Ditching some mandatory minimum sentences and cutting back on preliminary inquiries are two of the measures under consideration as lawmakers, lawyers, judges and court staff rush to respond to tight new timelines for criminal trials in Canada.
Last summer, the Supreme Court stayed drug charges against Barrett Richard Jordan after he waited 49 months for a trial. The blistering 5-4 judgment described a culture of complacency around court delays and set strict time limits for criminal trials — 18 months for proceedings at provincial court and up to 30 months for cases at Superior Court.
In the aftermath, legal observers have been left wondering if the ruling was a necessary wake-up call or if it has inadvertently pushed Canada's justice system off a cliff.
"It stabbed me in the heart," Nicole Nayel told CBC News in November, after the man accused of killing her 28-year-old son, Fouad, walked free from an Ottawa courthouse.
The judge stayed a charge of first-degree murder because it had taken four years for the matter to get to trial.
"There's no justice and that's what I'm having a problem with," she said. "I waited and I have been praying — now it's like everything got crushed right in front of my eyes. And the guy, he's smiling and walking away free."
Alberta Justice Minister Kathleen Ganley said that kind of scenario was what first came to mind when she read the Jordan decision.
"If we're taking years to get to trial, we're not doing a great job of serving the public, and I think that culture shift needs to start happening," she said.
That shift includes basic steps such as offering trials in the summer.
- Liberals looking to eliminate many mandatory minimum sentences: Wilson-Raybould
- Supreme Court sets new deadlines for completing trials
Sounds simple, but Neil Wittman, chief justice of Alberta's Court of Queen's Bench, said the idea didn't go over well initially.
"A lot of members of the bar didn't take us up on it very quickly. They are now, and we're offering more and more summer trials."
Courts in Alberta have also opened case management offices that handle procedural matters that used to be heard before a judge in a courtroom.
Ganley said Alberta's courts are hearing almost 7,000 fewer criminal matters per month.
Fewer preliminary inquiries
But it's Alberta's experience with cutting back on preliminary inquiries that has caught the attention of many legal observers.
Prelims are like mini-trials held to satisfy the judge that there's enough evidence to justify a charge and trial.
They used to be crucial to defence counsel because it was only then they were guaranteed disclosure of the Crown's evidence. But that changed 25 years ago when the Supreme Court told Crown attorneys to share as much as possible, as early as possible.
In 2014, the Alberta government recommended preliminaries be held in only the most serious cases and in one year, the number of prelims dropped by 30 per cent.
"That has worked well," Ganley told CBC News. "The Crown sort of turns their mind to that and the likelihood of success there, and I think that is helping, because in some cases it is a necessary step and in many cases I think it's really just a procedural step that comes from a bit of an antiquated place."
Conservative Bob Runciman, who chairs a Senate committee studying the court system, agrees with that assessment.
"We think there are areas where preliminary inquiries are not necessary," he said. "And the defence bar will fight against that in most instances."
Room for compromise
Ottawa defence lawyer Michael Spratt expects some of his colleagues will howl at the idea but he personally feels there's room for reforming prelims.
"Maybe not have hard and fast rules, but make sure that Crown counsel [and] judges that oversee sort of pre-trial meetings between Crown counsel and defence counsel can sit down and make reasonable admissions and do the streamlining on a case-by-case basis."
But he says that's not how things work at the moment in Ontario. Last month, Spratt says he received notice from the Crown that it wished to proceed without a preliminary inquiry on a complex first-degree murder case.
"I think we have to be very careful, because if the pendulum swings too far one way ... the inevitable result of hurrying things up, of reducing procedural protections, it will result in wrongful convictions."
Scrapping mandatory minimum penalties
The approach to preliminary inquiries is inconsistent across the country, but federal Justice Minister Jody Wilson-Raybould says she's open to hearing arguments for cutting back on them.
In the meantime, she says her department is looking at the impact of mandatory minimum sentences.
Wilson-Raybould says there's enough evidence to show mandatory minimums have contributed to serious backlogs in Canada's courts.
They result in more trials because the option of reaching a swift plea deal for a reduced sentence is off the table.
"Certainly, we recognize for the most serious crimes, mandatory minimum penalties are entirely appropriate," the justice minister said.
But in other cases, she says, re-injecting discretion for judges to tailor sentences for the individual before them is of the utmost importance.
Something has to give
Another way to reduce the backlog is simply to have stricter standards for granting delays.
Runciman recalled a glaring example of this from when he and his Senate committee colleagues visited a Calgary courtroom last fall.
"The defence asked for an adjournment of a case [...] and the Crown pointed out, 'Your honour, this individual, the accused, has already had 19 adjournments in the case.' And the judge said, 'OK, well I'll give you one more' and banged the gavel," Runciman said.
B.C. Supreme Court Associate Chief Justice Austin Cullen said he expects far less of that in the future.
He says the "immediate, real effect" of the Jordan ruling was to require stronger justification for pushing back dates, allowing so many pre-trial applications and adjourning trials.
Cullen serves on a roundtable with police, Crown attorneys and defence lawyers in B.C., which recently came up with a draft set of protocols for making the most complex trials more efficient.
'Litigants in some way are far less interested in our rhetoric and our beautiful prose than they are with an actual decision.' - Justice John Laskin, Ontario Court of Appeal
Crown attorneys, for example, are expected to disclose evidence to defence counsel within three months of an accused's first appearance in court.
The director of policing services is encouraged to consider setting minimum standards for organizing and disclosing evidence to the Crown.
And finally, keeping everyone on track would be an experienced judge, appointed specifically to manage every such case and oversee trial plans.
Even the way judges share their rulings could save valuable time.
Next month, dozens of judges from across Canada will gather in B.C. for a course on how to give oral judgments. Most are used to taking time to write lengthy rulings.
"One way to manage your caseload is to be able to give an oral judgment right after the hearing," said Justice John Laskin of the Ontario Court of Appeal, who helps teach the course.
Speaking directly to the people has other benefits, he says.
"You know, litigants in some way are far less interested in our rhetoric and our beautiful prose than they are with an actual decision. So they can, you know, plan their lives and get on with their lives."
Jordan not fully litigated
Like many other significant legal decisions, the full implications of the Jordan ruling won't be known for some time.
Laskin expects his court will soon be hearing appeals from the Crown on charges that have been stayed, as well as cases where defence counsel will appeal the dismissal of applications to stay charges.
Associate Chief Justice Cullen in B.C. says the decision raises plenty of other challenging questions.
"For example," he said, "does the need for a trial without delay trump an accused person's right to counsel? If there are two or more accused and one of the accused's counsel is unable to free up his or her calendar until a long time into the future, does that mean that person needs to get new counsel?"