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Justice For None

A Supreme Court decision on court delay means the legal system must reform.

By Barb Howard

Blair Jason Hinkley, accused of aggravated sexual assault, was released from an Alberta prison in 2016 because the Crown took too long to bring the case to trial. Hinkley was then arrested again, in June 2017, and charged with assaulting another woman. In April 2018 the case of alleged murderer and gang member Nick Chan was also stayed—in layman’s terms, thrown out. Chan was accused of, among other offences, murder, of instructing someone to commit murder, and of conspiring to murder. Like Hinkley’s, Chan’s case had taken too long to reach trial.

Anyone reading about these outcomes might well be alarmed. How many more cases in Alberta are being stayed? Why is this happening? And is anything being done about it?

A Supreme Court Decision precipitated this. In the summer of 2016 lawyer Eric Gottardi represented his client Barrett Richard Jordan at the Supreme Court of Canada. Jordan had been convicted in 2008 of operating a dial-a-dope operation. Gottardi argued that the case had taken so long to move from the charge to the end-of-trial—49.5 months—that Jordan’s rights to be tried within a reasonable time under section 11(b) of the Canadian Charter of Rights and Freedoms had been violated. Given the historically uncertain parameters of “reasonable” (which even the Supreme Court described as “something of a dice roll”), and given that defence lawyers also had to show the accused to be adversely affected by the delay, Gottardi thought his case was hopeless. He carried on because he wanted to clarify the process and stop the micro-accounting that had become the norm in determining “unreasonable time.”

Much to the surprise of Gottardi and Jordan—and the Canadian legal community—not only did the Supreme Court decide in favour of Jordan, but a majority of the court also set out a framework (of their own creation, not part of Gottardi’s argument) for future decisions in section 11(b) applications. The framework is that if more than 18 months in provincial court has passed between a charge and the end-of-trial (or 30 months at a superior court), then the onus is on the Crown to show why the case should not be permanently stayed on the basis of unreasonable delay. The specifics read more like legislation than a standard judicial decision, but the majority of the court felt it needed to address the “culture of complacency towards delay” that permeated the justice system.

Thus was born the Jordan application—a request by defence counsel for a judicial stay when a case has exceeded the time limit set by the Supreme Court in the Jordan decision.

From October 25, 2016, to September 28, 2018, according to the Alberta Justice and Solicitor General website, 196 Jordan applications had been filed in Alberta courts. Of those, 17 were granted (of which three were being appealed by the Crown). These numbers do not include the hundreds of cases that never got to the formal application stage because they were dealt with earlier by the Crown—in many cases, proactively thrown out—using Alberta Justice’s protocol.

But even a single stay is significant when applied to a case involving a horrific crime. The basis of the Jordan decision, and section 11(b) of the Charter, is encapsulated in the simple phrase “justice delayed is justice denied.” It seems like an uncomplicated concept. But victims of crimes, and their families, do not feel they have received justice when a Jordan application succeeds. Understandably, they want the accused to be put on trial.

Stayed cases are disheartening for the police who laid the charges, for victims and their families—and even for the accused who
want their day in court.

Most of the accused also want their day in court. This may sound far-fetched—especially since many people view a judicial stay only as a jail-skipping deal for criminals. But that’s not the full picture. Barrett Richard Jordan, for instance, had served his sentence before the Supreme Court set aside his convictions and awarded a stay. The accused want to tell their side of the story. If you are ever charged with a crime you did not commit, you’ll appreciate your right to a trial, your right to a timely trial, and you’ll want an acquittal, not a judicial stay. A judicial stay, despite the legal presumption of innocence in court, carries a connotation of guilt outside of court.

What a judicial stay resulting from a Jordan application really signifies is a failure of the legal system to get individuals from charge to completion of trial in a timely manner.

This failure existed long before the Jordan case. James Pickard, president of the Alberta Crown Attorneys’ Association, says “Jordan just shone a light on a problem that was present for a long time.” Although not given as much publicity as Jordan, older, much-cited Supreme Court of Canada cases such as R. v. Askov (1990) and R. v. Morin (1992) dealt with similar issues, but the decisions left more discretion to judges regarding what constituted unreasonable delay. The journey from a charge to the end of trial is always going to take some time. Social media have no problem delivering lightning-fast verdicts (usually of the “guilty” variety). Social media generally don’t rely on facts, value the presumption of innocence, or understand the importance and constitutional right of due process. But as Jordan shows, the natural slowness of justice is different from a system that “has lost its way.”

R. v. Jordan has not only drawn the attention of the media. Alberta Provincial Court judge Sean Dunnigan says “Jordan is always on everyone’s radar—no one wants to offend those timelines.” For evidence of that, spend some time in courtroom 306 in Calgary or courtroom 356 in Edmonton—the sites of continuous unscheduled dispositions and of many adjournment applications—and you’ll now see pointed questions being asked by the judges, the Crown and defence counsel about when the “next step” in a case will be taken. This is a good thing.

