Tue | Oct 16, 2018

Laws of Eve | How long is too long?

Published:Monday | November 27, 2017 | 12:00 AM
Ninja Man

The conviction of DJ Ninja Man for murder on November 20 has evoked emotions for various reasons. Among those is the fact that yet another dancehall artiste has been convicted of a major crime (he will join Vybz Kartel).

What struck me most was the length of time it took for the matter to proceed from arrest to conviction. According to an article in The Gleaner on October 17, 2017, the case was first mentioned in court in 2009, and it was only tried after it was mentioned 23 times and 17 different trial dates set. It took eight years for the case to be determined!

My objective is not to assign blame for the fact that it took so long time for a man, who enjoyed the presumption of innocence, to have his case determined. Instead, I will share with you the approach taken by the Supreme Court in Canada in an effort to ensure that a person who is accused of committing a crime is given a fair trial within a reasonable time.


Reasonable time


In 2016, the Canadian Supreme Court made a controversial majority decision in the case of R v Jordan (2016) SCC 27. Jordan was arrested and charged with selling cocaine and heroin in British Columbia in 2008. He was tried and convicted in February, 2013 49.5 months elapsed between arrest and conviction.

On appeal, it was argued that Jordan's constitutional right to a fair trial within reasonable time had been breached due to the delay in concluding the matter. By a majority decision of 5:4, the Supreme Court of Canada concluded that "the system [had] lost its way" and imposed a 30-month time frame for the Superior Court to complete the trial of a person from the time of arrest. In lower courts of justice, cases should go to trial within 18 months.

That decision was criticised by many as presenting an ideal opportunity for defence attorneys to delay the conclusion of matters and secure their client's release without trial. However, the Supreme Court of Canada implemented an important safeguard to ensure that all players in the justice system are fixed with the same responsibility to avoid delays. In considering whether prosecution should be stayed, delays by the defence team will not count. In other words, the trial will still proceed if the defence team caused the time frame to expire.

From a slim majority decision in July 2016, the Canadian Supreme Court affirmed its decision to impose strict time limits for the trial of criminal matters in a unanimous decision in June 2017 in the case of R v Cody. Cody was charged in January 2010, and waited more than 5 years for his trial to proceed. His defence counsel argued that the delay was unreasonable, and ultimately the argument succeeded despite the prosecution's assertion that the defence team was largely responsible for the delays. The Supreme Court reached its conclusion after deducting the delays attributable to the defence team.

In Jamaica, Section 16 (1) of the Charter of Fundamental Rights and Freedoms (Constitutional Amendment) Act states that, "Whenever any person is charged with a criminal offence he shall, unless the charge is withdrawn, be afforded a fair hearing within a reasonable time by an independent and impartial court established by law." Accused persons in Jamaica are therefore entitled to the same protection that Jordan and Cody enjoyed in Canada, and my research confirmed that our local courts have considered the issue of whether the degree of delay in prosecuting an accused person should result in a stay of prosecution. However, no prescription has been made by the courts in Jamaica as to what amounts to a reasonable time frame from arrest to determination at trial.

Even if it could be argued that 30 months may not be adequate based on the peculiar challenges in Jamaica's justice system, we must be able to say how long is too long for an accused person to wait to know his fate.

- Sherry Ann McGregor is a partner and mediator in the firm of Nunes Scholefield DeLeon & Co. Please send questions and comments to lawsoefeve@gmail.com or lifestyle@gleanerjm.com