Com­ing to a court near you …

The Compass - - EDITORIAL -

In Win­nipeg, it al­ready in­cludes photo radar speed­ing ticket cases.

In On­tario, it’s been drunk driv­ing cases; one on Thurs­day is al­most cer­tainly the be­gin­ning of many more. It might be as many as 400 court mat­ters in Al­berta across a range of cases.

And it’s all a trickle-down from a July Supreme Court of Canada de­ci­sion known as R v. Jor­dan.

Get ready to hear about it in your town.

The Man­i­toba cases in­volve High­way Traf­fic Act in­ci­dents where al­leged speed­ers were tracked and is­sued sum­monses by mail. The prob­lem is, when they de­cided to fight the cases, de­lays in the Man­i­toba court sys­tem meant it took more than a year to have their day in front of a judge.

The drunk driv­ing case in On­tario? Al­most 18 months be­tween the charge and the court date.

The Jor­dan de­ci­sion is a de­ci­sion that adds to al­ready-ex­ist­ing law cen­tred around the right of any­one who has been charged with an of­fence within a rea­son­able amount of time. It’s some­thing the Supreme Court has dealt with be­fore, and peo­ple are prob­a­bly used to hear­ing that a case has been dropped be­cause it sim­ply took too long to be heard. Mem­o­ries fade, and for those who are charged, lives are put on hold.

The court has ar­gued in the past that judges have to weigh the amount of time it takes for cases to get through the court sys­tem, and if it’s too long, they have no choice but to en­ter a stay of pro­ceed­ings, mean­ing who­ever’s been charged goes free.

This time, though, it’s dif­fer­ent. Af­ter hear­ing a case in­volv­ing a dial-a-dope-dealer case in Bri­tish Columbia, five of nine of the court’s judges made the point that hav­ing judges de­ter­mine the ins-and-outs of pre­trial de­lay wasn’t work­ing; pro­vin­cial jus­tice sys­tems weren’t mov­ing to ac­tu­ally solve the prob­lem of jus­tice sys­tem de­lays.

A big prob­lem? In­sti­tu­tional de­lay, the slow-as-mud work­ings of the court sys­tem it­self.

The ma­jor­ity on the court ar­gued that’s wrong, say­ing “Cana­di­ans there­fore rightly ex­pect a sys­tem that can de­liver qual­ity jus­tice in a rea­son­ably ef­fi­cient and timely man­ner.” And that sys­tem, they ar­gued, “has lost its way.”

So the judges have put in place what’s called a pre­sump­tive test: for most cases in pro­vin­cial court where the de­lay’s 18 months or more, the pros­e­cu­tion will have to prove de­lays aren’t their fault. In crim­i­nal cases in pro­vin­cial Su­pe­rior Courts or where there’s been a pre­lim­i­nary in­quiry, the al­low­able de­lay will be 30 months.

If the de­lay can’t be ex­plained, the charges have to be dropped.

Now, the chick­ens are start­ing to come home to roost.

And brace your­self for plenty more chick­ens.

There’s go­ing to be a big bump in dis­missed charges as pro­vin­cial jus­tice sys­tems adapt to the new re­quire­ments.

A quick scan through court cases in the At­lantic re­gion doesn’t find many cases that have been stayed yet — there’s a men­tion of the new rules in a Grand Bank, N.L., case, and in Nova Sco­tia, a trio of dis­missals: two drug charges and an im­paired driv­ing charge. (The im­paired charge would have been dis­missed even un­der the old rules about de­lay — it took five years to get to court, and was fi­nally over­turned in July, al­most nine years af­ter charges were first laid.)

Chances are, that trickle of cases is only the thin edge of the wedge. The hope is, as ev­ery­one, in­clud­ing pro­vin­cial gov­ern­ments, rec­og­nize their re­spon­si­bil­i­ties to­ward en­su­ing due process, things will ac­tu­ally get faster and bet­ter.

But for the next year or so, don’t be sur­prised by the fact cases will be deemed to have gone on for just too long to be fair.

Rus­sell Wanger­sky is TC Me­dia’s At­lantic re­gional colum­nist. He can be reached at rus­sell.wanger­sky@tc.tc Twit­ter: @Wanger­sky.

Rus­sell Wanger­sky East­ern Pas­sages

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