Legislative Background: An Act to amend the Criminal Code, the Youth Criminal Justice Act and other Acts and to make consequential amendments to other Acts, as enacted (Bill C-75 in the 42nd Parliament)

Background

In recent years, the issue of delays in the criminal justice system has been the subject of significant and sustained attention, including calls for action by provinces and territories, Parliament, key stakeholders, the media, as well as the general public. The Supreme Court of Canada’s (SCC) decision in Jordan (2016) established a new framework for determining unreasonable delay, and in Cody (2017), the SCC re-emphasized the responsibility of all criminal justice system participants, including judges, prosecutors and defence counsel, to move cases forward without delay, thus resulting in intensified pressure to reduce criminal justice system delays. Since these decisions, numerous cases have been stayed for unreasonable delay, some of which involved charges for serious offences (e.g., murder, serious assault). Federal, Provincial and Territorial (FPT) Ministers Responsible for Justice met in April and in September 2017 to discuss and identify key areas for legislative reform to resolve cases in a just and timely manner. The Standing Senate Committee on Legal and Constitutional Affairs released their final report in June 2017, which addressed a broad range of matters relating to criminal justice system delays, and the responsibility of all actors involved, to which the Government tabled its response letter in November 2017. These events have underscored the need for criminal justice system efficiencies, simplification and modernization.

Key Litigation

R v JordanFootnote 1

Barrett Richard Jordan was arrested in December 2008 and charged with various offences relating to drug possession and trafficking. In May 2011, Mr. Jordan was committed to stand trial, which lasted from September 2012 to February 2013. The total delay between the charges and the conclusion of the trial was 49.5 months, of which 5.5 were attributed to the accused. Mr. Jordan brought an application under section 11(b) of the Charter (right to be “tried within a reasonable time”), seeking a stay of proceedings due to this delay.

On July 8, 2016, in R v Jordan, the majority of the SCC (5-4) revised the analysis for unreasonable delay first established in R v Morin (1992). In Jordan, the SCC set out presumptive numerical ceilings on the time it should take to bring an accused person to trial: 18 months for cases proceeding to trial in provincial court, and 30 months in superior court (or in provincial court with a preliminary inquiry). If the presumptive ceilings are exceeded, the delay is presumed to be unreasonable and a stay of proceedings will follow unless the Crown establishes the presence of “exceptional circumstances,” (i.e., discrete events beyond the control of the Crown that are unforeseeable and cannot be remedied, including the inherent complexity of a case). If the Crown is unable to establish “exceptional circumstances,” the delay will be deemed unreasonable and a stay of proceedings will be entered.

In its decision, the Court stated that “a culture of complacency towards delay has emerged in the criminal justice system,”Footnote 2 and held that presumptive ceilings were necessary to “give meaningful direction to the state on its constitutional obligations and to those who play an important role in ensuring that the trial concludes within a reasonable time,”Footnote 3 to “enhance analytical simplicity” and to “foster constructive incentives.”Footnote 4 The Court allowed a contextual application of the new framework for cases currently in the system to avoid a post-AskovFootnote 5 situation where thousands of charges were stayed due to an abrupt change in the law.Footnote 6 The Court found that a 49.5 month delay between the laying of the charges for drug possession and trafficking and Mr. Jordan’s trial in a British Columbia Superior Court was unreasonable and contrary to section 11(b) of the Charter. It set aside the accused’s convictions, and directed a stay of proceedings.

R v WilliamsonFootnote 7

Kenneth Williamson was charged in January 2009 with historical sexual offences against a minor. His trial was completed on December 20, 2011. The total delay between the charges and the conclusion of the trial in the Ontario Superior Court was 35.5 months, of which 1.5 months was attributed to the accused. Mr. Williamson brought an application under section 11(b) of the Charter, seeking a stay of proceedings due to this delay.

On July 8, 2016, the majority of the SCC (5-4) applied the new Jordan framework to this case. It found that the net delay of 34 months infringed the accused’s right to be tried within a reasonable time. The majority also found the delay unreasonable under the transitional exceptional circumstances assessment.

