Long-standing rules of criminal justice will be on the table when federal Justice Minister Jody Wilson-Raybould sits down with her provincial counterparts in Gatineau, Que., on Friday to discuss solutions to backlogged courts and serious criminal charges being thrown out over delay.
The meeting comes nine months after the Supreme Court of Canada's cri de coeur, in a case known as R v Jordan, that a "culture of complacency and delay" was afflicting the criminal-justice system. The court set time limits for trials of 18 months in provincial court (from the time a charge is laid), and 30 months in superior court, putting pressure on the provinces, which administer the courts. Judges have thrown out four murder cases since then – two in Quebec, one in Ontario and one in Alberta – over delays.
Quebec Justice Minister Stéphanie Vallée, who is co-chairing the meeting, is one of several ministers who say they will push Ottawa to make changes to the Criminal Code to speed up proceedings – and she wants to see at least one or two changes implemented by the summer.
Ms. Wilson-Raybould said in a comment piece this week in Le Devoir that she convened the meeting to make a "culture shift" in criminal justice, through law reform and the sharing of best provincial practices, but Ms. Vallée says the matter requires urgent federal action.
"We're beyond cultural changes and wishful thinking," Ms. Vallée told The Globe and Mail. "It's been nine months since the decision was rendered, and there haven't been any legislative amendments made by the federal government."
Quebec is pumping an additional $175-million over four years into criminal justice as a result of the Supreme Court ruling – the biggest cash infusion of any province.
She said she intends to raise the possibility of reversing the burden of proof in some crimes, so that the defendant would need to disprove a fact in dispute, rather than the Crown having to prove it.
"It's useful so that the full burden of making the evidence is not on the Crown, but it's up to the defendant to make the argument to the contrary," she said. "We're not talking about big files."
Also on Ms. Vallée's list of "talking points" for the meeting is the law of disclosure, which refers to the state's obligation to reveal its case to the defence. Since a Supreme Court ruling in 1991 mandated full disclosure in every case, police forces and prosecutors have struggled at times to make sure the information reaches defence counsel in a timely way.
Ms. Vallée declined to go into detail on her ideas, saying she preferred to do so first with her counterparts at the meeting.
She said the provincial ministers will also put on the table a procedural protection for accused rights known as the preliminary inquiry – a pretrial hearing in which a judge screens charges to determine whether there is enough evidence to go on to trial. Quebec, Ontario, Manitoba and Alberta favour limits on, or the elimination of, this stage in the process, which has been used since the beginnings of Canada's Criminal Code in the 1890s.
"I think that there's a general consensus across the country that the status quo is not an option," Manitoba Justice Minister Heather Stefanson said in an interview.
Ironically, the right to a trial within a reasonable time is a constitutional protection for the accused person – but some of the proposed changes could make life more difficult for the accused and defence counsel.
"I always say that efficient justice is for the society, efficient justice is for the victim, even more than for the accused," Ms. Vallée said.
The Canadian Bar Association is concerned enough about the possibility of abolishing preliminary inquiries that it sent a letter to the federal and provincial justice ministers opposing the move, and providing a top-10 list of ways to reduce court delays (appoint more judges, provide adequate legal aid and prioritize early resolution are the top three).
"There's not going to be rigid, backward steps in criminal justice – it's just not going to happen," William Trudell, chair of the Canadian Council of Criminal Defence Lawyers, said in an interview. Another defence lawyer said reversing the burden of proof would face a serious constitutional challenge, because it affects the presumption of innocence. The justice ministers were scheduled to hold a preliminary discussion on Thursday night with a small group of justice participants, including a defence lawyer.
Quebec is not the only province under pressure. In Alberta, prosecutors dropped hundreds of cases – some involving violent crime or drunk-driving – to save their resources for major crimes. The cash-strapped province then announced the hiring of dozens of new prosecutors. In Ontario, about 6,500 cases – 6.5 per cent of the caseload in Provincial Court – are at or beyond the 18-month limit.
"We need to demonstrate to Canadians that we take this matter very seriously," Yasir Naqvi, the Ontario Justice Minister, said in an interview. "We would not benefit if there is an erosion of trust between the public we serve and our justice system."
British Columbia offers another approach. It has ceased prosecuting most drunk-driving offences as crimes, treating them as administrative offences – thus removing thousands of cases from the criminal-justice system.
Quebec has been under more pressure than most. Since the Jordan ruling, lawyers there have applied for about 865 stays – dismissals – because of delay, Ms. Vallée said. Ontario, by comparison, has had about 300, according to Mr. Naqvi. And in some jurisdictions, notably Montreal, Laval and Longueuil, it is difficult to set trial dates within the times mandated by the Supreme Court, Ms. Vallée said.
"It's not normal that a file takes five, seven years before being completed. I agree that we need to change our culture. I'm a lawyer. For 12 years, every Monday morning I was at the Maniwaki Courthouse with a criminal file. How many adjournments have I seen? How many postponements for no reason have I seen?"