Canadian Lawyer - sample

28 M A Y 2 0 1 7 w w w . C A N A D I A N L a w y e r m a g . c o m first offer to be our best offer and also a fair offer," says Ganley. At the same time, the goal of the triage protocol is to ensure there are sufficient prosecution resources for the most serious and com- plex of criminal cases, says the Alberta Justice minister. James Pickard, president of the Alberta Crown Attorneys' Association, says that a form of triage has already been in place "for a long time" within the prosecution branch. "What is dif- ferent for us now is we are expressly to consider resources in making our [prosecutorial] decisions," says Pickard. While much of the public attention on the impact of delays in the courts has been focused on the possibility of stays in the most serious of cases, it is not these prosecutions that are a daily problem for justice system participants. "The issue for us is the middle level files," says Pickard. He explains that these are the prosecutions where the offences are too serious for diversion, but they will either be tried or resolved in provincial court. More than 95 per cent of criminal cases in Canada are disposed of in pro- vincial court, according to Statistics Canada, which issues an annual criminal court survey. The three most common charges laid are theft, impaired driving and fail to comply with a court order, according to its 2014/2015 survey. Near- ly one in three cases is ultimately stayed or withdrawn by Crown attorneys each year (not judges) without going to trial. Statistics released by the courts in Ontario in 2014 show that there were 57 times as many criminal court cases entering the provincial court system that year as the Superior Court. More than 3,700 criminal proceedings entered the Superior Court system, compared to more than 73,000 civil matters. For defence lawyers, especially in larger jurisdictions, the delay issues start at the front end, at the time police file charges. Derek Jugnauth, a defence law- yer at Wolch DeWit Watts & Wilson in Calgary, says over-charging by police is a common occurrence. "It manifests itself in two ways: the number of people and duplication of charges," he says. In a drug case, police may also charge the suspect's girlfriend. In a gun case, there will be Key cAses Mills v. The Queen (1986) The case was the first time that the Supreme Court was asked to interpret s. 11(b) of the Charter. In a split decision, the court dismissed an application to stay charges based on 19 months of delay leading up to a preliminary hearing — which was not the fault of the accused. The majority concluded that only a trial judge has jurisdic- tion to grant an 11(b) remedy and not at any earlier stage. r. v. rAhey (1987) The accused was facing income tax evasion-related charges. The unreasonable delay issue was over the 11 months it took the trial judge to issue a ruling on a directed verdict motion, following numerous adjournments by the judge. The Supreme Court unanimously agreed there was a Charter breach and the charges should be stayed because of the delay caused by the trial judge. Four separate concurring decisions set out different ways to analyze whether delay is reasonable. All agreed that prejudice as a result of delay is a factor to consider. Chief Justice Brian Dickson stated that unreasonable delay once a trial has begun could also result in a Charter breach. r. v. AsKov (1990) The trial in this case, for multiple defendants, was set for nearly two years after the preliminary hearing and almost three years after charges were laid. The majority decision stressed that there is a public interest not only for the accused but for wit- nesses and victims that a trial takes place in a fair, quick and efficient manner. The longer the delay, the more difficult it should be for the court to excuse it, but the majority said there is no fixed time as to when delay breaches the Charter. However, the majority also said that institutional delay beyond eight months after a prelimi- nary hearing to the time of trial is likely too long. r. v. Morin (1992) The Supreme Court is asked to revisit its findings in Askov, which resulted in tens of thousands of charges being stayed in Ontario alone. Various factors are set out by the court for judges to consider when assessing delay. They are the length of delay, waiver of time periods, reason for the delay, in inherent time requirements, limits on institutional resources as well as the actions of the defence and the Crown. The majority stated that institutional delay of about eight to 10 months before a prelimi- nary hearing is acceptable. After committal for trial, the institutional delay should not exceed another eight months, as stated in Askov. At the same time, suggested time periods are only for guidance. Both the defence and the Crown can rely on evidence to show prejudice to the accused or to dispel it. r. v. JordAn (2016) The majority judgment in the 5-4 ruling stated that a culture of complacency in the courts has come to tolerate excessive delays and as a result a "change of direction" is required. The Morin framework is too unpredictable and complex, stated the major- ity. Instead, a new framework of 18 months for cases tried in provincial court and 30 months for those in Superior Court was substituted. Delay beyond these periods is presumptively unreasonable. To rebut the presumption, the Crown must show there were exceptional circumstances. Prejudice no longer plays an explicit role in the 11(b) analysis, the majority said. The dissent, written by Justice Thomas Cromwell, argued that "reasonableness" cannot be captured by a number and requires a con- textual analysis. As well, the Charter right is to be tried within a reasonable time, not a right to a "trial under the ceilings."

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