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Letter: How the Jordan decision could affect you


How much do you know about civil versus criminal law?

In the July 8th edition of The Telegram, Llew Hounsell wrote to the editor decrying the Supreme Court of Canada decision in R. v. Jordan rendered in July 2016. As Hounsell noted, the decision “set very precise guidelines about how long a (criminal) case should take to move through the justice system. If a case exceeded these guidelines, it would be thrown out and the accused freed.”

His concern was not so much with the ruling itself, but with the application thereof, not only to cases that entered the system after the Supreme Court’s ruling had been brought down, but as well to “cases that had already been in the system for any number of years.” He rightly pointed out the injustice, in the latter, to the “victim of one of these accused criminals who walks free.”

There is a second and unforeseen group of victims, consisting not only of those already in the system, but also of those coming into the system in future years.  While they (you) may not even know it yet, this injustice will be made known in the very near future.

Civil, as opposed to criminal, cases are not referenced in this Supreme Court of Canada decision. Nevertheless, they are cruelly and harshly impacted. Civil law includes everything that is not criminal law. It includes breach of contract, real estate conflicts, personal injury, fraud, workers’ compensation and employment-related claims, defective consumer products, and family law, the latter generally being dealt with through a separate court structure.

As we are painfully aware, there is a finite supply of legal infrastructure, including court buildings, judges, lawyers and staff, as well as governmental and support organizations and facilities. The current legal system is strained beyond its limits. If it now has to devote at least twice the time, with the attendant infrastructure, to the hearing of criminal cases over a much shorter period, what does that leave available for civil matters such as yours?

R. v. Jordan has effectively taken what was already a horrendous situation and made it much, much worse. For many of those wronged by others, otherwise than criminally, and currently pursuing remedies provided under civil law, their wait for justice has now been extended by one-and-one-half to two years more, and possibly even longer. How can this truly be called justice?

Anyone seeking legal redress of a wrong through our legal system is well aware of the challenges inherent in the process. The most significant challenge is the legal system itself, which (while now limiting the time that a criminal case can continue to anywhere from 18 to 30 months) provides up to seven years or more for the resolution of many civil cases.

To civil defendants (often insurance companies who have provided coverage for the wrongdoer, or larger corporations or individuals with the deep pockets to finance a lengthy case), this decision is an outright windfall! Prior to R. v. Jordan, a defending legal counsel could, and would, drag out a case for years in the hope that the plaintiff (you) would either run out of money or would, out of pure frustration with the process, simply walk away. They have been using this deplorable tactic for years, along with the offering of rock-bottom settlement amounts just prior to Christmas. Now they will have justification to blame criminal case backlogs for even longer delays. For many of those wronged, that could be the last straw!

To large insurance companies, to the wealthy and powerful, the justice system is a game. They can make it go fast when they desire a quick decision, or they can slow it down to a crawl when they want someone to go away.

There is no justice when the big and powerful further disadvantage the already disadvantaged.

A better, and a more equitable decision than R. v. Jordan, at least from a layman’s perspective, would have been one in which the time available for hearing both criminal, as well as civil, cases was limited to three-and-one-half to four years, applied to all cases entering the system from this point onward.

 

Dave Randell
Mount Pearl

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