The Current - Strict time limits are stopping criminal cases ever reaching trial

Episode Date: November 13, 2024

Emily Quint waited months for the trial of the man she alleges sexually assaulted her, but the case was stayed after it took too long to be heard. That was based on the strict time limits laid out in the Supreme Court’s so-called Jordan decision, which Quint says is more concerned with the rights of accused perpetrators of violence than the rights of survivors. 

In 2017, it felt like drugs were everywhere in the news, so I started a podcast called On Drugs. We covered a lot of ground over two seasons, but there are still so many more stories to tell. I'm Jeff Turner, and I'm back with Season 3 of On Drugs. And this time, it's going to get personal. I don't know who Sober Jeff is. I don't even know if I like that guy.

On Drugs is available now wherever you get your podcasts. This is a CBC Podcast. Hello, I'm Matt Galloway and this is The Current Podcast. More than half of the criminal charges laid by police in the province of Ontario never make it to trial, including serious ones like homicide and sexual assault. It's not because those cases lack merit. There simply isn't enough time to get to them. This is in part due to the so-called Jordan Limit.

In 2016, the Supreme Court of Canada ruled that the accused must have their cases tried within 18 months for provincial court and 30 months for superior court. The time limit was meant to speed up proceedings, but some victims say it's actually working against them. Emily Quint had her case of an alleged sexual assault stayed after the case took too long to be heard. Emily, good morning. Good morning. Thank you for having me.

Thank you for being here. Going ahead with pressing charges and bringing allegations to police is a really difficult thing to live with. What were the expectations that you had when you brought those allegations to police and pursued a criminal trial? I think initially, I wasn't even really sure, right? Like, I think, for me, I hadn't experienced this before, so it was completely new and there was really nobody to support me, advocate for me or help me navigate that. So I think for me, it was just about listening to what they want from me and giving them what I can. And what were you looking for in that process? I wanted accountability, right? Like I wanted to be able to say this is what

happened to me and for at least somebody out there to say like, we believe you and this person will be held accountable for that. What ended up happening instead? ended up happening instead? Oh, my case never made it through the system. We were very, very close. I testified and I entered cross-examination. And then my case was completely tossed out because we had reached Jordan time limit. because we had reached Jordan time limit. And this was something I had never heard about in my entire life. And all of a sudden, the past two years of my life, every grueling moment, it was just over.

What were the explanations as to why your case was tossed out? What did you understand about why this was happening? So for me, I think looking back now, it was there loud and clear. But I mean, I was just really trying to survive in that moment. But my case was scheduled. My trial was scheduled for three days. The first two days, I showed up to court and was told to wait because there wasn't a courtroom, there wasn't staff to hear my case. And by the third day, I finally took the stand, testified, and endured in cross-examination. And a few months later, trial was set to resume at the earliest available dates

and they said they called me a week before it was set to resume and they basically so this is the the crowns they contacted me and said emily it's over. The defense put through a motion to have the charges stayed due to the accused's charter right to a speedy trial. The language that was used was that this was an unreasonable delay. Yes. When you heard that, what went through your mind? I can hear it in your voice how difficult it is. When you heard that, what went through your mind? I mean, I can hear it in your voice, how difficult it is. When you heard that, what went through your mind? Oh, it was like,

I remember in that moment, I was like begging and pleading, like, what can I do? Like, this can't be happening. And then I started to get really angry. And I was like, why are the rights of a perpetrator of violence held with more importance than the rights of a perpetrator of violence held with more importance than the rights of a survivor and like maybe this person did deserve the right to a timely trial but I also deserve the right to a trial a full trial and a fair trial and I feel like um I was robbed

of that the justice who was overseeing this called the dismissal on those unreasonable delay grounds um the language that he used was shameful absolutely um you said that that in the wake of this your whole world these are your words your whole world went up in flames yeah it was like how am i gonna live in a world that doesn't protect me it doesn't protect us survivors aren't important enough like it was like i actually put my blood sweat and tears into the last two years, and it was just all over in a moment, and there was nothing I could do. What does something like that do to your trust in the legal system and in a system that is meant to provide some measure of justice? What does it do to your trust in that system?

