Calgary has 400 cases under review over concern delays will allow accused criminals to walk free

Alberta's poor economy, lack of prosecutors and Superior Court judges, as well as a recent Supreme Court decision, have created a situation in which accused criminals could walk free, lawyers say.

Police, prosecutors, defence lawyers and judges all bracing for rush of cases to be stayed

After the Supreme Court of Canada imposed strict timelines on how long a criminal matter can take to get to trial, prosecutors in Calgary began reviewing 400 criminal cases. (CBC)

Alberta's poor economy, lack of prosecutors and Superior Court judges, as well as a recent Supreme Court decision, have created a situation in which accused criminals could walk free, lawyers say.

"It's really unfortunate that Alberta's caught right in a perfect storm of having more matters before the court than any time before, with less judges," said veteran defence lawyer Adriano Iovinelli. "Something has to give."

It has become a weekly event that defence lawyers are giving notice they intend to apply for clients' charges to be stayed following the Supreme Court's R vs. Jordan decision that puts hard timelines on what is considered an unreasonable delay for matters to get to trial.

Murder cases could be tossed out

In Calgary, two murder cases are at risk of being tossed out after defence lawyers notified the judges involved that they plan to make Jordan applications. 

And next week lawyers for several men accused of kidnapping, firearms offences and robbery will ask a judge to stay all charges because of what would be a four-year gap between the 2014 arrests and a 2018 trial.

Defence lawyer Shamsher Kothari said the bulk of the delay is attributable to the prosecution's disclosure issues.

"When the Crown can't disclose in a timely manner, then it's clear that the accused's right to be tried within a reasonable time is infringed," said Kothari.

The influx of stay applications has caused a flurry of activity behind closed doors as the Crown's office prepares to prioritize cases that must go to trial and flag which ones can be stayed or resolved with guilty pleas.

"The Alberta Crown Prosecution Service is beginning to flag cases that could be considered for a Jordan application, and reviewing how to address these cases," said Dan Laville, a spokesman for Alberta Justice in a written statement.

400 cases in Calgary being reviewed

The Crown's early case resolution team is reviewing an estimated 400 cases to determine if they're at risk of facing Jordan applications, said prosecutors familiar with the situation.

On Friday in Edmonton, a man facing a first-degree murder charge for the 2011 stabbing death of a fellow inmate was stayed. The judge found the accused's constitutional right to be tried within a reasonable time had been "violated."

On Tuesday, prosecutors in managerial positions in the province met to discuss how to prevent similar situations going ahead.

According to statistics from Alberta Justice, only four Jordan applications have been made in provincial court with one being dismissed and three pending arguments and decision.

But in a presentation before a Senate committee in Calgary two weeks ago, Alberta's Court of Queen's Bench Chief Justice Neil Wittmann said eight cases had been "sent home" since the Jordan decision because of unreasonable trial delays.

Alberta to get more judges 'soon'

Wittmann has been lobbying the federal government for more Superior Court judges for years and has called Alberta's lack of judges a "crisis." 

Only one judge has been added to the province's complement, even though Alberta's population has nearly doubled in the last decade, which means Alberta has the fewest Court of Queen's Bench judges per capita in the country.

To match British Columbia's ratio, Alberta would need 11 more judges.

Alberta Justice Minister Kathleen Ganley said she is working with Ottawa in an effort to get more judges. Ganley said she understands "there are appointments on the way soon."

The issue of trial delay is very much on the radar of all players within the justice system; judges are now making sure any delays are attributed on the record to the court, defence or Crown.

'We're on the clock'

Alberta's economy is only making matters worse; the province has seen a "sharp" increase in criminal activity in Calgary in the areas of domestic violence, property offences and drug-related offences, according to Iovinelli.

"The court can't deal with all those matters in an expedited fashion, so now … we're on the clock."

Already, Alberta judges were hearing more Askov applications attributable to backlog of criminal trials; a 1990 Supreme Court decision called R vs. Askov also addressed an accused's right to a timely trial, but did not put hard timelines on it, leaving those applications up to a judge's discretion.

In July, the Supreme Court upheld a lower court's decision to stay Barrett Jordan's drug charges because more than four years had passed between his arrest and conviction.

In its decision, the country's highest court put hard timelines of 18 months for provincial court matters and 30 months for Superior Court cases to make it to trial.

Delays beyond those time frames are "presumptively unreasonable" and violate an accused's charter right to be tried within a reasonable time, the decision said.

Calgary police playing a role 

"It's frustrating, but you have to be pragmatic as well," said Calgary police Chief Roger Chaffin. 

"It is part of the democratic system; this process of the Supreme Court and the decisions they make is part of what it's about to live in Canada and making sure we have a fair and just system."

As investigators, police also play a role in keeping the justice system running smoothly.

"It's something we're watching closely — what I can manage is what we can do about it: make sure our officers are better prepared to have better disclosure to meet the standards of the court at an earlier instance."

Chaffin said he's working with front-line officers and investigators to ensure cases handed over to the Crown's office are airtight and ready for prosecution. 

But the thought of hard police work going down the drain due to court delays does weigh on the city's top cop.

"I'm very concerned about what's already sitting in court that might actually just get thrown out because they've met these presumptive ceilings," said Chaffin. 

"I'm still hopeful that we won't just have things randomly thrown out, but it's a big concern for us right now."