The downside of the pressure to keep things moving in court is that the Crown has had to adopt a triage approach to its prosecutions. This means that those cases which clearly aren’t going to survive a Jordan application get proactively stayed by the Crown. It also means that minor cases are often thrown out to free up prosecutor time to deal with more serious cases.

The triage policy also means that reduced sentences are offered—more so than in previous years—to encourage guilty pleas to save time, and that more cases are diverted away from the criminal justice system, albeit to equally underfunded, under-resourced alternatives. The triage policy, and the stays, are disheartening for the police who laid the charges, for victims and their families, and even for accused who want their day in court. It’s also disappointing for the Crown prosecutors, whose job it is to support the police and victims of crime through prosecution.

Keeping an eye on Jordan timelines has helped to shake up the old attitude that delay is okay. But making everyone aware of delay doesn’t fix it. Some causes of court delay are beyond the control of prosecutors. For instance, Alberta’s population increased from about 3.5 million in January 2008 to 4.3 million in January 2018. The larger the population, the busier the courts. Another cause of court delay is the change in the type of cases going to trial. They are increasingly complex. In part, this is because many cases—not just Jordan applications—involve Charter arguments. Search and seizure cases, for instance, have a Charter component. As a nation, we are lucky to have the protection the Charter provides. But compared to other constitutional texts, it is relatively new and unexplored, so Charter cases can take extra time.

Along with an increasing number of Charter arguments, and partly because of Charter arguments, the Crown has increased disclosure requirements. Disclosure means that the Crown must show the defence the evidence they have to support the charge. In theory, this should speed up a case because everyone has the same information. But in some cases the disclosure documentation is overwhelming—to gather, to interpret, and then to track during disclosure. Related to the disclosure requirement is the fact that many cases are now more complicated because they involve electronic evidence, including relevant material stored on cell phones and computers.

Part of the solution to the time crunch would be for the government to appoint a sufficient number of Crown prosecutors. James Pickard describes his job as a Crown prosecutor over the past few years as a constant sprint. Prosecutors are always looking for efficiencies in order to reduce court time, but these are getting smaller and smaller. In 2017 the Alberta government announced it would appoint 50 new prosecutors. Pickard points out that 15 of those prosecutors are required to fill bail-hearing positions that the government created this year, so they won’t be of any help with the backlog. The other 35 appointments will fill existing vacancies. According to Pickard, even with these appointments, and several other recent staffing announcements, the Crown will be operating at a complement that still falls short.

Even a single stay is significant when applied to a case involving a horrific crime.

Another part of the solution would be for the federal government to appoint more judges to the Alberta Court of Queen’s Bench. Post-Jordan, in the spring of 2017, Ottawa did appoint four new justices to that court. But this is another ongoing area of perpetual shortage and corresponding delay. According to Federal Judicial Affairs, Alberta Court of Queen’s Bench had seven vacancies as of October 1, 2018. This is more vacancies for a court at that level than in any other province or territory in Canada except Ontario. The Alberta Court of Appeal also has four vacancies, which is more vacancies than at any other court of appeal in Canada. The Supreme Court in Jordan commented that “[g]overnment will also need to consider whether the criminal justice system (and any initiatives aimed at reducing court delay) is adequately resourced.”

Court delay isn’t entirely caused by underfunding and staffing shortages. Lawyers contribute to the problem when they take on too many cases. This results in court bookings further down the road (because the lawyer doesn’t have time to prepare in the short term) as well as “creative” applications to buy time. The nature of justice itself also contributes to the delay. Justice is a large and complicated business that is interwoven with provincial healthcare, social welfare and even the state of the oil industry and the employment rate—especially when those things aren’t working well. The sheer variety of people and charges and hearing types make a certain amount of bureaucracy-related delay unavoidable.

Defence counsel are sometimes vilified by the public for successful Jordan applications—as though by doing their job and representing their client’s rights under section 11(b) of the Charter they are cheating or manipulating the system. But under the Jordan framework, defence counsel can’t both cause a delay and win a Jordan application for that delay. In the calculation of the passage of time under Jordan, any amount of delay that can be attributed to the defence is subtracted from the total calculation. (The calculation still has much of the micro-accounting that Gottardi was hoping to get streamlined.)

Through Legal Aid Alberta, defence counsel provide many free services that directly or indirectly reduce pressure on the courts, thereby speeding up the court process. These include duty counsel, who provide brief advice to the accused on their first court appearance. Legal Aid Alberta reports that as of July 2018 it took only four days for a client to be paired with a Legal Aid lawyer, an improvement from 12 days earlier in the year. This time frame starts after the client has gotten through on the Legal Aid phone line, provided all the required information and met the eligibility requirements to receive Legal Aid. Service eligibility means that whatever the accused is charged with must come with a risk of jail time. Currently, financial eligibility for an individual means a net income of $1,638 in the last 30 days or $19,653 in the last year. But as Criminal Defence Lawyers Association (CDLA) president Ian Savage points out, someone working full time at minimum wage makes too much money to qualify for Legal Aid. And so, if you make more money than the Legal Aid cut-off but not so much that you can afford to pay a private-practice lawyer (a basic impaired driving defence ranges from $5,000 to $25,000), you end up representing yourself in court.

