Courts shaken by search for solutions to delays
A heretical idea is gaining traction as lawmakers seek to overhaul an unwieldy system: Maybe the justice system cannot do everything. Maybe it cannot prosecute every crime, Sean Fine reports
This story was originally published in March of 2017. In June, 2017, a ruling by the Canadian Judicial Council gave the country's chief justices the green light to help solve court delays.
Barrett Jordan sold hard drugs as if they were pizza. Customers in Surrey and Langley, B.C., could phone in, place an order for cocaine or heroin, and a delivery person would come to their door. The Mounties made six phone calls in seven months, then showed up at his own door, finding drugs, cash and a work schedule for his delivery staff. He was charged with possession for the purpose of trafficking in December, 2008.
His appeal on the grounds of unreasonable delay, known as R. v. Jordan, is now sending tremors through the Canadian legal system. A simple enough crime, it took more than four years to prosecute. The Supreme Court of Canada used that delay to try to fix more than a quarter-century of snail's-pace justice.
It was not the first time the Supreme Court had tried to rein in an unwieldy system. The first time was a catastrophe. In 1990, the court set unrealistic time guidelines in its decision in a delay appeal case known as R. v. Askov, and within a year, judges threw out 47,000 charges against 25,000 people in Ontario alone. (In a subsequent case, the court softened the guidelines, and the courts went back to business as usual.)
The Supreme Court did not want to turn the system upside down again. Its July, 2016, ruling in the Jordan case set deadlines of 18 months for trials in provincial court, and 30 months in superior court – but offered an argument called a "transitional exceptional circumstance" in the hope of preventing another Askov situation for cases already in the system. In a case of delay, prosecutors could argue they were operating under the rules that were in force when the charge was laid. Reasonable delay was not meant to become unreasonable overnight.
After the ruling, all hell broke loose.
The Supreme Court had upped the ante: It said the seriousness of a crime does not matter in decision on whether a delay is reasonable. Society's interest in having a serious crime prosecuted could no longer be weighed. Even murder charges could fall.
And they did. Just four months after the ruling, two men, one in Alberta and one in Ontario, had been freed from charges of first-degree murder because of delay – the transitional exceptional circumstance argument did not succeed. It was the system's nightmare, and worse might be ahead. In Ontario alone, 6,500 cases in Provincial Court were beyond the 18-month threshold, of which 38 were homicide or attempted murder.
As the search for solutions begins in earnest, the justice system is being shaken to its foundations. Alberta prosecutors dropped 200 cases in two months to make sure no more murder cases fall by the wayside. In Manitoba, the chief justices of three levels of court and the province's Attorney-General proposed an experiment to dispense with preliminary inquiries – a bulwark of the system. In Nova Scotia, best-offer plea bargains are to be the norm in low-level cases, and possibly in mid-level cases soon, in a collaboration of the judiciary, prosecution, police and defence.
Policies such as mandatory minimum sentences, 60 of which were created by the former Conservative government, are no longer debated primarily on philosophical grounds. The federal Liberal government sees them now as unaffordable because they make plea bargains difficult, and lead accused people to fight to the end.
And a heretical idea is gaining traction: Maybe the justice system, like health care, cannot do everything. Maybe it cannot prosecute every crime.
'Mad as hell'
Justice Michael Moldaver had long felt the justice system was out of control. In a speech in 2005, when he was a judge on the Ontario Court of Appeal, he called long trials a "cancer." The next year, in another speech, he invoked the half-mad character played by the late Peter Finch in the movie Network. "We can throw up our hands in despair and cry 'c'est la guerre,' or we can come together and say, 'We are mad as hell, and we are not going to take it any more.'"
He had been on the Supreme Court for four years when the Jordan case arrived in 2015. As Mr. Jordan's lawyer, Eric Gottardi of Vancouver, addressed the judges, Justice Moldaver asked what he would think of time ceilings. Mr. Gottardi had been seeking only some repairs to the old rules.
The usually eloquent lawyer stumbled. "I don't know, it's probably better than what we have now."
"What about 30 months?" Justice Moldaver replied.
"I don't know – how about 24?" Mr. Gottardi said.
A curious majority formed around Justice Moldaver; the left- and right-wing poles of the court came together. The authors of the ruling, along with Justice Moldaver, were Justice Russell Brown, former prime minister Stephen Harper's final appointee and the most right-wing of all his choices, and Justice Andromache Karakatsanis, who is centre-left and a former deputy attorney-general of Ontario. They were joined by Justice Rosalie Abella and Justice Suzanne Côté, frequent dissenters, respectively, from the left and right.
They wrote that the justice system has a "culture of complacency and delay" and that the Supreme Court itself is partly to blame. They looked back to 1991, when the court, aghast at results of the Askov decision, took a more flexible approach in the case R. v. Morin: Accused persons would have to prove delay harmed them. In 2016, the majority called those guidelines confusing and unpredictable – a "dice roll."
