More than 200 criminal cases across Canada have been dropped by the country’s Supreme Court due to unreasonable delays that violated Section 11(b) of the Carter of Rights and Freedoms which promises that the accused will be tried within a reasonable time.
The stays are a result of a landmark court ruling made a year ago known as the Jordan decision or R. v. Jordan. The case was one in which Barrett Richard Jordan’s trial for possession and trafficking offences was delayed by nearly 50 months and eventually stayed after several applications under 11(b).
It resulted in changes to the definition of 11(b) and gives superior court cases 30 months to be concluded while provincial courts are given 18 months with the exception of cases that require a preliminary investigation in which case a 30 month limit will apply.
The previous regulations set out in R. v. Morin were said to be too vague and complex, taking a case by case basis to determine unreasonable delays under the Canadian Charter. Those regulations had created a, “culture of complacency towards delay,” according to the majority – 5 to 4 – decision of the Supreme Court in July of 2016.
Some consider the decision a victory for justice, like Dalhousie University law professor Steve Coughlan, who says the new regulations will ensure that both the accused, the victims, and their families will benefit from speedier trials.
But in the year since the changes were enacted the Supreme Court alone has dropped more than 200 cases according to data complied by the Canadian Press.
These cases include serious offences such as murder, drug trafficking and sexual assault – even including cases in which children are involved.
“Not nearly enough has been done by the government in order to repair this crumbling system,” Rick Woodburn, president of the Canadian Association of Crown Counsel told the National Post.
The Post reports that 1,766 applications have been filed for charges to be stayed and, “Of those, 204 have been granted and 333 have been dismissed. The remainder are either still before the courts, have been abandoned by the defense or were resolved on other grounds.”
The Jordan decision has created a sense of urgency which is nothing new in the overburdened Canadian justice system. In 2013 the Solicitor General of Alberta published a report calling for an increase in direct indictments, a process in which cases forgo a preliminary investigation, in order to address the backlog.
According to Alberta Justice Minister, Kathleen Ganley, each preliminary hearing is equivalent to three days in court. Alberta has seen a nearly 20 percent decrease in preliminary hearings since the 2013 report was published. But the province has still seen 7 cases dropped as of June 29th and as many as 60 applications for stays have been filed.
Meanwhile, in Ontario 46 cases have been thrown out from July 9 to December 31, 2016, according to a freedom of information request filed by the CBC.
In an attempt to ease the burden, Canadian Justice Minister Jody Wilson-Raybould met with provincial justice ministers in April to discuss amendments to the omnibus crime bill that was passed in 2011 and instituted mandatory minimum sentencing.
The Canadian Bar Association has said that mandatory minimums are at least partly responsible for the backlog as cases which cannot result in shorter sentences are less likely to be settled through plea bargain and more likely to go to the courts.
A 2016 Senate report outlines that another major obstacle to a speedy trial is the lack of resources, including funds allocated to the justice system and even the number judges available to hear trials.
Without a timely solution from the government, Canada’s justice system is in a serious bind and could experience more applications for stays as cases are pressed to meet the their deadlines.