In its decision, the Court stated that “the previous state of the law cannot justify the nearly three years it took to bring Mr. Williamson to trial on relatively straightforward charges.”Footnote 8 However, the Court concurred with the Court of Appeal with regards to the seriousness of the crimes committed, and reiterated the Court of Appeal’s statement that “the balance weighs in favour of [his] interests in a trial within a reasonable time, over the society interest in a trial on the merits.”Footnote 9

R v CodyFootnote 10

James Cody was charged with drug trafficking and weapons offences on January 12, 2010. His trial was scheduled to conclude on January 30, 2015. Before the commencement of his trial, Mr. Cody brought an application under section 11(b) of the Charter, seeking a stay of proceedings due to the delay. Because the application pre-dated the release of Jordan, the trial judge applied the framework set out by the SCC in Morin, granted the application and stayed the proceedings. A majority of the Court of Appeal of Newfoundland and Labrador applied the Jordan framework and allowed the appeal, set aside the stay of proceedings and remitted the matter for trial.

On June 16, 2017, in a unanimous (7-0) decision, the SCC applied the Jordan framework and concluded that the net delay of 36.5 months in this case was unreasonable (60 months and 21 days elapsed between the time the charges were laid and the anticipated end of the appellant’s trial). This decision was the SCC’s first opportunity to consider the application of its Jordan test in a subsequent case. In making its decision, the Court clarified certain aspects:

  1. Defence delay is not only confined to frivolous applications;
  2. Trial judges must screen out applications that have no reasonable prospect of success;
  3. Case complexity should be assessed as a whole, as opposed to by looking at particular aspects (e.g., voluminous disclosure); and,
  4. Transitional exceptional circumstances: the Crown will rarely, if ever, be successful in justifying the delay as transitional if it would have failed under the previous Morin test.

The Court went on to note that trial judges should also be proactive in intervening to increase efficiency, by encouraging the use of documentary evidence where reasonable or by refusing an adjournment request if it would result in unacceptably long delay.

R v PicardFootnote 11

Adam Picard was arrested in December 2012 and charged with first degree murder. In March 2015, Mr. Picard was committed to stand trial, which was scheduled to conclude in December 2016. A total of 48 months elapsed between the time the charges were laid and the anticipated end of the appellant’s trial, of which 2 months were attributed to the accused. The Crowns assigned to the case were not available for the trial until seven months after the first dates when both the Court and the defence were available. The Crown stated that it could not re-assign the case to other Crowns due to the complexity of the case and the amount of time the assigned Crowns had spent reviewing the complex evidence.

The Picard case was the first of a number of trial decisions dismissing murder charges for having violated the rights of an accused to be tried within a reasonable time under section 11(b) of the Charter, following the R v Jordan decision, to reach a provincial appeal court. The trial judge found the delay not justified and that transitional exceptional circumstances under Jordan did not apply.

In a unanimous decision, the Court of Appeal agreed with the trial judge that the complexity of the case did not justify the delay beyond the 30 month ceiling under the Jordan framework: however, it found that the transitional exceptional circumstances applied, since the facts of the case would not have led to a stay under Morin. Since the delay had occurred prior to the release of Jordan, the Court considered whether the case was subject to a transitional exceptional circumstance, including whether the delay could be justified by the Crown’s reliance on the law as it previously stood. The Court acknowledged that “this case exhibits some of the delay concerns that Jordan sought to address … the overall time needed to bring the case to trial combined with the Crown’s refusal to agree to a trial on the first available dates in Superior Court”, which would have resulted in a stay had the case occurred after Jordan had been released. It reiterated Jordan’s dicta that parties’ behaviour should not be “judged strictly, against a standard of which they had no notice.”Footnote 12

R v BoudreaultFootnote 13

In Boudreault, the SCC jointly heard and decided four appeals involving seven people in two provinces, all challenging the constitutionality of section 737 (Victim Surcharge) of the Criminal Code of Canada (Criminal Code). In each case, the offenders argued that they could not afford the surcharge and should not be compelled to pay it. The seven appellants’ circumstances in Boudreault were all very similar to one another: most were chronically impoverished, living with disability and/or addiction, and subsisting on social assistance income.

