Ministry of the Attorney General

Attorney General’s address
to the Empire Club of Canada

Empire Club of Canada, Toronto
Check Against Delivery

Introduction

Thank you for that introduction.

And thank you to the Empire Club for providing this forum to Ministers, like me.

We can speak our mind on the issues that are top of mind for the people we serve.

That’s why I’m here today.

I want to talk about a serious challenge to our justice system.

It is one I know we can overcome.

But right now, this challenge is having a very direct impact on people’s lives.

First, let me tell you why I deeply value … and believe in … our justice system.

My family and I came to Canada 29 years ago.

We moved to Niagara Falls, Ontario.

When you are a newcomer, you are hungry for knowledge about your new home.

And you want to play a part in making it even better.

So, the first two cards that my family and I signed up for were a library card and a Liberal Party membership card.

The first card was the gateway to learning about our new community.

And that’s what I did at the library.

And it was free!

Remember, my teenage wallet had only two things in it.

Neither of them was cash.

But my parents knew that it would be time well spent, and we would gain valuable knowledge.

That knowledge is what led to the second card, the Liberal Party membership.

It was the pathway to contributing to the future of our society.

And for my family, this was profound.

Because we were finally in a country where it was not illegal to join a political party.

As many of you may know, my father had been imprisoned in Pakistan.

He took part in a political rally, the Movement for the Restoration of Democracy.

When I was ten, I hugged him goodbye at the door.

We knew he might not come home that day.

And he did not, for nine months.

He was arrested and sent to prison hundreds of miles away.

Of course, my family and I missed him dearly at that time. I don’t think there was a single Friday we missed visiting him.

His crime was seeking the people’s right to vote.

For this, he was jailed.

So, we came to Canada, where my family could pursue a passion for political activity.

In fact, my father and brother have also run for office as NDP candidates.

Yes, I am the red sheep of the family!

Let me tell you, at our family dinners, the biryani comes with a side of politics.

The food is spicy.

The debates get even hotter.

Yes, some of them are NDP. But they’re family. I can’t give up on them.

And they won’t give up on me.

In fact, those respectful differences are what make Ontario great.

You can be the person you are, with the people you love.

You belong in a community that welcomes all and that values all contributions.

So, as Attorney General of Ontario, I feel a profound sense of pride and responsibility — as the administrator of justice in one of the world’s great civil societies.

Here, justice is independent of government, and served in trust with citizens.

The Charter of Rights and Freedoms protects individual rights.

A rigorous system of appeals, up to the Supreme Court of Canada, ensures that rights are upheld.

So, it is with humility and respect that, as Attorney General, I speak today about the impact of recent Supreme Court decisions on the administration of criminal justice in Ontario.

The Jordan Challenge

Many of you are familiar with Jordan decision.

It is a game-changer.

The Supreme Court’s majority decision set out a new and clearly defined framework for protecting the constitutionally guaranteed right “to be tried within a reasonable time” under section 11(b) of the Charter of Rights and Freedoms.

For the first time, we now have a numerical presumptive ceiling on provincial court cases of 18 months, and a ceiling of 30 months for superior court cases.

When cases exceed these thresholds, judges may order a stay of proceedings and charges may be dismissed.

Wherever possible, Crown attorneys will rebut the argument of unreasonable delay by citing delay caused by the defence and exceptional circumstances to prevent cases from being stayed.

This can be a challenge, however.

Under the Jordan framework, courts will no longer consider whether delay has caused actual prejudice to the accused.

Prejudice is now presumed by the passage of time.

Courts will no longer distinguish between the most serious cases — such as murder — and less serious cases in determining whether to issue a stay.

In recent weeks and months, Ontarians have been reading media stories about judges citing this ceiling and granting stays of proceedings.

This has affected a murder case in Ontario.

It has affected a case of sexual assault on a child.

Another case involved assault against an infant.

These stays of proceedings have caused some real emotional pain, and community anger.

Another case involved a young person who died in a correctional facility.

So, the presumptive ceilings are not just impacting the accused.

We all feel it.

It impacts trust and confidence in the administration of justice.

Impact of R. v. Jordan in Ontario

Let me be clear, the Supreme Court, in its wisdom has ruled on an issue that clearly needed to be addressed.

The pace of criminal justice is too slow.

Criminal cases are taking too long.

Prompt justice is a Charter right.

