People walk by the Toronto Courthouse where the trial of alleged sex offender Peter Nygard is taking place, in Toronto, on Sept. 11.COLE BURSTON/AFP/Getty Images
Hundreds of criminal cases in Ontario could be thrown out for excessive delay, as staffing problems close courtrooms in Toronto and mould problems in nearby Milton have completely shut down in-person trials.
In Toronto, staffing shortages at a new, billion-dollar courthouse downtown are so severe and chronic that each morning a court official meets with a senior judge to decide how many courts will need to close that day. As many as 18 courtrooms have closed on some days. High-priority cases bump other cases; the bumped cases are rescheduled and kick others down the road.
Meanwhile, in Milton this week, judges of the Superior Court of Justice pulled out from the courthouse because of mould problems, following the late August example of judges from the Ontario Court of Justice. Three cases, including a human trafficking case, had to be adjourned on Monday as a result. The Superior Court is now seeking hearing space in courthouses in locations such as Oakville, Brampton and Guelph, criminal-defence lawyer Brendan Neil said, while the Court of Justice cases will move to Burlington. The same bumping phenomenon is expected to occur.
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A spokesperson for the Ontario Ministry of the Attorney General, which administers the courts and oversees prosecutions, said air sample tests for mould and asbestos in the Milton building were within acceptable limits, but that judges are independent and can use their resources as they see fit. The building remains open. The province has allocated $72-million for the hiring of court staff and victim services, and is prioritizing offences such as gun crimes and sexual assault.
“We know more needs to be done and are currently working to further address these issues to ensure victims have access to justice and offenders are held accountable,” said Andrew Kennedy, press secretary for Attorney-General Doug Downey, in an e-mail.
Under the Canadian Charter of Rights and Freedoms, criminally accused people have a right to timely justice. The Supreme Court of Canada has interpreted that to mean 18 months from charge to completion for trials in provincial court, and 30 months for trials in superior court. There is some wiggle room: The Supreme Court said in a 2016 case known as Jordan that delay caused by “exceptional circumstances” should not be counted.
But Ontario judges in both the Superior Court and the Court of Justice have said staffing problems and mould are chronic, not exceptional and need to be addressed. Daniel Brown, president of the Criminal Lawyers’ Association, an Ontario group, said the failure to address them has led to a situation in which many cases are reaching the time limits and could ultimately be thrown out.
“It’s the chickens coming home to roost,” Mr. Brown said in an interview. He represents an accused person charged with sexual assault in a case pushed back nearly to its time limit by delay. He expects it will now receive some priority, and bump others. “How many are in jeopardy? I would say hundreds of cases.”
Finding new venues for cases moved from Milton will be a challenge, Mr. Neil, the lawyer, said in an interview: “Cases are going to start dropping like flies here. There’s pressure on all the courthouses, so finding another venue isn’t simply a next-day thing.”
Both Mr. Neil and Mr. Brown said the problems at the two courthouses are forcing prosecution officials to consider what cases to drop or resolve in ways they might not have otherwise. The president of the Ontario Crown Attorneys’ Association did not respond to e-mailed requests for comment on Tuesday. All criminal trials once held at six other Toronto courthouses were transferred to the downtown building in the winter and spring.
Judges have been scathing about the problems, putting on the court record their pleas to the Ontario government to address the long-standing problems.
“Staff shortages have wreaked havoc on the orderly conduct of business in the Ontario Court of Justice in Toronto,” Justice Peter Fraser of the court said about the past six months, in written reasons released Friday for tossing out a sexual assault charge against a youth on the grounds of unreasonable delay.
Ontario prosecutor Ella Brosh had argued that the delay should be treated as exceptional, but Justice Fraser said it was up to the prosecution to demonstrate that the delay was reasonably unforeseen or unavoidable. He said the prosecution declined to provide evidence of that, other than to provide an affidavit supported by e-mail messages blaming the shortages on “sick calls” from staff.
Justice Fraser said he could not accept that sick calls closed 500 courtrooms in six months: “No justification has been provided for the state of affairs in this jurisdiction. On its face, this record represents a startling failure by the state to fulfill its basic responsibility to staff the courts.”
The union representing courthouse staff told The Globe and Mail that it blames the problem on low wages, higher workloads and burnout. Staff members include court reporters and clerks.
On Monday, Superior Court Justice Clayton Conlan announced that he and his fellow judges were vacating the Milton courthouse.
“We will do whatever we can to ameliorate the situation,” he said, according to a court document. “What we cannot do is ameliorate this building, and we cannot use our unique authority to compel members of the public, including potential jurors, lawyers, witnesses, accused persons, to attend this building at this time.”
The mould problem isn’t new: The Milton courthouse was closed for an extended period, beginning in the fall of 2020, because of it. The previous Kathleen Wynne government had announced plans to build a new courthouse, but the ruling Progressive Conservatives scrapped those plans in favour of remediation of the existing building.