Don’t stay
Award costs, reduce sentences when trials delayed unduly, senators say
The Liberal government needs to establish a different consequence for cases that take too long to make their way through the courts to prevent those accused of sexual assault or murder from walking free without a trial, a Senate committee says.
The Liberal government needs to establish a different consequence for cases that take too long to make their way through the courts in order to prevent those accused of sexual assault or murder from walking free, a Senate committee says.
“We’re saying for very serious cases, this is a shock to the conscience of the community,” said Sen. George Baker, a Senate Liberal and deputy chair of the standing Senate committee on legal and constitutional affairs.
“This brings the administration of justice into disrepute in the eyes of the Canadian public.” The Supreme Court’s groundbreaking Jordan decision last summer set out a new framework for determining whether a criminal trial has been unreasonably delayed to the point where it has violated an accused’s charter rights.
The high court cited a “culture of complacency” as part of the problem, and imposed a ceiling of 30 months for a case to make its way through superior courts, and 18 months for provincial courts.
Wednesday’s report — titled: “Delaying justice is denying justice” — points out that a stay of proceedings is currently the only remedy for a trial that goes on too long, and recommends reduced sentences or the awarding of costs as other solutions. The senators recommend Attorney General Jody WilsonRaybould refer those proposed changes to the Supreme Court to determine their constitutionality. Wilson-Raybould said Wednesday that she has raised the idea of alternative remedies
to unreasonable delays in her discussions with provincial and territorial justice ministers about how to tackle the issue.
“It is something that we have considered and will continue to consider to see if it can assist in contributing towards relieving the delays,” she said.
The Supreme Court ruling came with a transitional measure for cases already in the system, although a dissenting minority opinion argued the new time limits could lead to thousands of prosecutions being tossed out. Conservative Sen. Bob Runciman said the committee is concerned that the problems will not be fixed quickly enough to
prevent that from happening.
“We’re talking about a pretty big ship here that is going to take some time to turn around,” said Runciman, chair of the committee.
The “culture of complacency” isn’t solely a justice system problem, he added.
“I think you can apply that to governments as well with respect to the way they failed to respond to this over the decades, really,” Runciman said. Many observers are hoping the high court will clarify its controversial ruling — especially when it comes to how judges should deal with these transitional cases — on Friday, when it is scheduled to release
its decision on a drug case involving unreasonable delays. The case involves James Cody, a man accused of drug trafficking, who was granted a stay by a judge due to unreasonable delays before his trial began. The Newfoundland and Labrador Court of Appeal overturned that decision, but Cody appealed to the Supreme Court.
The Crown is arguing that if prosecutors had known that the way the courts handle delays was going to change, they might have done things differently. “It would not now be fair to go back and re-characterize delay that was reasonable as unreasonable,” it said in a legal filing to the high court.