More recently still, a week after Khalid Gakmakge was refused a stay for a 2011 murder he is accused of committing, a Sri Lankan man charged with killing his wife in Quebec five years ago has been deported after the charge against him was stayed because his constitutional right to a timely trial was delayed.
Ever since the Supreme Court of Canada’s landmark R. v. Jordan decision a year ago, approximately 1,766 motions to stay because of unreasonable delays have been filed across the country, with 204 having been granted and 333 dismissed, according to figures obtained by Canadian Press. The remainder are either before the courts, forsaken by defence, or resolved on other grounds.
While the figures may appear to be disturbing, a Dalhousie University law professor who conducted a review of stay applications in the six months following the Jordan, found that there has only been a slight increase in the number of applications filed, most of whom have taken place in Ontario.
Stephen Coughlan analyzed 69 pre-Jordan cases asking for stays due to unreasonable delays, and only 26 were granted, or 38 per cent. Post-Jordan, Coughlan noted that of 101 cases where a court was asked to issue a stay of proceedings because of unreasonable delays, 51 were granted or 50 per cent – a far cry from the dire predictions from the dissenting of the SCC bench.
In Quebec, there were 895 Jordan applications as of late May, up from 684 at the end of March 2017.
“Jordan has made everybody involved in the criminal justice system worried about delay and doing things in order to make sure cases that are brought to trial quickly and that there will not be successful stay applications,” said Coughlan recently. “But it hasn’t resulted in very many successful stay applications.”
But it has succeeded in shaking up the actors of the justice system. The federal government has been moving at a clip pace to appoint judges as have provinces like Ontario and Quebec. In Ontario, 13 judges, 32 assistant Crown attorneys and a number of other staff have been added while in Quebec 449 positions have been filled and several new hearing rooms are now operational.
In Quebec, delays for criminal trials have dropped dramatically since the Jordan ruling, from 30 months to 17 months, according to Quebec Superior Court Chief Justice Jacques Fournier. “In an ideal world, we’d shorten it to eight or ten months,” Justice Fournier told Radio-Canada.
But the drop in criminal trial delays has had repercussions. Civil matters are now taking longer to be heard. That’s because in addition to new federal and provincial judges being newly appointed over the past couple of months, five Quebec Superior judges have been shuffled from civil court to criminal court to help curb delays in criminal proceedings. As a result for civil proceedings that take a day delays have nearly doubled, rising from 10 weeks to 19 weeks.
“During that time, the cancer of delays is spreading elsewhere,” noted Justice Fournier.
Echoing pleas from Quebec Justice Minister Stéphanie Vallée, Justice Fournier says there is a need to increase the number of judges in the province. Vallée has been beseeching the federal government to appoint 10 more Superior Court judges. As of July 1, 2017, Quebec has 148 federally appointed Superior Court judges, with one vacancy.
The Jordan decision laid down a ceiling of 30 months for matters before Superior Court cases to be completed. Provincial court trials should be completed within 18 months of charges being laid, but can be extended to 30 months if there is a preliminary inquiry.
Provincial attorney generals across the country hoping the SCC would back down from the trial timelines set by the Jordan ruling were disappointed after the nation’s highest court unequivocally reaffirmed them recently in R v. Cody 2017 SCC 31. In a unanimous decision, the SCC made it plain that it will not yield to provincial attorneys general struggling with the Jordan timelines.