Legal observers call on governments to make drastic and urgent changes to fix sluggish court system
More than 200 criminal cases across the country have been tossed due to unreasonable delays since the Supreme Court of Canada’s landmark Jordan decision one year ago, court data shows.
The cases include murders, sexual assaults, drug trafficking and child luring, all stayed by judges because the defendant’s constitutional right to a timely trial was infringed.
While provinces and the federal government have taken steps over the past year to speed up Canada’s sluggish courts, legal observers say more drastic and urgent changes are needed.
“Not nearly enough has been done by the government in order to repair this crumbling system,” said Rick Woodburn, president of the Canadian Association of Crown Counsel.
“Until the government views the justice system as a priority, we’ll continue to see murderers set free.”
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Advocates say governments must provide more funding for every facet of the system, including judges, Crown attorneys, legal aid and infrastructure. Ottawa is also being urged to reverse decisions made under the previous Conservative government to expand mandatory minimum sentences and to close three of six RCMP forensic labs in the country.
The Jordan decision, as it has come to be known, was issued on July 8, 2016, when the high court ruled the drug convictions in British Columbia of Barrett Richard Jordan must be set aside due to unreasonable delay.
In a 5-4 ruling, the court said the old means of determining whether proceedings had taken too long were inadequate. Under the new framework, unreasonable delay was to be presumed if proceedings topped 18 months in provincial court or 30 months in superior court.
1,766 applications for stays
In a dissenting opinion, a minority called the new framework unwarranted and unwise, warning it could lead to thousands of prosecutions being thrown out.
The Canadian Press requested data from all 10 provinces, three territories and the Public Prosecution Service of Canada to examine the impacts to the country’s justice system from the groundbreaking decision. The latest figures made available by various governments date from April 30 to June 30.
Since the ruling, approximately 1,766 applications have been filed for charges to be stayed because of unreasonable delays.
Of those, 204 have been granted and 333 have been dismissed. The remainder are either still before the courts, have been abandoned by the defence or were resolved on other grounds.
Still more charges have been proactively stayed by the Crown due to the expectation they would not survive a Jordan application, including 67 by the Public Prosecution Service of Canada.
Heidi Illingworth, executive director of the Canadian Resource Centre for Victims of Crime, said 200 cases tossed over delays was “shocking” and very painful for victims and their loved ones.
System ‘failing everyone’
“The system is failing everyone. It’s failing victims, it’s failing accused, it’s failing everyone who is working in it,” she said.
“We can’t have this situation where the public lacks faith in the justice system, and that’s what we’re starting to see happen.”
Determining whether stays have increased since Jordan is challenging because most provinces did not track applications based on the previous framework for determining unreasonable delay.
Ontario reported that 65 stays were granted due to delays in the fiscal year 2015-16, meaning the number increased slightly after Jordan to 76.
Manitoba said no unreasonable-delay applications were successful between January 2015 and June 2016, but two had been granted since the Jordan ruling.
A study conducted at Dalhousie University in Halifax shows both applications and stays went up after the decision. In the six months before Jordan, 26 stays were granted out of 69 applications, while in the six months afterward, 51 stays were granted out of 101 applications.
Eric Gottardi, the Vancouver lawyer who brought Jordan’s case to the Supreme Court, said the impact of the decision will not be fully known for three to five years.
The court provided transitional exceptions for cases that were already in the system before Jordan. The Crown can argue the time the case has taken is justified based on the parties’ reliance on the previous law.
Public outrage ‘understandable’
Gottardi said it’s unacceptable for a serious case to get to the point where a judge thinks it must be tossed, and the outrage felt by victims, families and the public is completely understandable.
“The focus of the anger should be towards the government, in my view, not towards the courts,” he said. “There’s myriad reasons why it got to that point, and most of them have to do with infrastructure and funding.”
Justice Minister Jody Wilson-Raybould said there are a number of solutions to delays and she expects to introduce reforms in the fall. She also said her government remains committed to reviewing mandatory minimum sentences.
Despite a raft of new appointments, there are still 49 vacancies of federally appointed judges across the country, and more than a dozen vacancies of provincially appointed judges.
Bill Trudell, chairman of the Canadian Council of Criminal Defence Lawyers, said the Jordan decision has sent an “electric shock” through the justice system.
He said he thought the decision went too far, but it has been a catalyst for positive change.
“It’s like a protest. Good things may come from protests, even though you might not like the protest at the time.”
Provinces have brought in new procedures to speed up the justice system. Here’s a look at some of the initiatives provinces have undertaken:
Quebec is investing $175-million over four years to recruit new judges, prosecutors, legal aid lawyers and support staff and create new courtrooms. So far, 449 positions have been filled and several new hearing rooms are operational. Justice Minister Stephanie Vallee recently announced an additional $9 million to hire 47 legal aid workers. The province has also launched a pilot program to allow for alternatives to incarceration, such as community service, in some minor offences.
Vallee is also calling on the federal government to create eight new Superior Court justice positions and two additional Appeal Court judge positions, but Ottawa has not done so yet.
Ontario Attorney General Yasir Naqvi said in an interview the Jordan decision is a “game-changer” and a call to action for all levels of government. He said the province has added 13 judges, 32 assistant Crown attorneys and a number of other staff.
Ontario has also focused on streamlining the front-end of the system with a number of initiatives aimed at better serving individuals with mental health issues, addictions and unstable housing. It has expanded province-wide a program that facilitates the release of low-risk accused into the community pending trial, as well as launched a new “bail beds” program that provides supervised housing for vulnerable accused. It has also developed a program to provide supports to Indigenous people who are accused of a crime.
B.C.’s Supreme Court recently issued new directions for so-called “mega-trials,” or large or complex criminal cases that have the potential to occupy a significant amount of court time or risk delays. The directions call for a case management judge to be appointed early in the process and for tight time limits for disclosure, pre-trial applications and the trial itself.
Associate Chief Justice Austin Cullen said in an interview the court began reviewing complex trial procedures about 18 months before the Jordan decision. But he said the ruling helped “spur us on and made us realize that we’re doing something useful.”
B.C.’s government tasked lawyer Geoffrey Cowper in 2012 with writing a report on its justice system, in which he identified a “culture of delay.” In November 2016, Cowper said B.C. was on the road to recovery. A major initiative he cited was B.C.’s use of administrative law to move tens of thousands of drunk-driving charges out of provincial court.
Chris Hansen, with Nova Scotia’s Public Prosecution Service, said the province is being “fairly aggressive” in dealing with Jordan. It has established a criminal justice transformation group with the sole purpose of addressing delays. Every criminal case has a “Jordan ticker,” so that when participants access material online, they can clearly see the number of months since the information was laid. Hansen also said the courts have increased their use of technology with video conferencing and electronic disclosure.
Saskatchewan’s Public Prosecutions said most cases in the province finish within the time limit and exceptional events are often the cause in the small number of cases that don’t. Nonetheless, it said it’s implementing further strategies to move every case along as quickly as possible. These include focusing on expediting disclosure, assessing cases as early as is workable, removing cases that do not meet the prosecution standard, and working to resolve cases as soon as possible.
With files from Brett Bundale, Sidhartha Banerjee, Joanna Smith, Allison Jones, Lauren Krugel and Geordon Omand