Top court wants justice to be swifter for accused
New ‘ceilings’ on time between charges and trial
The Supreme Court of Canada has fired a rocket up the collective rear of the somnolent justice system and the key players in it.
In a pair of decisions released Friday, both of which upheld stays of proceedings against two accused men because of the length of time it took to get to trial, the high court imposed new “ceilings” on how long cases will be allowed to linger in the system.
And from now on, the court said, it will be presumed that accused people who are caught too long under the proverbial slowgrinding wheels of justice “will have suffered prejudice,” instead of their lawyers having to prove it.
Moreover, the court was sharply critical of “the culture of complacency within the system towards delay” and warned that its new regime “is not an aspirational target.”
As the judges wrote, “the ceiling will not permit … the courts to operate business as usual … the current approach … does not encourage good behaviour.”
As with all Supreme Court decisions, these have sweeping national effect.
Across the country, the busiest courts and the ones that handle most criminal cases are the provincial courts; they now will have 18 months to get a case from charge to trial.
In the superior courts — each province and territory has one and though they have different names, they handle all jury trials and thus the most serious charges, such as murder — the upper limit will be 30 months.
As the majority noted in establishing the new regime, in the main case, a British Columbia “drug case of modest complexity,” so embedded is the glacial pace of the courts that though it took more than four years — 49.5 months — to bring Barrett Richard Jordan to trial, both the original trial judge and the B.C. Court of Appeal cheerfully found that was perfectly reasonable.
That’s because until Friday, courts were using a complicated analysis found in a 1992 Supreme Court case called R v Morin, which established guidelines for tolerable institutional delay, a complex scheme to assign responsibility for the delay and placed a burden upon the defence to show that the accused suffered prejudice because of it.
Under R v Morin, only then would a judge find that the accused’s rights under Section 11(b) of the Canadian Charter of Rights and Freedoms — essentially the right to a reasonably speedy trial — had been breached.
As the high court put it, Morin led to a sort of microanalysis that often saw “each day of the proceedings from charge to trial … argued about, accounted for, and explained away” — a situation, in other words, where any and all delay, no matter how egregious, could and would be found acceptable.
But the significance of chronically delayed trials is not only about “how much suffering an accused has endured,” the court said, but also about the damage a creakily moving system does to public confidence in the justice system.
“And public confidence is essential to the survival of the system itself, as a fair and balanced criminal justice system simply cannot exist without the support of the community,” the judges said.
But in the almost quartercentury since Morin, the court said, “the system has lost its way. The framework set out in Morin has given rise to both doctrinal and practical problems, contributing to a culture of delay and complacency towards it.”
The new regime proposed by the majority (the decision to stay proceedings against Jordan was unanimous, but four judges, including Chief Justice Beverley McLachlin, disagreed with the new ceilings) will hold accountable all the players in the system — police, prosecutors, defence lawyers, judges and government — because, for the first time, everyone knows in advance what kind of delay will be tolerated.
And all of them will be expected to be proactive about preventing delay, from streamlining charges to weighing the efficacy of trying multiple defendants together, to whittling down pre-trial motions.
If the delay in getting to trial exceeds the ceilings, “then the delay is presumptively unreasonable,” and prosecutors will have to prove there were exceptional circumstances (such as medical emergencies or extradition of the accused) in order to avoid the charges being stayed.
The court also took steps to avoid a repeat of what happened in the wake of R v Askov, a 1990 Supreme Court case that saw “tens of thousands of charges” stayed as a result of the abrupt change in the law.
For cases now in the system, where “it is not fair to strictly judge participants in the criminal justice system against standards of which they had no notice,” the new regime allows for “a transitional exceptional circumstance” where charges were brought before Friday’s decision.
If the case was proceeding within the old guidelines under R v Morin, the court said, the exception will apply.
But “if the delay in a simple case vastly exceeds the ceiling” because of prosecutorial mistakes, it might still be found to be reasonable.
“Ultimately, for most cases that already are in the system, the release of this decision should not automatically transform what would previously have been considered a reasonable delay into an unreasonable one,” the judges wrote. “Change takes time.”
But change is clearly what the high court wants.
In the companion decision — an Ontario case involving a man named Kenneth Gavin Williamson, whose convictions on historical sexual offences against a child were stayed — it took almost three years to get to trial.
At one point, Williamson showed up for his scheduled preliminary hearing, only to learn the assigned judge was booked on another matter.
The judge made himself available in the afternoon, but by then the prosecutor had cancelled his witnesses — and another three months were lost.
Acknowledging the charges were grave, and that this case was a close call, the majority nonetheless found that “timely justice is one of the hallmarks of a free and democratic society.
“This case is an example of how delay works to the detriment of everyone.”