By Sunny Dhillon for The Globe and Mail
B.C. courts were in disarray.
In 2011, 122 cases were thrown out of the province’s courts due to excessive delays. The failed prosecutions ran the gamut from assault and drug files to an incident in which a man was accused of willfully shooting a puppy.
But as other provinces grapple with a Supreme Court of Canada ruling from last summer that set strict time limits on conducting criminal trials – Alberta has already stayed charges against 200 people, and Manitoba and Ontario have taken aim at preliminary inquiries – B.C. has been relatively quiet, despite the fact the high court ruling stemmed from an arrest in the province.
The silence, government officials and legal observers say, is because B.C. is not expected to be hit as hard by the ruling in R v. Jordan as other jurisdictions, partly because of measures that were introduced after the wave of dismissals in 2011. The Jordan ruling set deadlines of 18 months for trials in provincial court, and 30 months in superior court.
Last year, the province says, the number of prosecutions dismissed due to delay in B.C. dropped to 19. This year, there have been five such stays.
Though a surge of dismissals is not expected, one B.C. lawyer who spoke with the Globe expressed concern about the heightened focus on speed and its possible effects, while another said the measure that’s had the greatest impact on caseloads has been the province’s controversial 2010 decision to move impaired-driving files out of court to an administrative tribunal.
What lessons, if any, B.C. can offer other provinces shaken by the Jordan ruling remains to be seen.
In February, 2012, with the province under fire due to the dismissals and shows of frustration from judges, B.C. Premier Christy Clark announced a justice-system review. The review was led by Geoffrey Cowper, a senior lawyer with Fasken Martineau.
Mr. Cowper’s report was released in August of that year and he said B.C.’s justice system would have to transform a “culture of delay” to a “culture of timeliness.” He made dozens of recommendations primarily aimed at reducing delays and backlogs.
In an update to his report, released this past October, Mr. Cowper said B.C. courts have seen a change. He said the number of cases pending in B.C. for more than 18 months declined from approximately 4,850 in March, 2012, to about 1,700 in March, 2016.
Speaking of the Jordan case, which originated in this province, Mr. Cowper wrote: “B.C. is well prepared to meet the new requirements for timeliness.”
He said the improvement could be tied to several factors, including a backlog reduction project and early case resolution. A B.C. Ministry of Justice spokesperson said the Crown also reduced the number of prosecutors who deal with a single file, and instituted online charge assessment. The spokesperson went on to mention the immediate roadside prohibition program, which diverted thousands of impaired-driving cases away from the courtroom and two years ago survived a Supreme Court of Canada challenge.
Daniel McLaughlin, spokesperson for B.C.’s Criminal Justice Branch, said the Crown in this province has not implemented any policy changes as a result of the Jordan ruling.
“The branch is of the view that B.C.’s Prosecution Service is reasonably well-positioned to withstand the impact of the decision in R v. Jordan for the majority of cases,” he wrote in a statement.
Mr. McLaughlin said the reforms that were put in place were designed to reduce the number of court appearances and time to trial. He said recent data indicate there have been “small but significant gains” in those areas.
Kevin Marks, president of the BC Crown Counsel Association, in an interview said B.C. does appear to be in a better position than other jurisdictions, though the Jordan ruling is still relatively new.
Michelle Daneliuk, a Victoria defence lawyer and co-chair of the criminal defence committee of the Trial Lawyers Association of B.C., said she has heard anecdotally over the past few months that there is a real focus on moving cases ahead “with some considerable speed in order to … avoid the implications of the Jordan decision.”
“What I’m concerned about with respect to Jordan and the application of Jordan in our court system is not so much that there will be large groups of cases that are stayed by the Crown as a result of this, but that when courts are considering things such as adjournment applications – which can be brought for perfectly legitimate reasons – there will be an impact on the success of those applications because courts will be bearing in mind constantly that they have to be concerned about ultimate delay in a case,” she said in an interview.
Ms. Daneliuk said she’s aware of two recent cases in which adjournment requests brought by the defence were not granted until it was clearly stated on the record that the delays would be attributed to the accused. The adjournments were ultimately granted, she said.
“There’s this tension I think now between having a trial within a reasonable time and having a fair trial. And those are two separate Charter rights, but there’s no hierarchy within the Charter as to which right supersedes the other,” she said. “And I’m just concerned that this push to have trials within a reasonable time is going to potentially impact on the right of an accused to a fair trial.”
While the province and the Crown credited several different initiatives with reducing dismissals, Paul Doroshenko, a Vancouver defence lawyer who focuses on impaired-driving cases, said the biggest factor was the shift in the handling of such cases.
“The fact is the [immediate roadside prohibition] scheme is the one thing that’s had the biggest impact on the caseload before Crown Counsel offices,” he said in an interview.
Under the immediate roadside prohibition program, a person who is found to be impaired can immediately be prohibited from driving, have their vehicle impounded and face heavy fines. In the 2015 Supreme Court of Canada case, drivers argued the program denied them the right to the presumption of innocence and other protections.
Mr. Doroshenko said B.C. used to see about 6,500 people charged with impaired driving each year. Those cases would almost always take at least a day of court time, he said.
“All of those cases disappeared from the court system because everybody just gets an immediate roadside prohibition now,” he said.
Michael Welsh, president of the Canadian Bar Association, B.C. Branch, in an interview said he had not studied the effects of the Jordan ruling in great detail but was concerned about resources in the B.C. justice system. He noted two drug cases in Victoria were last month dismissed because of a lack of sheriffs.
Mr. Welsh’s association has also called for increased funding to legal aid.
A Provincial Court report said that as of late February the court had 128 full-time judges. The court had 126 full-time judges in September, 2010, when it issued a report titled Justice Delayed and warned it could not “keep pace” with the new cases being presented.
The Jordan ruling stemmed from the case of Barrett Jordan, a Metro Vancouver man who was charged with possession for the purpose of trafficking in 2008. His case took more than four years to prosecute and, last July, the Supreme Court of Canada threw out his convictions and set the new case time limits.
Just four months after the ruling, two men, one in Alberta and one in Ontario, had been freed from charges of first-degree murder because of delay. In Ontario alone, 6,500 cases in Provincial Court were beyond the 18-month threshold, of which 38 were homicide or attempted murder.
By early this year, criminal-defence lawyers had applied for stays in 800 criminal cases, with the highest number – 514 – in Quebec, according to a Globe and Mail survey of attorneys-general.