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| John L. Hill |
The Toronto Star, in a report published on April 10, 2024, quoted Justice Michael Code, who stayed proceedings in one case, as saying, “I cannot leave this application without saying, in conclusion, that it is an embarrassment to the administration of justice that this serious ‘priority’ case, involving alleged sexual abuse of a child, cannot be tried by the constitutional standard of trial ‘within a reasonable time.’”
The federal government and, in particular, Justice Minister Arif Virani have been blamed for the delay in appointing judges. The Star also quoted a spokesperson for Virani who said it is “inaccurate — and frankly unhelpful — to blame delays on any one single factor” and noted court resources and scheduling processes need to be modernized.
Could at least some blame for the backlog be put on the courts? Consider the case of R. v. Clarke, 2024 ONCA 280. Deja Denique Clarke was convicted in 2021 for an offence in 2018. She was sentenced in 2022 for her offences of trafficking two girls under the age of 18, identity theft and possession of property obtained by crime. A six-year trek through the courts continues.
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When her appeal came forward on Jan. 24, 2024, she was self-represented and asked for a delay to allow her the opportunity to obtain counsel. Her appeal was adjourned to April 9, 2024, to be heard peremptorily.
When the April date arrived, she was once again self-represented. The Court of Appeal stressed that she had sufficient time to retain and instruct counsel, and the matter must proceed.
Duty Counsel at the Court of Appeal proposed that the court allow the appeal in light of the Ndhlovu decision and impose a 20-year registration under SOIRA in place of the unconstitutional lifetime restriction.
The Court of Appeal accepted that the Supreme Court of Canada’s pronouncement unquestionably called for a change in the order. However, the three-judge panel unanimously agreed that a decision in R. v. E.H., 2024 ONCA 74 meant the matter must drag on further.
The E.H. decision held that a change in the SOIRA order had to be made by the sentencing judge. The pertinent paragraph in E.H. read: “Although I also agree with duty counsel that a lifetime SOIRA order was not legally available at the time of sentencing and that the trial judge ought to have instead made a 20-year order, I have concluded that Crown counsel is correct that we have no jurisdiction to correct this error as part of the appellant’s sentence appeal. I would also not interfere with the section 161 (1) (a.1) order on the record before us. However, as I will explain, the trial court retains jurisdiction to correct the trial judge’s mistake about the length of the SOIRA order, and the appellant remains free to apply to the trial court to have the s. 161(1) (a.1) order varied.”
Duty Counsel argued that the provisions of Criminal Code s. 490.014, which came into effect on Oct. 26, 2023, empowered the Appeal Court to rectify the sentence in accordance with the Supreme Court’s finding and reduce the SOIRA term to 20 years.
The Ontario Court of Appeal held that it was unprepared to make such an order without full argument as to the court’s authority to intervene and apply the order retrospectively.
In effect, the Ontario Court of Appeal allowed an order now found by the highest authority to be unconstitutional to remain in place until another court takes up the matter and expends time and resources to comply with the law as it is now understood.
Members of the public unfamiliar with court procedures will undoubtedly regard this delay and further clogging of the court’s machinery as an incredible waste of time and resources. Perhaps Minister Virani’s spokesperson is right that government delay is not the sole source of judicial backlog.
John L. Hill practised and taught prison law until his retirement. He holds a J.D. from Queen’s and an LL.M. in constitutional law from Osgoode Hall. He is also the author of Pine Box Parole: Terry Fitzsimmons and the Quest to End Solitary Confinement (Durvile & UpRoute Books). Contact him at johnlornehill@hotmail.com.
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