- Subtitle: Cover Story
Alberta Court of Queen’s Bench Justice Paul Belzil was asked to decide earlier this year whether a delay of approximately 33 months before trial was sufficient to stay charges against three men facing multiple offences including robbery and aggravated assault.
It was an application to throw out charges based on the Supreme Court of Canada ruling last year in R. v. Jordan, which set out a new framework for analyzing s. 11(b) violations of the Charter.
In the proceeding before Belzil, the time taken to get to trial was above the 30-month threshold established in Jordan for cases in Superior Court. That meant the Crown was required to show “exceptional circumstances” to rebut the presumption that the delay was unreasonable.
Belzil concluded this was a case involving “exceptional circumstances.” The reason was that a large part of the delay was a result of reserved rulings by judges at earlier stages. The preliminary hearing judge took three months to rule on a Crown request to admit certain documents. The original trial judge took four months to rule on a defence request for a jury trial.
“Delays occasioned by judges reserving decisions are discrete events which constitute exceptional circumstances,” wrote Belzil.
A survey of reported decisions since Jordan indicates that the Alberta judge’s ruling is by no means the only example of exceptional circumstances that did not relate to the complexity of the case. In Nova Scotia, Justice Anne Derrick concluded that while it was more than five months past the 18-month ceiling in provincial court to try an accused with mental health issues on a break and enter and weapons charge, the delay was reasonable. A seven-month adjournment fell under “exceptional circumstances” because a grandparent of the Crown died six days before the trial. The adjournment occurred during “prime summer vacation time,” so it would be hard to find a replacement Crown, noted Derrick in her ruling issued in March.
These decisions are not out of the ordinary and suggest that the outcry following the release of Jordan last summer and suggestions by some police, prosecutors, judges and media that a flood of people facing serious criminal charges are going to be released may be misplaced.
Following the Supreme Court decision in R. v. Askov in 1990, more than 47,000 charges were stayed by the Crown in Ontario alone over the next year. In the second half of 2016, there were 48 judicial stays granted for delay in Ontario, according to the Ministry of the Attorney General. In Alberta, there have been six stays granted since its Ministry of Justice started tracking this data last fall.
|2||Number of reported cases where charges were stayed by a judge in Alberta for a Charter breach of unreasonable delay since R. v. Jordan was released (as of March 1/17)|
|9||Percentage of criminal cases in Canada that took more than 18 months to complete in 2014-15|
|5||Median number of court appearances to complete a criminal case in Canada in 2014-15|
|324||Median length of days to complete a sexual assault case in courts in Canada in 2014-15|
|1.2||Percentage of criminal cases in the Ontario Court of Justice in 2016 that were disposed of through committal for trial in Superior Court after a preliminary hearing|
|4.5||Percentage of cases disposed of following a trial in the Ontario Court of Justice in 2016|
|44||Percentage of cases disposed of in the Ontario Court of Justice through a guilty plea before or at trial in 2016|
|215,268||Number of criminal cases received by the Ontario Court of Justice in 2014|
|3,749||New criminal cases in the Ontario Superior Court in 2014|
|73,379||New civil proceedings in Ontario Superior Court in 2014|
|85||Percentage reduction in criminal impaired driving cases in B.C. provincial court in five years since immediate roadside prohibition introduced|
|1.3||Percentage of concluded criminal cases in B.C. courts in 2015-16 that ended with a not guilty finding|
|27||Percentage of total cases stayed by the Crown in B.C. courts in 2015-16|
|43||Percentage of total cases stayed by the Crown in Ontario either before or at trial in the Ontario Court of Justice in 2016|
|63||Percentage of criminal cases in Canada that ended with a guilty plea or finding of guilt in 2014-15|
|32||Percentage of criminal cases stayed or withdrawn by the Crown in 2014-15|
|Sources: Statistics Canada, CanLII, Ontario Court of Justice, B.C. Criminal Justice Branch Annual Report|
The numbers do not seem to be on the rise this year. A search of reported cases in the first two months of 2017 uncovered only a handful of reported cases where stay applications were granted.
The most serious charges to be stayed recently might be that of armed robbery by Superior Court Justice Irving André, who presides in Brampton just outside of Toronto. The primary reason was a three-year delay in processing DNA evidence, something that would likely have led to a stay under the previous guidelines.
There can be no doubt that there continues to be a flood of reaction to the Jordan decision. It is top of mind in courts across the country every day, says Joel Pink, the prominent defence lawyer and partner at the firm of Pink Larkin in Halifax. “In Nova Scotia, if we ask for any delay, the judge now says to us, ‘Are you waiving Jordan?’” notes Pink.
