‘It’s a travesty’: Nearly 800 criminal cases thrown out over delays since 2016 Jordan decision

Brian Fudge was celebrating his birthday in the early hours of Jan. 1, 2005 when he got into an argument with Charlie Manasseri while ordering drinks at Le Skratch Bar and Grill in Ottawa.

Manasseri, in his 40s at the time, repeatedly smashed the 22-year-old’s head “10-20 times” into a steel surface on the bar, according to witness testimony during the trial.

Fudge, who was intoxicated, was escorted outside the bar and was talking on his cellphone, according to court documents, when George Kenny, who was 19, punched the left side of Fudge’s head, causing him to collapse to the ground, unconscious.

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He died less than two days later.

Jill Broadbent and her husband Derek Fudge say their son’s death took their family on a painful 13-year odyssey through the Canadian court system, resulting from repeated delays and several changes in criminal defence lawyers.

They spent more than 300 days in an Ottawa courtroom.

Manasseri was convicted in 2012 of second-degree murder, but in 2016, Ontario’s Court of Appeal reversed that decision and ordered a new trial for Manasseri. He later pleaded guilty to manslaughter and was sentenced to time served.

WATCH: Jill Broadbent speaks about the death of her son 

Kenny was found not guilty of manslaughter but guilty of assault causing bodily harm. In 2016, the Court of Appeal set aside Kenny’s conviction and stayed the charges against him, finding it took an unreasonable amount of time to bring the case to trial.

“It’s a travesty,” Broadbent told Global News. “It’s unfortunate that the legal system is based around the offenders and the guilty parties. There isn’t an equal time given victims.”

“I’m sad every day, and that feeling never goes away.”

Kenny’s case was among the hundreds thrown out in the aftermath of the Supreme Court’s R. v. Jordan decision in 2016, which set deadlines of 18 months for provincial court trials and 30 months in superior court.

A database compiled by Global News has found that nearly 800 criminal cases — ranging from manslaughter to drug trafficking and even murder — have been stayed because a judge found the defendant’s constitutional right to a timely trial had been violated.

Heidi Illingworth, federal ombudsman for victims of crime, called the number of cases being stayed “shocking.”

“It’s very concerning to me to hear that,” Illingworth told Global News. “What is the message that’s being given about the criminal justice system and how we’re meting out justice in Canada?”

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Lawyers and legal experts said that while some provinces have worked to meet the new time limits laid out by the Supreme Court, courts in Ontario and Quebec are still seeing hundreds of cases stayed over unreasonable delays.

“We are severely under-resourced. There is a massive gap between the rhetoric of what we want our justice system to be and what it actually is,” said Ottawa criminal defence lawyer Leo Russomanno. “Often, it’s manifested in terms of a lack of judges or courtroom availability.”

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Global News requested data from all provinces and territories and the Public Prosecution Service of Canada (PPSC) to get a snapshot of how the criminal justice system is dealing with the fallout from the decision.

Since the ruling, approximately 3,100 applications have been filed for charges to be stayed over unreasonable delays. Of those, 789 have been granted and another 788 have been dismissed. The remainder are either still before the courts, have been abandoned by the defence, have had the charges withdrawn or have been resolved on other grounds.

The PPSC said that 95 cases have been stayed since Jordan and that another 139 stays were affected by delays. The PPSC is responsible for prosecuting offences under federal jurisdiction, like the Income Tax Act, and also handles charges related to the Controlled Drugs and Substances Act, except in Quebec and New Brunswick.

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According to the latest data from Statistics Canada, 94 per cent of court cases are completed within the Jordan timelines. But there could be far more cases that aren’t completed as provinces, with the exception of Alberta, do not actively track the data.

Quebec, for example, stopped collecting data in March 2018. Between 2016 and 2018, there were at least 1,680 Jordan applications filed in Quebec, and more than 200 cases had been stayed.

According the latest 2018 data from the Ontario Court of Justice Criminal Modernization Committee, 5,829 criminal cases have been in the judicial system for 18 months or more. Another 4,776 have been in the system for 15 months or more, which puts them at risk of being thrown out over unreasonable delay.

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Paul Bourassa, a former Crown attorney, said he found it “bluntly disappointing” that Canadian provinces and the federal government weren’t doing a better job of tracking statistics.

“For the average citizen, as well as active players in the process, to have access to hard data about what’s going on is absolutely crucial,” he said. “Minimum standards should be available and should be known to citizens in what they can expect from the justice system.”