"Participants in the justice system – police, Crown counsel, defence counsel, courts, provincial legislatures and Parliament – are not encouraged to take preventative measures to address inefficient practices and resourcing problems," the majority said.
They were creating a vast reform project. The activists of the left and right were behind it.
The court's true conservatives turned out to be those in its broad centre.
Writing for the dissent was the judge probably closest, most often, to its philosophical centre: Thomas Cromwell, now retired. Joining him were two members on the moderate right, Justice Richard Wagner and Justice Clément Gascon. Chief Justice Beverley McLachlin, fearless when she believes the law needs to evolve or when a right must be protected from government, but also very careful about what she sees as the court's proper role, was the final dissenter.
All judges agreed on one major point: the 49.5 months it had taken the Jordan case to be completed was unreasonable delay. The nine judges unanimously threw out his convictions.
On everything else, they disagreed. Why, Justice Cromwell asked, make drastic changes when existing precedent is enough to rule the delay unreasonable? And where in the world had judges ever set specific time limits before? (In U.S. government and some states have statutory, although somewhat flexible, time limits.) He said the court had little data to go on and had not exposed the new ideas to proper debate.
Even Mr. Jordan's lawyer, Mr. Gottardi, told The Globe and Mail he agreed with Justice Cromwell on this point.
"I agree with a lot of the things Justice Cromwell said in terms of the evidentiary record not being as complete as you might want it to be factually from across Canada to make the kind of change that the majority made."
Justice Cromwell, on behalf of the dissenters, said it is Parliament's role to make such numerical rules. He quoted from three famed judges of earlier eras – Antonio Lamer, Claire L'Heureux-Dubé and John Sopinka, each of whom had sharply different views on criminal law, and each of whom warned against setting specific timelines. Criminal cases are too fact-specific, too individual, to set rigid rules, they said. The dissenters did not agree about a "culture of complacency and delay," pointing to provinces that had established high-level teams to diagnose the system's ills and make changes. And the dissenters said society's interest in punishing serious crime should matter in deciding whether a delay was unreasonable.
They also warned the majority was risking thousands of stays, and it was "illogical" to suppose things would get better over time.
But the five judges were unwilling to back off. Hadn't the trial judge and the B.C. Court of Appeal called the 49.5-month prosecution of Mr. Jordan reasonable? Didn't that show how the system accepted delay?
Delay would now be presumed to be harmful to everyone (the accused, victims, society, the administration of justice); no one had to prove harm.
The Jordan case arrived when the Supreme Court was refusing to be shackled by precedent. In the previous three years, the court had overruled itself on prostitution, physician-assisted death and labour rights. Precedent no longer means as much, Osgoode Hall law professor Jamie Cameron said. "That is the culture of recent years, and from that perspective, it likely made perfect sense for the Jordan majority," Prof. Cameron said in an e-mail.
The majority did not shrink from applying the new principles, no matter how serious the crime. In the case known as R. v. Williamson, a man had testified that from age 10 to 12, he had been raped 100 times by a mentor from a teacher's college. Kenneth Williamson was convicted of historical sexual offences and sentenced to four years in prison. But the Supreme Court, ruling at the same time as Jordan, threw out the conviction over a delay only slightly longer than 30 months. (The case did not meet the "transitional exceptional circumstance.")
Murder charges fall
Less than three months after the Jordan ruling, an Alberta judge dismissed a first-degree murder charge against Lance Regan, a prisoner at Edmonton Institution accused of fatally stabbing 21-year-old Mason Montgrand. His trial had taken more than five years and still was not over. The defence was responsible for 24 months of that. (The Jordan decision does not include defence actions in calculations of delay.) The judge deemed the total delay of 38 months unreasonable.
Even in prisons, word spread. In Ontario, Adam Picard, in the middle of legal proceedings on a charge of first-degree murder, raised the Regan case with his lawyer. In November, a judge threw out the charge related to the 2012 shooting death of Fouad Nayel, a construction worker who had been found dead in a wooded area. Two days after the ruling, Mr. Nayel's mother, Nicole Nayel, and 35 others stood outside the Ottawa courthouse with protest signs. "I lost my son, and I'm losing to the system now," she told The Globe.
The cases exposed a system vastly unprepared for the Jordan case.
To schedule a three-day preliminary inquiry – a hearing to ensure prosecutors have enough evidence for a trial – the wait was 14 months in Mr. Regan's case. Ten months into the wait, the judge in the case said, the prosecution woke to the dangerously slow pace, and went for a "direct indictment," bypassing the preliminary inquiry and going straight to trial.
