Access to a timely trial is a Charter right
By Matthew Deshaye
Alberta’s courtrooms are plagued with multiple issues that slow the administration of justice, resulting in unacceptably long waits before a case is heard. This problem is so dire that it has caught the attention of Canada’s top judge.
“In Alberta, 22 per cent of criminal cases exceeded the 30-months delay set out in the (Jordan Decision), and 91 per cent of those cases involve serious and violent crimes,” said Chief Justice Richard Wagner said in June, according to a media report.
Jordan, or the “Jordan Decision” is a 2016 Supreme Court of Canada ruling that established timelines for when the trial must be heard. For charges in the Alberta Court of Justice, the timeline is 18 months. For Court of King’s Bench matters, the timeline is 30 months.
There are many reasons for the slow pace of justice in Alberta. They include vacant judge appointments at every court level, the backlog of cases due to COVID-19, a shortage of courtrooms and the lack of staff to make them run efficiently.
According to the most recent information from the province, 423 Jordan applications have been filed in Alberta courts between Oct. 25, 2016 and March 31, 2023. Of those:
- three are pending;
- 125 were dismissed by the court;
- 40 were granted;
- 61 were abandoned by the defence;
- 74 were proactively stayed by the Crown on the basis they would not survive the Jordan application; and
- 120 were resolved unrelated to Jordan.
Triage protocol abandoned
Measures recently announced by the province to get tough with those accused of violent crimes could further exacerbate the slowdown in the courts. According to a media report, the Alberta Crown Prosecution Service (ACPS) has stated that abandoning a triage protocol for criminal prosecutions could increase existing trial backlogs and result in serious cases being thrown out.
The protocol allowed Crown attorneys to prioritize serious and violent crimes over other offences within the system, but the government said it was no longer necessary due to increased investment in the ACPS.
"Our concern is if there's an increase in demand, with more trials being set, that we don't have the resources to deal with it," says one Edmonton Crown prosecutor.
"Without more judges and more sheriffs, without more clerks and without more Crowns, it's not going to be feasible to take on additional workload.”
Court delays across the country
The slow pace of justice is an issue across the country. Hundreds of criminal cases in Ontario could be thrown out due to staffing issues, a shortage of courtroom space and mould in some aging chambers, according to a media report.
“In Toronto, staffing shortages at a new, billion-dollar courthouse downtown are so severe and chronic that each morning a court official meets with a senior judge to decide how many courts will need to close that day,” it notes.
The ongoing trial in Ottawa of two organizers of the Freedom Convey is also at risk of exceeding the limits set down in Jordan, according to an Alberta media report.
The trial began Sept. 5 and was scheduled to run for 16 days, “but it's been slow moving, and court has so far only finished the testimony of three witnesses … the original timeline now appears to be all but impossible, as the judge looks for more trial dates in October and November,” it was reported.
The story adds that one of the defendant's lawyers says if the delays continue, “she will need to consider making a Jordan application.”
Timely justice is a Charter right
Section 11 B of the Charter of Rights and Freedoms states that “Any person charged with an offence has the right to be tried within a reasonable time.” When the Supreme Court of Canada decided what that time period was in its 2016 Jordan ruling, it also allowed for extensions of those time periods due to “discrete and exceptional circumstances.”
It all comes down to fairness. If someone is accused of a crime, they deserve their day in court to argue why they are not guilty. As the Charter notes, “Section 11(b) recognizes the stigmatization, loss of privacy, and stress and anxiety created by the cloud of suspicion that accompanies criminal proceedings … it also recognizes that the right to a fair trial is protected by attempting to ensure that proceedings take place while evidence is available and fresh and that delay can prejudice the ability of the defendant to lead evidence, cross-examine witnesses or otherwise raise a defence.”
Holding trials in a reasonable time also serves the public. As 11b explains, “as the seriousness of the offence increases so does the societal demand that the accused be brought to trial … timely trials are also important to maintaining overall public confidence in the administration of justice.”
Call us for assistance
Defence lawyers could play a part in relieving the judicial backlog. Depending on the case and the instructions from the client, we can expedite trials by making admissions or considering a resolution where it may be reasonable. We can also mount a full and vigorous defence if that is your choice. Book a free consultation and tell us the details of your case, so we can advise you on your best options.