Focus: Jordan addresses trial delays for criminal cases

Three months after the Supreme Court of Canada devised a new framework for calculating when delays in a criminal case are unreasonable, a senior member of the Superior Court in Brampton, Ont. made it clear that justice participants in his jurisdiction were still not getting the message.

Justice Casey Hill issued a sternly worded ruling about a lack of compliance with rules designed to combat delays and a “culture of complacency” as it was described by the Supreme Court.

“Rules of court do not exist simply to have rules,” wrote Hill in a decision issued Oct. 17.

“All participants, the court, prosecution, defence and police must be part of the solution against undue delay in processing criminal trials,” stated Hill.

The basis for his ruling was a series of events six days earlier, on a day set aside in Superior Court in Brampton for judicial pre-trials.

Half of these meetings had to be rescheduled because of a lack of compliance by the Crown and defence with criminal proceedings rules of the court.

Hill added that despite “repeated admonitions” by judges in Central West Region, improper multi-count indictments that involve “over-charging” are regularly presented to the court.

It is the obligation of Crown attorneys to screen out at an early stage, a “Velcro indictment” where a police officer “slaps an information . . . to see how many charges will stick,” noted Hill.

Delays in carrying out this duty could lead to more charges being stayed, he warned.

The comments are perhaps the most blunt to date about court delays since the Supreme Court issued its decision in R v. Jordan on July 8.

The 5-4 ruling set a presumptive ceiling of 18 months for a case to get to trial in provincial court and 30 months in Superior Court. Any delay beyond that is presumptively unreasonable.

“To rebut this presumption, the Crown must establish the presence of exceptional circumstances. If it cannot, the delay is unreasonable and a stay will follow,” the majority wrote.

As of Nov. 1, there were just more than 6,500 pending cases (or 6.5 per cent of total cases) that were at the 18-month mark in the Ontario Court of Justice, says the Ministry of the Attorney General.

That figure includes cases with preliminary hearings that are scheduled to be tried in Superior Court.
About 95 per cent of all criminal cases in Ontario are disposed of in provincial court.

While it monitors the status of cases in Superior Court, there is no exact number on how many proceedings are near or past the 30-month ceiling, the ministry says.

Ontario Attorney General Yasir Naqvi announced measures on Dec. 1 in response to the Jordan decision, including provisions to try to speed up the bail process.

As well, the province is going to appoint 13 new judges and hire an additional 32 assistant Crown attorneys, 16 duty counsel and 26 court staff.

A search of reported cases by Law Times indicates that, as of Dec. 1, there have been 12 successful delay applications by defendants in Ontario, since the Jordan decision was released. Seven of those decisions involved impaired driving prosecutions.

Three others were relatively minor offences.

The two most serious offences where stays were granted — a murder prosecution and a successful appeal of an assault bodily harm conviction — both involved the Crown attorney’s office in Ottawa.

A spokesman for the ministry says in all jurisdictions there has been “enhanced case management” for serious cases identified as “at risk” for exceeding the Jordan ceilings.

While delays are a daily topic of discussion in Ontario courts, both Crown and defence lawyers say it is too early to predict the impact of Jordan and whether it will lead to as many stays of charges as happened after the Supreme Court issued its Askov decision in 1990.

“Until we start seeing the applications [for delay], it is hard to predict,” says Kate Matthews, president of the Ontario Crown Attorneys’ Association.

“It certainly does put a lot more pressure on, especially for serious cases,” she adds.

The Jordan ruling has been a “wake-up call” for the players in the judicial system, says defence lawyer Paul Burstein.

“You already notice a change with the judiciary, trying to get into case management more quickly,” says Burstein, a former president of the Criminal Lawyers’ Association in Ontario and a partner at Burstein Bryant LLP in Toronto.

The decision, though, is not necessarily a win for the defence, says Eric Granger, a defence lawyer at Greenspon Brown & Associates in Ottawa.

“Jordan both gives and takes away at the same time,” he says.

The 18-month threshold in provincial court is arguably a higher relative ceiling than the 30 months for Superior Court cases, he suggests. (Granger was co-counsel in R v. Picard, a murder charge stayed on Nov. 16 by Superior Court Justice Julianne Parfett. The Crown is appealing that decision).

The delay analysis is now “fundamentally different,” says Tyler Smith, a partner at Hicks Adams LLP in Toronto.

“By removing prejudice from the analysis, it is unfortunate for in-custody accused,” since this is unlikely to factor into whether a stay should be granted, says Smith.

Practical measures, such as increasing the use of technology to make courts more efficient, would also help address delay issues, the defence lawyer suggests.

“Let’s get at least into the year 2000 when it comes to technology,” he jokes.

As well, individual Crown attorneys should be given more discretion, including the authority to withdraw minor charges.

“Crowns should be asking is this the kind of case we want clogging up the system,” states Smith.

A recent reduction in the number of Crown attorneys in the London office has made it more difficult to address delay issues, says defence lawyer Cassandra DeMelo of DeMelo Law PC.

“I would like Crowns looking at their files to be able to make the tough decisions sooner,” she says.

In Ottawa, a different approach to bail hearings by the Crown’s office would free up court resources, says Granger.

“For whatever reason, bail hearings are like mini trials. This creates delay,” he says.

Measures aimed at streamlining court processes are often at the expense of defence lawyers and their clients, says Burstein.

In Newmarket, for example, the court routinely overbooks the number of cases that are expected to be less than a one-day trial. The defence is still required to attend, not knowing if its case will be heard that day.

“It is like being standby on a flight,” says Burstein.

From the Crown’s perspective, the increase in resources announced by the attorney general is welcomed, says Matthews.

“I understand the frustrations of defence counsel. It is hard to get the attention of the Crown. But there are not enough of us,” she says. “Often, we are not given enough time to sit down [with files] and make those proper decisions.”

Crown attorneys across the province are doing their part to make use of diversion and other programs for more minor offences, says Matthews.

Whether this should be done even more is a policy decision at a higher level than a front-line Crown, she explains.