In July 2016, the Supreme Court of Canada reached a landmark ruling in R. v. Jordan, a criminal case involving a man charged with several drug trafficking and possession offences. The case was on appeal from the B.C. Court of Appeal, and the Supreme Court set aside the man’s previous convictions on a finding that there was an unreasonable delay going to trial and the accused’s section 11(b) Charter right had been breached.
From the time of the man’s arrest to the completion of the trial, 49.5 months had transpired, but only 4-6 months of the delay was attributable to the defendant’s actions, including when he changed counsel. This meant that the case substantially exceeded the presumptive ceiling of 30 months for trials being held in a superior court, by about 1 ½ years. The Supreme Court concluded that the Crown did not discharge its burden of proving that the length of the delay was unreasonable or that the circumstances of the case were of such complexity that they justified the delay.
The Supreme Court further condemned the fact that excessive delays in criminal trials had become increasingly common and tolerated by the Canadian judicial system. The Court noted that lengthy delays in going to trial is unfair to the accused, victims, their families, and the public who are relying on the court system for justice.
In Jordan, the Supreme Court established a new framework for bringing criminal cases to trial in Canada. This framework involves a presumptive ceiling beyond which a delay is presumed to be unreasonable unless justified by exceptional circumstances. The presumptive ceiling is 30 months for criminal cases tried in a superior court and 18 months for criminal cases tried in a provincial court, although any delays caused by, or waived by, the defendant do not count towards the ceiling. If the presumptive ceiling is exceeded for particular case, the burden is on the Crown to prove the delay was not unreasonable, based on exceptional circumstances.
The Jordan decision applies to criminal cases, but has also had a significant impact on civil trials. Because there is a constitutional obligation to try criminal cases within a reasonable time, but no similar obligation for civil cases, additional resources (including court time and the deployment of judges) are being allocated to criminal cases in efforts to avoid the risk of having a criminal case dismissed due to an ‘unreasonable delay’.
The problem is amplified by the fact that our court system was already backlogged and overloaded, and suffers from a shortage of judges, both at the federal and provincial level. In December 2016, the Ontario Attorney General, Yasir Naqvi, announced that the Ontario government will appoint 13 provincial court judges, 16 duty counsel, 32 Crown attorneys and 26 court staff, in order to address the shortage of resources. However, in February 21, 2017, the Globe and Mail reported that Ontario continues to have 11 superior court judicial vacancies and there about 60 vacancies in federal courts.
This shortage in resources combined with the priority given to trying criminal cases promptly, has meant that civil trials are facing increasing delays. Excessive delay in civil trials has particularly impacted personal injury cases, where plaintiffs may, in some cases, find themselves waiting more than 2 years for a trial date. Also, there is no guarantee that a judge will be available when a trial date approaches, as a judge is sometimes re-assigned to a criminal case that is at risk of being stayed due to an unreasonable delay.
While it’s clear that excessive delays in litigation have a substantial impact on victims and accused persons awaiting a criminal trial, many plaintiffs in civil actions suffer substantial financial losses, and mental and physical health issues, while waiting for a settlement and resolution of their case. Injured plaintiffs are often struggling with their recovery and may be unable to work and pay their bills, which places a huge burden on both the accident victim and their family.
Adam Wagman, the president of the Ontario Trial Lawyers Association, was quoted in a Jan 23rd Toronto Star article, as stating, “Very significant delays that have occasionally been a problem in our system are now becoming chronic and entrenched.” Unfortunately, there is no clear timeline on when additional resources will be allocated at the provincial and federal levels to alleviate the current delays. In the meantime, accident victims may be unfairly placed in financial straits or forced to take a less-than-optimum settlement rather than wait for resolution of their case in court.
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