200-plus cases tossed since land­mark rul­ing by Supreme Court

The Hamilton Spectator - - CANADA & WORLD - LAURA KANE

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.

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.

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.

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.

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.

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.

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