Our criminal courts are bottlenecked.

Daily dockets are jammed.

Early trial dates are hard to come by.

Lengthy delays are hard on victims and families.

Delays leave everyone involved in a kind of limbo.

Lengthy delays do not fulfil the right to prompt justice called for in the Charter.

And delays give the public a sense of dysfunction in the courts.

This erodes public trust.

So, the Supreme Court spoke on the issue, as it is their right and obligation to do.

I quote:

“All the parties were operating within the culture of complacency towards delay that has pervaded the criminal justice system in recent years.

Broader structural and procedural changes, in addition to day to day efforts, are required to maintain the public’s confidence by delivering justice in a timely manner.”

I agree.

It is time for reform.

It is time for change.

The Supreme Court made it clear that the bar, the courts and governments can no longer operate business as usual and complacency will not be tolerated.

That is why, in Ontario, since Jordan, we have been taking action.

We have made new investments and strengthened day-to-day efforts to complete trials.

We are looking at broad procedural changes to make the system more efficient.

I’ll talk about these in a moment.

But first, when I look at how the Jordan decision is being applied, I have two questions as Attorney General.

One, what has been the impact of Jordan on Ontario’s criminal justice system so far?

When the Supreme Court released its judgment eight months ago, there were already thousands of cases in the system that were at — or very close to — the new presumptive ceiling.

For those cases already in the system, Jordan was like changing the rules of the game in the middle of the third period.

Except… criminal justice is much more serious than hockey.

That is why, in its majority ruling, the Supreme Court went out of its way to recognize that there must be a transition period for cases already in the system.

During this transition period, the Court said, and I quote:

“…there are a variety of reasons to apply the framework contextually and flexibly for cases currently in the system…

One being that it is not fair to strictly judge participants in the criminal justice system against standards of which they had no notice.”

The system is going to need time to adjust to these new rules.

However, I am concerned that the Court’s guidance is not being applied evenly across Ontario, or across Canada.

Instead, we are already seeing some of the most serious and challenging cases in our system affected.

These cases had no ability to adjust when the rules were changed.

As a result, a Supreme Court Decision that rightfully sought to create clarity and restore faith in the system may, in fact, be having the reverse effect, thus far.

My second question is this:

How has the Jordan decision impacted the people of this province, in particular victims?

As Attorney General, I am acutely aware of the pain and sadness that is caused when a case is stayed.

Unfortunately, we have all had occasion to hear too many of these stories in recent months.

Families of victims have shown up in court for the start of a trial.

This is already a highly emotional and potentially traumatic event.

Their trauma is then deepened when it is announced that there will be no trial at all.

Victims, families, witnesses and the community are now dealing with a whole new set of emotions.

It is my sincere hope those families affected can find peace.

They may never feel a true sense of justice.

There will be no testimony in court.

No verdict will be rendered.

Importantly, the accused is also denied their day in court.

This is not building trust, it is eroding trust.

This is not reducing the impact on victims and families… it is re-victimizing.

To ask the public to understand such a legality is asking a lot.

I feel this acutely, not only because it happened during my time as Attorney General, but because it happened in my own community of Ottawa.

Ontario’s Response

Ontario is, of course, responding to the Jordan challenge.

The judiciary… Crowns… the defence bar… Legal Aid… our hard-working court staff – are coming together to identify, triage and resolve as many cases as quickly as possible.

Charges laid today in Ontario will be prosecuted with an understanding of the ceilings set by the Supreme Court.

We are also adding people.

This is meant to keep the number of stays of proceedings as low as possible.

We are appointing 13 new judges to the bench of the Ontario Court of Justice.

We are adding 32 assistant Crown attorneys to our ranks.

We are providing funding to Legal Aid Ontario for 16 duty counsel.

We are increasing support with 26 new courtroom staff.

For the last three years, we have increased access for legal aid by 6%... and will be doing so again this year.

We are ensuring that cases are resolved faster by having more assistant Crown attorneys working on them…

…and more judges to hear them…

…and more accused with legal representation.

Supports to Make the System Work Better

We also need to ensure time and resources can be dedicated to the most serious cases by dealing more efficiently with the less serious cases at the front end of the system.

So, the Ministry of the Attorney General is implementing new measures to administer bail more efficiently in Ontario.

Vulnerable, low-risk people in our correctional facilities should be out in the community on bail.

