Justice minister says he's ready to legislate if pandemic delays lead to charges being tossed

Laurie Dennison remembers hearing the voice of her 13-year-old daughter's boyfriend coming from her bedroom as they talked over FaceTime late at night.

"They had it on 24/7 when they weren't together," Dennison said. "He was essentially her best friend."

Their young love was torn apart last year when Devan Selvey, 14, was fatally stabbed behind his Hamilton, Ont., high school. The preliminary hearing for the teen accused in Selvey's murder is slated for the fall.

Right now, the case is well within the time frame imposed by Canada's highest court for completing a trial under the so-called 'Jordan rule' — but Dennison fears the pandemic could delay the case.

"It just prolongs the trauma for everybody involved," Dennison said. "It will never bring Devan back. But at least in her [daughter's] young mind, she needs to know that there is justice and we don't feel that at this point."

The case is one of tens of thousands across the country that have been postponed due to a large courthouse backlog compounded by COVID-19 disruptions.

Federal Justice Minister David Lametti said he's monitoring the situation closely and is prepared to introduce legislation to keep charges from being tossed out due to court delays caused by pandemic-related disruptions.

The Supreme Court of Canada's 2016 Jordan decision set hard limits on the amount of time that can pass between the laying of charges and the anticipated end of a trial — 18 months in provincial court and 30 months in superior court.

That ruling took into account the possibility of delays caused by illnesses and exceptional events — but there is no federal law outlining how those exceptions should be applied.

Lametti said that if excessive delays caused by pandemic restrictions on courthouse operations lead to confusion over how Jordan should be interpreted, he's prepared to introduce legislation to clarify how the benchmark should be applied in specific circumstances.

"We're prepared to take measures to make sure that the court system doesn't get overwhelmed," he said. "If we get to a situation where we need to legislate, we'll consider it."

Jordan lawyer says idea of clarification 'silly'

Eric Gottardi, the defence lawyer who argued the precedent-setting case before the highest court, said such a move would be unnecessary. 

"To come in and legislate an interpretation of a Supreme Court of Canada decision is a bit silly," he said.

"You'll find there won't be much educated debate about whether or not the COVID-19 circumstances would classify as exceptional circumstances. They clearly do."

But the provincial and federal governments still have an obligation under Jordan to invest enough resources in the court system to get trials moving again, he said.

If they don't, and if the world has to live with eruptions of COVID-19 over the coming decade, Gottardi said the Jordan framework could come into play. 

"Hopefully, likely, [this] is a one-time blip in the system that's going to create a three-month, six-month kind of bubble of cases ... that the system will have to deal with," Gottardi said.

"If you come in and give some heavy-handed legislative interpretation to what exceptional circumstances are, which is designed to be flexible, that can have downstream effects for other cases that shouldn't be caught by this case."

Gottardi said he does not want to see the pandemic used to immunize from scrutiny other cases that already were experiencing delays for other reasons.

As it stands, it's up to judges to decide whether a factor delaying a trial qualifies as an "exceptional circumstance" according to Jordan.

The Jordan decision acknowledged that trials don't always follow timetables and "unforeseeable or unavoidable developments can cause cases to quickly go awry, leading to delay."

"There's a lot of confusion right now," said Mark Farrant, the founder of the national non-profit Canadian Juries Commission. "We need a decision, a definitive decision."

Provinces have been holding trials by judge alone — in part through video conferencing — but have gotten through just a fraction of the docket since March.

In Ontario alone, the Criminal Lawyers' Association estimates the backlog of delayed court cases now runs to 30,000.

Lametti hasn't announced any new funding for the courts. Justice Canada said resources are being discussed with the provinces and territories, but the department has not received a formal request for more money.

New federal health and safety guidelines are being put in place by courts across the country, which should allow full jury trials to restart in most jurisdictions this fall.

An 'enormous challenge'

Farrant said he fears those restrictions could put a strain on an already overburdened system, potentially dragging out trials.

"If the Jordan ruling does apply, it's going to mean there will be an enormous volume of cases suddenly roaring back into court," Farrant said.

"It's going to be an enormous challenge."

The delays in criminal courts can also spill over into civil matters. Lawsuits, such as the wrongful death suit filed in connection with Prashant Tiwari's death in hospital, are being rescheduled to accommodate criminal cases.

A hearing in that case was supposed to take place at the beginning of the year, but it's been put over to May 2021.

"You want to trust in the system," said Tiwari's brother Gautam.

"But in [this] case, where we've already been betrayed by a system, it feels like it gets harder and harder"