The Supreme Court of Canada ruled in its landmark 2016 Jordan decision that superior court prosecutors have 30 months to complete their cases.Sean Kilpatrick/The Canadian Press
The real-world chaos of Canada’s criminal justice system cannot be a reason to throw out charges because of unreasonable delay if a case has not exceeded the time limits laid out by the Supreme Court of Canada, the Ontario appeal court has ruled.
The decision, issued earlier this month, rebuked a Toronto trial judge who slammed a shortage of Ontario Superior Court judges in the city, saying the vacancies have led to trials taking too long.
Last December, Justice Maureen Forestell tossed out the case of a man who had waited more than 26 months for a trial after he was accused of physically and sexually assaulting his common-law partner. The judge ruled that unreasonable delays in the case arose because Toronto lacked a full roster of judges, and that the charges should be stayed because the delay violated his constitutional rights.
But this month’s Ontario Court of Appeal ruling reinstates the case. The ruling notes the threshold for unreasonable delay in superior courts is 30 months and not 26 months.
“The application judge allowed her practical concern to cloud her legal analysis,” the appeal court ruling says.
“Not only is it not realistic to expect that there will necessarily be a full complement of judges at all times, but that is not the constitutional yardstick for determining whether there is unreasonable delay.”
The Supreme Court of Canada ruled in its landmark 2016 Jordan decision that superior court prosecutors have 30 months to complete their cases and that provincial court prosecutors have 18 months. Exceeding these time limits can mean that charges, even the most serious ones, can be thrown out.
But top judges have been warning delays have been exacerbated by unfilled judicial jobs across the country. Last year, Supreme Court Chief Justice Richard Wagner called this an “untenable” situation that could “result in a crisis for our justice system.”
Justice Forestell picked up upon on these remarks as she stayed the sexual-assault case last year.
“In April of 2023 when this trial was not reached because there was no judge available to hear it, this jurisdiction had seven judicial vacancies,” she said in her ruling. It adds that this delay happened as “Chief Justice Wagner expressed his concern about the chronic shortage of federally appointed judges.”
Justice Forestell presided over the assault case last fall. When she heard it, the defence argued the case had been unreasonably delayed and she agreed.
Justice Forestell wrote that “this trial will have taken 26 months and 19 days by the time it is completed.” While she said she was well aware of the 30-month ceiling for cases, she argued that the deadline can be malleable, because the 2016 Supreme Court Jordan ruling invites trial judges to take “a bird’s eye view” of their cases and to “use the knowledge that we have of our own jurisdictions.”
The Forestell ruling said the case needed to be stayed because a lack of judicial resources had markedly slowed it down. “Had the judicial positions in Toronto been filled, this case and others would not have been delayed,” the ruling says. “The failure to provide adequate judicial resources is unreasonable.”
Prosecutors appealed Justice Forestell’s ruling, arguing that if the Jordan regime is to work, then prosecutors need hard deadlines, and not moving targets.
They also argued judicial vacancies arise all the time. “Instead of considering what the local norm was, the trial judge erred in considering what she wanted the local norm to be,” Crown Attorneys Joanne Stuart and Akshay Aurora said in their appeal. “In effect, she compared this case to ideal circumstances that did not exist.”
The accused in the case was charged in 2021 with crimes against his common-law spouse, including sexual assault and physical assault dating back years. Defence lawyers Deryk Gravesande and Cecilia Fearon-Forbes had argued the case and said on appeal that Justice Forestell was right to dismiss it and that other trial judges have made similar rulings.
The Ontario Court of Appeal has now ordered a new trial.
“If anything, almost every factor in this case pointed away from a stay of proceedings,” the appeal court said. It added that “the 26.5-months delay in this case was well below the Jordan ceiling.”
Writing for the three-judge panel, Ontario Court of Appeal Associate Chief Justice MichalFairburn said trial judges do not have a lot of latitude to push up the Jordan deadlines, which are firm and not flexible.
“In setting the ceilings, the Jordan majority was alive to the real world within which the administration of criminal justice operates,” the appeal ruling says.