He pointed to Alberta, where the Ministry of Justice clearly tracks the number of Jordan applications that have been filed — 230 since October 2016 — and their outcomes whether they have been stayed, dismissed or granted.

“The goal, I think, is to obtain a standard where everyone in the country can have a comfort and faith in the justice system that it is working,” Bourassa said.

Canada struggles in the wake of R. v. Jordan

The groundbreaking R. v. Jordan decision centred around the arrest of B.C. resident Barrett Jordan, who allegedly operated a dial-a-dope service in Surrey and Langley, selling drugs like cocaine or heroin by phone.

He was charged with trafficking offences in December 2008 following an RCMP investigation, but faced with delays, his trial took 49.5 months — just over four years.

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Jordan asked the Supreme Court to throw out his conviction on the grounds that his right to a timely trial had been violated. On July 7, 2016, all nine Supreme Court judges agreed, with five saying the approach laid out in the 1992 ruling of R v. Morin had created “a culture of delay and complacency.”

A previous attempt to crack down on delays — the Supreme Court decision from 1990, R. v. Askov — resulted in judges tossing 47,000 charges in Ontario alone.

Canada’s legal system has been wrestling with the decision ever since.

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At least six murder charges have been thrown out over delays — all have been appealed — and serious drug trafficking cases involving fentanyl have been thrown out in Ontario and B.C. 

Victims of crime, like Brian Fudge’s mother, father and younger brother, became a kind of collateral damage following the decision.

“What kind of democracy do you have if we can’t count on a justice system to deliver justice?” Derek Fudge told Global News. “We really need to fix this because I think it weakens our democracy.”

The family sat through hundreds of hours of the brutal testimony of experts and witnesses, who described the night their son was killed. Before the altercation outside, Kenny was heard asking a bar manager if he could go “finish him off,” according to court documents.

They would hear how Brian’s condition rapidly deteriorated en route to the hospital, with paramedics desperately trying to save him. Brain scans would reveal uncontrolled swelling, and doctors inserted a catheter to relieve the pressure.

By the next afternoon, he was brain-dead.

Sitting in his hospital room, Broadbent remembers seeing a police officer in the room and the sudden realization that someone was responsible for his death.

“I was still hoping that, somehow, he was going to wake up. It might mean weeks, years of rehab, but that was fine,” she said. “It was very, very surreal.”

Broadbent said while the Jordan ruling is ultimately a force for good, courts are not keeping up with the number of complex criminal cases being prosecuted.

“The court calendar is not easy,” she said. “In theory, it sounds great but in practice, it’s not very realistic unless you have a case that’s very clear cut or somebody pleads guilty.”

WATCH: Ottawa mother talks about the night her son was killed

In Ontario, at least 713 Jordan applications were filed between July 2016 and December 2018, with 180 cases stayed, 286 dismissed by the courts and another 247 abandoned or resolved.

Manasseri told Global News he believes the delays in his case were caused by a lack of courtrooms and availability by the Crown.

“I went to court every time they told me,” he said, adding that he felt sympathy for Brian’s family. “ I can’t imagine what it was like for the family… I feel sorry for them.”

Criminal defence lawyer Howard Krongold, who represented Kenny, said the process was “excruciating” for the young man, who faced the constant threat of imprisonment. A judge called Kenny’s case “a poster child for the culture of complacency towards delay so rightly condemned in Jordan.”

“He lived with the threat of imprisonment hanging over his head at every moment,” Krongold said.

“He spent the better part of a decade of his life — most of his 20s — in a holding pattern.”

Indeed, the ombudsman said that during a criminal trial, everyone’s lives — the victims and the accused — are on hold.

“Not only might an accused person be in remand and deprived of liberty, we also have victims whose lives are on hold maybe waiting to testify, being called as witnesses,” she said.

Russomanno said the Supreme Court ruling declared a need for a fundamental shift in how the defence, Crown and judiciary work to address delays, but most courts are still scrambling to keep up.

“It’s like fighting with both arms tied behind your back,” he said. “You need to have investment in the criminal justice system if you’re going to make it work more efficiently.”

Unreasonable delay motions are brought under what is called an 11(b) challenge. Under the Charter of Rights and Freedoms, Section 11 (b) guarantees that anyone charged with an offence has the “right to be tried within a reasonable time.”

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Russomanno said a major positive outcome of Jordan has been that all members of the justice system now have the 18-month ceiling in mind when dealing with a case.

“Before that, we didn’t have hard deadlines,” he said. “Now, we have that date. You can be sure that justice system participants are doing their utmost to make sure that those Jordan applications don’t necessarily come forward.”