It's gone like it totally disappeared at that moment and i think you know i'm a year out from hearing that um the charges were stayed and i think i'm still in that space where um i've lost that trust and i don't know if that trust can be repaired. Like it's going to take a lot and I don't see it getting there anytime soon. What would you want to see happen to address the impact that the Jordan decision is having on people like you? As I mentioned in the introduction, more than half of the criminal charges laid by police in Ontario never actually made it to trial. More than half of the criminal charges laid by police in Ontario never actually made it to trial. Yeah, and so I think there are a lot of systemic changes that a lot of us survivors would like to see. And so I think what is so important is that the government and policymakers actually hears us.

Because we do have voices and we've actually been through the process and we've experienced how heartbreaking and soul-crushing it is. I think obviously a big one is properly staffing the courts and ensuring sufficient funding is actually going to the courts because nothing is going to get through if cases aren't heard. I also think that what's so important is a survivor first and trauma-informed process. So, what leans into that is transparency. I think that was the hardest thing for me. It was, there was no transparency. Like, I had never heard about the possibility of my case being tossed. my case being tossed. And so, to find out about that in real time as it was happening is re-victimizing. It is re-traumatizing. And I think also noting that there should be multiple pathways to justice and healing because the criminal justice process as we know it is not working. It is failing. And so, it is so important to take a good, long, hard look at it and address the root causes of why it's failing survivors.

It's really hard to have a conversation about this. And I really, on a personal level, just appreciate you being willing to do this. It's important as well. And so thank you for that, but also take care of yourself, Emily. Thank you so much. I really appreciate it. Emily Quint's case based on her allegations of sexual assault was stayed after, as you heard, it took too long to be heard. Since the beginning of last year, more than 400 criminal cases across this country have been dismissed, stayed, or withdrawn because of Jordan challenges. Those include everything from sexual assault to child exploitation to drug trafficking. Simona Jelenic is Senior Counsel at Jelenic Ellis Gluckstein in Toronto. Her firm deals with people whose criminal cases were thrown out and who then turned to civil litigation. Simona, good morning to you. Good morning. Thank

you for having me. What goes through your mind when you hear Emily's story? She says that the system failed her, that it was soul-destro destroying. It's heartbreaking. Emily's story is something that unfortunately we hear almost on a weekly basis at my office, and it is gut-wrenching. Can you just briefly remind us how the Jordan ruling came to be and what it was supposed to address in the system? Sure. It was essentially supposed to address long delays between someone being charged and getting their day in court. And the Jordan Principle makes sense on one level, absolutely it does. But as we've heard in Emily's case, it really doesn't make sense on a lot of different levels. The limits now are, as I mentioned, 18 months for provincial courts, 30 months for superior courts. Are there exceptions to that rule to allow for more time?

That's a question better asked of a criminal defense lawyer as opposed to a civil lawyer, but I do believe there are some exceptions. We'll talk about that. We have a criminal defense lawyer who's going to follow our conversation. But in the wake of that, CBC is reporting that more than half of the criminal cases in Ontario have been stayed in part due to the Jordan limit. This is something that other provinces are dealing with as well. What's causing, I mean again, as you understand it, what's causing the delays to get to the point where the Jordan ruling would apply? Sure. Lots of different factors. I mean, Emily hit on one, which is the courts don't have enough funding

to be able to adequately listen to all these cases in a timely manner. I do also think that sometimes what happens is that some cases are significantly more complicated than others to bring to trial. Sexual assault, murder, things of that nature being significantly more complicated than lesser offenses. So you've got a one-size-fits-all, but they are not one-size cases. You've said that what flows out of the Jordan ruling, in your words, is fair to the accused, but the question that you asked, is it fair to society? Is it fair to society? I believe that it is inherently unfair to society. Our criminal justice system is supposed to be there to make sure that if a crime is committed, there is a

