Long delays and collapsed cases are eroding faith in the justice system, lawyers warn

Two and a half years after Norman Tate’s son was killed in a car accident, he’s still struggling to come to terms with how the justice system handled the aftermath.

“If you step forward inside that place, you’re flipping a coin — whether you’re going to get justice that day or not,” he said on April 30, standing outside the Ontario Court of Justice in Brantford, Ont.

Norman Tate Junior was killed in a head-on collision a week before Christmas in 2021. The driver in the other car eventually was charged with impaired driving causing death and bodily harm. But the case crawled through the court system and was stayed after it breached the time limits for trials set in a 2016 Supreme Court decision.

That decision in R. v. Jordan established that criminal cases that go beyond those time limits — 18 months for provincial courts and 30 months for superior courts — can be stayed for unreasonable delay.

Tate said seeing the case involving his son’s death tossed out broke his heart.

“Nobody ever ever explained to me or told me that the trial had to be over within 18 months,” he said. “They threw the charges out on him and the guy walked away … He never even spent five minutes in jail.”

Cases are being stayed for unreasonable delays across the country. Judicial vacancies tend to get blamed for the delays, but they’re not the only factor.

“Currently, working conditions are just … things just kind of get worse and worse,” said Shara Munn, a Crown prosecutor and the president of the New Brunswick Crown Prosecutors Association.

Staffing shortages, complex cases and the sheer amount of evidence being presented are contributing to unmanageable working conditions, she said.

The union representing prosecutors in New Brunswick said that in some parts of the province, half of the Crown prosecutor positions are vacant. That means junior prosecutors are sometimes left to tackle serious cases without the guidance of a more experienced mentor.

Munn said that could end up undermining public confidence in the system.

“Imagine you go to the hospital, you are supposed to have heart surgery and you get there and they tell you, ‘Well, we don’t have a heart specialist right now, but we have a doctor who’s training and teaching himself the procedures,'” she said.

“Would you let them operate on you? I would hope that your answer is no, but that’s kind of what’s happening within our prosecution service.”

More complex cases, more delays

CBC News spoke to seven Crown prosecutors from across the country, most of whom were not in a position to go on the record because of their positions. They all pointed to the increasing complexity of cases as a factor contributing to delays. They said the sheer amount of disclosure required — the material the Crown is responsible for reviewing and sharing with the defence before a trial begins — has increased substantially and requires additional time commitments.

One prosecutor said they had 10 terabytes worth of video to go through for a single case.

In an interview with CBC News, retired Supreme Court justice Richard Chartier said complicated cases can slow down judges as well.

“The bottom line is that because cases are more complex, the judges need more time to write the decision. And because the judge needs more time to write the decision, they are not in court as often as I would like them to be, because they’ve fallen behind in their written decisions,” he said.

Chartier said because lawyers have the ability to access so much more information about past decisions and cases than in the past, judges are being presented with more complex arguments and need time to consider all the information.

CBC News reached out to all provinces to ask how many cases are being stayed for unreasonable delay. Data collection on case delays varies from province to province.

Alberta is the only province that proactively discloses the number of cases stayed for going over Jordan timelines. Between April 1, 2022 and March 31, 2023, 37 Jordan applications for stays were filed in Alberta courts; two were granted and eight cases were proactively stayed by the Crown.

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A scathing Federal Court decision said Prime Minister Justin Trudeau and the federal justice minister have failed Canadians seeking timely justice by letting the number of judicial vacancies reach a state of crisis and urged Ottawa to fix the problem as soon as possible.

Between the Ontario Court of Justice and the Superior Court of Justice, 124 charges were stayed in 2022, according to internal reporting by Crown attorneys. In 2023, 177 charges were stayed in Ontario over unreasonable delays.

In Manitoba in 2022, 33 Jordan applications were filed and two cases were stayed. In 2023, 27 applications were filed in thr province and three cases were stayed for unreasonable delays.

In B.C., 19 cases were stayed in 2023 for unreasonable delays. Eight cases were stayed in B.C. in 2022.

In Quebec, 18 cases were stayed in 2022 for unreasonable delays and 96 were stayed in 2023, according to the Quebec Ministry of Justice.

In 2022, 27 Jordan applications were filed for cases handled by the Nova Scotia Public Prosecution service and 13 of those cases were stayed. In 2023, 28 applications were filed in the province, 14 cases were stayed and three cases were proactively stayed by the Crown over delays; two cases are still awaiting a decision.

In New Brunswick, the public prosecution service saw eight cases stayed in 2022 over delays and four cases stayed in the first quarter of 2023.

Saskatchewan courts don’t collect data on Jordan applications. Newfoundland’s data wasn’t readily available. P.E.I. did not immediately respond to a request for comment by CBC News.

Provinces need to step up: justice minister

“The system could work better and faster, there’s no doubt,” Justice Minister Arif Virani said in an interview with CBC Radio’s The House.

“I see a justice system that still renders accountability, still brings criminals to justice … I know that work needs to be done. I know that systems are getting jammed up. I know that there’s a lot of work that needs to be done to speed up the process.”

Virani pointed out the administration of the justice system is largely a provincial responsibility. In a recent letter to the chief justice of the Supreme Court, Virani said he was “proud” of the number of judicial appointments the government has made; Ottawa has named 113 new judges since he was made justice minister last July.

In his interview with The House, Virani also cited increased federal funding for legal aid and said he expects provinces to step up — because people who can’t afford lawyers tend to slow things down.

“We know unrepresented litigants tend to take a much longer time in courts and proceed to trial, which takes much more time,” he said. “That slows down the system, and it’s really critical that we’re speeding up the system, not slowing it down.”

Delays often force Crown prosecutors to decide which cases go forward and which don’t.

“I think you’d see … a real struggle if you were sort of at the desk of a prosecutor in having us decide … what’s more serious, what’s not,” Munn said.  

“For example, I work within the Internet child exploitation field. All of my cases are serious …. All of them are violent offences against our most vulnerable children. So there is really no prioritizing to be done.”

Delays can hurt accused too, lawyer says

The large number of cases that collapse due to long delays is causing people to lose faith in the justice system, said Ivanna Iwasykiw, a lawyer who represents victims of sexual assault and abuse.

“It’s really impairing not only people’s faith in the justice system, but people’s faith in their own ability to feel safe in their communities, to make sure that if they’re injured or if they’re hurt or if a crime is committed, somebody’s going to do something about it,” she said.

Michael Spratt, a criminal defence lawyer in Ottawa, said delays might affect whether a person pleads guilty or not, regardless of their guilt or innocence.

“One of the really insidious parts about delay is it sort of undercuts someone’s right to be presumed innocent and their right to trial,” he said.

Conditions are so bad in some jails, Spratt said, that innocent people may plead guilty to avoid spending months in pre-trial detention.

“It’s saddening how many people would … plead guilty to things that they’re not guilty of,” he said. 

Provinces are trying to address the delays in various ways. Ontario has a new directive that states all criminal trials must be scheduled to start on a date that will allow them to end no later than 15 months after charges were laid.

Alberta is switching to a pre-screening charge process, similar to one in B.C., to weed out more charges before they get into the court system. Nova Scotia and Manitoba are hiring more prosecutors and support staff.

It’s all happening too late for Tate and his family.

“I just want everybody’s eyes to be open that the justice system’s got to be changed,” he said. 

“And I can tell you this much — it failed. Like, miserably, as far as I see. Because my son is — hate to put it point blank — but he’s pushing up daisies while this guy is out walking around like nothing happened.

“Justice was not served.”