The level of attention that this decision has received may be in part because two of the cases that have been stayed involved murder charges in Ontario and Alberta. Both of those decisions are under appeal and while a stay of a murder charge for unreasonable delay is very rare, it was not unheard of under the previous framework. In fact, Justice Michael Moldaver — one of the authors of the majority judgment in Jordan — was part of an Ontario Court of Appeal panel in 2005 that unanimously upheld a stay for parents implicated in the death of their infant child. “Staying charges of first-degree murder without a trial on the merits is almost unthinkable. And yet, that is what must occur if s. 11(b) is breached,” stated the three-judge panel in R. v. Kporwodu & Veno.
In the current criminal justice climate, there does appear to be a widespread acceptance that significant changes need to be made to address an issue that has plagued the courts in Canada for at least the past three decades. Some provinces have announced more prosecution and judicial resources. There have been policy amendments to make it easier to prefer a direct indictment and skip a preliminary hearing. The Attorney General of Ontario and the Minister of Justice in Manitoba (as well as the senior judges in that province) have suggested that the federal government restrict or eliminate preliminary hearings altogether. This is despite the fact that in provinces where the data is available, it shows that preliminary hearings make up less than two per cent of the overall cases each year in provincial court.
Where there does not appear to be a consensus is on the most significant root causes of delay in criminal courts and the best measures to address the problems.
“It cannot be business as usual. The Supreme Court has made that clear,” says Kathleen Ganley, Minister of Justice and Solicitor General of Alberta. In response to a public lobbying campaign by the provincial Crown attorneys association, the Alberta government announced in March that 35 new prosecutors will be hired, existing vacancies will be filled and more support staff hired as well. In addition, a “triage protocol” was adopted that requires Crown attorneys to consider various factors including delay and ensuring that there is a proportionality between the seriousness of an offence and the resources used to prosecute.
“We started with the triage protocol, because we had to react quickly to Jordan,” explains Ganley. Other measures include assigning senior Crown attorneys at an early stage for screening purposes so that, where it is appropriate, a resolution can be reached quickly with defence counsel. “We want our first offer to be our best offer and also a fair offer,” says Ganley. At the same time, the goal of the triage protocol is to ensure there are sufficient prosecution resources for the most serious and complex of criminal cases, says the Alberta Justice minister.
James Pickard, president of the Alberta Crown Attorneys’ Association, says that a form of triage has already been in place “for a long time” within the prosecution branch. “What is different for us now is we are expressly to consider resources in making our [prosecutorial] decisions,” says Pickard.
While much of the public attention on the impact of delays in the courts has been focused on the possibility of stays in the most serious of cases, it is not these prosecutions that are a daily problem for justice system participants. “The issue for us is the middle level files,” says Pickard. He explains that these are the prosecutions where the offences are too serious for diversion, but they will either be tried or resolved in provincial court.
More than 95 per cent of criminal cases in Canada are disposed of in provincial court, according to Statistics Canada, which issues an annual criminal court survey. The three most common charges laid are theft, impaired driving and fail to comply with a court order, according to its 2014/2015 survey. Nearly one in three cases is ultimately stayed or withdrawn by Crown attorneys each year (not judges) without going to trial.
Statistics released by the courts in Ontario in 2014 show that there were 57 times as many criminal court cases entering the provincial court system that year as the Superior Court. More than 3,700 criminal proceedings entered the Superior Court system, compared to more than 73,000 civil matters.
For defence lawyers, especially in larger jurisdictions, the delay issues start at the front end, at the time police file charges. Derek Jugnauth, a defence lawyer at Wolch DeWit Watts & Wilson in Calgary, says over-charging by police is a common occurrence. “It manifests itself in two ways: the number of people and duplication of charges,” he says. In a drug case, police may also charge the suspect’s girlfriend. In a gun case, there will be multiple charges related to the same weapon, many of which are likely to be withdrawn at trial, he explains. “The use of both is leverage,” says Jugnauth. He suggests it also creates unnecessary delay as cases wind through the system.
Despite the concerns raised following the Supreme Court decision in Jordan, the 18-month ceiling for a provincial court trial is longer than in the previous framework, and with prejudice playing a much less important role, it could reduce the chance of a successful Charter application for these cases. Ontario Court of Justice data indicates that at the end of 2016, more than 93 per cent of cases in the system were below the 18-month ceiling.
Toronto defence lawyer Greg Lafontaine says that the Supreme Court’s expressed concern over unreasonable delay has not changed in the past quarter century, but the chances of a successful Charter motion on this issue has been reduced. “The rhetoric is the same, but the forgiveness zone [for the Crown] seems to be increasing,” he says.
