_Will the Supreme Court's Jordan decision finally move governments to properly fund a justice system bursting at the seams?_
By Mariam Ibrahim, Communications Staff
We’ve all heard the sayings: “You have a right to a speedy trial.” “Justice delayed is justice denied.” In fact, the right to a trial within a reasonable time is a Constitutional right.
But lately, what we’re hearing about more and more are the lengthy wait times for trials, not just here in Alberta, but in courts across the country.
For those working within the court system, this is nothing new. Courtrooms are over capacity as the case and trial backlog builds, fuelled by chronic government underfunding.
Court clerks and other administrative staff see the effects first-hand as they struggle to keep up with the growing responsibilities. Those pressures came to a head last fall when the Supreme Court of Canada issued its decision in R. v. Jordan.
The landmark 5-4 ruling from Canada’s highest court says that people accused of crimes have the right to have their trial held within 18 months in provincial courts and within 30 months for a superior court, such as the Court of Queen’s Bench here in Alberta.
Lengthy delays in trials are nothing new in the province. Court clerks have long been raising the alarm on the untenable workload and lack of resources and staff to address it, which lead to backlogs. The Jordan ruling, though, put governments in a difficult position: they must now truly consider the consequences of failing to address pressures within the system. If they don’t, cases could become at risk of being thrown out. And that’s already happening.
If a person accused of a crime has to wait for trial longer than those 18- or 30-month timelines, they have the right to file what’s known as a Jordan application. If a judge grants their application, their charges would be stayed, meaning the case would be over.
The Jordan decision has placed a spotlight on the court system in Canada, as more and more provinces, already dealing with overburdened systems, find themselves struggling to keep up with the new trial timelines introduced by the ruling.
These stressors no doubt have an impact on the administrative support staff, like judicial clerks, who are so crucial to keeping the justice system moving efficiently. As workloads increase, so do stress and burnout.
“Our members working in the courts know the work they do is critical, both to ensure the proper administration of justice and also to maintain the public’s trust in the system,” said AUPE Vice-President Susan Slade. “But without the proper supports and resources from the province, they will continue to feel the impact of an overburdened system, professionally and personally.”
AUPE represents roughly 577 judicial court clerks across the province. When the provincial government appointed 10 new provincial court judges last fall, AUPE applauded the move but noted that it would do little to improve conditions if the government didn’t also hire more clerks to help support the system.
In response, the provincial government included funding in its 2017 budget to address staffing pressure in the Crown Prosecution Service and to hire approximately 117 full-time equivalents. But it hasn’t been enough.
AUPE members working as judicial clerks in the provincial criminal courts took the extraordinary step this spring of filing 35 joint grievances, all regarding workload issues, in an effort to get the attention of Justice Minister Kathleen Ganley and make clear the status quo is unacceptable.
“Judicial clerks and other administrative court staff are the backbone of our court system,” said AUPE Vice-President Karen Weiers. “It’s clear the provincial government recognizes there are systemic backlogs within the system, but without adequate resources and funding, the issue will only get worse before it ever gets better.”
She noted the department recently acknowledged that 110 positions remain vacant, even as pressures to avoid undue delays in trials become more important than ever before. The ministry has indicated it had hoped to get those vacancies down to roughly 80 by the end of the summer.
The Alberta government began tracking Jordan applications last October. As of August, 125 Jordan applications have been filed, with seven of those granted, 26 dismissed and 25 pending. The Crown proactively stayed charges in 10 cases on the basis the Jordan application would have been granted, while the defendants abandoned another 31 applications. Finally, 26 have been resolved through matters unrelated to the Jordan ruling.
And the challenge isn’t going away. Figures confirmed by Alberta Justice to the Edmonton Journal recently showed that as of April, at least 1,400 cases have already passed the timelines ordered in the Jordan ruling. The reality of the effects of a chronically underfunded system is beginning to set in.
Alberta Justice and Solicitor General has had to develop a nine-page triage policy, released in February 2017, intended to help Crown prosecutors assess which cases they should direct their resources toward and which cases are either less likely to be successfully prosecuted or may have an opportunity for early resolution.
The government says the policy will help prosecutors focus on the most serious crimes and makes it clear that pressures within the court system are having an effect on the administration of justice.
And what’s equally clear is that the strategy has also grown out of a “gap between the resources allocated to the Alberta Crown Prosecution Service (ACPS) and the number of otherwise viable charges laid by the police,” as the document itself states.
It’s notable, then, that Alberta’s justice system has acknowledged that a lack of funding and resources to keep up with factors such as population growth and increased police-reported crimes have led to a situation where prosecutors must create a hierarchy of cases, sometimes abandoning those that could have been otherwise successfully prosecuted.
The result is a situation that has undermined the public’s confidence in the strength of the court system, as stories surface about charges in serious cases being thrown out.
As the triage policy notes, “Delay increases the risk of a Jordan stay of proceedings. Delay is also the enemy of an effective prosecution.” Delays can affect the motivation of an accused to be cooperative, or increase the chances witnesses will lose interest or move, and also lead to a higher chance that evidence will be lost or weakened, it continues.
“Without adequate resources allocated to all parts of the justice system – including the administrative backbone like judicial clerks – these challenges will only become bigger and more urgent,” said Vice-President Slade.
“This is not only about creating reasonable working conditions in a highly stressful environment, but also about ensuring that the important work of the justice system can continue so that the public’s trust can be maintained,” Vice-President Weiers added.