What does it take for a court case to be tossed by a judge?

Lawyers across the entire country are seeking to suspend hundreds of criminal cases due to delays. (Photo: REUTERS
Lawyers across the entire country are seeking to suspend hundreds of criminal cases due to delays. (Photo: REUTERS)

The biggest black hole in the judicial system in Canadian provinces and territories seems to be the time factor. Delays are causing lawyers – and all those connected with the legal system, including defendants and victims – a lot of angst. A backlog of cases seems to exist in every province.

In fact, lawyers across the entire country are seeking to suspend hundreds of criminal cases due to unreasonable delay. Some of these include attempted murder, rape and manslaughter cases. The reality is judges have tossed hundreds of criminal cases since 2016 because of delays and because of what is now known as “the Jordan decision.” On July 8, 2016, the Supreme Court of Canada ruled drug convictions of a defendant in British Columbia had to be set aside because of unreasonable delay.

Even though the federal government and the provinces have tried to inject some fuel into the nation’s comatose court system, those in the legal profession say changes need to be more dire and immediate. Part of the changes, advocates say, should include injecting more funding into the system.

The filling for these applications is occurring at a rapid rate

Since the landmark ruling last year, lawyers have filed about 1,766 applications to be stayed because of unreasonable delays. Judges have granted 204 of those, while dismissing 333. The rest are either still in the court system, have been abandoned by the defence or have been resolved.

Cases exceeding 18 months in provincial court – or 30 months in superior court – have been deemed "presumptively unreasonable." Charges must be stayed unless the Crown can prove delays were caused by unforeseen or unavoidable circumstances.

Judges could stay thousands of cases

The Jordan decision has been the focus of multiple media reports over the last several months. Recently in Ontario, a high-profile case marked the first time a first-degree murder charge was stayed since the Jordan ruling. The Ontario Crown Attorneys Association has reputed the ruling could eventually lead to about 6,000 criminal cases being withdrawn or stayed.

To try to save trials from falling through the cracks, the government has announced that more Crown attorneys and judges will be hired. But experts say they are not going to be enough to save cases already in jeopardy. Crown attorneys are being urged to double their efforts to find earlier dates for preliminary inquiries and other procedural matters.

Are there any potential solutions for this issue?

Lawyers say there are some possible alternatives that might lessen the heavy burden on the courts – from electronic scheduling systems to a pre-charge screening process fashioned to toss out weak cases before police actually lay charges.

Some provinces are testing the waters with new ideas pertaining to how courts operate. For instance, Alberta has recently implemented a court case management program reducing procedural appearances. Defence counsel appears at a court counter, rather than in a courtroom, for administrative purposes or to book trials. These things are still done in most courtrooms in the country.
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