Ottawa victims fear more criminal cases could be thrown out over court delays

Victims ofattempted homicides and sexual assaults fear more criminal cases, including their own, could be thrown out because of trial delays, according toOttawa Victim Services.

Charges have been stayed in several high-profile cases over the past few monthsdue to a recent Supreme Court ruling on justice delays.

They're worried sick.- Melissa Heimerl, executive director of Ottawa Victim Services

Aman accused of murder walked out of an Ottawa courthouse in Novembera free man because his case took too long to get to trial.

And ajudge in Ottawa stayed somecharges involving a teenager whoallegedly sexual assaulted a three-year-oldat his mother's daycare, also due to unreasonable delays.

"We have some clients who have been supporting for two years who haven't seen a court date yet," said Melissa Heimerl, the executive director of Ottawa Victim Services.

"They're worried sick."

However, the Supreme Court ruling can be flexibleand is subject to a judge's interpretation.

As the justice system transfers over to the new timelines, there's also a transitional period, where only "really egregious" cases are tossed out,one criminal law expert said.

"In this transitional period, basically if it wouldn't have been stayed under the new rules, then you shouldn't stay it under these new rules either," saidSteveCoughlan, a professor at Dalhousie University'sSchulichSchool ofLaw.

Jordan ruling set new guidelines

In July, the Supreme Court of Canadaset new rulesfor an accused's rightto be tried within a reasonable time frame.

The landmark ruling known as the Jordandecision suddenly put dramatic pressure on the sluggish court system to speed up.

Delaysbeyond 30 months for Superior court cases, or 18 months at provincial courts, are now "presumptively unreasonable" and violate the accused's charter rightto be tried within a reasonable time, the decision said.

Cases that fall outside this timeframe could be thrown out.

But it's not as simple as just adding up the days on the calendar for a judge to figure out if a criminal trial is taking too long and violating an accused's rights.

If the Supreme Court's new timeframes are missed, the onus is on the Crown to argue that the delays were caused by exceptional circumstances that were either reasonably unforeseen or beyond the Crown's control such asa medical or family emergency.

Many factors in calculating length of trial

A look at a recent Jordan ruling explains how thedecision is made.

Ontario CourtJustice David Paciocco considered several factors whendeciding to stay three out of the four counts of sexual offences against a15-year-old boy in Ottawa. The final charge was not stayed because it was laid at a later date.

The judge calculated that 21 months and 15 days had passed between the time the teen was initially charged and his trialwas anticipated to end.

Then Pacioccosubtracted any defence delays or exceptional circumstances such as the Crown getting sick, or complications in the case that couldn't have been anticipated.

Defence can't delay trial as a tactic

Coughlan saidthe Charter of Rights and Freedoms protects against improper state action, not delays caused by the defence.This is a way to ensure the defence team doesnot use stalling as atactic in court to have charges stayed or withdrawn.

"Clearly we can recognize there are some people that are just going to [game]the system," explained the law professor.

"They're going to fire their lawyer at the last minute, they're going to make unreasonable applications ... purely with the goal of making it take longer,so that they [can] say, 'Look, it took too long.'"

In the sex assault case, Paciocco founda 28-day delay was caused by the defence's unavailability for offered court dates.That meant the trial lasted more than 20 months.

In the end, he ruledthedelays were unreasonable and stayed the charges becausea significant time was lost due to "technical failures" in court and the"state of readiness of the prosecutor's case."

"All sexual assaults are serious, and the allegations here are aggravated," wrotePaciocco. "Even under the pre-existing law, however, the seriousness of an allegation did not suspend the Charter right to trial within a reasonable time."

• 'No justice' for accused, victims when court cases tossed by delays, lawyer says

The OntarioCrown Attorneys Associationestimated 6,000 cases across Ontario could see charges be stayed or withdrawn.

AttorneyGeneralYasir Naqviannounced more judges and resources are coming to courthouses to help speed up the system.He also said his officials are examining cases to make sure other serious charges aren't stayed or withdrawn because of delays in meeting the Supreme Court's deadline.