Too often, they are not, because they lack the right supports.

A disproportionate number of them are Indigenous

…or racialized…

or have complex mental health needs.

In fact, remaining in custody can impact their income, or interrupts care and other supports.

Holding them in jail places a huge financial burden on the entire justice system.

At the same time, high-risk accused, who should be in correctional facilities until their trial, are waiting too long for their day in court.

So, we are following through on a comprehensive plan to enhance public safety, and make the justice system work better.

We are getting the right people in the right places to support faster, more effective bail decisions.

This means high-volume courts will have bail vettors — specially trained and empowered Crowns who can ensure timely, informed bail positions.

We are also embedding experienced Crown attorneys in police stations to provide early advice on bail and cases concerning vulnerable accused.

We are putting more duty counsel in correctional facilities to move low-risk people to a bail hearing sooner.

Expanded bail verification and supervision will get more people safely and quickly released into the community.

A new Indigenous bail and remand program will be run by Indigenous service providers.

It allows low-risk accused to remain in their communities while awaiting trial, including remote communities.

There will be more ideas to come.

We have appointed three prominent legal experts to offer their expertise on reforming Crown policies on bail: former chief justice Brian Lennox, former deputy attorney general Murray Segal, and deputy Crown attorney Lori Montague.

Federal Call to Action

These measures are all in the spirit of the Supreme Court majority’s concluding statement on Jordan decision, which said:

“Ultimately, all participants in the justice system must work in concert to achieve speedier trials.

After all, everyone stands to benefit from these efforts.

Timely trials are possible.

More than that, they are constitutionally required.”

Of course, in our federation, “all participants in the justice system” should include the federal government.

They have a role in meeting obligations that are “constitutionally required.”

The Senate Committee on Legal and Constitutional Affairs has made very valuable contributions to understanding issues around trial delays.

They have been clear that federal action is needed.

The Supreme Court in Jordan was clear on this point as well.

I have three requests to the federal Minister of Justice.

First, fill the 11 vacancies on the Superior Court bench in Ontario.

This was a problem before the Jordan decision.

It is absolutely critical now.

At a time of great need, we are losing hundreds of hours of “judicial time” every month across the Superior Court of Justice due to these lingering vacancies.

Senator George Baker, the senate committee deputy chair put it this way:

“The combination of an excessive number of vacancies along with the deadlines set by the Supreme Court has created the perfect storm.

The government must act quickly to fill these vacancies in order to maintain public confidence in the justice system.”

Yet, simply adding resources to the system will not address all of the delay issues.

We need to make bold changes to speed up and simplify the criminal court process.

That is why I wrote to the federal Minister of Justice today and set out my second request…

…which is to pursue some very specific changes to the Criminal Code as part of the Minister’s forthcoming criminal justice review.

It is our view that the long-held rationales for preliminary inquiries simply no longer exist.

I have therefore asked the Minister to consider Criminal Code reforms that will significantly curtail the use of preliminary inquiries in criminal cases destined for the Superior Court.

Third… the Minister of Justice should convene a special meeting at the earliest opportunity with provincial and territorial attorney generals to discuss the Jordan decision and its implications for criminal justice in Canada.

Let’s be honest, there will be more stays of proceedings.

Many applications are before courts across Canada.

The Supreme Court minority in the Jordan decision said that the new framework and transitional provisions will not avoid the risk of many stays of judicial proceedings.

Collectively, we need to reassure Canadians that we are working to ensure this does not happen.

A national meeting would send a clear message to victims, their families and all Canadians.

That message is:

We hear you.

We know this is unacceptable.

We are acting on it.

The justice system in Canada can do better.

Conclusion

As Attorney General, I want to assure Ontarians that we will do everything possible in this province to avoid stays of proceedings, especially in serious cases.

We have some questions about Jordan and its application.

The long-term impact of the decision is not yet fully clear.

We do know one thing.

Action is needed.

We need to ensure justice is delivered more efficiently and promptly.

We need people in the justice system working more effectively together.

Seeing cases involving murder and other serious offences stayed…

Seeing added pain brought upon victims and families…

Seeing the frustration in communities and the eroding trust in society…

These all remind us that justice delayed is, indeed, justice denied.

Not just for some.

But for us all.

This is among the fundamental principles that hold our great society together.

Ontarians must feel confident that prompt and proper justice will be served.

And that is what we will do.

Thank you.