N.S. court backlog worsening due to COVID and the 'Jordan ticker'

Every day, Crown attorneys in Nova Scotia walk into work with the "Jordan ticker" on their mind, as they sift through cases — from homicide to sexual assault — and try to determine which are at risk of being dropped.

The number is alarmingly high, with 1,046 pending cases currently over the so-called Jordan threshold in provincial court — a 187 per cent increase from 364 cases in 2020. In Nova Scotia Supreme Court, there are 68 criminal matters currently over the threshold, an increase of 84 per cent from 37 cases in March 2020.

"It does concern me primarily because there would be many cases where the public would likely be very concerned about a case not being able to be properly tried before a court and decided by a judge," said Kentville Crown attorney Dan Rideout.

The Jordan decision is a 2016 ruling of the Supreme Court of Canada that sets a limit of 18 months between the laying of charges and the actual or anticipated end of a trial in provincial court. In superior courts, the ceiling is 30 months.

CBC obtained the latest statistics in Nova Scotia through a Freedom of Information request. Between July 2016 and June 2021, there have been 48 applications seeking a stay of proceedings in Nova Scotia under the Jordan guidelines. Eight cases have been dropped as a result, including three sexual assault cases, two impaired driving charges, a voyeurism charge against a family physican and a break and enter case.

Rideout said he's not surprised by the current number of cases hovering over the threshold because he sees the delays on a daily basis. 

"There is such a backlog of cases because there's not enough resources to be able to deal with them," he said. "The Crown attorneys are focused on that, and we're already working evenings and weekends to address these delay issues on these important cases because we feel both a moral and ethical responsibility."

The Jordan argument can only be used if the prosecution caused unnecessary delays in a case. Typically, the defence would make the application for a stay of proceedings. 

"Prior to COVID, we were in a situation where there was a large backlog, Jordan was still being dealt with and then the pandemic hit, and all of those cases just kept piling up and piling up as the courts closed," said Rick Woodburn, Halifax Crown attorney and president of the Canadian Association of Crown Counsel.

"And now we're reaching a critical point where that tsunami of cases — the ones before the pandemic, the ones during the pandemic and the ones occurring now — are all starting to flood the courts and flood our offices."  

Woodburn said he's hearing a similar story in jurisdictions across the country. 

Staffing pressure

CBC obtained a copy of the briefing book for Nova Scotia's new justice minister. Among other things, the document outlines staffing issues caused by the pandemic.

"The workload of Crown Attorneys continues to increase and Crown Attorneys are feeling the pressure," said Martin Herschorn, director of public prosecutions, in the briefing.

"Management has received reports over the last year of our more senior Crown Attorneys experiencing burnout and our more junior Crown Attorneys feeling overwhelmed. We have seen several early retirements and a number of medical leaves as a result."

The briefing also cites the "Jordan ticker" as an added stress.

"In some jurisdictions, very serious charges, including murder, have been dismissed due to unreasonable delay. In response, some jurisdictions such as the Province of Quebec have seen a massive injection of resources into their criminal justice system. The current pandemic has only aggravated this concern," stated the document.

The Jordan decision allows extensions for what is described as exceptional circumstances. 

While defence lawyer Pat McEwan agrees with the prosecution service that COVID has been a legitimate reason for delay, he said it's not an "unlimited exception to the rule."

"With those types of numbers, I would not be surprised if those applications are not coming sooner rather than later," he said.

McEwen said he's personally had a few cases dropped because of the Jordan principle, and he expects more in the coming months.

Difficult conversations

Rideout said no Crown attorney wants to tell a victim of crime their case is being dropped due to lack of resources, but that has become reality.

"It's one of the hardest conversations you can have," he said. "You're trying to explain to somebody who has made a complaint and is looking to have their opportunity to testify about a traumatic experience … that they're not going to have that opportunity because a matter couldn't come through the court fast enough."

In order to address the Jordan timeline, Rideout said Crown attorneys are often placed in a position to accept dates for their cases and readjust their other files.

Woodburn said at this point, it only makes sense for the Attorney General to start triaging cases. 

"It's not for me to decide whether or not I prosecute a drinking and driving over a sexual assault. Somebody is going to have to tell me and they're going to have to start prioritizing these cases," he said. 

A team of five crown attorneys in Halifax has been dedicated to handling cases early in the process, which has proven to be successful according to the Minister's briefing documents. However, the public prosecution office expressed the need for more resources.

Nova Scotia Justice Minister Brad Johns said he's aware of the concerns.

"I did have an initial meeting with the director," he said. "He did express some of those concerns and my comment was that we'll sit down after the House is sitting and look at those more in-depth before budgets come forward in the spring."

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