Back in March — less than a year after the Supreme Court of Canada rolled a live grenade into the nation’s courtrooms with its ruling on R v. Jordan — someone asked Eric Gottardi what he thought the long-term fallout from the decision would be. “I still don’t know what to think of it,” he said. “Whether they’re right or wrong, time will be the judge of that.”
Ask him the same question today and you’ll get roughly the same answer. “The thing is, I still think it’s too early to tell,” says Gottardi, the Vancouver-based criminal lawyer who represented Barrett Jordan on trafficking charges before the SCC when — in an unusually contentious 5-4 split decision — the justices not only ruled that the 49.5 months it took to complete Jordan’s trial constituted a violation of his Charter rights, they set a hard cap on the length of trials: 18 months in provincial court, 30 months in Superior Court.
“We have to see what happens with subsequent cases. We still don’t know if Jordan has rewritten all the relevant jurisprudence, or just the central stuff. In the short term, I think most of the impact has been good. We’re used to seeing these sorts of warnings from the courts almost cyclically. But it’s a perpetual problem — and long-term, it’s not getting any better.”
R v. Jordan was intended to deliver a shock to the system, and on that score it succeeded admirably. The ruling hasn’t quite fulfilled the dire predictions of the dissenting minority on the SCC bench — that it would risk “thousands of judicial stays” nationwide. A Dalhousie University law professor, Stephen Coughlan, did a review of stay applications in the six months following Jordan and found only a mild uptick in the number of applications filed, with most of the successful applications happening in Ontario.
“Statistically, there’s been no significant increase in stays,” says Sean Robichaud, a Toronto-based criminal lawyer. “Stays have happened, of course, but that’s one of the things that come with having legal rights.”
But some of the cases that were stayed in the wake of R v. Jordan have been the stuff of justice ministers’ nightmares. Adam Picard of Ottawa, accused of first-degree murder in the shooting death of Fouad Nayel, was looking at a wait of 48 months between the charge and the completion of his trial; the judge specifically cited the Jordan benchmark in granting him a stay in November 2016. In Quebec in early April, 2017, a judge granted a Jordan stay in the case of Sivaloganathan Thanabalasingham, charged with second-degree murder in the death of his wife. And the Crown in Montreal cited the Jordan standard as a key factor in its stunning decision in March to stay charges against 36 people arrested in an anti-Mafia probe.
The result, says Sen. Bob Runciman, chair of the Senate legal and constitutional affairs committee, has been a growing public crisis of confidence in the justice system — and a growing political crisis for provincial and federal governments.
“[It’s] having a very clear effect on public confidence in the justice system,” says Runciman. His committee is studying system delays and hopes to deliver a full report by the end of June. “Folks have been raising it with me in coffee shops. Serious charges are being stayed.
“It’s not one single element that’s at fault, and we’ve noticed that the various elements in the justice system have a tendency to blame one another. It is a culture problem, and it’s a culture that extends to the federal government itself.”
Runciman’s not the only one pointing fingers at the feds. At the end of their first year in office, the Trudeau Liberals had appointed just 15 new judges. The number of judicial vacancies on federally appointed courts had hit 61, higher than at any point under Stephen Harper’s government. (That number had dropped to 58 by early May.)
“We’ve seen what appears to be a lack of urgency on the minister’s part when it comes to appointing judges and striking judicial advisory committees,” says Runciman. “We know when judges are going to retire. Why are we waiting so long to appoint replacements?”
Federal Justice Minister Jody Wilson-Raybould’s department swears it’s catching up now; the 2017 budget earmarked $55-million over five years, and $15.5-million annually after that, to fund 28 new federal judges. “The Judicial Advisory Committees are being reconstituted across the country and the minister is receiving a steady stream of highly recommended candidates for the bench,” says a Justice spokesperson. “We have made and will continue to make appointments regularly and will be naming more judges imminently.”
Most aspects of justice system administration fall under provincial jurisdiction, and there’s been movement on that front as well. In late 2016, Ontario Attorney-General Yasir Naqvi announced a $25-million investment to hire 13 new provincial court judges, 32 Crown attorneys, 16 legal aid lawyers and sundry court staffers. He also announced investments to speed up bail hearings for low-risk accused. In March, Quebec announced it had hired another 16 provincial court judges, along with 52 more prosecutors and hundreds of court staffers. Lawyers say the new hires are having an effect already.
