'It lit a fire under me,' federal justice minister says of court delays ruling
One year since 'Jordan' ruling put hard targets on the time a criminal case must go to trial
They did not see it coming, but they knew that something likely would derail their plans.
More than a year ago, Justice Minister Jody Wilson-Raybould convened a meeting of people engaged in the criminal justice system to hear their views on reform, which included a sober and prescient reflection.
"Extraneous circumstances and events, which are unforeseeable to us today, will hijack the agenda — use them as they can be an effective way to attract and commit public interest," said a summary of the May 2016 discussion obtained through an access-to-information request.
Seven weeks later, the Supreme Court of Canada released its groundbreaking ruling, R v. Jordan, that urged everyone to get serious about reform.
"It lit a fire under me," Wilson-Raybould said in an interview.
- 204 cases tossed over delays since Supreme Court's Jordan decision
- Trial times drop dramatically in Quebec since Jordan
- Courts scramble to meet new trial timelines
The Charter of Rights and Freedoms gives someone charged with an offence the right to have their case tried within a reasonable amount of time and in the drug-related case of Barrett Jordan of Surrey, B.C., it had taken more than four years.
"A culture of complacency towards delay has emerged in the criminal justice system," the high court wrote in a 5-4 ruling that sent a strong message that enough was enough.
The Supreme Court imposed strict limits on the amount of time a case could take to make its way through the system — 18 months in provincial courts and 30 months in superior courts.
Those presumptive ceilings were upheld in another ruling last month.
Warning cases could be tossed
The only remedy for a case that goes on so long is a stay of proceedings, no matter how serious the charge, and a dissenting minority opinion argued the new time limits could lead thousands of cases being tossed.
The ruling came with a transitional measure for cases already in the system, but there have been some high-profile examples of stayed proceedings, including murder charges, which has brought a greater sense of urgency.
Rick Woodburn, president of the Canadian Association of Crown Counsel, said there was a crisis in the justice system long before the ruling came out.
"The Supreme Court of Canada just put the exclamation point on it."
Eric Gottardi, one of the lawyers who argued for the defence in the Jordan case, said a stay of proceedings should be viewed as a health check on a system that needs fixing.
"It's not a reward for the person who has been accused of a terrible crime," he said.
There have been a number of different solutions proposed.
Senate suggests measures to speed up courts
A recent report from the standing Senate legal committee on legal and constitutional affairs proposed a wide range of ideas, including having the federal government fill a judicial vacancy the same day a Superior Court judge retires and moving most impaired driving cases out of the criminal courts.
The province and territorial justice ministers, meanwhile, came out of an emergency meeting on judicial delays this spring having agreed to think about criminal law reforms, changes to mandatory minimum penalties, bail, preliminary inquiries and the reclassification of offences.
"My approach is recognizing there isn't one solution," said Wilson-Raybould.
Many of these suggestions were familiar to those who took part at that first roundtable in Toronto last year, where Wilson-Raybould spoke of finding more off-ramps from the criminal justice system and getting serious about how to tackle the overrepresentation of Indigenous Peoples and those living with mental health issues and addictions.
There was also a sense in the room that no one wanted to wait much longer.
"We know what is needed and in what areas," said the summary of the discussions. "We should do them and move beyond the normal reflex of problem identification exercises, which delay action."
Topping the list of things the participants told Wilson-Raybould she could rather quickly review was existing and mandatory minimum penalty provisions.
Wilson-Raybould said she remains committed to this, especially since more than half of the charter challenges her officials are tracking involve mandatory minimums.
She said other research by the department has shown they do not even increase sentences.
"They are becoming the ceiling, rather than the floor," she said.
More than a year since they gathered in Toronto for what they described as a refreshing and inspiring roundtable with the relatively new federal justice minister, some are tired of waiting.
Mandatory minimum sentences
"People are going to jail that shouldn't be going to jail because there are mandatory minimum sentences — every day that is happening," said Jonathan Rudin, program director at Aboriginal Legal Services in Toronto.
Sen. Kim Pate, a long-time advocate for female prisoners, said she understands broader reforms could take longer, but that is not the case for everything.
"Some of these criminal law approaches really could be implemented now," she said.
Patrick Baillie, president of the Canadian Psychological Association, said his ongoing patience will depend on the result.
"I think if we end up with a process that gets rid of some of the silos so that health and social services and housing and education and justice and Aboriginal services and immigrant and refugees services are all talking about what we can do to address the overrepresentation of certain groups within the justice system, then that's a worthwhile dialogue," he said.
Bill Trudell, chair of the Canadian Council of Criminal Defence Lawyers, noted that Wilson-Raybould has had a lot on her plate, including the legalization of marijuana.
So, he too is willing to wait for legislative changes — for a little while.
"I think they'll come, but if they don't, six months from now, we'll feel like it was a lot of words," he said.
Wilson-Raybould said she, too, is "anxious about time frames" and she understands those who are frustrated by the pace of reform.
"I am hopeful they will see their voices in those reforms and they will contribute to the dialogue around potentially improving in the fall when we introduce measures for change," she said.