Ontario mother’s gang rape case thrown out because of ‘slow’ and ‘inefficient’ court system
For four long years, L.A. waited for her day in court.
But this month, the Milton mother — who alleges she was gang-raped by three former neighbours in the summer of 2009 — learned that day would never come. Tossed just weeks before the October trial was set to begin, her case was one of an untold number thrown out each year in Ontario because of “unreasonable delays” in reaching trial.
“I’m so angry at the system,” said L.A., whose full name remains under a court-ordered publication ban as the Crown contemplates a possible appeal. “I’m more angry at the system than at these guys.”
I’m more angry at the system than at these guys
While the province tracks the number of charges stayed, withdrawn or dismissed each year, it does not record the reason. In 2011-2012, of about 150,000 adult criminal court decisions in Ontario, close to 64,000 were dropped — but the Ministry of the Attorney-General could not say how many of those were for excessive delays, versus other reasons, such as insufficient evidence.
“A case will only be stayed for delay if an accused can establish that a delay was unreasonable having regard to a number of considerations, including the length, reasons and effect of the delay,” spokesman Brendan Crawley said.
It was almost eight long years ago that Michael Moldaver, then a judge on the Ontario Court of Appeal, stuck his neck out and spoke bluntly about the issue of trial delay.
“Criminal trials are spinning out of control,” he told the annual fall conference of the Criminal Lawyers Association in the fall of 2005.
“Sadly, they have taken on a life of their own, and if they haven’t already done so, they are fast becoming the masters of a system they are meant to serve.”
Judge Moldaver acknowledged all the factors that are at work – including the role played by his brothers and sisters on the bench – but he was clear that the bulk of responsibility for the length of time it takes ordinary criminal cases to get to trial lay with defence lawyers who then were filing a barrage of pre-trial motions alleging violations under the Canadian Charter of Rights and Freedoms.
Lawyer Alan Young, a professor at York University’s Osgoode Hall Law School, maintains the province must start tracking how many cases are tossed annually because of Ontario’s “slow” and “inefficient” system.
“It’s currently not a rare occurrence,” Mr. Young said. “Is it an epidemic? Nobody knows.”
Case management measures introduced in the 1990s in the wake of the landmark Askov ruling, a Supreme Court decision that led to scores of matters being tossed for excessive delays, have not fixed the problem, he added.
“The question is do we need to do more, and you can only really answer that if you’re tracking the cases to know whether it’s a prevalent issue,” Mr. Young said.
Norman Boxall, president of the Criminal Lawyers’ Association, said the largest institutional reason for delay is the unavailability of courtrooms and judges. The problem is heightened in some of Greater Toronto’s fastest-growing municipalities, where population and charges may “outstrip” judicial resources.
In some GTA jurisdictions, Mr. Boxall noted, the Charter motion for excessive delay “is so common that they don’t have to even file their case books. There’s books in court ready because the cases are so familiar.”
In L.A.’s case, which was being heard in Brampton, a 19-month delay attributable to the Crown and/or the Ontario court system put it just outside the maximum guideline of 18 months, violating the accused’s Charter rights, a Superior Court judge ruled this month.
Delays in the Crown disclosure process and other delays related to scheduling contributed to that number, but what tipped the balance for Justice Douglas Gray was prejudice to the accused. He weighed a variety of factors, including the emotional and psychological stress they endured, and negative impacts on their work and relationships.
Lawyer Mitchell Chernovsky, who represented one of the accused, said the court “struck the right balance,” but L.A. says she was left feeling irrelevant to the process.
“I never had any justice,” she said in an interview. “I’ve gone through four years of hell, and my true story’s not out.”
I’ve gone through four years of hell, and my true story’s not out
According to University of Toronto criminal law professor Hamish Stewart, “there’s always a loss” when a case is not tried on its merits.
“But there is a right to have a trial in a reasonable time, and if that right means anything, then there must be some situations where the delay is so long that it’s intolerable,” he said.
Ontario’s criminal courts are only equipped to deal with about a third of the charges that enter them, Mr. Young said, noting the province has a system in which “overcharging” has become the norm — and more perspective is needed on which offences are truly serious and which could be handled in alternative ways.
“As long as the system is cluttered up with trivial offences,” Mr. Young said, “we’ll never really be able to be efficient in terms of dealing with the serious predatory crime that we’re really all concerned about.”