Trial backlog is forcing charges to be dropped

Judge stays drug charges because it took too long for the accused to get a trial.

Cheryl Wierda


A Kelowna judge has thrown out drug charges against a Lake Country man, citing court backlogs as the reason.

It is the second documented time in a year that this judge has stayed charges because the court system couldn’t accommodate a trial in a timely fashion.

In the most recent decision, published online late last week, Judge Robin Smith stayed charges related to a 341 plant marijuana grow operation  after noting the accused had his June 2012 trial date cancelled because the courtroom his case was to be heard in was overbooked.

“Both sides were ready, willing and able to get a much earlier first trial date, but there were insufficient judicial resources to have the matter heard on the first trial date,” wrote Smith.

Smith said it is common practice to triple book courtrooms, anticipating some of the cases will “collapse” prior to trial, as a way to deal with “limited judicial resources.”

In this case, the accused’s trial was cancelled because another “more urgent” case was also slated to occur that day, said Smith.

A second trial was booked for this month, nearly two years after lawyers indicated they were ready to go to trial. However, Smith instead stayed the charges after defence successfully argued the accused’s  Charter right to a trial within a reasonable time had been violated.

“This 21.5 month delay from arraignment is singularly caused by insufficient judicial resources,” wrote  Smith.

A Supreme Court of Canada decision, considered to be one of the authorities on what is considered a “reasonable” length of time to get to trial, suggests  an “institutional delay” of eight to 10 months be the guideline for judges considering what’s an acceptable delay.

“My overall impression is that over time, the courts have allowed longer and longer institutional delays,” wrote Smith.  “This is primarily because judges, just like members of the public, want important criminal charges, as much as possible, to be dealt with on the merits of the case, and not on a Charter application based on unreasonable delay.  Even the initial trial date in the case at bar was outside the eight to 10 month guideline range suggested by the Supreme Court.”

Smith notes the reason the Charter guarantees a trial will happen in a “reasonable time” is because an accused is entitled to a fair trial. The longer it takes for the case to be heard, “the more likely it is that witnesses will have less recall of events to which they testify.”

Last year, Smith also stayed drug charges against two people after attributing a 23-month delay –including a cancelled trial–to the court system.

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