Trial dismissals not widespread, study finds
Stay of proceedings climbs to 50% from 38%, but not all applications due to ruling
OTTAWA— Fears that a Supreme Court of Canada decision would lead to thousands of cases being tossed out of court nationwide dominated the Canadian political stage Monday, but they have not been borne out in reality according to a new analysis by a Dalhousie University law professor.
Stephen Coughlan and Jessica Patrick, a student at the Shulich law school, took a hard look at the criminal court decisions reported in legal databases for the six months prior to last July’s Jordan decision, and the six months after it. They found Canada’s judges are not tossing out cases left, right and centre, rather they are halting trials under the new legal framework that would have been halted under the old framework, too.
Their analysis generated a list of 69 cases pre-Jordan, where a court was asked to issue a stay of proceedings due to unreasonable delay. Of those, only 26 were granted, or 38 per cent.
The analysis shows that post- Jordan, there were 101 cases where a judge was asked to decide on an unreasonable delay application by an accused. Of those, 51 applications were granted, or 50 per cent. It’s a higher rate overall, said Coughlan, but it’s not the tidal wave that many feared.
“Jordan has made everybody involved in the criminal justice system worried about delay and doing things in order to make sure cases that are brought to trial quickly, and that there will not be successful stay applications,” Coughlan said. “But it hasn’t resulted in very many successful stay applications.”
“So from my point it’s done exactly what it should: it’s given us the benefit of making everybody work to speed up the system, without the cost of lots of cases being thrown out.”
In the Jordan ruling, the Supreme Court of Canada rewrote the ground rules for expectations about what a speedy trial looks like, and what constitutes an unreasonable — and therefore unconstitutional — delay.
In a 5-4 decision it said most trials in lower provincial courts should be wrapped up in under 18 months, while charges in superior trial courts should be completed in 30 months. That decision comes up for review in a separate appeal this month at the high court. The high court anticipated a period of transition. For cases already in progress when the new expectations were suddenly set out, the high court provided transitional considerations or exceptions — in effect directing judges to look at the cases under the old framework, Coughlan said.
It was precisely to avoid what happened in the 1990s when another ruling on unreasonable delays, known as Ascov, led to thousands of cases being withdrawn by Crown prosecutors or stayed by judges.
“And judges have taken that to heart,” Coughlan said. Based on their analysis of all the cases decided in the first six months after Jordan, he said there has not been a single decision where a trial judge has granted a stay solely because of Jordan.
Defence counsel are “more emboldened to bring delay applications,” Coughlan said, “because it seems worthwhile again, but there’s not all that much more in terms of successful applications.”
Most of the successful efforts to have criminal charges stayed because of unreasonable delay were in Ontario. Coughlan said of 49 undue delay applications in this province, the number of stays granted was 23, or 47 per cent. Coughlan’s analysis takes account of cases up to Jan. 8, 2017. (Their national analysis omitted 13 cases that were available only in French, they said.)
The picture Coughlan paints is similar to what Ontario said it has found in its internal reporting.
In Ontario, the attorney general’s office said its internal reporting from its criminal law division, between July and Dec. 31, 2016 shows there were approximately 250 applications filed, with 48 stays granted — a success rate of 19 per cent. That’s even lower than Coughlan’s analysis.
Coughlan said the difference may be explained by a lag in judicial decisions being reported in the case law database that they relied upon for their analysis.
What is surprising is the federal Justice Department is not tracking the impact of the ruling. Justice Minister Jody Wilson-Raybould said she’s trying to work closely with provincial and territorial counterparts to understand its impact.