Ruling on sentencing delay could put more pressure on a stressed justice system

A recent Ontario Superior Court decision could put even more stress on a justice system already struggling with timelines imposed by the Supreme Court of Canada to protect the right to a speedy trial.

An Ontario judge recently stayed charges against a man convicted of pistol-whipping a Toronto convenience store clerk during a hold-up in 2015 — because it took too long to sentence him after he was found guilty.

Just over 24 months elapsed between the arrest of Ammaan Charley in January 2015 and the trial that saw him convicted of armed robbery, aggravated assault and possession of a loaded, restricted firearm.

It was the post-judgment delay in sentencing which should have been done more quickly and which pushed this case over the limit.- decision by Justice Edward Morgan

That's within the deadline of 30 months set for superior court cases by the Supreme Court of Canada in the so-called Jordan decision in 2016.

But the sentencing phase dragged Charley's total time in lockup past that deadline.

In late June, Ontario Superior Court Justice Edward Morgan ruled that Charley's rights had been violated and issued a permanent stay of proceedings.

"It was the post-judgment delay in sentencing which should have been done more quickly and which pushed this case over the limit," Morgan wrote in his decision.

"That phase of the case began in January 2017, fully six months after the Supreme Court's judgment in Jordan and, therefore, when no one can claim reliance on the pre-existing state of the law. Mr. Charley cannot be made to shoulder the failure to expedite the case once all parties were aware of the new (right to a speedy trial) parameters."

Unsuccessful dangerous offender application

Charley spent nearly three and a half years in custody.  

His lawyer, David Midanik, told CBC News the judge's decision "highlights the growing intolerance of the judiciary for aberrant state conduct."

In this case, Midanik said, that includes "the overuse of the dangerous offender provisions of the Criminal Code and the longstanding harsh conditions at the Toronto South Detention Centre, which are partly institutional and partly mismanagement."

Midanik had filed constitutional challenges over the "discriminatory and unjust treatment" he said his client was subjected to while in custody.

Following Charley's conviction in early 2017, the Crown brought forward an unsuccessful application to have him declared a dangerous or long-term offender.

"It was clear in this case that the Crown didn't really pay attention to Jordan when it came to particularly bringing that spurious dangerous offender application," Midanik said.

A new Jordan benchmark

The Jordan decision is a 2016 ruling of the Supreme Court 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.

Many cases reviewed by the courts for violating the Jordan standard involve pre-trial delays. Charley's case dealt with relatively uncharted territory: a sentencing delay that happened after the evidence had been heard and the accused had been found guilty.

• Supreme Court sets new deadlines for completing trials

In the Jordan decision, the Supreme Court of Canada only referenced sentencing delays in a brief footnote.

"We make no comment about how this ceiling should apply to (Jordan) applications brought after a conviction is entered," the top court judges wrote, "or whether additional time should be added to the ceiling in such cases."

The Ontario attorney general's office declined to say whether it plans to appeal the decision in the Charley case.

But Toronto defence lawyer Jeff Marshman, who was not involved in the case, told CBC News he expects to see an appeal filed.

It just adds another layer of pressure to the prosecution service that is already under siege.- lawyer Antonietta Raviele

"I would think it very likely that the Crown would seek to have the Court of Appeal review this decision, just because it does have the potential to really change the approach that all participants in the justice system take at the trial level," Marshman said.

He said it could "absolutely" put the system under more pressure.

"The pressure is not necessarily a bad thing. One of the goals, I think, of Jordan was to put pressure on the justice system, which is notoriously inefficient and sluggish," Marshman said.

"This would increase that pressure, in as much as now we're not talking about a 30-month ceiling from charge to end of trial, but to the end of trial and potentially to the end of sentence if an individual is convicted. So it could significantly alter the considerations that judges, the bureaucracy and Crown attorneys make in scheduling matters."

A system that's 'already imploding'

A former Ontario Crown prosecutor said the case sends a message to the justice system.

"Getting from A to B, from your charge to your trial, is important, but sentencing is also important," said Antonietta Raviele of RV Law in Toronto.

"So it just puts more pressure on a system that's already imploding, as far as I'm concerned."

Raviele spent seven years as a Crown attorney in Ontario, prosecuting hundreds of criminal and quasi-criminal trials and appeals. She left the attorney general's office seven years ago and is now in private practice.

Raviele said the Charley case shows the system needs an influx of resources.

"It causes I think more pressure on the Crown to ensure that the system is moving as quickly as it can," she said. "So it just adds another layer of pressure to the prosecution service that is already under siege."

Marshman, meanwhile, said that the public, victims and those found guilty all have a stake in resolving sentencing quickly.

"I think everyone on all sides has an interest in ensuring that delay is managed and kept to a minimum," he said.

"Sometimes it's a bitter pill to swallow when someone who's found guilty is not sentenced as a result and the proceedings are stayed, but the question really that this case raises, and I think it will be an interesting one to follow, is how exactly do we deal with that."