Criminal courts using grace period in adapting to new delay rules

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This article was published 23/02/2017 (3180 days ago), so information in it may no longer be current.

As criminal courts across Canada adapt to new rules for how quickly cases must proceed through the justice system, judges are making use of a grace period to avoid tossing cases due to unreasonable delay.

In the wake of a far-reaching Supreme Court decision on court delays, a total of 34 delay motions have been brought before Manitoba courts asking that criminal charges be dropped because cases took too long to wrap up. Judges have so far quashed nine of those — two dismissals are under appeal — and only one stay of proceedings has been granted on the grounds of unreasonable delay. Eleven delay motions were still before the court as of Thursday; four of the 34 total motions were withdrawn by defence lawyers and nine of the cases were resolved without a delay-motion decision, according to the most recent statistics from Manitoba Justice.

The so-called transitional exceptional circumstance test set out by the Supreme Court in a July 2016 decision that imposed new trial timelines allows some wiggle room between the old and new laws governing court delays, and it’s the most common reason why a judge may still decide a case that has suffered long delays won’t be thrown out, said Scott Newman, spokesman for the Criminal Defence Lawyers Association of Manitoba. The exception applies to all criminal cases that were already in the system when the new trial deadlines were imposed.

A year from now, when the transition period expires, Newman said, we’ll see the full impact of the new deadlines on Manitoba’s justice system.

“Once February 2018 hits, that’s the date where we’re going to find out if we’ve got a problem or not,” he said.

“It’s going to be a problem if we don’t deal with delay now,” he added, saying the association is calling for more judges to be appointed and more frequent court sittings to occur, particularly in communities outside of Winnipeg.

Manitoba Justice has already been working to cut down on unreasonable delays, the department said in a statement. Delays caused by an accused or their defence counsel don’t count toward a request for the charges to be dropped.

“All Crowns in Manitoba are expected to review their cases and flag any matters that might be affected by the Supreme Court of Canada decisions and timelines related to delay. While some cases may be close or even over the timelines set out by the Supreme Court, the individual factors to be considered will often indicate they are not in jeopardy to be dismissed due to delay motions. No two cases will proceed through the justice system in the same way, so each must be examined and managed on a case-by-case basis,” the statement said.

“No Crown wants his or her matters to be the subject of a delay motion. We are working with our Crowns and other partners in the justice system (courts, police, defence counsel) to ensure cases move forward efficiently to meet the timelines set out by the Supreme Court and also offer training and supervision to Crowns throughout their careers on issues like this. If there is a delay motion, justice officials and the court will go through the entire case file to see what happened, the causes of delay and who was responsible for them.”

The exception exists to avoid a situation “where tens of thousands of charges were stayed as a result of the abrupt change in the law,” the Supreme Court noted in its decision. The decision in R. vs Jordan — a case involving an accused drug dealer in B.C.who successfully argued his conviction should be overturned because his case had taken more than four years to get to trial — set new deadlines that will apply to cases of those arrested after July 2016.

Anyone arrested after that time generally must have a provincial court trial completed within 18 months, or for more serious charges, a Court of Queen’s Bench trial must be completed within 30 months from the date charges were laid.

But the new deadlines won’t be “hard and fast,” and cases won’t be automatically thrown out because of delay, said David Ireland, an assistant professor of law at the University of Manitoba.

“It brings up concerns for families of victims, of people who are looking for somebody to at least be tried on an offence, whether they’re convicted or acquitted, to face the charges as opposed to a stay of proceedings based on nothing other than the time running out,” he said. “From a public perspective, I can understand why that would be unpalatable.”

But, he continued, “They’re not shutting off the valve. They’re not saying when you hit this timeframe, boom, it’s getting tossed out. There’s always going to be the ability for the Crown to say, ‘look, in these circumstances, this is what happened.’ The judge is always going to be given that discretion.”

In a recent case involving a convicted bank robber who had already been charged when the new trial deadlines were set, Court of Queen’s Bench Justice James Edmond decided the delays — though past the 30-month deadline — were not unreasonable.

Even though Jeffrey Summerfield’s trial would’ve been held 39 months after he was charged if he’d not decided to plead guilty last month, the judge decided the delays weren’t caused by “repeated mistakes or missteps by the Crown. With some minor exceptions the delays were explained by the Crown and the institutional delay was the largest component of the delay experienced in this case,” Edmond said in his decision.

In a second-degree murder case that predated the Supreme Court’s decision, Justice Karen Simonsen dismissed Max Richard’s delay motion calling for a stay of proceedings in January. A notice of appeal has been filed in that case.

katie.may@freepress.mb.caTwitter: @thatkatiemay