“Some districts in Quebec have had major problems for a long time, and Montreal was one of them. Quebec City was better. Gatineau was terrible,” says criminal defence lawyer Nadine Touma of Poupart, Dadour, Touma & Associés in Montreal. “Until quite recently, if you tried to book a trial date in Montreal you’d be told you would be waiting 12 months. Last week I was told I’d have to wait just one month. So we’re seeing improvements.”
But hiring more judges and prosecutors was the easy part. Decisions like R v. Jordan are frequent enough in Canadian jurisprudence to be considered almost chronic: High-profile cases are stayed due to unreasonable trial delays, governments throw money at the problem and everyone moves on — until the next crisis arrives.
This time, there seems to be a consensus among politicians and those working in the system on the need for structural reform — even if there’s nothing like a consensus on the shape that reform should take. Wilson-Raybould presided over an emergency meeting of provincial justice ministers in late April to discuss structural bottlenecks. They emerged vowing to tackle what they identified as pressure points in the system — primarily mandatory-minimum penalties, preliminary inquiries and the Criminal Code itself.
Of the three, the future of preliminary inquiries is emerging as the flashpoint issue. The Jordan decision specifically mentioned the possibility of reviewing the status of preliminaries. So far, Ontario, Manitoba and Alberta have called for the elimination of (or at least limits on) preliminaries as a means of speeding up trials.
Naqvi seems to be leading the choir on this one: He argues that the primary purpose of preliminaries — the discovery function — was made moot by R v. Stinchcombe in 1991, which established that the Crown must share all of its evidence with the defence. In a letter to Wilson-Raybould, Naqvi argued that Ontario’s current Crown screening standard on pursuing charges is higher than the standard set by preliminary inquiries, making their triage function redundant as well.
“We have found that the vast majority of preliminary inquiries result in the accused being committed to stand trial, yet this step in the process typically adds many months to the length of a criminal case,” Naqvi wrote.
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Runciman seems inclined to agree. “That’s certainly something we’ve heard a lot about. I think there’s a strong possibility we’ll make a recommendation on reducing preliminary hearings.”
Not surprisingly, many defence lawyers hate the idea — and they argue the time saved by killing preliminary inquiries wouldn’t get the system anywhere near the Jordan standard. “The idea is simplistic, ill-informed and a knee-jerk reaction we’ve been hearing about for years,” says Robichaud.
CBA’s National Criminal Justice Section wrote to the Justice Minister in March in support of keeping preliminary inquiries, arguing they’re not the cause of court delays – they actually mitigate delays – and already have been significantly curtailed. Furthermore, eliminating them would not reduce stays and would ignore real efficiency problems.)
Many lawyers observe that the difference between the 18- and 30-month Jordan benchmarks for provincial and Superior Court trials takes into account the time preliminaries typically consume. Statistics Canada reports that preliminary inquiries were requested or held in just 3 per cent of completed adult criminal cases in 2014-15, which the agency calls a “consistent trend.” So there are good reasons for suspecting
the elimination of preliminary inquiries wouldn’t move the dial much on trial length.
And while it’s rare for a case to reach the preliminary inquiry stage without going to trial, it does happen. Susan Nelles was arrested and charged in 1981 with murdering four babies at Toronto’s Hospital for Sick Children; the case collapsed at the preliminary stage and Nelles was exonerated. Robichaud says preliminaries fulfil a key function for both defence and Crown — serving as a sort of ‘dress rehearsal’ that can pinpoint serious problems in arguments and testimony before a full trial.
“Three years ago, I did a first-degree murder case,” he says. “The Crown’s key witness was uncooperative and we had to break up his testimony in the preliminary over weeks. That’s not something you want to deal with for the first time at trial. Had we done that in this case, it could have derailed the proceedings or even ended up with a mistrial.”
