Lawyers across Canada have sought to suspend more than 800 criminal cases for unreasonable delay – including more than a dozen murder, attempted murder and manslaughter cases – since the Supreme Court set strict limits for trial lengths in July, a Globe and Mail review has found.
The numbers point to intense delay problems in some jurisdictions, and to the possibility of even greater challenges ahead, as the limits set by the court are not fully in effect. The havoc predicted by the dissenters in the Supreme Court ruling known as R v. Jordan has begun, and so, too, has the push for a change to the system's "culture of complacency" demanded by the majority.
"The Jordan shadow has fallen over the courtroom," said criminal lawyer Anne London-Weinstein, president of the Defence Counsel Association of Ottawa. "Judges are hyper-vigilant about not wasting time."
In one case, in which both the defence and the prosecution agreed to an adjournment, they were refused one "because the judge didn't think we were going to be making good use of the time." In another case, a judge sought special permission from court administration officials to hear a jury trial into the summer months – a rare move given the number of people whose schedules may be disrupted.
Most provinces, outside of Ontario and Quebec, have not funnelled large amounts of extra resources into their criminal-justice systems since the Jordan ruling. Nor has the federal government moved to fill a near-record 60 vacancies on federally appointed courts. As a result, judges, prosecutors and defence lawyers are under increased pressure to move cases through clogged systems. But in some cases, it may be too late.
In Gatineau, Que., a man accused of a triple murder is applying to a judge next week for a stay of all charges after a five-year wait to come to trial.
Shakti Ramsurrun, 33, is accused of stabbing to death his spouse, Anne-Katherine Powers, 21, whom he met on a cruise ship, her mother, Louise LeBoeuf, 63, and her mother's spouse, Claude Lévesque, 58, at the home they shared in Aylmer, Que., in May, 2012.
Richard Dubé, a Montreal lawyer representing Mr. Ramsurrun, said that when he arrived on the case in January, 2015, and asked for a trial date, a judge set the date more than two years down the road. "Five years is not normal in Canada, even if it's a murder case," Mr. Dubé said in an interview. Jean Pascal Boucher, director of Quebec's prosecution office, declined to comment while the case is before the court.
The stay applications themselves are now adding to the burdens on courtrooms.
An Ottawa man now in his mid-20s, Sam Tsega, convicted of manslaughter in the killing of teenager Michael Swan, is applying for a stay in a case that has taken six years and nine months (there were multiple accused, adding complexity). Three days in court are booked to hear the application.
Mr. Tsega's lawyer, Mark Ertel, says he has ordered the transcripts of 88 adjournments, at a cost of at least $5,000, as the defence and Crown argue over which side is to blame for the delay. "It's a big job at the end of a case that's gone on for that long to put the application record together," Mr. Ertel said in an interview.
Two charges of first-degree murder, already thrown out by trial judges in the fall, are now under appeal by provincial prosecutors in Ontario and Alberta. A stay is the legal system's method for bringing proceedings to a halt. When prosecutors enter a stay they have a year to reinstate the charges; a stay entered by a judge means the case is done.
The case in which the Supreme Court changed the ground rules involved Barrett Richard Jordan, accused of running a "dial-a-dope" operation in Langley and Surrey, B.C., in which consumers could purchase cocaine over the telephone. Two lower courts said the 49.5-month delay bringing his case to trial (minus four months for delay caused by the defence) had not violated Mr. Jordan's constitutional right to a timely trial. All nine judges of the Supreme Court of Canada disagreed, and five of them laid down new timelines: 18 months in provincial court, and 30 months in superior court.
Anything over those time limits is presumed to be too long, and the burden falls on the Crown to argue that the case was exceptionally complex and required extra time. Delay caused by the defence does not count in the calculation. While these rules apply to cases that entered the system after the ruling, the Supreme Court's ruling has also affected cases in the system already, by diminishing the flexibility courts previously showed toward delay.
Quebec has the most applications from lawyers seeking stays for unreasonable delay, post-Jordan, at 514, the Globe and Mail review found. Ontario is next at 245. Alberta has 48 and Manitoba 28.
Ontario has an enormous potential problem in its provincial court, a level of court some criminal lawyers liken to the "emergency room" of the system, handling everything from shoplifting to murder. Of the 99,154 pending cases in Ontario Provincial Court, 6.5 per cent are already past 18 months.
Quebec says it will spend $175.2-million over four years, adding new courtrooms in several cities, 16 judges, 69 prosecutors and hundreds of other staff members. Ontario is adding 13 judges, 32 prosecutors and more than 40 other court staff, plus putting more money into the bail system, to remove bottlenecks, at a total cost of $25-million a year.