trial and it is a fair trial. But the fairness really only extends to the accused. The people who have been hurt as a result of those crimes or alleged crimes, what they need, what their rights are, are rarely, if ever, taken into consideration. So what needs to change? I mean, part of this is about funding, and I don't know where the funding comes from. Is that federal or is it provincial? Probably a little bit of both. What about the ruling itself, the Jordan ruling itself? Is there a need to rethink the limits that that ruling, which was created for a specific reason, is there a point to rethink what has come out of that ruling and rethink those limits? complete and utter revamp of our criminal justice system, especially when it comes to crimes such as sexual assault crimes, which are more complicated, often based on credibility, often based on factors that are not as simple as whether or not somebody stole a car. So I think that we as a society really

do need to look at it, view it through a trauma-informed lens, view it through a lens of fairness, and view it through a lens that survivors matter and what survivors need are just as important as what the accused may need. What does that mean? Does that mean not applying Jordan in sexual assault cases, for example? No, not necessarily. I think that fundamentally Jordan makes sense. I think that fundamentally Jordan makes sense.

It's just the complete wholesale abdication to what the survivor needs is what doesn't make sense. There's got to be a balance. Many of your clients have gone through the initial steps perhaps of a criminal trial and then come up against Jordan and then they turn to civil litigation. What does a civil case offer them? Well, a civil case offers them lots of things that a criminal case doesn't. First and foremost, there aren't any time limits in civil cases. Our legislature realized back in 2016, interestingly enough, that sexual assault survivors should not be held to strict time limits. And that's why there is no limitation period to begin a case in sexual assault. It could have happened 50 years ago and you still have the right to sue.

The other thing that it offers is that you have a lawyer. That lawyer is there to protect your rights, to pursue your rights, and to make sure that everything that the law can give you is there. In a criminal case, the crown is not your lawyer. The crown is the lawyer for the government, which is a very different thing. And one of the most important things, frankly, is that in a criminal case, the accused doesn't have to take the stand. The accused can decide not to take a stand and therefore not to be subjected to cross-examination. In a civil case, that option isn't available. And in cases about credibility, which is often in sexual assault cases,

cross-examination is a very, very effective tool to get to the truth. And that happens in civil cases and not in criminal cases. I have to let you go, but what about the credibility of the justice system? Do you worry that stories like this... Oh, absolutely. That's your answer? Yes. Simona, we'll leave it there.

Thank you very much. Thank you. Simona Jelinek is Senior Counsel at Jelinek Ellis Gluckstein in Toronto. In 2017, it felt like drugs were everywhere in the news. So I started a podcast called On Drugs. We covered a lot of ground over two seasons, but there are still so many more stories to tell. I'm Jeff Turner, and I'm back with season three of On Drugs.

And this time, it's going to get personal. I don't know who Sober Jeff is. I don't even know if I like that guy. On Drugs is available now wherever you get your podcasts. Daniel Brown is a criminal defense lawyer, partner at Daniel Brown law, LLP, former president of the criminal lawyers association. He's with me in studio. Good morning to you. Good morning, Matt.

Emily talked about how her case had been underway, but then shut down due to Jordan limits. Is that the way that this ruling is supposed to work? No, not at all. In fact, what we hope to happen, what we expect to happen is that the Jordan ceiling acts as an incentive to ensure that cases do make it under that hard ceiling, to make sure that cases are brought to justice, to make sure somebody like Emily gets her day in court, not years down the road, but maybe even months down the road. Speedy justice is not just good for an accused person who's facing the stigma of a criminal allegation person who's facing the stigma of a

criminal allegation, who's facing the consequences immediately sometimes of a criminal charge, but also for somebody like Emily to ensure that she gets her day in court sooner than she needs to wait for. So what's causing the delays as you understand it? Well, there's a lot of factors. I mean, one thing that we have to remember is that that delay clock doesn't start until a charge is laid. And so the Jordan decision was meant to be a culture change. And one of those culture changes may be the fact that we have to look at when charges are laid in the first place, not to say that they shouldn't be laid, but the police can do investigation first and charge later. Often what they do is they charge first

and then start the investigation. And the evidence that is collected over time can delay the case and delay the case reaching trial. So what other provinces do, other than in Ontario, is they may wait to lay criminal charges. The Crown attorneys who, when criminal charges are brought into the system, will screen those criminal charges before charges are laid to also ensure that other cases that need not be in the system, the ones that are consuming resources and taking up court time unnecessarily, those cases can be pushed aside.

