Senate committee takes aim at Canadian court delays on Friday

A Senate committee will release a report on curbing court delays Friday morning, after discovering some cases can last as long as five years in criminal courts.

Manitoba sexual assault conviction tossed after court process takes 3 years

A Senate committee will release a report on curbing court delays Friday morning, after discovering some cases can last as long as five years in criminal courts.

The report will make four strong recommendations to provinces after consulting experts and holding public hearings.

It comes just one month after the Supreme Court of Canada imposed deadlines of 18 months for provincial court cases (or 30 months if a preliminary inquiry is required) and while it decides if it will hear a case on a sexual assault conviction in Manitoba that was overturned due to delay.

In 2013, Marlin Vandermeulen was convicted of sexual assault causing bodily harm, uttering threats and assault causing bodily harm among other charges and sentenced to three and a half years in prison.

The victim, who had been dating Vandermeulen, testified he had beaten and raped her on several occasions near the end of their relationship. Physicians' reports and medical exams revealed injuries including internal bruises, scrapes and swelling.

During one of the alleged attacks, the victim testified, Vandermeulen threatened to kill her.

But the case took 37 months from the time charges were laid to conviction, and Vandermeulen's lawyers appealed, arguing the delays were unreasonable. The judge agreed and issued a stay of proceedings.

The Supreme Court is now determining if they will hear the case.

"We couldn't have taken it more seriously, I think," said Mike Mahon, Manitoba's head of prosecutions.

Mahon called every prosecutor in the province to a meeting to discuss what happened.
Mike Mahon, Manitoba’s head of prosecutions, said the province is doing 'very well' on delay. (CBC)

One year later, in June 2015, a team of seven to eight Crown attorneys were assembled into a unit to tackle the delay.

Intensive Case Assessment Process or ICAP has the attorneys work with their peers to determine where things can be sped up.

But this summer, an unexpected curve ball came from the Supreme Court.

After reviewing cases out of B.C. and Ontario, which had a five-year long wait and a three-year long wait, the Court ruled provincial court trials must be completed within 18 months of charges being laid or 30 months if there is a preliminary inquiry.

"Because of the Supreme Court of Canada decision, we're having every Crown attorney in the province look at every file they have to tell us which files might be in jeopardy," said Mahon. "No one wants to lose a case because they somehow delayed a case."

The Province should have an estimate soon of how many cases could be affected by the 18 to 30 month timeline.

No data on how long cases are taking

Last year, prosecutions opened about 50,000 criminal cases in Manitoba, but there's no way to know how long it's taking for the cases to get to trial because the department nor the province tracks those times.

"The average wouldn't really tell us very much. It's really the individual cases that we need to know," said Mahon.

Mahon believes Manitoba is doing "very well" on delay issues, and he said prosecutors have been working with their teams, judges, courts, police and other partners to try to find efficiencies.

"I wouldn't agree that things are doing very well. There's a number of cases where it takes an incredible amount of time to get them to trial. It's especially bad in rural areas in Manitoba," said Kristofer Advent, a defence lawyer with Gindin Wolson Simmonds Roitenberg who worked on Vandermeulen's appeal.
Kristofer Advent is a defence lawyer with Gindin Wolson Simmonds Roitenberg who worked on Marlin Vandermeulen’s appeal. (CBC)

Advent added he believes it's "very hard" to take the view things are going well without data on wait times.

"We're not being responsible with [an] individual's rights under the charter to have a trial within a reasonable amount of time," said Advent. "Whether you're an accused person or whether you're a victim of an offence, having massive amounts of delay just undermines their confidence that justice is being done."

Mahon and Advent both agree that a wide variety of factors can contribute to delay — everything from getting relevant information from police to booking court rooms in rural areas to witnesses not showing up to testify.

They disagree, though, on who delay favours. Advent says it erodes an accused's ability to defend himself as memory fades with time.

Both say witnesses are less interested in and less available to testify as months and years pass.

'Can't say ... this isn't going to happen again'

Advent said the delays cause undue hardship for clients who aren't awarded or can't afford bail.

"Delay is the toughest on those individuals who are stuck sitting in custody or stuck sitting in the Remand Centre waiting for their trial to take place. These people could be factually innocent of their charges, but they're waiting months and months and months before their trial and they're sitting in jail," said Advent.  "Even if someone is released on bail, they're on conditions — sometimes very strict conditions — until their trial comes around."

And, he said, July's Supreme Court decision indicates the problem is not limited to Manitoba, but exists across the country.

Mahon said he believes his department has the resources it needs to cut down delays, but he can't promise instances like the Vandermeulen case won't happen again.

"You can never say never because things happen. It's a human system. I don't know at the end of the day, and I can't say to you this isn't going to happen again, but it will be rare," said Mahon. "I would not have that be something in people's heads that they should not come forward because the case might be ultimately stayed because of delay. I don't think the risk is that great in the circumstances."

A decision on whether the Supreme Court will hear the Vandermeulen case is expected in the near future.