“Self reps” are one of the largest contributors to court delay. Kelly Dawson, past president of the Criminal Trial Lawyers’ Association of Alberta (CTLA), says a trial that would normally take half a day can take three days when accused represent themselves. Contrary to the usual stereotype that lawyers complicate everything, when it comes to court appearances, lawyers actually speed things up. When accused represent themselves in court, the prosecutor and judge end up providing tips and suggestions to help the case move forward. Besides putting prosecutors and judges in positions at odds with their job descriptions (the judge is supposed to be neutral; the Crown is building a case against the accused), this situation erases one of the major checks and balances of our judicial system—the defence lawyer. Visualize the iconic scales of justice at a steep tilt, with all the resources and everyone, except the accused, piled on one side.

Defence lawyers have long argued they do not have the ear of the government on the matter of Legal Aid funding. Defending alleged criminals is not nearly as attractive to the voting public as arresting people or putting criminals away. In April of 2018 two different associations of defence lawyers in Alberta wrote pointed open letters to Justice Minister Kathleen Ganley. The Calgary letter, written by Savage, argues that rather than fund Legal Aid, and thus provide legal representation for all in need, the government “prefers to feed and care for its more attractive and socially appealing bigger brothers and sisters: the police, the prosecution service and the jails.” Savage’s letter also carried with it a work-to-rule threat where, after arguing that defence lawyers have been propping up the entire justice system for years with unpaid work, he wrote “This time, the CDLA and other defence lawyers will not fix your problem. Today we will begin withdrawing our unpaid services and expect the government to pay the true cost of the justice system.”

The other letter, written by Dawson on behalf of the Edmonton-based CTLA, was less openly threatening than Savage’s but equally fact-filled and forceful. Dawson noted the “sad state of affairs relating to legal aid funding, and the resulting negative impact to the quality of justice in our province.” He acknowledged that the NDP government “inherited a legacy of total neglect of the legal aid system” and that there was a 25 per cent increase in funding between 2014 and 2016, but went on to explain that the increased demands for Legal Aid services during that time include a 67 per cent increase in adult criminal cases requiring Legal Aid.

If you are ever charged with a crime you did not commit, you’ll appreciate your right to a timely trial, and you’ll want an acquittal, not a judicial stay.

The fixes in Alberta have been slow and siloed. The government committed $89.3-million for Legal Aid in 2018 and says that since taking office it has increased Legal Aid funding by almost 40 per cent. In October the government announced an additional $14.8-million, bringing the 2018–19 operating grant to $104.1-million. This is a big improvement, although it falls short of Savage’s estimate of the cost to solve a $150-million crisis.

Also in October the governance agreement under which Legal Aid Alberta operates was renegotiated. Positive changes to come into effect in April 2019 include tying Legal Aid eligibility requirements to the Consumer Price Index and creating a reserve fund that will help buffer the unexpected spikes in demand that formed part of Dawson’s concerns.

There have been other improvements. Minister Ganley convened a post-Jordan Criminal Justice Summit in April 2017—including broad representation from individuals and organizations in the justice system—to address court delay. The Court of Queen’s Bench has extended its booking hours and will consider expediting cases. Alberta’s Provincial Court judges spearheaded development of the highly successful Case Management Office (CMO), which helps to reduce court appearances and streamline the process. Most first appearances at Provincial Court can now be done at the CMO desk, thus freeing up courtrooms and all of the resources associated with them.

Some of the most applauded changes in the Alberta courts process involve “diversions”—referrals—to specific courts and pathways that better serve the needs of some accused. These include Indigenous courts, drug treatment courts, domestic courts, Edmonton’s new Mental Health Court and Calgary’s mental health diversion service. These efforts are laudable, especially because, as the Provincial Court’s website points out, “The traditional adversarial process is not necess-arily the most appropriate for every process or for every population.” Diversions reduce the volume of cases in regular courts and thus accelerate proceedings generally, but they likely don’t change the speed of the process for the individual accused. In fact, sometimes precisely because of the need for diversion, diversions may take longer than regular court. And of course, diversions also require money and staff to operate.

The federal government too is introducing measures they say will reduce court delay. Bill C-75 contains a section to eliminate preliminary inquiries in most cases, and a section that would allow police to attend court by affidavit rather than in person. These provisions have received mostly negative reviews. Lawyer Eric Gottardi says one of his biggest regrets about the Jordan case is that it is now being used to justify getting rid of preliminary inquiries.

The overriding problem with the current approach to fixing court delay is that it is piecemeal. No one has a master plan. Everyone in the justice system—government, judiciary, defence, prosecution—may be doing their bit, but it is a bit. And while the bits might be holding the whole together for today, the situation is far from stable or sustainable. Or just.

Essay and fiction writer Barb Howard’s most recent book is the story collection Western Taxidermy (NeWest).

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