“When I started, if I had a client in custody and said I want a trial, I could get one in four to six weeks. Now you have to jump through a thousand hoops to get a trial date. You have to fill out forms, have a Crown pretrial and a judicial pretrial to get a half- to one-day trial,” says Lafontaine. “It is a shell game to try to direct delay on the defence.”
Defence lawyers and even numerous judges in Southern Ontario have also long complained about delays in getting standard disclosure in a timely fashion from police in criminal cases that are not complex.
A common frustration is that the format of the disclosure does not work on computers manufactured by Apple. “Why can’t I get disclosure in an MP-4 file?” asks Lafontaine. In one Toronto-area jurisdiction, he recounts, there are no microphones in the booking area of police stations, but audio can be faintly heard from a nearby breathalyzer room microphone for clients charged with impaired driving. “I have to turn it up to 11 to try to hear if they said, ‘I want my lawyer,’” says Lafontaine.
The president of the Ontario Crown Attorneys Association agrees that disclosure from police can be a problem even for prosecutors. “There are sometimes technological issues that need to be looked at,” says Kate Matthews in reference to a new system where disclosure is supposed to be transmitted electronically from police to the Crown.
Matthews has sympathy with another common complaint of defence lawyers in Ontario that it is difficult to get an individual Crown to look at a file in a timely fashion and exercise discretion on what to do with the case. “You need to spend time with cases at an early stage. You can’t get to them, though, if you are in court all day,” says Matthews. In recent years, the Crown policy manual in Ontario that all prosecutors must follow has also reduced the discretion of individual prosecutors for certain types of offences, says Matthews.
Ontario Attorney General Yasir Naqvi announced last December that more Crown attorneys and support staff would be hired to try to deal with delay issues. Matthews welcomed the announcement, but she says the additional resources are being added relatively slowly.
Marion Lane, who served as a provincial court judge in Ontario from 1991 until 2001, agrees that there needs to be more early screening of minor criminal charges. “The dockets are full of charges that are never going to go anywhere,” she says.
In her tenure as a judge, Lane remembers numerous attempts to address systemic delays. The measures would often work for a time and then the same problems would creep back. “The criminal justice system is constantly changing [the participants]. If a party does not buy in, it fails,” she says.
The retired judge suggests that provincial courts have long been under-resourced. “The provinces are left holding the bag every time the federal government or the Supreme Court changes the laws,” she says. According to the Ministry of the Attorney General, federal funding over the past five years covered two per cent annually of the cost of administering the courts in Ontario.
One area where there appears to be widespread agreement among defence lawyers and trial Crowns is that any reduction or elimination of preliminary hearings is a bad idea. Prosecution services in British Columbia and Alberta have increased in recent years the use of the preferred indictment power to send a case directly to trial. Usually, this involves prosecutions with multiple accused or alleged gang or organized crime ties. In Ontario, the deputy attorney general approved 11 direct indictments between Dec. 1, 2016 and the end of February this year — compared to five for the previous 11 months last year.
Pink, who has practised for more than 45 years, says limiting this right of a defendant is not going to make an impact on delay issues. “The preliminary is not a stalling tactic,” he says.
In Alberta, there have already been three Court of Queen’s Bench decisions that found that the 30-month ceiling for a case to come to trial in that court should not be reduced, even if the attorney general exercised its right to eliminate the preliminary hearing. “I don’t think this is fair. This needs to be clarified by the Supreme Court,” says Jugnauth.
The criminal justice section of the Canadian Bar Association, which includes defence lawyers and prosecutors, sent a letter to federal Justice Minister Jody Wilson-Raybould in March, urging her not to enact new restrictions on preliminary hearings.
Kathryn Pentz, chief Crown attorney in Cape Breton and a member of the CBA criminal justice executive, says all sides gain from these hearings. “Preliminary hearings are just as beneficial for the Crown as the accused. It actually helps avoid delays,” says Pentz.
One of the only academic studies into preliminary hearings was conducted in 2005 by Cheryl Webster, a criminology professor at the University of Ottawa. “While there are clearly costs to this criminal procedure [in terms of court time and appearances], these costs appeared to be small as preliminary inquiries did not seem to account for a large portion of the courts’ business,” says Webster.
A greater issue affecting delays is what Webster refers to as a “culture of adjournment” in the criminal courts. “The problem would appear to be systemic in the sense that generalized expectations that adjournments are somehow unavoidable or inevitable are embedded in the daily practices of all of the principal court participants,” she says. As well, a general tougher line on bail across the country takes up more court resources at the earliest of stages, she says.
