Wed. Feb 28th, 2024

Judges are forced to suspend charges, trials or guilty verdicts because of violations of the Jordan ruling.

A controversial judgment which denounces the shortage of judges.

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According to the latest federal statistics, Ontario has 27 judicial vacancies: two at the Court of Appeal of province, 20 in the Superior Court and 5 in the family court.

  • Jean-Philippe Nadeau (View profile)Jean-Philippe Nadeau

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Timothy Toole was convicted of sexual assault, but his trial was suspended without conviction. He is now free.

This is the latest case to raise eyebrows due to the shortage of magistrates, a systemic problem in Ontario.

Dozens of serious criminal cases are suspended or even canceled each year in the province for this type of problem: police misconduct, the Crown's slowness in disclosing evidence, a chronic shortage of judges and a lack of courtrooms in courts. courts.

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The decision of Judge Erika Chozik, of the Superior Court of Ontario, rendered at the end of December, is very rare, but symptomatic of the crisis which has affected the administration of justice since the ruling Jordan from the Supreme Court of Canada in 2016.

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Section 11b of the Canadian Charter provides that every accused person has the right in Canada to be tried within a reasonable time. In 2016, the Supreme Court of Canada overturned Barrett Richard Jordan's convictions because he was convicted 49 months after his arrest. “The Jordan decision” was born.

Similar charges were also contested for the same reasons concerning two other Ontarians.

Judge Chozik suspended the trial of Timothy Toole, who had been convicted three months earlier of raping a woman in June 2020 after his jury trial, because his rights were infringed under the Charter and the Jordan decision.

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To make matters worse for the victim, this was Timothy Toole's second trial, after the #x27;cancellation of the first, nine months earlier, for procedural defects. The woman, who cannot be named, becomes a plaintiff again in the case.

In the Jordan case, the Supreme Court had been called to quantify the duration of a reasonable period prescribed in the Charter.

It therefore ruled that trials before the superior courts of the provinces must be held within a 30-month interval between the filing of charges against an individual and the start of their trial.

In Timothy Toole's case, it had been 34 months since the charges were filed against him when the verdict came down in court. resulting from the second trial.

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The 18-page judgment of Justice Chozik of the Ontario Superior Court.

In her decision, Judge Chozik refused to take into account in this count the 9 months which elapsed between the cancellation of the first trial in Brampton and the start of the second in Milton, the neighboring jurisdiction.

She wrote, on December 22, 2023, that liberty, security of the person, the presumption of innocence and the right to a fair trial are interests protected by the right of every accused to be tried in a reasonable delay; these rights must be zealously defended by the courts.

The Crown has asked the Ontario Court of Appeal to overturn this judgment and to resume the trial at the sentencing hearing stage.

In the latest complaint about the Jordan decision, Ontario Superior Court Justice Sean Dunphy somewhat saved the day in early January over another trial.

He recalled that the courts were very busy in Toronto and that six judges had not yet been appointed.

He writes that it is true that this court is facing a higher volume of serious criminal cases than before the pandemic and [that] there are a significant number of vacant positions in the judiciary.

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Toronto is often cited as the busiest court in the country with the highest number of homicide trials.

Jonathan Martins' defense requested Judge Dunphy to suspend sexual assault charges against his client. His jury trial, scheduled for September 2023, was postponed until February 2024 due to a shortage of judges.

With such a postponement, Martins' case would exceed the usual deadline prescribed by the Jordan decision by two months.

In his decision of January 5 2024, the magistrate nevertheless considered that this was an inevitable delay due to the situation at the Toronto court, which still cannot resolve the arrears linked to the pandemic in addition to the shortage of judges.

The magistrate therefore concluded that Jonathan Martins' right to be tried within a reasonable time had not been violated. No zeal on his part.

In December 2023, Justice Maureen Forestell of the Ontario Superior Court rendered a different decision but as controversial as that of her colleague, Judge Chozik.

The magistrate stayed the sexual assault charges against Shaun Alli because the accused's April 2023 jury trial could not proceed as planned when no judge was available.

The earliest and most convenient date for the parties was, again, in February 2024, which would have allowed Alli's trial to be completed three months before the limit prescribed by the Jordan decision.

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The Ontario Court of Appeal will be asked to review Justice Chozik's decision, but no hearing date has yet been set to hear the case.

Judge Forestell nevertheless considered that this was an unreasonable delay. If the judicial vacancies in Toronto had been filled in time, this case would not have been delayed, she wrote in her December 11, 2023 decision.

Even with Toronto's high volume of complex cases and COVID-related backlogs, the time required for such a case to be heard would be 12 to 16 months after the matter comes to court. At 22 months, however, this case took 6 to 10 months longer than what should have been a satisfactory time frame, she continued.

The problem is not new. As early as 2017, Justice Anne Molloy of the Ontario Superior Court already pointed out that many trial dates could not be met because there were simply not enough judges.

In Canada, it is the federal government that appoints judges to the superior courts of justice and provincial courts of appeal .

In an email, the minister's spokesperson Arif Virani claims that the Trudeau government has appointed, since October 2015, 171 judges to the Superior Court of Justice and 18 others to the Court of Appeal in the province of Quebec alone. x27;Ontario, for a total of 189 nominations.

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Minister of Justice and Attorney General of Canada, Arif Virani.

Minister Virani has made it his top priority to ensure that judges are appointed quickly without compromising quality, writes David Taylor. He says the minister has appointed judges at a faster rate than any other government in recent history.

He appointed 54 judges in his first 4 months as justice minister, Taylor continued.

The spokesperson concludes that the minister spoke with members of the judiciary and bar to encourage more candidates to apply for judicial positions and will continue to make high-quality appointments that reflect the diversity of Canada.

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Chief Justice of the Supreme Court of Canada, Richard Wagner.

The federal government, however, refused to comment on the two controversial decisions because the Attorney General of Ontario appealed the respective judgments.

Judges and lawyers have long decried the problems created by judicial vacancies.

In May 2023, Supreme Court Chief Justice Richard Wagner warned Prime Minister Justin Trudeau that a chronic shortage of judges in the judicial administration was putting criminal trials at risk.

He noted that 10 to 15% of positions were vacant in many jurisdictions in Canada.

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The Supreme Court of Canada set the rules on the length of reasonable delays in the Jordan decision.

In her judgment, Judge Forestell even wrote that her Toronto colleagues are trying to avoid additional delays by presiding over trials during their vacations.

Although the delay caused by the holidays has become typical, in my opinion it does not justify this delay, she writes, concluding that Shaun Alli was denied his constitutional right to be tried within a reasonable time.

The failure to provide adequate judicial resources is [on the other hand] unreasonable, she quips.

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