On December 14, 2018, the majority of the SCC (7-2) held that although the mandatory victim surcharge sought to achieve a valid penal purpose, it was contrary to section 12 of the Charter because it could result in grossly disproportionate sentences. The majority of the Court acknowledged that the mandatory surcharge would not be grossly disproportionate for many Canadians, however it would be for the most vulnerable or marginalized offenders (e.g., a person who is seriously impoverished, in a precarious housing situation, or struggling with addiction, especially if they are Indigenous).

The SCC indicated that sentencing is to be an individualized process that balances various objectives, while taking into account the particular circumstances of the offender and the nature and circumstances of the offence. In contrast, it noted that the victim surcharge applies to all offences and offenders and does not permit for consideration of individual circumstances such as those who are impoverished, addicted, homeless or mentally ill. The SCC also noted that the surcharge undermines Parliament’s attempt to ameliorate the serious problem of Indigenous overrepresentation in the criminal justice system, finding that any sanction that disproportionately impacts the marginalized will also likely disproportionately impact on Indigenous persons. It therefore held that section 737 is of no force and effect in its entirety, effective immediately (as of December 14, 2018).

Provincial/Territorial Perspectives

The criminal justice system is a shared responsibility between FPT governments. The federal government is responsible for the enactment of criminal law and procedure, criminal prosecutions of all federal offences (other than the Criminal Code), certain specified offences in the Criminal Code and prosecution of all offences in the territories, as well as the appointment of judges for superior courts. Provincial and territorial governments are responsible for the administration of justice, including the prosecution of criminal offences in the provinces, the administration of police, Crown and court personnel and the appointment of provincial court judges.

At their meetings held in April and in September 2017, FPT Ministers Responsible for Justice met to discuss actions taken and ways to strategically address delays in the criminal justice system. Discussions included identifying innovative and best practices as well as legislative reforms to resolve criminal cases in a just and timely manner. Agreement was reached on the need for targeted criminal law reform in six key priority areas: bail, administration of justice offences, preliminary inquiries, reclassification of offences, judicial case management, and mandatory minimum penalties. Ministers agreed on the importance of a collaborative approach with all players in the criminal justice system. Ministers also considered: policies, programs and resources; and alternatives to the traditional criminal justice system (including restorative justice).

Standing Senate Committee on Legal and Constitutional Affairs

On June 14, 2017, the Standing Senate Committee on Legal and Constitutional Affairs (Senate Committee) released its Nineteenth Report entitled, Delaying Justice is Denying Justice: An Urgent Need to Address Lengthy Court Delays in Canada (Final Report).Footnote 14 Between February 3, 2016, and March 9, 2017, the Committee heard testimony from 138 witnesses, received dozens of written submissions, travelled to Vancouver, Calgary, Saskatoon, Montreal and Halifax to learn about local best practices and held over 35 meetings to study the issue. Submissions and testimony came from a range of key criminal justice system stakeholders, including: FPT elected and non-elected officials; former and sitting judges; representatives from Canadian and provincial/territorial associations of police, Crown counsel, criminal defense lawyers, and probation officers; legal aid organizations; and, advocacy organizations for victims of crime, Indigenous persons, children, incarcerated offenders, and individuals with mental health and/or addictions challenges. All persons consulted agreed broadly that delay in the criminal justice system is a significant problem, but they placed differing emphasis on its causes and potential solutions.

The Committee’s Final Report contains 50 recommendations, 13 of which are identified as priorities, (e.g., alternatives to stays for serious indictable offences; judicial appointments; and expedited implementation of the Truth and Reconciliation Report). They address a broad range of criminal law issues and include calls for criminal law reform, judicial appointments, changes related to provincial and territorial governments and responsibilities and federal government initiatives to address delays in the criminal justice system. The Government tabled its response to the Senate Report on November 15, 2017, which sets out a multi-pronged federal strategy, including programming, legislation, and operational improvements, to address efficiencies in the justice system and reduce delays.

