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Applying the Jordan framework: Are courts placing too much of the burden on the defence?
In R v. Jordan, the Supreme Court put a hard cap on the duration of criminal trials — sending a thrill of panic through the justice system in the process. The ruling is roughly two and a half years old now. Time for the training wheels to come off.Now, that backlog of pre-Jordan charges has been largely cleared — the transitional period is over. But Crown and defence lawyers alike report that trial times aren’t speeding up; statistics cited in a recent Law Times article show that in the Ontario Court of Justice, average times to disposition and the number of court appearances have not diminished since Jordan. If the SCC intended the ruling as a salutary shock to the system, it didn’t work.So what happens now?
[ ...More ]Publication date : 2018-12-18
RCMP’s forensic firearm testing backlog adding delays to justice system
The RCMP’s forensics labs are taking nearly four times longer to analyze firearms than they did just four years ago, adding delays to a criminal justice system under pressure to speed up after a recent Supreme Court decision.
[ ...More ]Publication date : 2018-12-16
Court delays persist, despite Jordan
The Supreme Court of Canada decision in Jordanand the problems it tried to address are still top of mind in the criminal courts in Ontario nearly two-and-a-half years after it was released.
[ ...More ]Publication date : 2018-12-03
The performance pay saga reaches a settlement
The issue is the prorating of performance pay in relation to pre-promotion period for the year in which lawyers are promoted. If a lawyer was eligible for performance pay and was promoted during the year, the Employer, rather than pay out a prorated performance pay for the period pre-promotion, paid out nothing at all regardless of your performance rating for the year. The AJC originally filed a grievance in 2011 and in response to that grievance, TB had conceded in the context of the adjudication hearing that pre-promotion service should be recognized. Unfortunately, the adjudicator originally disregarded TB's concession in his decision of 2015, requiring the AJC to file an application for judicial review, which eventually resulted on December 22, 2016 in a remedy limited to the right to pre-promotion performance pay for the year 2010-2011. Thus, the AJC filed another policy grievance on July 27th 2016. The hearing was scheduled for October 2018. We are pleased to announce that we now have a signed Memorandum of Settlement on this matter with TB.
[ ...More ]Publication date : 2018-10-30
Not all Questions are Good Questions: Avoiding Discriminatory Interview Practices
Much ink has been spilled over a recent decision by the Commission de la fonction publique (the "Commission") on the topic of discriminatory interview practices. In Association des procureurs aux poursuites criminelles et pénales et Directeur des poursuites criminelles et pénales[1], the Commission found that the plaintiff had been discriminated against when she was denied a position due to her pregnancy.
[ ...More ]Publication date : 2018-10-11
Federal government facing pushback over bill to transform justice system
One thing that both the prosecution and the defence seem to agree on is that the federal government’s push to cut preliminary inquiries in most criminal cases will not solve the long-standing problem of delays in the criminal justice system.
[ ...More ]Publication date : 2018-10-01
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Legal experts raise alarm over court delays after murder trial halted
17-11-2016
Amine and Nicole Nayel had waited four years for the trial of a man charged with first-degree murder in the death of their son. On Tuesday, a judge ruled the time was unreasonable and stayed the charges. (Simon Gardner/CBC)
An Ontario Superior Court justice's decision to call a halt to a murder prosecution over delays in getting to trial is being viewed as an ominous sign for the Canadian justice system, with legal experts and victim's advocates fearing more murder cases will be stayed because they are dragging too long.
Adam Picard, 33, was charged with the first degree murder of 28-year-old Fouad Nayel in 2012. Picard had been in jail ever since without the case actually getting to the trial stage.
This week, Nayel's parents assumed they were finally going to get a measure of justice because jury selection was starting. They were crushed when the case was stayed and the accused walked out of the court a free man.
"The system really failed us," said a devastated Nicole Nayel, the victim's mother.
Last July, the Supreme Court took aim at the sluggish pace of lower courts by ruling that most criminal cases must not exceed eighteen months to get to trial. Trials for the most serious cases, such as murder, should not be delayed past an upper limit of 30 months, the court said.
