A man walks past the Supreme Court of Canada, in Ottawa on June 16, 2023.Adrian Wyld/The Canadian Press
In April, a Toronto man accused of sexually abusing his niece walked free. According to the Crown, the man allegedly started abusing her from the time she was four or five until she was 16, and he took pornographic photos of her that he used to extort her into performing sexual acts. The case was deemed a “priority” owing to the seriousness of the charges, but it was nevertheless subject to a series of delays which, in the end, meant that it would have been 31 months between the time that charges were first brought and the scheduled conclusion of the trial had it gone on.
That would be too long based on the 2016 R v. Jordan ruling from the Supreme Court of Canada, which set the ceiling for reasonable delays in provincial and superior courts at 18 and 30 months respectively. So Superior Court Justice Michael Code was forced to stay the proceedings, meaning the man was allowed to walk free without being properly tried. “It is an embarrassment to the administration of justice that this serious ‘priority’ case, involving alleged sexual abuse of a child, cannot be tried in accordance with the constitutional standard of trial ‘within a reasonable time,’ ” Justice Code wrote.
What happened in that case is not altogether extraordinary in Canada. In May, a B.C. judge stayed the charges against a man accused of sexually abusing a six-year-old child because the proceeding would exceed the 18-month Jordan ceiling. In an unusual case last year, a man found guilty of sexual assault was allowed to walk free because the delay in his case exceeded the 30-month ceiling. In each case, a rather arbitrary number meant that justice for the victim was forfeited for the rights of the accused.
There is no comprehensive national accounting of how many criminal cases are stayed each year because of procedural delays, though The Canadian Press recently attempted to paint a picture; according to data collected from provinces and territories, more than 400 criminal cases have been stayed in seven provinces since the start of last year. In Ontario, for example, stays because of unreasonable delay have more than doubled since Jordan: there were 82 in 2017, according to data compiled by the CBC, compared with 178 in 2023.
Put into context, that figure still represents just a fraction of a per cent of decided criminal cases in the province (more than 100,000 decisions were rendered in Ontario in 2023), but it is nevertheless justice denied for the victims of the accused, while also putting the safety of the public potentially at risk. Indeed, it is a moral abomination that courts in Canada are letting alleged child abusers and others walk free because our courts are too backlogged to function properly.
When the SCC majority decided Jordan in 2016, they noted a “culture of complacency” toward delay and put the onus on governments to address structural challenges contributing to backlogs. To a certain extent, it was effective: shortly thereafter Ontario’s government announced millions of dollars would go toward hiring more judges, Crown attorneys, court staff and so on. But the changes would not be made overnight, and the new ceilings would not themselves improve the pace of proceedings, as Justice Thomas Cromwell wrote for the minority, “while risking judicial stays in potentially thousands of cases.”
He argued that the new ceiling framework proposed by his colleagues “cast aside three decades of the Court’s jurisprudence when no participant in the appeal called for such a wholesale change,” noting that there was consensus on the bench that the accused in the case at hand was subject to unreasonable delay under the existing framework. He wrote that the proposed approach set aside a “central teaching” of jurisprudence on Section 11(b) of the Charter of Rights and Freedoms, which entitles anyone charged with an offence to be charged in a reasonable time – “that reasonableness cannot be captured by a number.”
There are myriad reasons why our courts are experiencing such crippling backlogs: judicial vacancies, staffing shortages, a dearth of spaces and resources, the sheer amount of information that can now be provided because of technological advances and so on. The onus is, and should continue to be, on governments – both federal and provincial – to provide the necessary resources to make sure that those accused of crimes are indeed tried within a reasonable time. We cannot forfeit that protection, which is rightfully owed to every person who is presumed innocent before trial.
But at the same time, we cannot continue to allow those accused of some of the most heinous crimes off the hook because the system isn’t working as intended, especially when the ceilings imposed by Jordan tie the hands of court justices – a change made by the Supreme Court that no one asked for. Canadians cannot, and will not, maintain faith in a justice system that so patently denies justice to victims of crimes.