Most criminal cases in Ontario now ending before charges are tested at trial
More judges, staff, prosecutors and courtrooms needed, says Crown attorneys’ association
Emily Quint says she would never have pursued the prosecution of the man she alleges sexually assaulted her nearly three years ago if she'd known what she'd go through.
"The whole process was horrific," said Quint. "The way that it ended, my whole world went up in flames."
A year ago, the sexual assault charge was stayed for an unreasonable delay after the trial failed to wrap before the time limit set in the 2016 Supreme Court decision R. v. Jordan.
A three-day trial was originally set for July 2023 (within the 18-month time limit for provincial court) but no courtrooms were available until the third day, so while Quint testified, the trial wasn't completed. Quint says she was blindsided by the news of the stay days before the trial was set to resume that November.
"This was the first time in my entire life that I had ever heard about charges being stayed at all, let alone for this reason," she said.
"There was so much anger, so much sadness. It was like, 'Who can I contact? What can I do? This can't be the end.'"
Quint's case is one of a growing number of criminal cases for which the merits of the charge are never tested at trial. Statistics Canada data reviewed by CBC Toronto shows a dramatic shift in criminal outcomes in Ontario over the last decade.
The majority of criminal cases in the province have ended with charges being withdrawn, stayed, dismissed or discharged before a decision at trial since 2020. In 2022-23, the latest fiscal year of data available, 56 per cent of criminal cases ended that way — a 14 per cent increase since 2013-14 when guilty decisions still made up most outcomes.
Justice system stakeholders say many factors go into decisions to stay, withdraw, or discharge criminal charges, including whether there's a reasonable prospect of conviction. But when it comes to stays or withdrawals for Jordan delay reasons, they told CBC Toronto a perfect storm of pandemic backlogs, increases in digital evidence, and a court system-wide shortage of resources are to blame.
"It's leaving my front-line Crowns in a really difficult position," said Donna Kellway, president of the Ontario Crown Attorneys' Association.
"You have people who are prepared to put their heart and souls into this job, but they need the proper resources in order to do that job properly."
Province commits $29M
In a statement, a spokesperson for Attorney General of Ontario Doug Downey told CBC Toronto the province is investing over $29 million this year to appoint a minimum of 25 new judges to the Ontario Court of Justice and hire 190 more Crown prosecutors, victim support and court staff.
"This investment will help prevent cases from being stayed for delay, help the court keep pace with a growing number of complex cases, and keep communities safe," said spokesperson Jack Fazzari.
"Recruitment is underway to ensure cases are heard faster and reduce the backlog across the criminal justice system."
When it comes to criminal cases not proceeding to trial, the government's statement also outlined scenarios that impact the case outcome statistics reviewed by CBC Toronto. Those include cases when charges are stayed or withdrawn but then proceed under a new information sheet of charges and various other charge resolution options like peace bonds and restorative justice or diversion programs.
WATCH | Ontario's attorney general responds to CBC Toronto investigation:
'It's not enough'
Kellway says the funds promised by the province are "a start but... not enough" and that her members are still not seeing those new resources on the front lines nearly six months after the government's announced spending.
To fix the justice system, she says they need even more Crown prosecutors, judges, court staff and courtrooms than that $29 million would provide to ensure viable charges make it to trial on their merits before hitting Jordan time limits.
"The impact of one unnecessary stay of proceedings can be so widespread, wide-reaching, and really impact on public safety," she said.
"Someone might say, 'Why should I bother?' And we want them to bother. We want to make sure that people report victimization and that it's properly investigated and charged and prosecuted."
59 sexual assault cases stayed
More than 580 criminal cases in Ontario were stayed for unreasonable delay from the time Jordan time limits came into effect in 2016 through the end of 2023, according to data from the Ministry of the Attorney General.
Of those cases stayed, 145 were sexual assaults and one was a homicide. Last year 59 sexual assault cases were stayed because of delay in Ontario, the most per year since the time limit came into force.
The Canadian Resource Centre for Victims of Crime hears first-hand how these outcomes are impacting the clients they support.
"A lot of our victims and survivors are losing faith in the process. They're struggling with closure," said executive director Sarah Crawford.
"It's an ongoing failure that we're seeing in the courts."
Stayed and withdrawn charges are also "disappointing and frustrating" for the officers who investigated and laid them, according to the Ontario Association of Chiefs of Police.
"We certainly want to see an efficient judicial system because public trust is lost when the system falls apart," said executive director Paul Pedersen.
Digital evidence complicates cases
He says he believes workload and the increasing complexity of cases are playing a big role. For example, Pedersen says almost every crime now involves tons of digital evidence like witness videos from cellphones, CCTV camera footage and video from officers' body-worn cameras.
And once that evidence makes it to a Crown prosecutor, it must be reviewed, processed and prepared for disclosure for defence, a process that is now much more time consuming, Kellway said.
"It's wonderful when the police are getting resources so that they can investigate all of these crimes, make the arrests and bring us the charges," she said. "But it's completely wasted if they're able to do all of that and then we don't have the resources to prosecute them."
Those resources include capacity in the province's courthouses. To optimize the time and space currently available and try to deal with the backlog, Kellway says a new trial scheduling method was implemented called "stacking" — scheduling several cases in the same courtroom on the same day.
The cases are stacked so that each is within the Jordan time limit. But Kellway says there are only so many hours in a court day and it's unlikely that more than one trial gets heard in one courtroom on a given day.
She says inevitably that leaves the Crown prosecutor with a hard decision about which case to pursue.
"If you have a number of these types of cases with vulnerable complainants, they're not going to get reached. And if they don't get reached, chances are the new date that is set for them is going to be beyond the Jordan guidelines."
And Kellway says that's difficult for everyone involved.
For Quint, the pain still hasn't gone away a year later.
In her case, the trial didn't proceed as planned because the courthouse didn't have enough staff to run the courtroom.
Justice Brock Jones called that reasoning "shameful" in his judicial remarks on the decision to stay the sexual assault charge.
"This case should serve a chilling reminder that this inexcusable state of affairs must never be allowed to happen again," he wrote. "When charges are stayed for delay, real people's lives are affected."
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