Number of cases tossed due to delays hits all-time high in N.S. courts

The number of cases in Nova Scotia courts dismissed due to delays has already hit an all-time high in 2023, and the year isn't over yet. 

As of July 31, 12 cases have been stayed by judges because they took too long — nearly double the total for the entire year in 2022. 

One of the latest examples is a case in which a teenager was convicted of violently sexually assaulting a girl who was just five years old when the assaults began.

The Nova Scotia Court of Appeal, in a decision released late last month, ruled that the case had taken too long. The Appeal Court ruled that the trial judge failed to properly consider an application from the accused's lawyer to dismiss the case due to delays. The youth cannot be named because of a publication ban.

"I am satisfied the appellant has made out a violation of his constitutional right to be tried within a reasonable time," Justice Anne Derrick wrote for the three-member appeal panel.

The Supreme Court of Canada, in its 2016 Jordan decision, established firm deadlines for dealing with cases. In Youth Court, where the teenager's trial was held, that deadline is 18 months; the same timeline that exists for matters in provincial court. In superior courts, like the Nova Scotia Supreme Court, that timeline is 30 months.

So far this year, there have been 26 Jordan applications made in Nova Scotia courts. Judges have granted stays in 12 of those cases. In three cases, stays were entered by the Crown. In four cases, judges dismissed the applications while seven cases are pending.

"We understand the impact on victims and their families when a case is affected by the timelines the Supreme Court of Canada set in the Jordan case for unreasonable delay," Justice Minister Brad Johns said in a statement.

"No one wants to see this happen."

Johns said the government is working to improve capacity by adding more staff to the courts and the Public Prosecution Service.

"We are working collaboratively across the justice system to make improvements that will help ensure cases move through the system in a reasonable time," John said.

Why the delay?

A variety of factors have contributed to delays that have led to Jordan applications, including a shortage of judges. There are currently two vacancies on the Nova Scotia Provincial Court. The situation has led to friction between the courts and the government.

One of those vacancies is Judge Rickcola Brinton, who presides in Dartmouth but has been on leave for a prolonged period.

In 2021, Brinton heard the case of a registered sex offender, Brandon McNeil, who was accused of molesting two young brothers. McNeil faced serious charges, including sexual interference, sexual exploitation and sexual assault. While she conducted the entire trial, Brinton did not render a verdict before going on leave, which led to an unreasonable delay.

Judge Bronwyn Duffy inherited the case and issued a decision to stay the charges against McNeil due to the delay.  

In response to the surging Jordan numbers, a spokesperson for the Nova Scotia Public Prosecution Service issued a statement.

"Our Crown attorneys work very hard to ensure that prosecutions are conducted within the time parameters set down by Jordan," Chris Hansen said.

"The current case backlog, caused in part by the pandemic, has certainly presented a challenge.  At present, the PPS is managing some 80,000 Criminal Code charges." 

Crown burnout

Rick Woodburn, president of the Canadian Association of Crown Counsel, told CBC News in an email there has been a "historic lack of resources" in the criminal justice system.

"Many of our cases were in Jordan jeopardy even before the pandemic began, but now the situation has grown exponentially worse," he wrote.

"Our massive backlog of cases has been overrun by the rise in violent crimes. Recent national crime stats have shown that violent crime is increasing over the pre-pandemic numbers."

Woodburn said Crown attorneys are "over worked, mentally fatigued and fed up with the lack of support."

He said more Crown prosecutors need to be hired. He pointed out New Brunswick recently announced hiring 30 more to deal with its own court crisis. 

Rochelle Palmer, the president of the Nova Scotia Crown Attorneys' Association, said the province has lost close to 20 experienced prosecutors out of 107 in the last year alone.

"Our prosecutors have a massive role to play in ensuring our cases do not succumb to Jordan delay — and with a properly funded and well-resourced Public Prosecution Service, our prosecutors have the ability to triage and prioritize files so that they move through [the] system efficiently," Palmer told CBC News in an email.