'Dire situation': Senators seek guidance for top court ruling on trial deadlines

The Senate legal and constitutional affairs committee wants Canada's top court to clarify its controversial ruling that set deadlines for trials for accused criminals. 

At least two murder cases have already been thrown out as a result of the Supreme Court of Canada's R. v Jordan decision, and the number of requests for stays of proceedings has spiked across the country.

Mass confusion could lead to miscarriages of justice and erosion of public trust in the criminal justice system, committee members warn.

The R. v. Jordan ruling imposes a deadline of 18 months for provincial court cases, or 30 months in a Superior court, to uphold an accused person's Charter right to a trial without unreasonable delays.

• Legal experts raise alarm over delays
• Crown fights 'excessive delay' stay
• Top court sets deadlines for trials

But the Senate committee, which has been carrying out a sweeping study on delays in Canada's clogged criminal justice system, says there must be a transition period so that cases already before the courts aren't thrown out en masse.

"This could lead to a very dire situation like we saw in Ottawa when an accused murder [case] had to be released; the charge was stayed on the basis of [R. v.] Jordan," said Independent Liberal Senator Serge Joyal.

"There is a need to determine the implications of the transition period, and that's what I think the attorney general could seek from the court — some guidance that would help protect the integrity of the criminal justice system for the average Canadian."

Murder charge stayed

In the case Joyal referred to a murder trial was halted after the judge said legal proceedings had lasted nearly four years. The province is appealing that ruling.

That case came on the heels of an Alberta case where the judge tossed a first-degree murder charge for excessive delay. Legal proceedings had taken five years from the time the accused was charged and were still not complete.

The Senate committee wants Justice Minister and Attorney General of Canada Jody Wilson-Raybould to get guidance on how the new constitutional time limits should be applied. Joyal said the ruling will require "major adjustments" to the legal system that can't take place overnight. 

Underfunded system

Anthony Moustacalis, president of the Criminal Lawyers' Association, said it's not the fault of the court but, rather, a chronic problem of a backlogged, underfunded system that is now being belatedly addressed.

"People have to remember it's a very important right to have your trial heard within a reasonable time," he said.

People have to remember it's a very important right to have your trial heard within a reasonable time.- Anthony Moustacalis, president, Criminal Lawyers' Association,

He called the Supreme Court decision "strong and muscular" and noted the cases that are stayed as a result of the ruling can be appealed.

"The murders are the extreme and attract a lot of public concern, but you have to remember that 80 per cent of people in the criminal justice system have health and social poverty issues, mental issues, drug or alcohol addiction, and prosecutors really have to hone in on what really needs to be prosecuted to make time for the more serious cases."

Thousands of cases at risk

He estimated between 2,000 and 5,000 cases could be stayed as a result of the Supreme Court ruling.

Conservative Senator Bob Runciman said because there is no broad understanding of how the ruling should apply, it makes better sense for the high court to set out parameters rather than force mass appeals.

"Rather than waiting for appeal court decisions to clarify it, there should be an urgency to this to ensure faith in the justice system and address concerns of the victims," he said.

Wilson-Raybould's office could not immediately say if the minister would seek clarification from the Supreme Court, but during question period she said the government is determined to improve efficiencies in the court and criminal justice system.

"I am committed to doing that in partnership with the provinces and territories," she said, "recognizing the need for public safety, recognizing the need to support victims of crime, recognizing the need to ensure that we are compliant with the Charter of Rights and Freedoms, and ensuring that we look at all sources for innovative solutions to improve the effectiveness of the criminal justice system, including looking at the interim report that was just released by the Senate committee."