Attorney General Yasir Naqvi says he meets regularly with defence lawyers and
that the province has "worked very hard to get the ... appropriate consultation”
after the landmark Supreme Court ruling. (Andrew
Francis Wallace / Toronto Star file photo)
The majority on the court called out a “culture of complacency,” saying all
players in the Canadian justice system must find ways to speed up the
process, to protect the rights of the accused and to satisfy the public that
justice is being done promptly and fairly.
“Real change will require the
efforts and co-ordination of all participants in the criminal justice
system,” the majority of the court’s judges wrote in Jordan.
In Ontario, “real change”
has so far meant appointing 13 new provincial court judges and 32 new
prosecutors, among other developments. It’s led Attorney General Yasir Naqvi
to ask his federal counterpart, Jody Wilson-Raybould, to think about
scrapping preliminary inquiries in most cases, and to immediately fill the
11 judicial vacancies in the understaffed Superior Court.
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But criminal defence lawyers are quick to point out
that many of these ideas — particularly
the controversial move to abolish preliminary inquiries — are nothing
more than short-term, and in some cases short-sighted, fixes that don’t get
to the root causes of delay. They’ve complained about being kept in the dark
on reforms the provincial government is planning, and some of have said they
would be more than willing to share their ideas with Naqvi.
“Criminal defence lawyers have always been, to some extent, the black
sheep of the criminal justice system. We are like the opinionated uncle that
you know you have to invite to family gatherings from time to time, but if
you can avoid it you will because it will just make it less comfortable to
push your own agenda,” said lawyer Michael Lacy, a vice-president with the
Criminal Lawyers’ Association. “We get in the way.”
He acknowledged there have been examples of criminal defence lawyers
clogging up the courts with unreasonable conduct, but “we are significant
stakeholders in the administration of justice.”
Criminal Lawyers’ Association president Anthony Moustacalis has said he and
Naqvi met soon after the announcement about prelims, and said Naqvi agreed
to keep an open mind.
After the Jordan ruling, lawyers have circulated
their own ideas to improve the system. The Canadian Bar Association has
joined in by publishing a top 10 list of recommendations.
“As you can see from my blog that was widely circulated among justice
system participants, I have stated 13 reasons that could vastly change the
efficiency of the system,” said Toronto criminal defence lawyer Sean
“Yet I have not been contacted by any member of government to discuss
these possibilities and how it could improve the system. I suspect that
similar efforts to contribute by the defence are met with the same silence.”
Among Robichaud’s suggestions: extend court operating hours, including on
weekends; ensure clients who are in jail pending trial are brought to court
on time; reduce the need to rely on paper, a notorious feature of the court
system; allow lawyers to adjourn matters electronically, rather than show up
to court for most of the day only for the matter to take less than a minute
to be heard.
He’s also urging Crown attorneys to consent to judge-alone trials in
homicide cases when requested by the defence.
“Almost invariably, that request is denied,” Robichaud writes in his
blog, meaning the trial will instead be heard by judge and jury.
“Judge-alone cases are far more efficient and quick than jury
trials . . . This is a very easy fix that will have profound benefits for
court delay — all without sacrificing fairness or justice.”
For one thing, no jury would mean no jury selection, which can sometimes
“It’s a balancing of how many resources we can devote and what we can
really afford,” said Ottawa criminal defence lawyer Anne London-Weinstein,
who supports the idea of judge-alone trials when requested by the defence.
“We may not be able to afford all of the procedures that we’re relying on
now, and we should look at whether we can hang on to jury trials going
forward if we can’t justify it in terms of how much time they take.”
The Canadian Bar Association is pushing for alternatives to prosecuting
minor offences and for the repeal of federal legislation around mandatory
minimum sentences, which the organization said prevents negotiated
resolutions, meaning more matters go to trial.
As a way to avoid bringing weak cases into the system, the association is
also calling for Crowns to adopt the standard used by the prosecution in
B.C. on whether to pursue charges, which is whether there is a “substantial
likelihood of conviction.” In Ontario, for example, the test is whether
there is a “reasonable prospect of conviction,” a lower standard.
