In July 2016, Canada’s Supreme Court of Canada made a landmark decision on the constitutional right to be tried within a reasonable time. In a ruling known as “the Jordan decision”, the Supreme Court defined strict deadlines for bring criminal cases to trial –18 months in a provincial court and 30 months in a superior court.
The Court’s motivation for this ruling is the fact that many cases have been taking far too long to be resolved in trial, which unfairly and negatively impacts everyone involved, including the accused person and their family, as well as victims and their family. In the R. v. Jordan case, the accused person waited over 49 months from the date of his arrest for his case to be tried, of which less than 6 months’ delay was attributed to the defence.
Any criminal action that has gone beyond these new time limits is presumed to be too long. If the delay in going to trial was caused by the Crown, the Crown must be able to show that the case was exceptionally complex or the case may be thrown out (or granted a stay), due to unreasonable and excessive delay.
This requirement directly effects hundreds of existing criminal cases in Ontario, where the time taken to reach trial exceeds the new thresholds, and defence counsel can argue grounds to have the criminal charges in such cases suspended due to unreasonable delay. A recent Globe and Mail article reported that, for over 800 cases across our country, lawyers are seeking to have criminal proceedings dismissed due to an unreasonable delay (“Lawyers want to toss hundreds of criminal cases for unreasonable delays”, Feb 15).
In response to the very real possibility that many criminal cases, including some involving serious crimes, will be suspended, on February 21st, Ontario’s Attorney General, Yasir Naqvi, announced that he is calling for the federal government to enact changes that will serve to speed up trials (www.lfpress.com/2017/02/22/ontario-attorney-general-seeks-ottawas-help).
One of Mr. Naqvi’s suggestions, which he recently forwarded to Federal Justice Minister Jody Wilson-Raybould, is to amend the Criminal Code to significantly limit the use of preliminary inquiry proceedings for all but the most serious criminal offences. Mr. Naqvi stated, in the vast majority of preliminary inquiries, the accused is required to stand trial but this step typically adds many months to the resolution of a criminal case.
However, this proposal is a controversial issue since preliminary inquiries provide an opportunity for opposing sides to better understand the facts, strengths and weakness of the case and thus reach a just resolution, and not everyone believes eliminating preliminary inquiries is in the best interests of justice, even in a limited number of circumstances. Also, preliminary inquiries often lead to plea negotiations or a withdrawal of charges, which in turn reduces the time required to resolve a criminal case. Finally, preliminary inquiries are held in only a small fraction of criminal cases and where deemed valuable.
Mr. Naqvi also brought attention to the need for more judges. Specifically, he asked that 11 superior court judicial vacancies in Ontario be filled, as a shortage of judges is currently resulting in the loss of hundreds of hours of judicial time every month. However, the shortage of judges is not only at the provincial level – there are about 60 vacancies in federally appointed courts, and this puts pressure on judges, defence lawyers and prosecutors to push cases through our burdened court system.
Mr. Naqvi’s third request was for a special meeting of provincial and territorial attorneys-general to assess the impact of the Jordan ruling. Mr. Naqvi urged that the new framework for prompt justice is applied flexibly, appropriately and consistently across Canada, and there should be agreement at the highest levels on how this can best be achieved.
At the Law Firm of Ted Yoannou, we strive to provide effective and zealous representation for all our clients, and to have every case resolved in our client’s best interests.