Award costs, reduced sentences when trials delayed unduly, senators say

OTTAWA — 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 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 Wilson-Raybould 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.

“So I think it’s going to take some time to do many of these changes and to change the culture within the system, but I think that if the government responds in a positive way, hopefully this is an option that can at least remove that, I think, very genuine concern about people walking free from serious, serious crimes.”

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.

The counsel representing Cody, meanwhile, argued that the delay would have been considered unreasonable even before the Jordan decision.

“There was no evidence that the parties would have behaved differently,” the appellant argued in a legal filing.

The report also recommends tackling judicial delays in a number of other ways, including by having the federal government fill a judicial vacancy the same day a Superior Court judge retires.

The Liberal government has said that in addition to appointing more judges, it is looking at other policy areas for possible solutions, including eliminating some mandatory minimum penalties, changes to bail, preliminary inquiries and the reclassification of offences.