Canada's court of last resort gets rare do-over to reform justice system: Chris Hall

The Supreme Court of Canada is known as the court of last resort because its decisions are final. There are no more appeals to make, no more arguments to be heard on a case.

But every so often the court of last resort gives itself a kind of do-over using a new case to clarify a previous decision.

That's what's expected to happen on Friday, when the court will rule on a Newfoundland and Labrador drug trafficking case that took more than five years to come to trial. That will give the court a chance to clear up confusion it created with a decision last July — confusion that's led to hundreds, if not thousands, of criminal cases being stopped simply because they took too long to come to trial.

The decision came to be known as "the Jordan ruling" after the court said Barrett Richard Jordan's charter rights had been violated due to an "unreasonable" 49-month wait for a trial. Drug charges against him were stayed.

What's a reasonable time? The majority of judges decided in the 5-4 ruling that it's 18 months in provincial court or 30 months in superior court from time of charge to conclusion of trial.

Lower court judges soon began tossing out all sorts of cases — some of them involving charges of murder and sexual assault — on the grounds that they, too, had taken too long.

The decisions had widespread implications.

Victims and their families felt that they would never get the chance to see justice done.

For those accused of a crime, there would be no opportunity for a day in court — or, as one judge put it in stopping a murder case in Ottawa last year, "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."

'Urgent' need for reform

It's against that backdrop that the Senate committee on legal and constitutional affairs released its report Wednesday with a list of recommendations to reduce trial delays.

The 205-page report is as thorough as it is long.

But it starts with the premise that Canada's justice system is "in urgent need of reform."

Among the recommendations: that a stay of proceedings should not be the only remedy available to courts, including the court of last resort, in cases that have dragged through the system. Another recommendation is that courts have to do a better job of managing cases.

Perhaps most importantly, the report urges the federal justice minister to take the lead in changing the Criminal Code to reduce procedural and other barriers to a speedy trial, and to fill a judicial vacancy as soon as a judge retires.

• Sex assault cases in Alberta collapse due to excessive delays
• Man accused of murder has case stayed due to Jordan ruling

Everyone in the system is overworked, said the committee's deputy chair, Liberal Senator George Baker, as he discussed what the committee learned during its cross-country hearings that included interviews with 39 judges, with crown attorneys, defence lawyers and police.

"We saw courts lined with lawyers asking for a date to be set [in order] to set dates for trial," Baker said Wednesday, shaking his head at the absurdity of it all.

"Imagine that."

The courts are sawing sawdust.- Senator George Baker

Baker said the committee learned that it takes between five and 10 times longer for criminal cases to be tried in Canada than in the UK, Australia and New Zealand. The delays are getting longer, and legal costs are going up here even as overall crime rates are dropping.

"The courts," Baker said, "are sawing sawdust."

In other words, too much time is being taken up on administrative issues. Too much time is being wasted because defence lawyers aren't getting advance disclosure of all the evidence so they can properly represent their clients, or because they're filing too many motions that clog up the works.

Emergency meeting

Lost amid all the manoeuvring, all the legal jousting, are the victims and the accused.

Federal Justice Minister Jody Wilson-Raybould held an emergency meeting with her provincial and territorial counterparts in April to discuss the Jordan ruling and what should be done, including changing the law to provide alternative remedies to staying a charge.

"It's something we have considered and will continue to consider to see if it can assist in contributing to relieving the delays," the minister said Wednesday.

She also defended her record of filling judicial vacancies — even though there are more today than when the senate committee released its interim report back in August.

The Supreme Court blamed the delays on what it called  a "culture of complacency" in the criminal justice system.  

Conservative Senator Bob Runciman likes the phrase, too. He chairs the legal and constitutional affairs committee and is a former Ontario solicitor general.

"You know, I used to be part of these federal-provincial conferences, and I'm not sure an awful lot came out of them," he said on the midweek podcast of CBC's The House. "When we talk about the culture of complacency, I think that applies to governments of all political stripes, provincially and federally."

Changing that culture, he added, begins with addressing the problems that contribute to the delays, and ensuring the concept of justice is restored to the criminal justice system.