R v Longclaws is the newest case rendered by Alberta’s Court of Appeal earlier this month. In a controversial decision, the court ‘stayed the proceedings’ of Kendal Longclaws, a man accused of sexually assaulting three children. A ‘stay of proceedings’ is when a judge stops the prosecution of a case before any verdict of guilt or innocence can be reached. The public has been left unmoored by this decision. So, let’s break it down and understand the logical reasoning behind this seemingly shocking result, all while attempting to pacify a chorus of online voices and debunk a wave of clickbait headlines.
The Facts: Mr. Longclaws has a Severe Communication Disorder
Mr. Longclaws is a 32-year-old Indigenous man, one of eight children, who has spent his entire life on the Ermineskin Reserve No. 138 in Alberta, Canada. He was born deaf; he cannot speak, write, or read; and is unable to communicate in a recognized sign language. He could not tell you his age, recognize a calendar, or identify where he lives. While he appears to understand words like mom, go, and eat, and even possesses gestures for “yes”, “no”, and “goodbye”, Longclaws does not know what a lawyer is, what purpose a court serves, or what a judge does.
This conundrum begs the question: How can you run a fair trial if Longclaws cannot instruct his lawyer or understand the charges brought before him? You cannot, answered the court. Our legal system requires that a defendant have a genuine ability to mount a defence. Anything less deprives Longclaws of his fundamental right to a fair trial.
Dr. Russel, an educational psychologist, and Ms. Whalen, a Deaf Interpreter and ASL instructor, met with Longclaws and deducted that he experiences Language Deprivation Syndrome (LDS). Basically, Longclaws missed the developmental window of opportunity to acquire language.
LDS is a communication disorder, not a mental disorder. This distinction is key to understanding why the court stayed the proceedings. The Crown, who is prosecuting Longclaws, argued that it’s too early to grant a stay. Their position: before granting a stay, the judge should first order a ‘fitness assessment’ under s. 672.11 of the Criminal Code to determine whether Longclaws is ‘fit to stand trial’. However, a person can only be deemed unfit to stand trial on account of a mental disorder. Since Longclaws’ incapacity stems from LDS, a communication disorder, a fitness assessment could not be triggered under Canada’s current laws. With no other viable route, a stay was granted.
That’s not the system failing though. That’s the system refusing to stretch a legal category past its breaking point just because the outcome is unpalatable. Courts that bend definitions to reach the result the public wants are the ones that should actually worry us.
It’s important to remember that courts cannot create laws from the bench. That power is vested in our legislative branch of government: Parliament, which consists of the House of Commons and the Senate. Courts can only interpret and apply the laws created.
Our Justice System is Designed to Solve These Issues.
Here’s the part that’s getting lost in the outrage: this case is not over just because the Court of Appeal ruled. If the Crown appeals this month’s decision, the Longclaws case may likely move on to Supreme Court of Canada (SCC) next year, our nation’s highest court. This is a well-established pathway reserved for Canada’s most important cases where mixed interpretation, conflicting decisions, and constitutional issues sit at the core of the case.
It’s also entirely possible the SCC agrees with the Court of Appeal (i.e., that a stay is the correct legal remedy). In that case, Parliament may step in and build a new mechanism for cases like this one. Remember: Courts interpret laws; Parliament creates laws. This is a common thread throughout history, whereby Parliament takes over and amends the Criminal Code in response to a controversial court ruling. Notable examples include rape laws, prostitution laws, and the availability of the extreme-intoxication defence. In all three cases, the SCC issued a society-stirring decision, prompting Parliament to intervene and pass a Bill that closes an exploitable legal gap.
Cutting Through a Slew of Misleading Headlines
Multiple news outlets have condemned the Longclaws decision. Comment sections are rife with abhorrent remarks and indignation, labelling the system as “crooked”. Clickbait titles like “Man free to sexually assault children” prompt unnecessary public fear, going so far as to falsely claim the judge handed Longclaws “court-granted permission to commit any act of violence”. To clarify, a stay of proceedings is neither an acquittal, nor a permission slip or immunization from the Criminal Code going forward.
