Susan Clairmont: Stunning crisis in legal system jeopardizes ‘tsunami’ of Hamilton criminal cases
An unprecedented number of trials in Hamilton's Ontario Court of Justice - including a homicide - are in jeopardy of being tossed out because the backlogged system is setting dates beyond the legal time limit.
Already, a second-degree murder case is being considered for a stay of proceedings because it has dragged on for so long.
A wave" of applications to stay cases is threatening to morph into a tsunami," one judge wrote in a recent decision to grant an application, signalling a stunning crisis in our beleaguered justice system.
From impaired driving to murders, criminal cases are in danger of being stayed because they are not being heard within the 18-month time limit set by the Supreme Court of Canada in its Jordan decision.
The dire situation was boldly called out by Justice Joe Fiorucci in his ruling granting a stay in an impaired driving case that took too long to get to trial.
As I write these reasons," the judge said in his decision released March 25, trial dates in the Hamilton Ontario Court of Justice are being scheduled beyond the Jordan presumptive ceiling every day."
Essentially, those cases are potentially doomed before they are even heard. Paradoxically, the complex legal process - called an 11B application - the court must go through to determine if a case has exceeded the time limit is itself bogging the court down further as judges wade through piles of these applications under Section 11(b) of the Charter of Rights and Freedoms being made by defence lawyers.
For weeks, The Spectator has made repeated interview requests to the Ministry of the Attorney General and the Attorney General himself, Doug Downey.
Spokespeople have told The Spectator they are working on it, but so far there has been no further information.
Systemic issues
Palma Paciocco, an assistant professor at Osgoode Hall Law School, says the Hamilton crisis is very significant."
Staying charges impacts the public's faith in the justice system," she says. But allowing accused persons, who are presumed innocent, to absorb" delays is a fundamental failure of justice. It is particularly troubling during COVID when pretrial custody is more desperate and awful" due to risk of the virus and strict lockdown measures.
I think it really signals broader, ongoing system issues," she says.
The Jordan framework was designed to recognize situations that can cause extensive but discrete delays at a specific courthouse, such as a blackout, or an illness or a judge being elevated to the Court of Appeal halfway through a trial.
But it doesn't contemplate a system-wide extraordinary event" such as COVID which would impact nationally in a prolonged way," Paciocco says.
For years, Hamilton's court has been overwhelmed with cases. This is a busy jurisdiction with no shortage of crimes, including an average of 10 or so homicides a year. Judges in the OCJ as well as the Superior Court of Justice routinely juggle many cases at once, often taking breaks during trials to deal with other matters.
OCJ judges deal with family law cases, youth matters and most criminal charges laid within the province, among other things.
The Superior Court of Justice hears all civil proceedings in Ontario and tries the most serious criminal offences, including murder, manslaughter, drug trafficking and offences against the security of the state.
Since the pandemic hit and a state of emergency was declared in Ontario on March 17, 2020, the ability to deal with Hamilton's criminal charges in a timely manner has plummeted. Particularly in the OCJ where the legal limit on dealing with cases from the swearing of charges to resolution is 18 months, compared to 30 months in the SCJ.
Hamilton's OCJ has experienced a noticeable rise in complex criminal trials," Fiorucci wrote.
Gun and drug prosecutions are typically complicated by having multiple accused and challenges to the validity of search warrants. There is a steady flow of sexual assault prosecutions which often involve child victims." And there are domestic assaults, weapons cases and many other criminal and often violent offences.
Also, Hamilton had a record high number of homicides last year with 20. Homicide cases require substantial pretrial resources in the OCJ which can last days.
Courthouse sources have told The Spectator that before the pandemic, there were usually less than 30 homicide cases pending in the OCJ. Now there are 45.
The volume and complexity of the work creates scheduling challenges," Fiorucci wrote. Judges now have more than one trial a day on their list, though they often can't get through it all, meaning those matters must be adjourned to another day.
Fiorucci addresses the reality that this was a crisis waiting to happen.
The shutdown of court operations caused by the COVID-19 pandemic created additional scheduling backlogs and challenges. However enticing and convenient it may be to make the COVID-19 pandemic the scapegoat for all delay in this jurisdiction that cannot otherwise be explained, such an approach merely masks the reality that the dam was already cracking prior to any mask mandates or Plexiglas fitted courtrooms."
The work a judge must do to analyze an 11B application is immense. Essentially, every day of a case - some of which have been ongoing for years - must be scrutinized. The defence and Crown must argue who is at fault for each delay - or if the system or some exceptional circumstances" such as COVID are to blame. The judge must consider those positions, case law and do the math, often using charts and spread sheets.
The volume of materials filed on such applications and the court time and judges' time required to dispose of these applications create an additional strain on already scarce judicial resources," the judge wrote.
Fiorucci says that increasingly, 11B applications are being made in the most serious cases: high level drug trafficking prosecutions, sexual offences, including child sexual assaults, and even homicides."