Steering Committee on Justice Efficiencies and Access to the Justice System

In 2003, FPT Ministers responsible for Justice and the judiciary agreed that some of the major participants in the justice system should work together to recommend solutions to problems relating to the efficient and effective operation of the system, without compromising its fundamental values. Solutions may include the implementation of best practices as well as legislative amendments. The Steering Committee on Justice Efficiencies and Access to the Justice System (Steering Committee) was specifically created to examine issues related to justice efficiencies and access to the criminal justice system that are systemic and national and that may affect the justice system in a significant manner.

Members of the Steering Committee include six federal and provincial deputy ministers responsible for Justice, three representatives from the Canadian Judicial Council, three representatives from the Canadian Council of Chief Judges, one representative from the Canadian Bar Association, one representative from the Barreau du Québec, one representative from the Canadian Council of Criminal Defence Lawyers, and two representatives from the police community for a total of seventeen members.

To date, ten of the Steering Committee’s reports have been publicly released:

These reports were submitted to FPT Deputy Ministers and Ministers responsible for Justice and Public Safety for their consideration. They are public reports and are available on the internet.Footnote 15

Overview of Challenges Facing the Criminal Justice System

Canada’s criminal justice system faces numerous major and multifaceted challenges. While the volume and severity of crime have decreased over the years, criminal court cases are becoming more complex and trials are taking longer to complete.

Crime severity lower than 10 years ago: Statistics Canada reported that between 1998 and 2014, the Crime Severity Index (CSI), which measures the volume and severity of police-reported crime in Canada, steadily declined for adults (from 118.8 to 66.9), but small increases were reported annually from 2015 to 2018 (from 70.4 to 75.0). Despite these recent increases, the 2018 CSI was 17% lower than a decade prior.Footnote 16

Longer trials: As criminal court cases are becoming more complex, criminal procedures influence trial duration and cases are taking longer to complete. Statistics Canada reported that the national median case completion time for charges heard in provincial courts was 117 days in 2016/2017:Footnote 17 Quebec (167 days), Newfoundland and Labrador (162 days), Nova Scotia (138 days), Manitoba (136 days), and Ontario (120 days) reported median charge completion time greater than the national median.Footnote 18 It has also been noted that multiple charge cases (64% of all cases in adult criminal courts) take longer to complete compared to single-charge cases (168 versus 100 days).Footnote 19 In addition, median time to case completion varies by the most serious offence in the case: from 17 days for unlawfully at large offences to 181 days for weapon offences, to 325 days for sexual assault and 478 days for homicide.Footnote 20

Remand issue: Remand, also called pre-trial detention, refers to the temporary detention of accused persons in provincial/territorial custody prior to trial or sentencing. The Criminal Code specifies conditions under which an individual can be detained in remand, such as to ensure attendance to court, protect the public, including victims and witnesses, and maintain public confidence in the justice system. Likewise, the preamble of the Youth Criminal Justice Act (YCJA) 2002 indicates that the youth justice system should reserve its most serious intervention for the most serious crimes and reduce the over-reliance on incarceration for non-violent young persons, and that remand should be limited to particular grounds such as a serious offence charge, a likelihood that youth will not appear in court when required, or for the protection or safety of the public.