And then there’s legal aid, which has been a contentious topic in
Ontario, even more so post-Jordan.
At the end of their judgment, where the majority wrote about the kind of
changes Jordan will likely elicit, the judges said: “Legal Aid has a role to
play in securing the participation of experienced defence counsel,
particularly for long, complex trials.”
Naqvi said the government has made “historic investments” in legal aid to
increase access to services, and will continue to add money.
But the low-income cut-off for an individual with no dependants to
qualify for legal aid is $13,000, which critics say does not adequately
reflect the face of poverty in Ontario and is leaving many individuals
unrepresented in court, which in turn clogs the system. A previously planned
six per cent increase to the eligibility threshold takes effect April 1.
A veteran judge of the Superior Court called out the low-income cut-off
in a ruling last year,
when he stayed drug charges against an accused man until the province
picked up the tab for a lawyer.
“It should be obvious to any outside observer that the income thresholds
being used by Legal Aid Ontario do not bear any reasonable relationship to
what constitutes poverty in this country,” wrote Justice Ian Nordheimer,
saying that Statistics Canada calculates the low-income cut-off for a single
person living in a metropolitan area as closer to $25,000.
One thing all parties agree on in terms of resources is the need for more
judges. Naqvi said the number of judges he appointed to the Ontario court of
justice, which handles less serious crimes and most family matters, was
exactly the number requested by Chief Justice Lise Maisonneuve.
But appointing judges to Superior Court, which handles the most serious
crimes such as murder, as well as all civil matters, is a federal
Yet Ottawa has failed to quickly fill a near record-level number of
judicial vacancies in superior courts across the country. There are 11
vacancies in the Ontario Superior Court, and four at the Court of Appeal,
the province’s top court.
The 17 judicial advisory committees — which screen applicants for
federally-appointed judgeships — was left vacant for months, as the Liberals
looked to revamp them to make the committees more diverse and transparent.
In late January, Wilson-Raybould announced appointments to seven of the
committees, including two that cover Ontario, and said they would
immediately begin reviewing judicial applications and create a short list of
“Ontario commends the federal government for the steps it has taken to
restructure its judicial appointments approach,” Naqvi wrote to Wilson-Raybould
“That said, Ontario is currently losing hundreds of hours of judicial
time every month due to lingering vacancies on the Superior Court bench. In
affected regions of our province, this is having a material impact on our
ability to meet the Jordan challenge. We therefore request that you, as
Minister of Justice, move as expeditiously as possible to fill these
And while Naqvi may have appointed enough provincial court judges, he
didn’t appoint nearly enough Crown attorneys when he announced the hiring of
32 new prosecutors last year, said Kate Matthews, president of the Ontario
Crown Attorneys’ Association.
“There was also no announcement of support staff in Ontario,” she said,
adding Crowns are already overburdened and spend most of their days in
court, and can’t get to other work or find time to speak with the defence.
“Alberta and Quebec both added support staff and that is important
because a lot of the reason for trial delay in our view is that cases are
far more complicated, there’s far more disclosure, the nature of the
disclosure is much more complicated, and a lot of the work that needs to be
done is by admin. staff.”
Matthews said a “massive part” of the delay in the court system is
related to disclosure — the Crown’s obligation to turn over its evidence to
While Crowns generally get the blame from judges when delayed disclosure
leads to a case being tossed, Matthews said it’s difficult to turn over
evidence then the Crowns themselves are still waiting for it to come from
“We feel there has been a downloading of responsibility from police to
Crowns with respect to organization and vetting of disclosure,” she said,
with the Crown attorney having to find the time to sift through all the
material, which can include a massive amount of paper, in-car camera footage
and hard drives.
All things considered, the Jordan decision should not have come as such a
shock to governments, say Crown attorneys and defence lawyers, some of whom
have long pushed for the reforms that are only now being given more
“This isn’t like Jordan dropped out of the sky and nobody saw it coming,”
Matthews said. “This has been an issue brewing for a long time, and to the
extent the provincial governments didn’t react right away, even that is a
bit distressing. All this shows is there’s no proactive approach to justice.
It’s all reactive.”