But pushing one case forward could only slow others; there simply were not enough judges to hear them all. "It is fair to assume that the reason the Crown did not seek to pre-empt other cases to accommodate this matter was because of the long standing shortage of judges …," Justice Stephen Hillier of the Court of Queen's Bench wrote in his ruling. "It would be equally fair to assume that it advances nothing if pre-empting simply shifts the problem to another case."
The federal Liberals, then completing their first year in office, had appointed just 15 judges. Vacancies across Canada on federally appointed courts (which include the provincial superior courts) had hit 61, higher than at any time during Mr. Harper's 10 years in power. Alberta had seven vacancies on its Court of Queen's Bench, where nearly 15 months was needed to schedule a trial of five days or more.
It was not a time for niceties, even from the usually staid judiciary. "It's inexplicable to me," Chief Justice Neil Wittmann of the Court of Queen's Bench told The Globe, referring to the lack of judges. "I do not understand that. If you were running any other kind of an industry or an enterprise, and you needed so many people to make it function properly, if people left, you'd hire into that position. And if that position was an important one, you'd do it quickly."
By early this year, criminal-defence lawyers had applied for stays in 800 criminal cases, with the highest number – 514 – in Quebec, according to a Globe and Mail survey of attorneys-general. The numbers included more than a dozen cases of murder, attempted murder and manslaughter. In Ontario, 6,500 cases in Provincial Court were past the 18-month mark.
Quebec was especially slow. Last April, François Rolland, a retired Superior Court chief justice, told the Senate legal affairs committee, which is studying delays in the justice system, that the situation in Montreal was desperate. The Senate has been studying the problem since before the Jordan ruling, and is expected to make recommendations in a few months.
"I called my former colleague who is responsible for the criminal division, the Honourable Marc David," he explained. "As of right now, or in just a few days, it will no longer be possible to schedule any more trials by jury for 2017. The schedule is already full everywhere. There are still a few dates available in 2018 – yes, just a few – and there is already one trial scheduled for 2019."
That was the world the Jordan case was meant to fix.
Automatic or not?
The time ceilings have some flexibility. But the remedy – the legal system's response to a violation of the right to be tried within a reasonable time – has none.
If a judge rules that a trial delay has been unreasonable, the criminal charge or conviction must be tossed out.
The answer goes back to the early days of the Charter of Rights and Freedoms, when the Supreme Court heard one of the first appeals based on the charter's newly created right to be tried within a reasonable time. In R. vs. Rahey in 1987, the Supreme Court ruled on the case of a Nova Scotia man, Carl Rahey, who had been charged with filing false income-tax returns. The trial judge initiated 19 adjournments over 11 months. For nine of those months, the defence did not object. The Crown said the defence could therefore not claim unreasonable delay. But the Supreme Court said the accused was wise not to object when the judge wanted to adjourn.
Supreme Court Justice Antonio Lamer (a future chief justice well-known for defending the rights of accused people) wrote that no trial for Mr. Rahey or anyone else is possible past the point that delay becomes unreasonable. "If an accused has the constitutional right to be tried within a reasonable time, he has the right not to be tried beyond that point in time, and no court has jurisdiction to try him or order that he be tried in violation of that right."
But some judges now disagree.
On Thursday, Ontario Superior Court Justice Casey Hill appeared before the Senate committee. At his request, the hearing was held in camera. He said he does not believe a stay should be automatic when the right to timely justice has been violated, deputy committee chair George Baker told The Globe.
"Very few people even address that question," Mr. Baker, appointed as a Liberal, said in an interview. "We discovered from speaking to judges in Great Britain and Europe that what they have as a remedy goes to sentencing and to costs, and in some cases to damages." When there's an unreasonable delay and an accused is found not guilty, financial damages plus costs are awarded. For convictions, the sentence can be softened, and costs awarded.
Mr. Baker likes that approach, and is searching for ways either the Criminal Code or some other mechanism could ensure a stay is not automatic.
"Does it make sense to have in law a requirement that even if someone is convicted of a crime and is therefore guilty of a crime, that the entire offence would be erased with no record it ever took place? That stands out as a major question facing Canadians today – in the case of murder and these really serious crimes. The less serious crimes, yes, a stay would be justified in some cases."
Justice Hill did not suggest ways to change the automatic-stay rule, Mr. Baker said. Later, in a public session, legal scholar Peter Hogg told the committee federal Justice Minister Jody Wilson-Raybould could refer a question to the Supreme Court of Canada on the appropriateness of the remedy of a stay, "given the present reality of hundreds, perhaps thousands, of cases involving serious crimes that stand to be stayed," Mr. Baker said in an e-mail.