Picard case not unusual
The Picard case is not unique. That's why there are predictions other serious cases are about to collapse under the weight of delayed justice.
In March, the Canadian Resource Centre for Victims of Crime submitted a brief on delays in the criminal justice system to the Senate Standing Committee on Legal and Constitutional Affairs.
The authors cited the Ottawa case of Carson Morin, who is facing a first-degree murder charge in the fatal stabbing of Michael Wassill. In the spring of 2013 Wassill was trying to shield a female friend from violence when he was brutally attacked himself.
The group's brief noted the overwhelming grief suffered by Wassill's family "is compounded by the fact the trial for the accused will not take place until January 2017" and that, "setting a trial almost [four] years after the incident is an egregious injustice."
Heidi Illingworth, the executive director of the non-profit group, is worried about the future of the case.
"So are we now anticipating that these cases are going to be thrown out as well? It's very concerning," she said.
Crown lawyers say they need more resources
CBC Ottawa found two other murder cases that have already exceeded the Supreme Court's length benchmark of 30 months for serious criminal cases.
Michael Belleus. He was charged for the 2012 murder of Levy Kasende. There have been multiple delays at the preliminary hearing. The case is approaching three-and-a-half years.
Devontay Hackett. He's accused of second-degree murder in the killing of Brandon Volpe. The case is approaching three years and, like the Morin case, is scheduled for trial in Janaury.
Just last month, Kate Mathews, the President of the Ontario Crown Attorneys Association, called the situation a crisis. She blames a provincial government that is cutting resources when much more are needed.
"We don't have enough courtrooms, we don't have enough judges, we don't have enough Crowns, we don't have enough support staff to support the Crowns in their work. All of those, in my view, are underresourced", said Mathews.
Crown was put on notice 'that the clock was ticking'
It's not clear if a lack of resources played a role in the Picard prosecution dragging on for four years. In Justice Parfett's ruling, she describes delays right from the start of the case.
"The Crown was put on notice as early as June 2013 that the clock was ticking and they had a positive obligation to proceed expeditiously."
She adds that, "despite this warning, there is no evidence that the Crown counsel was making any effort to find early dates."
In August of last year, Picard's lawyer brought a motion to expedite the trial. The Crown opposed the move, arguing that it would mean one of the assigned Crown attorneys would be unavailable on the proposed dates.
Attorney General orders review of case
After examining the ruling, Norm Boxall, one of Ottawa's top criminal defence lawyers, concludes there is no evidence to suggest Picard and his lawyer were deliberately causing delays to get the case stayed.
Criminal defence lawyer Norm Boxall said the case was not deliberately delayed, as the accused asked for an earlier court date over a year and a half ago.
"It clearly doesn't fly because in this case the accused had brought an application over a year and a half ago asking for an earlier trial date. It was opposed by the Crown. This is not a case of an accused who was delaying his trail date. In fact, it's quite the reverse," said Boxall.
The Crown can appeal Parfett's ruling.
In the meantime, Yassir Naqvi, Ontario's Attorney General, has ordered a review of the case.
Here is an excerpt of the conclusion of Parfett's ruling:
"I am well aware that, in deciding to stay these charges, the family of the deceased in this matter will not see justice done as they would want.
"Moreover, the accused himself may find this to be a hollow victory. A stay of proceedings is not the same as a verdict of not guilty.
"However, I cannot but emphasize that the more serious the charges, the more the justice system has to work to ensure that the matter is tried within a reasonable time. The thread that runs through the present case is the culture of complacency that the Supreme Court condemned in Jordan.
"Everyone, not just the Crown, was content with trying this matter within the time for delay that has become the norm in Ottawa. Normal delay is not acceptable when an accused is in custody.
"Delay beyond that prescribed for the past 24 years is not acceptable regardless of whether the accused is in custody or not.
"In the present case, the justice system has failed this accused and the public. Consequently, a stay of proceedings will be entered."
http://www.cbc.ca/beta/news/canada/ottawa/legal-experts-concerned-halted-murder-trial-1.3854568