Others suggest the triage function of preliminaries could be covered off in a more informal, boardroom setting, without the need for a judge to be present. Gottardi suggests other provinces might want to follow B.C.’s lead and move to a system of ‘charge-approval’ based on a high standard of evidence, which makes the Crown (not the police) responsible for laying charges — another way of conducting triage before a full trial, without necessarily wading through a preliminary.
“Here, only Crown prosecutors can approve a charge and they can only do so if they have a ‘substantial’ likelihood of conviction,” he says. “That standard tends to weed out the weaker cases.”
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Those mandatory minimums
One idea that does seem to be enjoying broad support within the system is something the Liberals themselves pitched during the 2015 election campaign: scaling back mandatory minimum penalties. The federal government is reviewing 72 mandatory minimum penalties in the Criminal Code, many of them introduced by the Harper government. The penalties are being widely blamed for dragging out the length of trials by removing a key incentive for defendants to cut them short: the prospect of lower penalties.
But the federal government’s recent legislation package on legalizing recreational marijuana use would keep in place mandatory penalties for driving under the influence of drugs and alcohol. (The legislation does allow the Crown to pursue summary conviction in less-serious impaired driving cases involving injury, which is meant to keep at least some of the backlog in check.)
“Impaired driving cases — now that’s a real driver of the Jordan problem,” says H. Markham Silver, Q. C., a Calgary-based criminal defence lawyer.
“Minimum sentences just create disincentives to plead guilty. If you know that a guilty plea’s going to lose you your licence, get you a criminal record and hit you with $1,150 in fines, why would you plead guilty just to save the system time and money?”
The problem with tackling mandatory minimums, says Silver, is political. Judges and prosecutors hate them, but a great many politicians love them — they’re easy to explain to voters, easy to sell on the campaign trail. In fact, one government’s sentence reforms are very likely to be reversed by a future government.
“What government wants to pull back from punishment?” says Silver. “It’s the law-and-order platform, right? It gets governments elected.”
Some argue the federal government should apply the rationalizing approach it’s taking to marijuana law to the entire Criminal Code. A root-and-branch review of criminal law, says legal academic Lisa Silver, could identify laws and penalties that could be safety repealed, or diverted from the trial system, to save money and time.
“Why do we say certain things go to trial and certain things do not?” says Silver, a University of Calgary professor of criminal law. “Here’s an example: The proposed new rules for marijuana impairment include a sliding scale of penalties depending on the degree of impairment, right down to fines.
“My question is, if the low-end of the scale involves fines, why put it in the Code at all? Couldn’t it be made regulatory, to be handled by the provinces through administrative penalties? Why can’t we pull back?”
The pressure to rationalize the use of trial time is particularly acute on the civil side of the system — which never enjoys the kind of political attention the criminal side gets, and which tends to be starved of resources whenever the criminal side is experiencing a heavy backlog. Julie Macfarlane, a University of Windsor law professor specializing in family law and conflict resolution, says many aspects of civil law don’t even belong in courts.
“Why do we have to go to court to get a divorce anyway? In other countries it’s an administrative matter — you file the papers and you’re done,” she says. “Making it a court matter is overkill.”
Alberta has made moves toward culling low-priority offences from the court system, eliminating jail time for people who fail to pay fines for minor infractions (like transit fare evasion or public drunkenness) and processing ticketing offences electronically, a move the province predicts will save court clerks about 9,000 hours per year.
In fact, a lot of people working in the system wonder if the problems the Jordan decision addresses are administrative in nature, rather than legal. In April, Robichaud wrote a long blog post that pitched 11 administrative fixes for Ontario courts — many of them focused on the boring but vital business of getting judges, defendants and lawyers together in the same room at the same time.
“Really, the problem here is with how we’re running our court system, how we’ve been running it for decades,” he says. “It’s frustrating to hear people talk about doing away with preliminaries when what we really need to do is recognize we’re not living in 1958 anymore.”
Robichaud suggests, among other things, extending court operating hours and allowing short sessions on weekends for bail and plea hearings. He wants to see individual provinces reconcile procedures between courthouses — and eliminate paperwork altogether where possible. Court records should be digitized. Non-contentious matters, such as adjournments, should be handled by teleconference.