How to unclog the system

Osgoode Hall law professor Palma Paciocco said the lack of readily available data on Jordan decisions is both “concerning and a problem” in assessing the impact the ruling is having in Canada.

“Given the state of technology, one would think it would be possible to just have better more sophisticated and more readily accessible, ideally public-facing data about these kinds of issues,” she said. “It’s hard to really get a good handle on what’s happening and what needs to be done.”

Experts say Canada is also prosecuting far too many criminal cases, where minor offences or administration of justice offences — like a breach of bail conditions — result in time-consuming court appearances, taking away resources from more serious crimes.

“We have to find ways to streamline some of these issues because they are clogging up the system,” Russomanno said.

“We owe it to [victims] to make the system as efficient as possible, and right now, it’s not.”

He added that courts need to embrace technology, using digital court records and video appearances to help speed up the system.

“This is just begging to get looked at. There’s all sorts of ways in which we could make the system more efficient,” Russomanno said.

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Both Russomanno and Paciocco say courts could look at taking crimes that deal with addiction or mental health out of the criminal court system and into alternative systems like drug treatment courts.

“We rely heavily on police and other agents of our criminal justice system to address individual problems that have to do with addiction, mental ill-health, poverty and other forms of socioeconomic inequality,” Paciocco said.

A report from Statistics Canada released in January showed that the total number of cases being stayed or withdrawn increased from 108,143 in 2014-15 to 113,297 in 2016-17, which include dismissals and discharges at preliminary inquiry.

The latest available data, from 2015-16, indicate that 15 per cent of all charges exceeded the presumptive ceiling, and that figure has generally been increasing since 2007-08. 

How has Canada responded?

In June 2017, almost one year after the Jordan decision, a Senate committee completed a report that recommended a wide-ranging plan to fight court delays.

The Senate made 13 recommendations that included ending preliminary inquiries, taking minor drunk-driving cases out of criminal courts, setting court dates via video and improving case management practices. Preliminary inquiries are court hearings to determine if there is enough evidence to move to trial and are used in less than five per cent of criminal proceedings, according to the Canadian Bar Association.

READ MORE: Court delays in Canada ‘regarded as the norm’ say senators

The report highlighted B.C.’s decision to move tens of thousands of drunk-driving charges out of provincial court. Senators also recommended that judges be replaced as soon as they retired. Across Canada, there are 53 vacant seats, including 10 vacancies in Ontario’s superior court and seven federal vacancies.

“Our justice system has become an injustice system for too many, especially for victims,” Conservative Sen. Pierre-Hugues Boisvenu said at the time.

Yet, almost two years after that report, the federal government has yet to pass its massive criminal justice legislation, Bill C-75, which includes changes to limit preliminary inquiries solely to offences carrying a life sentence.

Independent Sen. Pierre Dalphond, a former judge, passed an amendment to bring back the option of preliminary inquiries for most indictable offences, reversing the government’s move. The bill is currently before the Senate.

Justice Minister and Attorney General of Canada David Lametti told Global News he is working with his territorial counterparts to address the issue of delays but would not commit to improve federal tracking of the number of cases being tossed.

Lametti said his office will continue to appoint more judges and work with the Senate on passing Bill C-75, including any amendments on the issue of preliminary inquiries.

“We’re giving more options to our provincial partners in terms of how they deal with cases and the quantity of judicial resources that they use per case,” Lametti said.

“I would like to see that the legislation passed,” he said. “It’s at that stage right now where if they propose amendments, we’ll look at them seriously.”

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Quebec Justice Minister Sonia LeBel’s press secretary, Nicky Cayer, told Global News that the province has implemented a number of measures to reduce court delays since the Jordan decision that have reduced median court times by up to 30 per cent.

The province has also hired 16 new judges, 69 new criminal and penal prosecutors to help tackle delays, along with over 300 new supporting staff across various justice ministries. The province has also established 16 new courtrooms. Cayer said the province has also called on Ottawa to fill five vacancies in superior courts.

“We are determined to take action to ensure that citizens, and especially victims, can maintain their trust in our system and its stakeholders,” Cayer said in an email. Quebec is also looking at new software to compile data on Jordan cases.

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Ontario Attorney General Caroline Mulroney declined to be interviewed and did not respond to a series of written questions.

Other provinces have worked to aggressively tackle court delays. Nova Scotia committed $2.3 million to address the problem and created the Jordan Ticker, a kind of countdown clock tracking how long a case has been in the system.

For victims of crime like Broadbent and her husband, the issue of ongoing court delays has meant justice has been denied.