More than 200 cases tossed over delays since Supreme Court's Jordan decision
The Supreme Court of Canada building in Ottawa on Oct. 15, 2014. (Sean Kilpatrick / THE CANADIAN PRESS)
Laura Kane, The Canadian Press
Published Thursday, July 6, 2017 10:23AM EDT
Last Updated Thursday, July 6, 2017 11:45AM EDT
VANCOUVER -- 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."
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.
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 system is failing everyone'
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.
"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.
Reforms coming in the fall
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.
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."
-- With files from Brett Bundale in Halifax, Sidhartha Banerjee in Montreal, Joanna Smith in Ottawa, Allison Jones in Toronto, Lauren Krugel in Calgary and Geordon Omand in Vancouver.