And all players in the system, he says, should come together on the need to severely curtail jury trials, which eat up vast amounts of time in both the jury selection process and the trials themselves.
“Right now we can only proceed judge-alone with serious charges in cases where the Crown consents,” he says. “It’s an unwillingness to let go of tradition and convention.
“I agree with the Jordan decision to the extent that it took aim at the system’s complacency. But it’s the system that’s complacent, not the lawyers who work in it. Once you start looking at the problem from the inside, the solutions are simple.”
But no post-Jordan reform of the justice system will succeed in clearing roadblocks unless it confronts the elephant in the room: the cost of retaining legal counsel. Everyone agrees on the need to boost funding for legal aid programs. But even a well-funded legal aid system won’t cover everyone who needs a lawyer and can’t afford one.
“I think any plan that has a real impact on court system delays should address the cost of retaining a lawyer. That’s just common sense,” says Runciman. “Even people on welfare don’t necessarily qualify for legal aid.”
“More and more people are making their way through the justice system without lawyers,” says Macfarlane. “These are not low-income people. These aren’t people who woke up one morning and decided they were Perry Mason. This is everyone. I know of six lawyers who had to represent themselves because they can’t afford lawyers on a lawyer’s income.
“It takes these cases longer to get started, so generally they are slowing things down. And the amount of legal aid required to fund everyone who can’t afford a lawyer would bankrupt the government. We’d end up spending more on the justice system than
we spend on health care.”
In August 2014, the Canadian Bar Association released its Futures report, subtitled, ‘Transforming the Delivery of Legal Services in Canada’. The report acknowledges the financial barriers many Canadians face in accessing the justice system; it suggests the industry investigate ‘alternative business structures’ which permit investment and ownership by non-lawyers, allowing for the kind of financial backing that could permit a greater range of fees for service. “If lawyers were freed to provide legal services outside of the professional consultancy model, it would likely be possible to deliver some legal services profitably at a lower cost,” the report says.
In Montreal, the legal clinic Juripop — founded by Marc-Antoine Cloutier at age 19, when he was still in law school — delivers legal services to lower-income people through low annual fees and hourly rates on a sliding scale, based on the client’s ability to pay. Macfarlane suggests paralegals could be tasked with helping self-represented clients fill out their paperwork properly, which would save a lot of court time.
Even an ambitious program of legal and administrative reform might not save the justice system from painting itself into another Jordan corner in the near future. If we think of the justice system as operating ‘downstream’ from other public services — particularly health care and income supplements such as employment insurance and welfare — it becomes obvious that addressing the justice system in isolation won’t be good enough.
“The availability of decent, affordable housing, of safe injection sites — these are social problems, not justice system problems,” says H. Markham Silver. “But they have a direct impact on how well the justice system works.
“We need to be doing far more to keep the people who can’t stay out of trouble out of the regular court system and in programs that can help them with addictions and mental health issues.
“It’s not the justice system that’s broken. The problem with Jordan is that it’s a Band-Aid — and we’re applying it to an amputation.”
CBA’s top 10 ways to reduce court delays
Appoint enough judges
Fill outstanding vacancies and permanently increase the number of judges where necessary.
Provide adequate legal aid
Reduce delays created by unrepresented litigants confused by the system.
Prioritize early resolution
Weed out weak cases by adopting the ‘substantial likelihood of conviction’ test used in B.C.
Reduce routine court appearances by allowing counsel participation by phone, email or video-conferencing.
Address aboriginal over-representation
Act on the TRC recommendations to unclog the system where aboriginal people are disproportionately involved.
Divert minor charges
Expand diversion programs so matters that can be resolved outside the court are removed from the docket early on.
Resource the system
Curb delays by adequately resourcing our justice system. For example, hire more court staff and add more facilities.
Improve disclosure practices
Work toward the goal of complete disclosure to be made to defence at first appearance – in a consistent and readable format.
Keep preliminary inquiries
Retain preliminary inquiries to solve issues without a trial, or to help focus the arguments and eliminate mistakes at trial.
Repeal mandatory sentencing
Rescind legislation that removes discretion and makes negotiations impossible, leading to more cases going to trial.