And the last thing that can also happen is just the idea that in Ontario, for example, cases are prosecuted using this standard of what they call a reasonable prospect of conviction. But when we think about what the burden of proof is, this proof beyond a reasonable doubt standard, there's sort of a far gap between those two ideas, what a prospect of conviction is versus proof beyond a reasonable doubt. In other provinces like British Columbia, they apply a substantial likelihood of conviction standard, which means that only the cases that are likely going to actually achieve that conviction are prosecuted in the first place.

So when we think about just where we're dedicating resources, what's consuming the court's time, I mean, the justice system is a finite expense. We don't have unlimited money to put towards this. But then you end up choosing which criminal matters, I mean, what we decide to invest in. What does that do to the integrity of the system? Well, how does the integrity of the system serve when we have cases that have no hope of ever meeting that proof beyond a reasonable doubt standard? It's not in anyone's interest for someone like Emily to go through the system where the case is apparently weak enough that it will never meet that high threshold. And that's not Emily's case per se, but somebody in that situation where there is an evidentiary gap that everyone recognizes on the front end, but no one is allowed to stop that case.

So we have a lot of on-ramps, a lot of ways to get a case in the system, and not a lot of off-ramps. We heard Emily talk about alternative ways of holding people accountable, restorative justice options. We could consider whether or not other types of cases, the cases where we're prosecuting people that have drug addiction and mental health, whether those cases can be diverted out of the system much earlier on in the process to free up the highway for these cases to move through quickly. There's been accusations that some, I'm not suggesting you, but some criminal defense lawyers are weaponizing this, that this is a way to game in some ways a system. You drag things out, then cases come up against a Jordan ceiling and those cases are tossed out. Is that a reasonable concern? I don't think so. This was something that was raised seven, eight years ago when Jordan came into place. Absolutely.

I think that the one thing you have to recognize is that a defense lawyer who's causing delay, that delay is immediately subtracted from the delay in the system. We heard Ms. Jelinek talk about the idea that complex cases should have different rules. They do have different rules. The Jordan decision says that complex cases ought to be treated differently. The ceiling changes, and we don't hold this hard ceiling to those complex cases. So there are some exceptions. Absolutely. When we talk about specific exceptional circumstances, when the COVID pandemic hit, all of that time that was caused when the courts shut down for COVID, that was removed. So these hard ceilings are flexible in some ways. The inflexibility comes from a case that really just should have

made its way through the system quicker. And when we're talking about the numbers of cases, tens of thousands of cases across the country, maybe hundreds of thousands of cases, and we have 400 stayed for Jordan delay. I mean, the reason why these cases are not making it through the system is not always because they're taking too long. But I mean, we just have a few seconds left. You take Emily's example, you take in those 400, some of them are sexual assault cases, some are child exploitation, as I mentioned, drug trafficking. What does that do to the integrity of the system? There's this idea that justice needs to be seen to be done in some ways,

and people wonder whether it's being seen. Absolutely, and I think Emily has a real concern. We all have a real concern. We all have a real interest in a justice system that works, and ensuring that the cases that ought to be in the justice system are there is essential, but also ensuring that the cases that need not be there, the ones that could be screened out or investigated on the front end before the delay clock starts ticking,

these are also easy solutions to this particular problem. Daniel, good to have you here. Thank you very much. Thanks, Matt. Daniel Brown is a criminal defense lawyer, partner at Daniel Brown Law LLP. Your thoughts on this, welcome. You can email us thecurrentatcbc.ca. For more CBC Podcasts, go to cbc.ca slash podcasts.