There is one province where different policies appear to be successful in reducing at least some of the delay issues in the criminal courts.
B.C. is one of only a few provinces where there is pre-charge screening by the prosecution, after police present a report to Crown counsel. It is up to the Crown to decide if charges are laid and which charges are issued.
Defence lawyer Michelle Daneliuk says she believes this is a more efficient method than having police file charges. “Charge approval has been very important in dealing with delay,” says Daneliuk, a Victoria-based lawyer and co-chairwoman of the criminal defence committee for the Trial Lawyers Association of B.C.
In certain cases, defence counsel can also approach a prosecutor in advance of charges being filed and discuss resolutions such as diversion if it is appropriate in the case. Even though the Jordan case actually originated in B.C., “I don’t generally see the delay issues here that it is meant to address,” Daneliuk says.
Kevin Marks, president of the B.C. Crown Counsel Association, says charge screening also encourages communication between police and the prosecution. “Police need to provide all relevant information. I am not going to lay a charge until I have everything,” says Marks.
The other major difference in B.C. is in its handling of so-called “over 80” impaired driving cases, which are now almost exclusively handled through immediate administrative penalties, including suspensions of drivers’ licences.
The measures have been upheld by the Supreme Court, are endorsed by organizations such as Mothers Against Drunk Driving and taken more than 80 per cent of impaired driving cases out of the criminal courts in B.C. The changes were controversial when introduced in 2010, but there are also fewer impaired driving fatalities on the roads in B.C. since they were enacted, according to data released by the province.
So far, in responding to the Supreme Court’s attempted wakeup call last year, there have been promises of action by provinces and additional funding pledged. What remains to be seen, though, is whether the so-called “middle cases” — the bulk of criminal prosecutions that never attract public and media scrutiny — will be processed in a fundamentally more efficient way.
Mills v. The Queen (1986)
The case was the first time that the Supreme Court was asked to interpret s. 11(b) of the Charter. In a split decision, the court dismissed an application to stay charges based on 19 months of delay leading up to a preliminary hearing — which was not the fault of the accused. The majority concluded that only a trial judge has jurisdiction to grant an 11(b) remedy and not at any earlier stage.
R. v. Rahey (1987)
The accused was facing income tax evasion-related charges. The unreasonable delay issue was over the 11 months it took the trial judge to issue a ruling on a directed verdict motion, following numerous adjournments by the judge. The Supreme Court unanimously agreed there was a Charter breach and the charges should be stayed because of the delay caused by the trial judge. Four separate concurring decisions set out different ways to analyze whether delay is reasonable. All agreed that prejudice as a result of delay is a factor to consider. Chief Justice Brian Dickson stated that unreasonable delay once a trial has begun could also result in a Charter breach.
R. v. Askov (1990)
The trial in this case, for multiple defendants, was set for nearly two years after the preliminary hearing and almost three years after charges were laid. The majority decision stressed that there is a public interest not only for the accused but for witnesses and victims that a trial takes place in a fair, quick and efficient manner. The longer the delay, the more difficult it should be for the court to excuse it, but the majority said there is no fixed time as to when delay breaches the Charter. However, the majority also said that institutional delay beyond eight months after a preliminary hearing to the time of trial is likely too long.
R. v. Morin (1992)
The Supreme Court is asked to revisit its findings in Askov, which resulted in tens of thousands of charges being stayed in Ontario alone. Various factors are set out by the court for judges to consider when assessing delay. They are the length of delay, waiver of time periods, reason for the delay, in inherent time requirements, limits on institutional resources as well as the actions of the defence and the Crown. The majority stated that institutional delay of about eight to 10 months before a preliminary hearing is acceptable. After committal for trial, the institutional delay should not exceed another eight months, as stated in Askov. At the same time, suggested time periods are only for guidance. Both the defence and the Crown can rely on evidence to show prejudice to the accused or to dispel it.
R. v. Jordan (2016)
The majority judgment in the 5-4 ruling stated that a culture of complacency in the courts has come to tolerate excessive delays and as a result a “change of direction” is required. The Morin framework is too unpredictable and complex, stated the majority. Instead, a new framework of 18 months for cases tried in provincial court and 30 months for those in Superior Court was substituted. Delay beyond these periods is presumptively unreasonable. To rebut the presumption, the Crown must show there were exceptional circumstances. Prejudice no longer plays an explicit role in the 11(b) analysis, the majority said. The dissent, written by Justice Thomas Cromwell, argued that “reasonableness” cannot be captured by a number and requires a contextual analysis. As well, the Charter right is to be tried within a reasonable time, not a right to a “trial under the ceilings.”
Published in Canadian Lawyer Cover Story