A separate Instagram post with 915 comments and 800 likes argues that the decision leaves him “exempt from prosecution for any crime, including murder”. This is not true; if new allegations were to arise tomorrow, the Crown would lay new charges.
However, if nothing about Longclaws’ ability to communicate has changed, the same barrier that led to this stay could theoretically produce the same result for a murder charge, or any other charge. That is the exploitable legal gap our system is designed to rectify. This case is doing exactly what it’s supposed to do: working its way up, level by level, testing where the boundaries of existing law hold and where they don’t, until it eventually reaches a final answer society deems acceptable.
One of the top comments on the Instagram post asks “whatever happened to: ignorance of the law is not an excuse not to obey it?” Well, the act of being ignorant requires a baseline understanding of the concept you’re being willfully ignorant of. Accordingly, Longclaws cannot be ignorant of the law when he lacks the baseline capacity to understand what a law even is.
There is No Interpretive Assistance Available for Mr. Longclaws
Then you’ve got the National Post’s article which imprudently warns courts to “prepare for more defence lawyers to seek this excuse for their linguistically challenged clients”.
What made this case exceptional enough to produce a stay was the complete absence of any communication method whatsoever, verified by doctors and experts, not mere difficulty with language. Predicting a wave of copycat defences ignores the narrowness of what triggered this outcome.
Longclaws’ mother, Katherine, did everything a reasonable person in her position could do. As someone with eight kids and three years of post-secondary education in child psychology and social work, Katherine understood the importance of educating her son.
For nine months, Katherine took Longclaws to school. However, a lack of money to hire a special teacher meant he had to be withdrawn: “there is no funding for deaf kids on the reserve” she stated. Then, a Hutterite woman worked with Longclaws for a while, but eventually said she could not teach him. When Longclaws was 19 years old, Katherine hired someone else to teach him how to communicate. Unfortunately, that person was killed. As no one else was available to teach Longclaws, the lessons were halted.
Katherine bought flash cards with numbers, colours, and animals to instruct her son; she consulted eight different audiologists, and tried numerous types of hearing aids to ameliorate his condition. Nothing worked.
As such, the court contended that continuing the prosecution would violate section 14 of the Charter of Rights and Freedoms which guarantees the right to an interpreter in court. Interpretation requires the back-and-forth translation between two languages. Longclaws doesn’t know American Sign Language (ASL) or use any recognizable language or communication form. Logically, Longclaws’ Section 14 right could not be enforced since there isn’t any available interpretive services across Canada to assist with his communication disorder.
It’s clear this is an exceptional case, with exceptional facts, warranting an exceptional remedy: a stay.
One more thing to think about: The Blackstone Ratio
In first-year criminal law, I was taught that our Canadian criminal justice system would rather acquit ten guilty people than convict one innocent one. This is known as the Blackstone’s Ratio. It’s about tolerating a systemic cost (guilty people going free) to avoid a worse one (convicting the innocent). The fitness-to-stand-trial doctrine reflects the same underlying value: rather than risking a conviction obtained through a trial the accused couldn’t meaningfully or constitutionally participate in, the system stops the prosecution altogether.
Yes, it is a confounding outcome. But we must remember that it took a near-impossible convergence of factors for this result to happen. So, what I’d resist is the conclusion that a deaf man accused of serious offences simply walked free because the courts didn’t care enough to stop him. What actually happened is that our legal system ran into a case that falls into the narrow space between its rules. The process is slow, and from where the complainants are sitting, it must feel unresolved. But unresolved isn’t the same as unfinished. This case still has somewhere to go, whether that’s the Supreme Court or Parliament, and until it gets there, the matter isn’t over yet.
These articles are provided for general information purposes only and are not intended as legal advice.