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Dealing with trial delays without ending prosecutions

In a case last year, the Supreme Court of Canada grappled with trial delays. (THE CANADIAN PRESS/Sean Kilpatrick)

Dealing with trial delays without ending prosecutions

Delays in Canada’s criminal court system have received a lot of attention in recent months. In the year since the Supreme Court’s landmark R. v. Jordan decision, serious cases, even those involving murder charges, have been thrown out because it took too long to bring them to trial.

This is an unhappy state of affairs, with no quick or easy solution. One part of the solution, however, may be to add flexibility to the remedies available when someone’s constitutional right to a timely trial has been breached.

The Supreme Court of Canada decided in 1987 the minimum remedy for such breaches is a stay of proceedings — in other words, a termination of the prosecution. This is the most extreme remedy available in law, yet the appropriateness of the court’s position has only rarely been questioned in the last 30 years. It was, accordingly, interesting to see the Standing Senate Committee on Legal and Constitutional Affairs do just that in its recent report entitled Delaying Justice is Denying Justice: An Urgent Need to Address Lengthy Court Delays in Canada.

The committee recommended alternative, less drastic remedies for unconstitutional trial delays. In my view, the committee’s recommendation is sensible. (Full disclosure: I advocated this position in an appearance before the committee.)

Court ruled only stays would end delays

The Supreme Court ruled that a stay had to be the minimum remedy based on the reasoning that anything short of terminating proceedings would only exacerbate the problem. In other words, in a case where there’s excess delay, failing to grant a stay would only lead to a longer wait and render an already unreasonable delay even more unreasonable.

Sivaloganathan Thanabalasingam, seen in Montreal in April, is the first murder suspect in Quebec to be set free after the length of his criminal proceedings exceeded the legal limit. He’s asked to be deported back to Sri Lanka. (THE CANADIAN PRESS/Graham Hughes)

This reasoning has superficial appeal but incorrectly assumes that the constitutional problem is the delay in and of itself. The problem is actually the effects of delay on constitutionally protected interests. In other words, what we care about, and what we seek to remedy, is not so much the passage of time but its consequences.

With a long delay, for example, an accused can be forced to suffer continuing and lengthy deprivations of liberty if he or she is detained in custody pending trial. While such deprivations are sometimes unavoidable, at some point they can become excessive, and the accused deserves a remedy — not because he has to wait a long time for his trial, but because he has to wait a long time in jail for his trial.

But the remedy for that wrong doesn’t necessarily have to be an end to the prosecution. It could be pre-trial release on unconditional bail, plus a sentence reduction, post-conviction, to compensate for the excessive deprivation previously suffered. The point is that in some cases, we can address a violation of the constitutional right to a prompt trial with a remedy short of a stay of proceedings — even though we lengthen the overall delay.

A stay isn’t always a just solution

Adequate alternatives to a stay will not always be available in a particular case, and admittedly it’s harder to remedy some adverse effects of delay than others. But that just means that in some cases, a stay of proceedings is a just and appropriate remedy. It does not mean that a stay is always the appropriate remedy.

Courts in many other countries grant something less than a stay when a trial is unreasonably delayed. In several European jurisdictions, for example, courts can give the accused monetary compensation or a sentence reduction.

In the Canadian legal landscape, the idea that we must always grant a stay of proceedings is a complete anomaly. The general position is that a stay should only be ordered exceptionally, when no other remedy will suffice. Why should we change that position and grant a stay every time just because the constitutional wrong is the product of a sluggish prosecution process?

Some will claim that the remedy of a stay is necessary to encourage speedy justice. In other words, appalled by the prospect of an end to the prosecution, the system will work hard to avoid that outcome by quickly moving cases to trial. The problem with that argument is that a stay has been the prescribed remedy for untimely justice for the past 30 years, yet we’re currently facing a crisis of delay anyway.

‘Better way of doing things’

Part of the reason why is that judges are reluctant to find breaches of the right to a timely trial because the remedy is so extreme. And so, as matters now stand, we are in the bizarre situation where we occasionally grant stays (much to the chagrin of victims) when the accused is still fully able to mount a defence, and more often grant no remedy at all, even when the accused has suffered prejudice of one form or another. Surely there has to be a better way of doing things.

In R. v. Jordan, the Supreme Court tried to accelerate justice by imposing ceilings on the amount of delay that is constitutionally permissible. Only time will tell whether that approach is effective or is undermined by its many exceptions and qualifications.

Adding flexibility to the remedies for an unreasonably delayed trial may or may not speed up trials, but at least it will allow the courts to dispense a tailored and appropriate solution when proceedings drag on too long.

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