There are more people in provincial detention facilities awaiting trial than there are individuals found guilty of criminal offences and serving their sentence. Statistics Canada reported in 2017/2018, that adults in remand accounted for 60% (n = 14,812) of the actual-in count custodial population in provincial and territorial facilities (N = 24,658).Footnote 21 About half (51%) of adults released from remand were held for one week or less and three-quarters (75%) were held in remand for one month or less. The remand population has consistently surpassed the sentenced custody population since 2004/2005.Footnote 22 Similarly, in 2017/18, more than half (59%) of actual-in count youth in custody were in pre-trial detention, up from 23% in 1997/98.Footnote 23

In addition, remand represents a significant cost to the criminal justice system. A study (2014) found that in Ontario, the average cost to incarcerate a person in jail is $183 a day, which does not include the additional costs of court services, duty counsel, Crown counsel and judicial resources, and transporting the accused between the remand facility and court (often multiple times). This daily cost is significantly higher than the $5/day it costs to supervise an accused in the community.Footnote 24 Data for 2017/2018 indicates that the average cost of holding adults in provincial/territorial correctional facilities is $233 per day.Footnote 25

Administration of justice offences (AOJOs): Canadian criminal courts process a high number of AOJOs, such as breach of bail and probation conditions, and this volume is bringing increased pressure on the system. A Statistics Canada publication on AOJOsFootnote 26 reported that in 2013/2014, 39% of all casesFootnote 27 in adult criminal courts included at least one AOJO. Guilty verdicts were the most common outcome in these cases and cases that included at least one AOJO were more often resulting in a guilty verdict than cases without an AOJO (76% versus 55%). As well, the current approach to these breaches perpetuates individual cycles of incarceration and takes resources away from other cases, including those involving serious offences. For instance, custody was the most common sentence handed down in completed adult criminal court cases involving AOJOs (53% compared to 22% of completed cases that did not include an AOJO). The numbers in the youth criminal justice system are also high: in 2014/2015, an AOJO was the most serious offence in 15% of youth court cases, and in which 21% of cases resulted in custody sentences.Footnote 28

Indigenous overrepresentation: Indigenous persons are overrepresented in the criminal justice system. In 2017/2018, Indigenous adults represented 29% of admissions to federal custody and 30% to provincial/territorial custody while representing approximately 4% of the Canadian adult population. Similarly, Indigenous youth represented 43% of admissions to correctional services in nine reporting jurisdictions,Footnote 29 while representing 8% of the Canadian youth population. The overrepresentation of adult Indigenous women in provincial/territorial sentenced custody is more pronounced than that of Indigenous males: they accounted for 42% of female admissions to provincial/territorial sentenced custody, compared to 28% for Indigenous males.Footnote 30

Indigenous people are also overrepresented as victims of crime. In its General Social Survey (GSS) on Victimization, Statistics Canada reported that, in 2014, more than one quarter (28%) of Indigenous people aged 15 and older reported that they, or their household, had been a victim of at least one of the eight types of offences measured by the GSS in the previous 12 months (compared to 18% of non-Indigenous people). Further, the overall rate of violent victimization, which includes sexual assault, physical assault and robbery, among Indigenous people was more than double the rate of violent victimization of non-Indigenous people (163 versus 74 incidents per 1,000 people). Statistics Canada also reported that, regardless of the type of violent offence, victimization rates were always higher for Indigenous people, compared to non-Indigenous people.Footnote 31

Black Canadians overrepresentation: Black Canadians are also overrepresented in the criminal justice system. The Office of the Correctional Investigator, in its 2016-2017 report, stated that Black inmates represented 8.6% of the total incarcerated population, while representing 3% of the Canadian population. Black inmates were also overrepresented in admissions to segregation (10.5%) and in use of force incidents in correctional facilities (10.6%).Footnote 32

Overrepresentation of mentally ill and substance-addicted persons: Individuals suffering from mental health issues or substance abuse problems are more likely to come into contact with the police, and this trend has increased in recent years. Statistics Canada reportedFootnote 33 that of the 2.8 million Canadians aged 15 and older that met the criteria for at least one mental or substance use disorder (i.e., depression, bipolar disorder, generalized anxiety disorder, alcohol/cannabis/other drug abuse or dependence), one-in-three (34%) reported coming into contact with police for at least one reason in the twelve months preceding their 2012 Canadian Community Health Survey (Mental Health). This was twice the proportion of those without a disorder (17%). As well, Canadians who reported a mental or substance use disorder were about four times more likely than those without a disorder to report being arrested by the police (12.5% and 2.8% respectively).