Delays in the justice system are to blame for a rash of accused criminals walking free without trial, writes Benjamin Perrin. Federal and provincial governments need to do more to address delays brought on by a shortage of judges, a landmark Supreme Court decision and a system that fails to prioritize significant charges such as murder.

By Benjamin Perrin, Nov. 21, 2016

First, commit murder. Then, wait to see if you get charged. Next, if charged, bring pretrial motions (e.g. demand more disclosure). Wait, and then apply for a stay of proceedings due to “unreasonable delay” under the Charter of Rights and Freedoms. Finally, obtain a stay, then walk out the front door of the courthouse.

An outside observer of our criminal justice system could be forgiven for thinking that it is really that easy to get away with murder.

Under the Supreme Court of Canada’s new test in R. v. Jordan, if the time from charges are laid to the actual or expected end of trial is more than a year and a half in Provincial Court, or more than two and half years in Superior Court (where the most serious charges are heard), then an accused is presumed to have suffered unreasonable delay under Section 11(b) of the Charter.

Unless the Crown can meet the stringent test for “exceptional circumstances” or there are obvious defence delay tactics or waivers of delay, the charges will be stayed. There is no need to show that any prejudice was suffered because of the delay. The seriousness of the charges is irrelevant.

An outside observer of our criminal justice system could be forgiven for thinking that it is really that easy to get away with murder.

The fallout from this summer’s decision in the Jordan case is beginning to be felt. This week in Ottawa, first-degree-murder charges against Adam Picard were stayed because of a four-year delay. Mr. Picard says he is innocent and, by law, is presumed to be. Yet we will never know the truth about these allegations. The victim’s family is devastated. The case represents a colossal failure of our criminal justice system. The judge noted that a stay means there is no determination of guilt or vindication for the accused.

The Picard case is not an isolated incident. Last month in Edmonton, first-degree-murder charges against Lance Matthew Regan were stayed because of unreasonable delay, with the judge citing R. v. Jordan. Alberta prosecutors have announced that they are reviewing around 400 criminal charges they have flagged as at risk of a similar fate. Child-sex offences and drug-trafficking charges have also been stayed in Ontario and British Columbia.

There is plenty of blame to go around for this situation. First, the presumptive “ceilings” R. v. Jordan set for unreasonable delay are not based on adequate data – the majority relied on data from the Surrey Provincial Court alone, where that case originated. It’s a bit like assuming there is one national standard for housing prices, ignoring that you can buy a half-dozen bungalows in rural Quebec for the price of one teardown house in Vancouver.

The Supreme Court was flying blind when it set the standards in R. v. Jordan and had no idea what impact its decision would have. The ruling may have the unintended consequence of police delaying charges until cases are virtually ready for trial so they do not run the risk of their being tossed for delay – a potential risk to public safety.

Parliament should streamline the Criminal Code, focus it on serious offences and abolish unnecessary procedures. This must be a top priority for Jody Wilson-Raybould, the Attorney-General of Canada and Minister of Justice.

The provinces are responsible for administering the criminal justice system, including the courts, prosecutors and police. Resources should be prioritized to deal with serious cases – no murder charge should ever be delayed to the point it gets stayed.

Ontario’s system, like many, is in desperate need of an overhaul. Ontario has the highest number of criminal charges stayed or withdrawn (for various reasons) of anywhere in Canada at 43.1 per cent on average, in comparison with a mere 8.6 per cent in Quebec. Thousands of cases clog up the system in Ontario that never go anywhere, while serious cases languish. Unlike in Quebec, police in Ontario directly lay charges without pre-charge approval by a Crown prosecutor. This needs to change.

Parliament should streamline the Criminal Code, focus it on serious offences and abolish unnecessary procedures.

Our courts must modernize. In many places, judges waste their time scheduling court appearances. For example, in Newfoundland and Labrador, one study found that up to 72 per cent of a court’s sitting time is spent on scheduling hearings.

Unlike the medical system, our justice system typically runs without any kind of triage. It’s an antiquated first-come, first-served model. If our medical system ran that way, people would die waiting in an emergency room where people with a broken toe who come in first are treated first, while gunshot victims bleed to death waiting patiently in line.

Like the medical system, lives are at stake. Change is desperately needed.

Benjamin Perrin is a law professor at the University of British Columbia’s Peter A. Allard School of Law and a Munk Senior Fellow at the Macdonald-Laurier Institute for Public Policy, which recently published his Report Card on the Criminal Justice System: Evaluating Canada’s Justice Deficit.