Nunavut in a way not contemplated by the Jordan framework.
The ability to access courts in Nunavut is subject to geographic and economic restraints that were not given adequate consideration by the SCC in Jordan. The territory is home to a relatively small population spread across a vast landscape and the Nunavut Court of Justice must travel regularly in order to be accessible to the isolated communities.22 The arctic climate often results in court cancellations due to dangerous weather.23 Additionally, Nunavut has a “tremendous infrastructure deficit”24 and limited taxpayer dollars to overcome this deficit.25
Nunavut has a unique cultural landscape that is reflected in how legal services are provided. The Nunavut Court of Justice recognizes “that Inuit social governance continues in parallel to the application of pan-Canadian criminal law”26 and strives to incorporate principles of Inuit Qaujimajatuqangit27 into the Court’s practices. This can affect the length of delay because the Court will avoid scheduling jury trials during the summer due to the cultural and personal importance of the summer months to many Nunavummiut.28 The Jordan framework did not, prima facie, allow for such cultural considerations to justify a presumptively unreasonable delay.
IV. THE CULTURE OF THE COURT OR THE COMMUNITY?
The failure of the majority in Jordan to consider delays caused by the unique cultural circumstances of a jurisdiction or exceptional challenges to delivering justice due to institutional or geographic restraints highlights the necessity of having diverse viewpoints when trying to improve the accessibility of justice. The SCC had explained why “[a]n unreasonable delay denies justice to the accused, victims and their families, and the public as a whole,”29 but then imposed a strict framework that was based in the SCC’s view of how justice should be delivered.
It could be said that implicitly the Jordan framework does take into consideration the concerns raised by Bychok J. by holding that “chronic institutional delay” cannot rebut the presumption of unreasonableness.30 Institutional delay occurs “when the parties are ready for trial but the system cannot accommodate them.”31 The decision by the Nunavut Court of Justice to not run jury trials during the summer, and the lack of resources to hold more frequent sittings around the territory, are arguably a result of institutional delay. While the geographic complications would not directly relate to institutional delay, under the Jordan framework this problem would ideally be circumvented through the “coordination of all participants in the criminal justice system,”32 either through an increase of funding from the government or more efficient allocation of court resources.
This strict approach to what can rebut the presumption of an unreasonable delay would be appropriate if the judicial system had unlimited resources and Canada was a homogenous country, geographically and culturally. However, that is not the case. The Jordan framework focuses on the culture of the courtroom instead of the culture of the community that the courtroom serves. While the Justices of the Supreme Court are experts on the procedures and functions of the Court before them, they do not deal with the day-to-day realities of the lower courts across the country.33 Different jurisdictions have unique circumstances and challenges that do not rise to the level of exceptional circumstances but nonetheless might cause a justifiable delay.
The Jordan framework does provide more context to the nature and protection of s 11(b) of the Charter. While Bychok J. developed the category of unique cultural circumstances and exceptional challenges specifically with Nunavut in mind, it should be viewed as a positive addition to the Jordan framework throughout Canada. It provides judges with the opportunity to incorporate the culture of the local community into courts’ procedures in addition to reflecting the resource and infrastructure challenges of delivering legal services in remote communities.
* JD Candidate (Saskatchewan).
1 2016 SCC 27 at paras 4, 40-41,  1 SCR 631 [Jordan].
2 Part I of the Constitution Act, 1982, being Schedule B to the Canada Act 1982 (UK), 1982, c 11 [Charter].
3 Ibid, s 11(b).
4 Supra note 1.
5 Ibid at para 28
6 2018 NUCJ 2, 44 CR (7th) 186 [Anugaa].
7 Ibid at para 44.
8 Jordan, supra note 1 at para 19.
9  1 SCR 771, 1992 CanLII 89 [Morin cited to SCR].
10 The SCC in Morin (ibid at 787-88) had developed the previous framework for determining whether a delay was unreasonable. It required the courts to balance four factors: (1) the length of the delay; (2) waiver of time periods by the defence; (3) the reasons for the delay; and (4) prejudice to the accused’s interests in liberty, security of the person, and a fair trial.
11 Supra note 1 at paras 32-41.
12 Anugaa, supra note 6 at paras 47-48.
13 Jordan, supra note 1 at para 49.
14 Ibid at para 105.
15 Ibid at para 73.
16 Ibid at para 71.
17 Ibid at para 267.
18 Ibid at paras 269, 273.
19 Anugaa, supra note 6 at paras 43-44.
20 Ibid at para 47.
21 Ibid at para 48.
22 Ibid at paras 26-27.
23 Ibid at para 28. In JD1HI et al v Budden et al, 2018 NUCJ 15 at para 34, Bychok J. noted that “[t]he exceptional and unique challenges of delivering justice” in Nunavut, due to the infrastructure deficit and the marginalised and isolated population, are present in both criminal and civil litigation.
24 Anugaa, supra note 6 at para 32.
25 Ibid at para 33.
26 Ibid at para 42.
27 Bychok J. provides a more detailed explanation of how the Nunavut Court of Justice strives to incorporate the values of Inuit Qaujimajatuqangit into its judgements and practices in R v Itturiligaq, 2018 NUCJ 31 at paras 61-64, 118-20.
28 Anugaa, supra note 6 at paras 43-44. See also R v IN, 2018 NUCJ 9 at para 15, 407 CRR (2d) 201.
29 Jordan, supra note 1 at para 19.
30 Ibid at para 81.
31 Morin, supra note 9 at 794-95.
32 Jordan, supra note 1 at para 137. The majority of the SCC specifies that these participants include Crown and defence counsel (ibid at para 138), the courts (ibid at para 139), and provincial legislatures and Parliament (ibid at para 140).
33 In a footnote, Bychok J. cites the following from the late Justice Scalia of the United States Supreme Court to emphasize the danger of judges veering too close to the role of Parliament:
[T]here is no reason to suspect that the justices on my court, for example, are particularly good representatives of the views that a majority of Americans hold. We all live in Washington, D.C., for goodness’ sake—we are totally out of touch with America! And we are all lawyers. Since when would a majority of Americans think that a group of nine lawyers from elite law schools should be entrusted with deciding the “best rules” for all our countrymen to live by?
Christopher J Scalia, Scalia Speaks: Reflections on Law, Faith, and Life Well Lived (New York: Crown Forum, 2017) at 178-79, cited in Anugaa, supra note 6 at para 44, n 37.