Recent Constitutional Decisions and Their Localized Effect on Access to Justice

The fact that access to justice is a problem is abundantly apparent to anyone involved in the legal system, be it judges or lawyers, plaintiffs or defendants or even common observers. Courts, Law Societies, Bar Associations and special interest groups among others are all trying to improve access to justice. Unfortunately, it is not a problem easily remedied.
Everyone has “their right to a day in court” the problem is that the “day” is almost always in the distant future. In a local civil litigation context in general and the personal injury/insurance context in particular, trials are often four to six years away, sometimes longer. The delay is even more significant in larger centres such as Toronto. Often, settlements are reached simply because litigants get worn down and want to end the delay; thus, never getting their day in court.

So how do two recent Constitutional Law decisions from the Supreme Court of Canada affect access to justice or civil litigants in Simcoe County?

Conceptually, it is rather simple: if local judicial resources remain constant, and there is no indication that they will not, the new Supreme Court decisions obligate all lower Courts across Canada to focus more on criminal matters and by extension, less on civil matters.

The Supreme Court heard both cases on October 7, 2015 and both judgments were rendered on July 8, 2016¹. R. v. Jordan was an appeal from the British Columbia Court of Appeal and R. v. Williamsonwas an appeal from the Ontario Court of Appeal. While the facts of the cases are largely irrelevant here, what is important is that both Jordan and Williamson applied for a stay of proceedings due to delay pursuant to s. 11(b) of the Canadian Charter of Rights and Freedoms².

In writing for the majority of the Court in Jordan, Moldaver, Karakatsanis and Brown JJ. opined that the lower courts “analyses are reflective of doctrinal and practical difficulties plaguing the current analytical framework governing s. 11(b). These difficulties have fostered a culture of complacency within the system towards delay”³ and that “a change of direction is therefore required.”⁴

The new framework set out by the majority is “a presumptive ceiling on the time it should take to bring an accused person to trial: 18 months for cases going to trial in the provincial court, and 30 months for cases going to trial in superior court.”⁵

As is almost always the case, and “given the contextual nature of reasonableness” that is fundamental to the justice system, in both criminal and civil contexts, this new framework “accounts for case-specific factors both above and below the presumptive ceiling.”⁶ Reference to the cases will provide a thorough account of the application of exemptions.

What does this mean in the local civil litigation context?

It would appear that time to commence criminal trials was sometimes exceeding 30 months in the superior court or the Supreme Court of Canada would not have designated that as the presumptive ceiling. In order to not run afoul of these new rules, the Crown must exert pressure and bring all judicial resources to bear on criminal matters. If judges are now required, and they are vis-à-vis these cases, to prioritize the criminal cases over civil ones, and judicial resources remain static, then the delay in reaching a civil trial just got longer.

¹ R. v. Jordan 2016 SCC 27 [Jordan] and R. v. Williamson SCC 28 [Williamson]

² Canadian Charter of Rights and Freedoms, s. 11(b)

³ Jordan at paragraph 4.

⁴ Ibid at paragraph 5.

⁵ Ibid.

⁶ Ibid.