Nfld. & Labrador

How a Supreme Court of Canada decision sparked concerns in N.L., and what's being done to address them

Documents obtained through access-to-information reveal that prosecutors had concerns about the impact the Jordan decision would have on current cases before the courts — and feared some serious charges would be dropped as a result.

14 murder cases taking up time, resources in Crown's office; new guidelines require speedier trials

Justice and Public Safety Minister Andrew Parsons says steps are being taken to lessen the impact R. vs. Jordan will have on criminal cases in Newfoundland and Labrador. (Bruce Tilley/CBC)

Prosecutors in Newfoundland and Labrador had concerns about the impact the Jordan decision would have on current cases before the courts — and feared some serious charges would be dropped as a result.

That's according to internal correspondence obtained by CBC News through access to information.

Now, months after those initial concerns were raised, the province's justice minister says the situation is not near as bad as in other jurisdictions, and work is underway to ensure new guidelines are met.

Many provinces are grappling with the Supreme Court of Canada's R. v Jordan decision to uphold an accused person's Charter right to a speedy trial. Two murder cases in other parts of Canada have already been thrown out as a result.

The ruling, which came down in July, imposes a deadline of 18 months for provincial court cases, but can be extended to 30 months if there is a preliminary inquiry. In Supreme Court, the deadline is 30 months.

Emails from July obtained by CBC News through access-to-information show concern in the Crown's office, and a need to assess how many cases could be in peril because of Jordan.

There are currently 15 murder cases before the courts in Newfoundland and Labrador. Among them are Steven Neville, left, Brandon Phillips and Anne Norris. Those three cases will be tried in St. John's. (CBC)

"How these (cases) will be assessed in light of Jordan's 'transitional provisions' remains to be seen however we are at risk of having many serious charges stayed," Donovan Molloy, the then-director of public prosecutions, wrote in an email to a colleague. 

Crown prosecutors were instructed to identify major cases that could be at risk. Another Crown was tasked with checking with laboratories and the police on any outstanding forensic evidence.

Based on an arraignment date of Sept. 1, Molloy told his colleagues, the earliest possible date for a four-week jury trial at Supreme Court in St. John's would be a full year later.

"Given the ceiling of 30 months to get a matter concluded in (Supreme Court trial division), including murder trials, and the time it takes for disclosure and to get these matters through preliminary in provincial court, our primary area of concern is St. John's," Molloy wrote on July 15. 

Delay in obtaining disclosure

In a separate email, Molloy noted that "delay problems in N.L. would appear to be significantly related to delays associated with obtaining complete disclosure from police."

The Royal Newfoundland Constabulary told CBC News this week that it has met with public prosecutions to "discuss steps that the police can take to fulfil their obligations under the recent Jordan decision."

"We recognize that cases should be ready to proceed to trial once a charge is laid and that includes having the disclosure ready to be sent to the Crown," RNC Const. Geoff Higdon said.

Const. Geoff Higdon, a spokesman with the Royal Newfoundland Constabulary, says all efforts will be made to get complete disclosure to the Crown's office as soon as possible. (CBC)

"We do not want to see cases postponed because disclosure has not been provided and we continue to strive towards providing full disclosure of the case in a timely manner so as to not create a delay."

Pushing ahead

The pressure to complete cases on time will add to an already burdened system, according to Sheldon Steeves, president of the Newfoundland and Labrador Crown Attorneys' Association. 

Steeves said it's going to mean the Crown attorneys will have to be "more on the ball" when it comes to pushing cases forward to trial.

"We feel that our caseloads are kind of at historic highs," Steeves said. "Robbery rates seems to have surged in the last four to five years and ... crime seems to be fairly high."

The courts are going to have to make the appropriate adjustments because this is the new reality for the justice system.- Michael King, Canadian Bar Association - N.L. chapter

He said the province will have to take a look at whether or not the right amount of resources are in place to deal with the Jordan decision. 

"Our government has actually been quite good and we're optimistic that they're hearing us on this," Steeves said, noting that the province reversed its decision to close the courts in Harbour Grace and Wabush. 

Michael King, chair of the criminal justice section of the Newfoundland and Labrador chapter of the Canadian Bar Association, said it's too early to know what the full affect will be on court operations.

"I know in Supreme Court, for example, jury trials as of last week were being set for the end of 2017, early 2018," King said.

"So, that might be a reason for concern but ultimately, the courts are going to have to make the appropriate adjustments because this is the new reality for the justice system."

'Case by case basis'

Justice and Public Safety Minister  Andrew Parsons said measures are being taken to alleviate the strain, including hiring three new Crown attorneys.

"Prosecutors have always had a very difficult workload," Parsons told CBC News this week.

In comparison to other provinces, like Ontario and Quebec, Parsons said Newfoundland and Labrador is in good shape.

Parsons said many delays in court occur out of convenience — not out of necessity.

"I can say from experience, in many cases, I would ask for a postponement and the Crowns would always be accommodating and would be willing to provide that," said Parsons, who worked as a lawyer in private practice before entering politics.

Sheldon Steeves is president of the Newfoundland and Labrador Crown Attorneys' Association. (CBC)

"In this case, we realize now that that's not always the case and you need to get the work done."

Parsons said it will mean the defence, the Crown and police will have to change the way they work to ensure every case makes it within the prescribed timeline.

To date, three accused have applied to have their cases struck using R. v Jordan. Just one case was stayed, and Parsons said that it would have been thrown out regardless as "it wasn't prosecuted in a timely fashion."

However, he suspects more applications will be made and will be dealt with on a "case by case basis."

Asked if the strain would result in smaller cases being dropped, Parsons said it wasn't a concern that had been expressed to him.

"The fact is we have to treat all these matters seriously. We have to treat them all the same," he said.

"Obviously, certain matters require a lot more resources, when you're dealing with a murder file that carries with it extra workload and in a lot of cases, two prosecutors."

Murder cases

In addition to the new timelines outlined by Jordan, the province is dealing with an unprecedented number of murder cases.

There are 15 cases before the courts, including Brandon Phillips, who will be tried by Halifax prosecutors.


Ariana Kelland is a reporter with the CBC Newfoundland and Labrador bureau in St. John's.