A lot has happened, legally, since Sept. 5, when the King in right of Ontario began prosecuting two leaders of the 2022 Ottawa Freedom Convoy protests for mischief and other crimes.
For example, another court in Ontario both started and finished the first successful prosecution before a jury of terrorist murder, which you might think is at least as complicated.
Even with its tricky concepts about what it means to direct or be in control of a large unruly trucking occupation of a major Canadian city centre, you might think three months would be enough, after well over a year of preparation, to prosecute two related mischief cases. You would be wrong. On Thursday, came news that it will not even finish this year.
Thus do the cases of R. v. Tamara Lich and R. v. Chris Barber raise a problem encountered by many accused in Canada’s criminal courts: everything moves so slowly, and sometimes it seems to be that way on purpose, or at least unfairly.
The longstanding problem of systemic complacency in the face of trial delay had grown so bad by 2016 that the Supreme Court set a hard limit of 18 months from charge to end of trial, after which delay become presumptively unfair, and has to be justified. If enough lost days can be blamed on the Crown, an accused can simply walk free, as has happened in several high-profile cases, including crimes of violence, and countless more low profile cases, such as breaches of bail conditions.
Barber’s defence lawyer has already threatened such an application at the Ottawa trial, referring to the “spectrum” of unacceptable delay, and her own duty to raise the issue at the earliest opportunity. So far, the trial is arguably on pace to be completed without a breach of the defendants’ Charter right to be tried within a reasonable time. But it’s getting tight, and the end is not nigh.
Last month, CBC News noted the trial had already lasted longer than the protest itself. Of course, most trials last longer than most crimes, but most crimes don’t last a month. Criminal trials in Canada rarely last more than a few weeks, and are usually closer to a few days. The terrorist murder case, for example, lasted a little more than two months from gavel to gavel (as the American saying goes; Canadian judges don’t use gavels).
The convoy trial itself is now in its fourth month, and guaranteed to enter its fifth, and its second calendar year, now that the next court date is booked for Jan. 4. The 18-month range from Lich and Barber’s charges in Ottawa on Feb. 17, 2022, is already well past. But blaming enough of that delay on the Crown as opposed to the defence would take further argument in a special motion. It would illustrate a major aspect of the law on trial delay, which is that in order for delay to count as a Charter breach, it has to be the Crown’s fault.
Any defence application about unfair delay would refer to delays that seem to be the Crown’s fault, such as when prosecutors tried to introduce police video evidence whose admissibility was in doubt, forcing a special hearing to sort it out; or when the testimony of multiple police officers was paused to sort out the problem that their phones had been erased in a software upgrade, prompting a review of heavily redacted police documentation.
But there will be some delay that can be blamed on the defence, or at least argued that way by the Crown before the judge, such as wrangling over whether prosecutors would be allowed to call several business owners and residents to testify about the protest’s impact on them, despite the defence conceding their lives were disrupted. There can also be relevant delays before the trial even starts.
And there will be some delays that are tricky to blame on either side, as with the frequent failures of courtroom technology, or when Kim Ayotte, Ottawa’s manager of emergency and protective services, showed up to testify having forgotten his notes. There was also a two-week break in November, and trouble finding additional trial days on the courthouse calendar.
It is little wonder that the trial judge, Justice Heather Perkins-McVey of the Ontario Court of Justice, once got visibly annoyed, said she was “very unhappy” that many of these problems were not sorted out in advance and took a break to “settle” her frustration.
So as it drags on, with 33 court days so far, of which the Crown’s case alone took 27, nearly double the original budget for the whole trial, the catastrophic possibility of a successful delay motion looms over the proceedings. Because if an unfair delay is proven, the law does not allow any compromise. The judge must stay the charges.
“It’s always a live issue until we finish the trial,” said Diane Magas, lawyer for Chris Barber, according to the Ottawa Citizen’s Aedan Helmer, at the trial.
After all this — after the tensions of the convoy itself, the partisan foofarah it set off, the civil dysfunction it revealed, the subsequent lionization of the accused as freedom fighters, complete with a gala under bail conditions — after all that, a procedural stay of charges would be an outrageous anti-climax.
So far, though, it looks on track to slip in under the wire.
The rules on trial delay sound simple enough.
Provincial court cases must be done and dusted 18 months after the charge is laid. In Superior Court, a higher level of court that hears more serious and complicated matters with different procedural rules, the limit is 30 months.
But, as with much of the law, it is never that simple. Unfair delay must be someone’s fault, and whose fault it was is for a judge to determine. If it’s the defence’s fault, the procedural version of ragging the puck, it does not count toward the total. But if it is the Crown’s fault, it goes toward the tally.
This was the rough conclusion of a major Supreme Court ruling in the case of Barrett Richard Jordan, a dial-a-dope dealer in Surrey, B.C., whose total delay from charges to the conclusion of his trial was two weeks shy of 50 months. (It is a familiar legal irony that, by the time the top court ruled his case was unfairly delayed, he had completed his jail sentence.)
So a heavy burden is on the Crown to move things along.
COVID made it harder, and added a backlog, so it is difficult to assess the impact of the Jordan ruling, and whether it had any improvement on trial delay.
But trial delay has lately become a spiralling problem, of which the Ottawa Convoy trial is just the most current example.
“It is generally agreed that trial delay is a widespread problem of national significance,” said Colton Fehr, an expert in criminal procedure and constitutional law, and assistant professor at Thompson Rivers University in British Columbia.
