August 20, 2017


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Supreme Court doubles down on court delays

Governments need to try cases in timely manner or risk charges being thrown out

Sean Kilpatrick / The Canadian Press Files</p><p>On Friday, the Supreme Court of Canada reiterated provincial court cases can take no more than 18 months from the date charges are laid to the date the trial is complete. For more serious cases, a 30-month limit was imposed.</p>

Sean Kilpatrick / The Canadian Press Files

On Friday, the Supreme Court of Canada reiterated provincial court cases can take no more than 18 months from the date charges are laid to the date the trial is complete. For more serious cases, a 30-month limit was imposed.

A unanimous Supreme Court ruling that doubles down on a no-nonsense national attitude toward chronic court delays means Manitoba must meet trial deadlines — but the jury is still out on whether eliminating preliminary inquiries is the best way to do that, lawyers say.

Friday’s decision from the country’s top court didn’t back away from the strict trial timelines it set in a decision last summer. The new case, involving a Newfoundland man who had been waiting more than five years for his trial to wrap up on drug and weapons charges, was the Supreme Court’s chance to clarify its earlier deadlines.

Those timelines meant as of July 2016, provincial court cases can take no more than 18 months from the date charges are laid to the date the trial is complete.

For more serious cases dealt with by superior courts, including Manitoba’s Court of Queen’s Bench, a 30-month limit was imposed. Cases that stretch beyond those deadlines are subject to being tossed out of court for unreasonable delay.

The deadlines were set in a now-widely known case called R. vs. Jordan, 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. A narrow majority of Supreme Court justices (5-4) decided Barrett Jordan’s charges should be dropped because of delay.

Friday’s decision emphasizing the tight deadlines was unanimous, however, which sends a clear message, said Scott Newman, spokesman for the Criminal Defence Lawyers Association of Manitoba.

"Sometimes when courts get decisions like this back, it’s a chance for them to reverse course or to address criticism," he said. "In this case, they’ve doubled down... They say, ‘No, we’re not backtracking here. We’ve had enough. The courts and the legislatures have to get their houses in order.’"

In Manitoba, nearly 60 delay motions have been brought before the courts, asking judges to drop charges in the wake of the Jordan decision. Only two of those have been successful — both for historical sexual-assault cases involving child victims.

One of the successful motions was filed by Winnipeg criminal defence lawyer Alex Steigerwald, who represented a man accused of sexually abusing a girl between 1996 and 2003, starting when she was six.

The victim’s complaint languished for nearly six years because of a police error and, even when charges were eventually laid, it would have taken an additional 44 months for the trial to conclude — well above the Supreme Court’s deadline.

Steigerwald said the province needs to invest in justice staff if it’s going to unclog the court system to meet the Supreme Court’s expectations.

"Across the board, but especially in Manitoba, we need to look at a serious reallocation of funding, whether that’s put toward more judges, clerks, sheriffs and additional funding for legal aid if we’re going to have the resources necessary to tackle the volume (of cases) in the court system," he said.

A proposal by the province’s three chief judges to set up a pilot project to look at ending or reducing the use of preliminary inquiries — a pre-trial process meant to ensure there is enough evidence for the case to go to trial — aims to cut down on delay.

The proposal, which the trio of judges, along with Justice Minister Heather Stefanson, took to the federal government for consideration, has drawn controversy and prompted an anonymous ethics complaint against the judges, which was dismissed after an investigation by the Canadian Judicial Council.

Like many defence lawyers who have spoken against the idea, Steigerwald said ending preliminary inquiries isn’t the answer.

"Unsupported moves like trying to eliminate preliminary inquiries are not the types of steps that are going to speed up the court process or eliminate delays, in my view," he said.

Some senators disagree.

In a final report released this week, the Senate’s standing committee on legal and constitutional affairs made 50 recommendations on how to cut back on court delays in Canada, including a suggestion to eliminate or reduce preliminary inquiries.

"Preliminary inquiries could be eliminated, or at least should be limited to the most serious offences under the Criminal Code," the report concluded, noting the complexity of the issue and the varying opinions surrounding it. The report’s authors wrote there was a general consensus preliminary inquiries could be more efficient.

The committee, which held consultations on the issue for more than a year starting in February 2016, found Manitoba has some of the longest court delays in the country, with a median case length of 151 days.

Preliminary inquiries were used in only 2.8 per cent of criminal cases in Canada, according to the most recent Statistics Canada data used in the Senate committee’s report.

That amounted to 9,179 cases across the country in 2014-15. Of those cases, about 20 per cent took longer than 30 months to complete.

Other key recommendations from the Senate committee included investing in underfunded legal aid services, filling vacancies for federally appointed judges, adopting Truth and Reconciliation Commission guidelines to reduce disproportionately high numbers of indigenous people in the criminal-justice system and extending courts’ hours of operation.

Saskatchewan senator and lawyer Denise Batters, a member of the committee, said it’s no longer a "hypothetical" situation to see serious criminal charges, including murder and sexual assaults on children, being thrown out in courts across Canada simply because of court delays.

"In those types of cases, that’s a shock to the conscience of our communities and a denial of justice. It undermines the public’s confidence in the Canadian criminal justice system and it revictimizes the victims of crime," she said.

The Senate committee is now pushing governments and players in the criminal justice system to adopt its recommendations. Twitter: @thatkatiemay

Read more by Katie May .


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