Canada’s Supreme Court will revisit a controversial ruling next week that has seen hundreds of criminal cases thrown out for excessive trial delays, just days before Ottawa is scheduled to hold an emergency meeting to deal with the problem.
The appeal of a Newfoundland drug trafficking case that took more than five years to get to trial will give Canada’s highest court the chance to clarify something known as the Jordan decision, which set strict limits on how long a criminal case should take to get to trial and sent already strained courts across the country spiralling into chaos.
The Jordan decision set a time limit of 18 months in which criminal trials for less serious offences should be completed, and 30 months for more serious charges, such as murder.
It’s already resulted in a number of accused murderers walking free, most recently a Quebec man accused of killing his wife.
Defence lawyers and prosecutors have been struggling to meet the deadlines and say the federal government has failed to do its part. We broke down what is at stake.
How did we get here
In the Jordan ruling, which stayed drug charges against a man who waited 49 months for a trial, the Supreme court slammed the “culture of complacency” around delays.
In the Canadian political system, a stay of proceedings means the prosecution effectively ends, and cannot be restarted. It means the charges won’t go forward, and the accused will be free to go.
“This court has a role to play in changing courtroom culture and facilitating a more efficient justice system,” read the decision, adding that the old guidelines, set in another Supreme Court decision from 1992, had been “interpreted to permit endless flexibility.”
So far, the decision has resulted in a handful of murder charges being stayed across the country — in Ottawa, although that stay is now being appealed by the Crown; in Alberta, where a man was accused of stabbing a fellow inmate in an Alberta prison last year; and last week in Quebec, where a man accused of killing his wife will walk free.
In Parliament, the Liberals are being slammed for their inability to fill federal judicial vacancies on a timely basis.
Six months after its revamped judicial appointment process was unveiled, there is still a staggering 55 vacancies across the country, and only seven out of 17 screening committees for candidates have been formed. On Wednesday, Justice Minister Jody Wilson-Raybould appointed four new judges in Ontario and British Columbia, bringing the total of new appointments since October to 12.
“I think that we need to be very clear that simply appointing judges is not going to resolve the delay problems that we have. There’s no one single solution and it’s going to require all of us to come up with those solutions to resolve delays,” said Justice Minister Jody Wilson-Raybould.
Defence lawyers, who have filed hundreds of applications for stays, maintain the situation could have been avoided.
“Given that the government has been in power for nearly two years … they certainly had more than enough time to ensure to that the judicial vacancies have been addressed, and they haven’t been,” said Daniel Brown, Toronto director for the Criminal Lawyers’ Association.
“There’s no one single solution.”
“Moreover, ensuring more resources for the justice system is something they’ve failed to do,” said Brown, pointing to a need for more funding for legal aid programs across the country, for example, to curb the number of people who represent themselves in court — a practise that can cause significant delays.
In a letter to Wilson-Raybould on Wednesday, Conservative senators Pierre-Hugues Boisvenu and Jean-Guy Dagenais wrote a letter urging the minister to treat the issue of court delays like an emergency, the Globe and Mail reported.
“How can a justice minister ignore such a major crisis, which clearly jeopardizes the safety of our communities by releasing dangerous offenders who have not been brought to trial?” reads the letter.
“When a dam risks wiping out an entire village and its population, we don’t spend weeks and months consulting, we take action.”
The latest case
Sivaloganathan Thanabalasingham, whose trial was supposed to begin on Monday, is the first murder suspect in Quebec to have his charges stayed after a judge ruled last week that the delay in his trial was unreasonable. He’s been waiting for a hearing since 2012, when his wife Anjua Baskaran was killed.
Now Sivaloganathan, who was previously convicted of assaulting his now-deceased wife, is fighting a deportation to Sri Lanka.
Quebec alone is dealing with almost 800 stay applications. Quebec Justice Minister Stéphanie Vallée, who was “stunned” by the Thanabalasingham ruling, said her ministry is exploring the idea of using the notwithstanding clause to prevent further cases like it, but she’s concerned it would cause even further delays.
The clause would allow the Quebec government to pass laws that override parts of the charter — in this case, the section that gives everyone accused of a crime the right to “be tried within a reasonable time.”
The wider impact
In Ontario there were at least 250 stay applications, 48 of which were successful between July and December of last year. As a result, the government has moved to appoint a complement of new judges and support staff,
Attorney General Yasir Naqvi has asked Ottawa to scrap the preliminary inquiry in most cases as a way of speeding up the justice system — a proposal that’s been widely criticized by criminal defence lawyers, who say it’ll do little to solve delays and is nothing more than a political move.
As of April 7, there had been 48 motions for stays in Manitoba, which is also trying to get rid of preliminary hearings, since the Jordan decision was handed down. So far, one has been successful.
In Saskatchewan, since July, there have been four successful applications for stays and five that have been rejected.
In Ontario there were at least 250 stay applications, 48 of which were successful
“Reviews of the stay decisions have shown that it was not just the passage of time, but a variety of factors which led to the resulting stay of proceedings,” said a statement from the province’s ministry of justice, which concluded it is “presently fairly well-situated in regards to time to trial,” since most cases finish within the time limit.
In Alberta, there have been 79 requests since the government started tracking them in October, seven of which were granted and nine of which were proactively stayed by the Crown on the basis that they wouldn’t survive a Jordan application.
Meanwhile in B.C., the number of prosecutions dismissed due to delay has actually dropped from 122 in 2011 to 19 in 2016. The B.C. government credits, in part, a program that diverts over 6,000 cases a year out of court, online charge assessment, and the creation of a civil resolution tribunal.
The Supreme Court will have a chance to go back to the Jordan decision, even though it is only months old, when it hears arguments in a Newfoundland drug case later in April. While it is unlikely the top court will overturn the standard they set, they may provide some more direction for lower courts in when, and how, they apply stays of proceeding.
In that case, the Ontario government is arguing cases that were already in the system prior to the Jordan ruling shouldn’t be covered by the Supreme Court decision, but rather the previous standard.
The Jordan decision, the government argues, “should not automatically transform what would previously have been considered a reasonable delay into an unreasonable one.” If the delay in the old case could be justified by the parties involved based on the old standard, they should be granted an exception.
The court system will also have another chance to consider the impact of these stays when it hears the appeal in the case of the Ottawa man who had his murder charge stayed. Brown said that case will be a “litmus test for the court’s tolerance for unreasonable delay here in Ontario and other provinces will likely follow suit.”