Canadian Lawyer - sample

w w w . C A N A D I A N L a w y e r m a g . c o m M A Y 2 0 1 7 27 These decisions are not out of the ordinary and suggest that the outcry following the release of Jordan last sum- mer and suggestions by some police, prosecutors, judges and media that a flood of people facing serious criminal charges are going to be released may be misplaced. Following the Supreme Court deci- sion in R. v. Askov in 1990, more than 47,000 charges were stayed by the Crown in Ontario alone over the next year. In the second half of 2016, there were 48 judicial stays granted for delay in Ontario, according to the Ministry of the Attorney General. In Alberta, there have been six stays granted since its Ministry of Justice started tracking this data last fall. The numbers do not seem to be on the rise this year. A search of reported cases in the first two months of 2017 uncovered only a handful of reported cases where stay applications were granted. The most serious charges to be stayed recently might be that of armed robbery by Superior Court Justice Irving André, who presides in Brampton just outside of Toronto. The primary reason was a three-year delay in processing DNA evidence, something that would likely have led to a stay under the previous guidelines. There can be no doubt that there continues to be a flood of reaction to the Jordan decision. It is top of mind in courts across the country every day, says Joel Pink, the prominent defence lawyer and partner at the firm of Pink Larkin in Halifax. "In Nova Scotia, if we ask for any delay, the judge now says to us, 'Are you waiving Jordan?'" notes Pink. The level of attention that this deci- sion has received may be in part because two of the cases that have been stayed involved murder charges in Ontario and Alberta. Both of those decisions are under appeal and while a stay of a murder charge for unreasonable delay is very rare, it was not unheard of under the previous framework. In fact, Justice Michael Moldaver — one of the authors of the majority judgment in Jor- dan — was part of an Ontario Court of Appeal panel in 2005 that unanimously upheld a stay for parents implicated in the death of their infant child. "Staying charges of first-degree murder without a trial on the merits is almost unthink- able. And yet, that is what must occur if s. 11(b) is breached," stated the three- judge panel in R. v. Kporwodu & Veno. In the current criminal justice cli- mate, there does appear to be a wide- spread acceptance that significant changes need to be made to address an issue that has plagued the courts in Can- ada for at least the past three decades. Some provinces have announced more prosecution and judicial resources. There have been policy amendments to make it easier to prefer a direct indict- ment and skip a preliminary hearing. The Attorney General of Ontario and the Minister of Justice in Manitoba (as well as the senior judges in that prov- ince) have suggested that the federal government restrict or eliminate pre- liminary hearings altogether. This is despite the fact that in provinces where the data is available, it shows that pre- liminary hearings make up less than two per cent of the overall cases each year in provincial court. Where there does not appear to be a consensus is on the most significant root causes of delay in criminal courts and the best measures to address the problems. "It cannot be business as usual. The Supreme Court has made that clear," says Kathleen Ganley, Minister of Jus- tice and Solicitor General of Alberta. In response to a public lobbying campaign by the provincial Crown attorneys association, the Alberta government announced in March that 35 new pros- ecutors will be hired, existing vacancies will be filled and more support staff hired as well. In addition, a "triage pro- tocol" was adopted that requires Crown attorneys to consider various factors including delay and ensuring that there is a proportionality between the seri- ousness of an offence and the resources used to prosecute. "We started with the triage proto- col, because we had to react quickly to Jordan," explains Ganley. Other mea- sures include assigning senior Crown attorneys at an early stage for screening purposes so that, where it is appropri- ate, a resolution can be reached quickly with defence counsel. "We want our "in nova scotia, if we ask for any delay, the judge now says to us, 'Are you wAiving JordAn'?" joel pink, pink larkin

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