He said that if the defence were to make a Jordan application in the convoy case, it would probably fail because a significant part of the delay would likely be attributable to the defence.
“Although it is not impossible to receive a stay below the Jordan ceilings, it requires proof that the Crown was particularly dismissive of trial delay, and I don’t think there’s evidence of that sort here. If it were stayed, though, I suspect public backlash would be severe,” Fehr said.
Nova Scotia’s experience of trial delay is particularly bad, at an all time high, with 15 stays issued in the first half of this year, compared to 7 in all of 2022, 4 in 2021, 2 in 2020, 4 in 2019, and none in 2018.
Quebec, too, has seen a quadrupling this year in stays of criminal charges, including violent offences, according to a Globe and Mail report.
“In an ideal world, we would simply build more courtrooms and hire more judges, prosecutors, and defence counsel,” Fehr said. “This approach, as you know, overlooks political realities given the difficulties in fairly allocating resources from the public purse. Underfunding is nevertheless a serious problem and addressing it is certainly a part of the answer to improving trial delay.
Prominent cases include the failed prosecution of Nick Chan, an alleged Calgary gang leader who walked free from organized crime and murder charges.
And last month in Ontario, the charge against Julio Salguiero Quinteros for sexually assaulting Emily Ager was stayed for excessive delay under the Jordan framework, prompting outrage at how common this is.
“Clients are always shocked when I tell them how lengthy the delays are,” lawyer Kathryn Marshall recently wrote in the National Post.
Toronto’s new downtown courthouse, an amalgamation of several smaller ones, is running scandalously behind pace.
A lot of the trial delay problem, Fehr said, arises from “system offences,” such as breaching bail conditions or failing to appear in court. Much of what remains involves drugs, addiction and recidivism, which is an area of the law where diversion and alternative measures are thought to have the most potential.
Jordan was not even the first attempt on this issue. The case of Elijah Anton Askov, who in 1983 was charged with serious offences, including extortion and assault with a weapon, went 34 months without a trial. A judge, mindful that the legal system was well aware of its failures and complacency on trial delay, found a Charter breach and stayed the charges. In 1991, not long after the Supreme Court upheld that decision, nearly 50,000 criminal charges in Ontario were tossed out. It was an outrage, and while the present numbers are not that high, the concern is.
Recently, courts have made efforts to reduce “dead time” through technological improvements, some of them spurred on by the pandemic.
Legislatures could play an important role too, Fehr said, by systematically tracking data on how many charges are stayed to get a grip on the problem. Alberta, for example, has done this, but some other provinces have not. Legislatures could also better fund initiatives that reduce recidivism, such as specialized therapeutic courts, which aim to more sensitively manage offenders with mental illness or drug use disorders, and to manage cases of domestic violence.
“While these courts are expensive to operate, the benefit of so doing — both in terms of just results and efficient resource allocation — strikes me as worthwhile based on the current evidence of their efficacy in reducing recidivism.”
Fehr’s view is that the Supreme Court itself “could craft a more principled remedial regime for breaches of section 11(b) of the Charter.”
This is the section that guarantees a criminal accused’s right to be tried in a “reasonable” amount of time.
But not all violations of an accused’s Charter rights in a criminal trial lead to an automatic stay of proceedings. Sometimes a judicial balancing act is required, about whether the breach is serious enough to undermine the whole trial. That is a major concern in improper searches, for example. They don’t always make for a get-out-of-jail free card if the search finds a pile of drugs. Judges have a certain discretion. But on trial delay, the way things work since Jordan is that the judge has no discretion. If a judge finds a long enough delay, the decision about remedy is already made. The charge is stayed. Not everyone agrees with this strict approach.
“Staying serious offences in response to any delay over the Jordan ceiling is difficult to accept,” Fehr said.
There are other less drastic solutions than a stay of proceedings, and sometimes a fair trial is still possible despite long delay, Fehr said.
Even the Supreme Court, in Jordan, made a point of noting: “We were not invited to revisit the question of remedy. Accordingly, we refrain from doing so.”
Fehr said this indicates the top court ”appears to want this issue (of an automatic stay, and whether this is the best and only remedy) to be argued before them,” but as of yet, it has not been. Even the most recent delay case, decided last May, did not raise these arguments, Fehr said.
Violent offences worsen the problem. Staying charges like that is an “elevated injustice” to victims and the community, Fehr said.
“While the Supreme Court says the seriousness of the offence is irrelevant to the 11(b) analysis, perhaps it will change its view if the question is framed as one relating to the appropriate remedy,” he said. “To be clear, though, that is not to say that I think a stay should never occur for a serious offence. A stay should follow if delay has truly rendered the trial unfair and no alternative remedy can rectify that unfairness.”
“Crafting a more nuanced legal regime that tailors the remedy to the unsavory effect of delay on the accused would help mitigate understandable public backlash when droves of cases are stayed despite a fair trial still being possible,” Fehr said. “Courts may also employ more effective case management practices to avoid allowing needless adjournments. By so doing, they would alleviate much of the ‘dead time’ in docket courts across the country.”
The Convoy trial rolls on and may yet deliver its verdict, but in this and all of Canada’s courts, traffic remains slow.
Freedom Convoy primarily sought ‘legitimate and lawful’ protest against COVID lockdowns, Emergency Act report finds
Trudeau expresses regret for denouncing Freedom Convoy protesters as ‘fringe minority’
Our website is the place for the latest breaking news, exclusive scoops, longreads and provocative commentary. Please bookmark nationalpost.com and sign up for our daily newsletter, Posted, here.