Courts & Trials

Delay, “Guilty Plea Certificates,” and the Right to Justice

Written on behalf of Barrison Law
Hour Glass

Since the Supreme Court of Canada’s landmark decision in 2016, R. v. Jordan, courts and legislators alike have been on notice that something significant must be done to address delays in the legal system. In the Jordan decision, Canada’s top court set aside convictions entered against Jordan for his role in a dial-a-dope operation because too much time had elapsed between his arrest in 2008 and his trial, which concluded in 2013. The court found that Jordan’s right to be tried within a reasonable time, guaranteed under section 11(b) of the Canadian Charter of Rights and Freedoms, had been breached and that the only appropriate remedy was to stay the charges against him.

The decision in Jordan established new time limits for bringing criminal cases to trial:

  • In the provincial court, delays over 18 months would be considered unreasonable; and
  • In the superior court, or in cases tried in provincial court following a preliminary inquiry, 30 months was the maximum time allowable to move from arrest to the anticipated conclusion of trial.

In the first year following the Jordan decision, more than 200 criminal cases were dismissed on application by accused persons, and more were stayed by prosecutors who anticipated they would be later dismissed for delay. A public outcry followed, with lawyers on both the prosecution and defence side demanding that legislators do more to fix the problems with the system:

Eric Gottardi, the Vancouver lawyer who brought Jordan’s case to the Supreme Court, said …” it’s unacceptable for a serious case to get to the point where a judge thinks it must be tossed, and the outrage felt by victims, families and the public is completely understandable”.

“The focus of the anger should be towards the government, in my view, not towards the courts,” he said. “There’s myriad reasons why it got to that point, and most of them have to do with infrastructure and funding.”

Ontario Dedicates Resources to Enhancing the Justice System’s Workforce

Ontario’s initial response, under the previous Liberal government, was to increase the justice system’s workforce. It was reported in 2017 that, with provincial government funding of $25 million, a total of 134 new judges, 23 new Crown attorneys, 16 new duty counsel positions and 26 court staff positions would be added in an attempt to move cases forward more expeditiously.

Unfortunately, problems with delay in the criminal justice system have persisted, and the COVID-19 pandemic has, unsurprisingly, greatly exacerbated the situation. Statistics Canada reports that the percentage of cases in Ontario where delay in bringing an accused person to trial exceeds one of the time limits set out in Jordan increased two-fold between 2019 and 2020.

As a result, in October 2021, the current Conservative government announced it would dedicate $72 million over two years to hire 340 new court personnel and to make other changes to streamline the process of bringing matters to trial.

Criminal Bar Raises Concerns with Judge-Led Case Management Court Certificate Initiative

As part of the plan to reduce court backlogs, Ontario introduced the Judge-Led Intensive Case Management Court Certificate initiative in the fall of 2021. The initiative offers Legal Aid funding without financial qualification to all accused persons, with the goal of resolving as many cases as possible without a trial. It has been described as a temporary measure but has created concern within the criminal legal bar.

The Criminal Lawyers Association criticized the plan as amounting to the introduction of “guilty plea certificates”. One concern is with the direction of public funding to cases where the individual accused does not demonstrate the financial need required to qualify for Legal Aid. Others have denounced the program as “incentivizing” guilty pleas. As per the Criminal Lawyers Association:

“For the vast majority of unrepresented accused, this new certificate will create a coercive dynamic that incentivizes an accused to plead guilty by only offering legal representation on guilty pleas.”

The president of the Ontario Crown Attorneys’ Association also expressed concern for the program, stating that “encouraging guilty pleas sullies the criminal justice system, especially when you’re doing it because of cost and expediency.”

Criminal lawyers have reflected on the program and its potential impact on section 606 of the Criminal Code. Under section 606, it is the duty of the court to ensure that an accused person completely understands the consequences of a guilty plea and that they are not making it as a result of any coercion:

Conditions for accepting a guilty plea:

606(1.1) A court may accept a plea of guilty only if it is satisfied that

(a) the accused is making the plea voluntarily;

(b) the accused understands

(i) that the plea is an admission of the essential elements of the offence,

(ii) the nature and consequences of the plea, and

(iii) that the court is not bound by any agreement made between the accused and the prosecutor; and

(c) the facts support the charge.

Even prior to the implementation of the Judge-Led Intensive Case Management Court Certificate initiative, the profession recognized that not every accused who pleads guilty does so because they are guilty and that systemic factors, such as poverty, can play a major role.

Your First Call After Being Charged: Barrison Law in Oshawa

Justice is not only our business; it is our passion. Our team of criminal defence lawyers is dedicated to ensuring that the system works for our clients. We represent clients in a variety of criminal law matters, including assault, murder and manslaughter charges, property offences, and more. If you or someone you know has been charged with a criminal offence, call Barrison Law at 905-404-1947 or contact us online to find out how we can help you.