Just over a decade ago, Canadian health care went through a massive rethink. You could not just pour money into it, went the thinking (although the Liberal government of the day did that, with a 10-year escalator clause of 6 per cent annually). Waits had to be reduced for hip replacements and cancer care. Supports had to shift to the home for seniors. Primary care had to be revamped. And so on.
Now, some say the justice system needs a similar rethink. Abolish or limit preliminary inquiries, Manitoba, Ontario and Alberta say. Change the legal test in preliminary inquiries to make it harder to commit an accused to trial, defence lawyers say. Prevent weak cases from coming into the system by letting Crowns, rather than police, lay the charges, some defence lawyers and prosecutors say. (Who lays charges varies by province.) Deal with impaired-driving mostly as an administrative offence, at least for first offenders, as British Columbia does, others say. And do the same with other offences.
"When citizens see the files that [come into the system]," Montreal criminal-defence lawyer Daniel Lighter said in an interview, "they're shocked that these are criminalized. Some ladies fighting over a parking spot, and one saying to the other 'you bitch,' and before you know it – 'you threatened me.' I've had a file of a mother with a child in a sandbox, two five-year-olds, and the mother said, 'Don't hit Johnny,' and the mothers got into a scrap, and that became a trial of a threat. It's ridiculous."
Just as some provinces have "delisted" some health-care services – stopped paying for them – Mr. Lighter says that so, too, should the justice system find other ways to deal with first offenders for a simple assault, or shoplifting.
Instead of a criminal prosecution, he says, community-service orders could be made in an "alternative measures" program. "It does exist, it's just that it's used so infrequently. It's always been a mystery to most of us why one shoplifting case goes that way and another one doesn't. No one is going to congratulate someone for shoplifting. Typically, you get a letter; they'll keep a file; they warn you that if you're caught again, you'll be charged.
"Let's be a little more creative in how we use our limited resources. Jordan is an exciting judgment in the short term for defence lawyers and those in the system, but I think it can be a very exciting judgment to instigate conversation more generally."
His view has proponents among the judiciary.
"I'd like to see more emphasis on triage, because the current advocacy system between prosecutors, defence lawyers and judges doesn't really encourage asking the fundamental question, what brought the person before the court," Alberta Provincial Court Chief Judge Terrence Matchett told the Senate committee.
That fits with the idealistic view Ms. Wilson-Raybould set out in a speech to the Criminal Lawyers Association in October: "What if an offender's first interaction with the criminal-justice system did not become the first in a long series? What if it triggered supports designed to address the underlying factors that influenced the criminal behaviour in the first place, supports such as housing and shelter, assistance for mental illness and addiction, or an off-ramp to structure and support from an Indigenous community?" Long term, she said, she is committed to achieving that. "In this way, the criminal-justice system can be freed up to tackle truly serious crime in a timely way."
But federally appointed courts still have 62 vacancies. Ms. Wilson-Raybould was on the defensive at the Senate committee this week over the slow pace of appointments.
Freeing up the system for serious crime has meant dropping some cases. In Alberta, prosecutors said charges against at least 200 people have been dismissed – including 18 for impaired-driving, weapons offences and even the assault of a peace officer – because there are not enough prosecutors. Other provinces, such as Ontario and Quebec, have poured more money into their justice systems. In Alberta, with the oil slump, pressure for change from within is great.
And a triage protocol issued this week tells Alberta's prosecutors that, even when dealing with major crimes of violence, including murder, they need to weigh the time, effort and expense. "The implementation of triage is not simply a matter of attaching priority or ranking caseload, but determining which cases will not proceed to a prosecution," the protocol says.
That was new for prosecutors.
"The fiscal realities of any particular government are far down the list for us when we consider how to proceed with a case," Jennifer Lopes, vice-president of the B.C. Crown Counsel Association, said in an interview.
On Thursday, however, a day after The Globe made the new protocol public, Alberta Justice Minister Kathleen Ganley announced the department was hiring 50 additional prosecutors and 30 court clerks.
A kick in the pants
The man who sold drugs like pizza has helped focus minds. Judges are at times refusing to grant adjournments, even when both the Crown and defence ask for one. Jury trials are being scheduled in the summer. Judges are pressing defence lawyers to set early dates or get off the case if they cannot be ready.
At times, defence and Crown are at loggerheads; defence lawyers have complained of "strong-arm" tactics from judges and prosecutors. At other times, innovation and collaboration emerge.
Forty years ago, Ian Greene, a professor at York University, wrote his PhD dissertation on delay after interviewing 40 judges, plus lawyers, Crown attorneys and administrators.
"The most important thing I found was that all of these groups blamed each other," he told the Senate committee.
Little has changed. The Supreme Court majority said it wished to overcome the finger-pointing.
"Jordan at its most basic level is kind of a kick in the pants to everyone in the system," said Mr. Gottardi. "I think that's a good thing because we weren't getting it right."