A youth facing second-degree murder in the stabbing death of Ali Mohammad in July 2020 has made an 11B application to have his charges dismissed. He is also charged with two counts of aggravated assault and assault with a weapon on other victims.
The youth, whose identify is protected by a publication ban, is alleged to have been involved when Ali was killed in a parking lot brawl between rival groups.
Two other teens are already on trial for the homicide. But a third youth, to be tried separately, says his case will surpass the 18-month Jordan limit.
Justice Anthony Leitch is expected to deliver his ruling on June 2.
Cases tossed
The case Fiorucci was writing about concerned a man charged under the Criminal Code with having a blood-alcohol concentration exceeding the legal limit and charged with stunt driving under the Highway Traffic Act. The offences were sworn before the court on July 28, 2020.
There have been scheduling issues along the way. For instance, a clerical error meant neither the defence counsel nor the accused showed up for the first appearance.
The trial was supposed to last just a half day on Nov. 5, 2021. But it wasn't finished in that time fame, so another day was scheduled on Dec. 9. That day, the Crown dealt with a child sexual assault case and never got to the drinking and driving case. The remainder of the trial was rescheduled for March 23, the earliest date offered by the trial co-ordinator and accepted by the lawyers.
Fiorucci calculated the total delay as 19.9 months.
He found a problem sorting which delays could be attributed to the pandemic because nobody is keeping track of such things. When Crown attorneys in Hamilton argue lost time is due to the exceptional circumstances of COVID, they have no data to back it up.
Courts saddled with the task of applying the Jordan framework require an evidentiary basis to deduct time as an exceptional circumstance related to the pandemic," wrote Fiorucci. He says if the Crown had been able to show it took longer to obtain a court date during the pandemic than before it, he might have been able to consider that an exceptional circumstance. But no such information was provided.
After pages of analyses parsing out who or what was responsible for each day of delay, Fioruccio ruled the driving case lasted 18.7 months - which is over the 18 month limit.
He granted a stay of proceedings. The driver is free, unless some new evidence arises within one year.
Three days after Fiorucci released his decision, his colleague Justice Amanda Camara also stayed a case on an 11B application.
A man charged in relation to drug trafficking requested his case be thrown out because it was taking too long.
He was arrested March 26, 2019, then arrested again two months later on additional charges. His trial was scheduled to begin in May and end on June 13, 2022. That is a total of 38 months and 19 days for the case from start to finish.
He had 22 court appearances.
Camara, after considering delays attributable to the defence, the Crown and exceptional circumstances, decided the case exceeded the 18-month time limit by more than seven months. She granted a stay.
Camara, like Fiorucci, says she lacked hard evidence that delays were caused by COVID because no data is being collected.
I have no statistical information about the impact that the COVID-19 pandemic had on scheduling trials in Hamilton."
The judge also pointed to the Crown's failure to address the delay, even when the trial date was set well outside" the 18-month limit.
No attempt was made to secure earlier dates," she wrote.
Two days after Camara's decision, Justice Marjoh Agro also granted an 11B application in a sexual assault case involving a group sexual encounter, part of which may have been consensual and which was recorded and/or photographed by a non-participating third party" using the accused's cellphone.
The stay was granted because the case would take 20 months and one day to be resolved.
Some of the delay related to procedures for disclosing intimate" videos and photographs. But other delays have to be sorted into those caused by the pandemic and those that could have been controlled by the court system, Agro said. But again, the problem is a lack of data.
She wrote that trying to arbitrarily apportion some of the time to COVID-19 backlog ... would be akin to throwing darts at a board while blindfolded."
Unanswered questions
In his decision, Fiorucci called on the provincial and federal governments to fix the broken justice system. He said it is inadequately resourced and the Supreme Court of Canada has made all justice partners - including governments - responsible for ensuring timely access to justice.
The Spectator sent a list of questions to the ministry on March 31. None have been answered. They include:
- Is the ministry aware trial dates in Hamilton's OCJ are being set beyond the 18-month limit? What is being done about it?
- Does the ministry have plans to hire more judges and court staff? Open more physical or virtual courtrooms?
- Is the ministry tracking COVID-related delays that might be considered exceptional circumstances in an 11B application?
- How many 11B applications have been made in Hamilton's OCJ since March 17, 2020, when the pandemic began? How many stays of proceedings have been granted? What charges were stayed?
Paciocco says while more resources are definitely needed, that alone won't solve the backlog problem.
Police and courts need to get really, really aggressive and thoughtful when deciding which cases to pursue," she says, calling for a triage protocol."
Those cases that don't meet the threshold - breached curfews, non-violent charges stemming from mental health and addiction issues - should be diverted or dropped, she argues.
Those cases are taking up space in the criminal justice system."
There are currently eight OCJ judges in Hamilton. Two - Justice Bernd Zabel and Justice Agro - are expected to retire this year.
That may leave even fewer judges - as Fiorucci puts it - working feverishly to patch the cracks in the dam."
Susan Clairmont is a justice columnist at The Spectator. sclairmont@thespec.com