Jordan delayed trial ruling put to test in Normandeau case

Several years ago, while on a visit to Ottawa, familiar haunts once upon a time, I took the boys to the Supreme Court of Canada building. It was an early weekday morning in the summer and the place was deserted. A good-natured guard agreed to allow the three of us to enter the stately, ornate courtroom, under his watchful eye. Although he drew the line at trying out the chairs behind the bench, we pretty much had the run of the place.

I can’t imagine what a pair of young boys retained from that visit, but I was left in a state of awe at what momentous cases that room had seen argued and adjudicated. I was also left thinking the room seemed kind of small for the enormity of the decisions that took place therein.

The enormity of one of those decisions was visited on Quebec’s intertwined and inscrutable political world recently in a case involving some very high-profile people.

Nathalie Normandeau, former deputy premier and minister under Jean Charest, along with five others, including former Gaspé mayor François Roussy and Marc-yvan Côté, a former health minister under Robert Bourassa, and a top Liberal organizer, were arrested in March, 2016, by the province’s anti-corruption squad, and charged with seven offenses, including fraud and breach of trust.

On Sept. 25, Quebec Court Judge André Perreault ruled the prosecution of Normandeau et al must be terminated because, as their lawyers had argued, the case had violated the Jordan precedent on time limits on criminal trials as determined by a 2016 Supreme Court of Canada decision.

The ruling was perhaps no surprise given the four-and-a-half year stretch since the initial arrest with no trial date yet set; but what has caught a lot of attention is Judge Perreault’s somewhat startlingly direct admonition to the tut-tutting public:

“There will probably be those who will claim the petitioners were lucky to escape conviction. This is unfair. The petitioners are from this moment freed from any charge. They are all of them as innocent as anyone who will walk by you today on the street.”

In other words, innocent is innocent regardless of how that innocence was determined by the court.

The Jordan decision was a huge landmark for Canada’s criminal justice system, but it also is a window into the workings of the country’s top court, particularly in light of the shenanigans south of the border over appointing judges to the Supremes.

The Jordan ruling, in July 2016, was a five-four decision, with the majority decision written by Justices Michael Moldaver, Andromache Karakatsanis and Russell Brown, with the support of Justices Rosalie Abella and Suzanne Côté. Moldaver, it has been noted by legal observers, had strong opinions on delayed trials before Stephen Harper named him to the Supremes in 2011.

In a 2005 lecture, Moldaver opined: “Long criminal trials are a cancer on our criminal justice system and they pose a threat to its very existence … if the public comes to view the system with disdain and contempt, then the system will have lost its reason for being. And the consequences, I fear, will be serious.”

Little did Moldaver know that 11 years after uttering that warning, he would be the lead justice in the ruling that attacked the cancer on the criminal justice system he had diagnosed.

The four dissenting judges argued, in short, that imposing deadlines on trials “exceeds the proper role of the Court by creating time periods which appear to have no basis or rationale in the evidence before the Court; and risks negative consequences for the administration of justice.”

Hundreds of criminal cases have been “stayed” since the Jordan ruling.

The minority decision was written by Thomas Cromwell and backed by then-chief-justice Beverly Mclachlin, her successor as chief Richard Wagner, and Clement Gascon. Only Wagner is still on the court.

All this to say, the Jordan decision could have gone either way, and that it went the way it did, Nathalie Normandeau et al, and all those who find themselves in similar circumstances, must be thankful - innocent, but thankful.