Rise in crime, greater severity play role in N.B. court delays, say defence lawyers

As more criminal charges get stayed because of court delays in New Brunswick, defence lawyers are pointing to an increase in crime as a big contributing factor.

Alison Menard, a Moncton defence lawyer, said she's dealt with two cases since last month that ended with a judge staying the charges against her clients.

The most recent one was a summary charge of sexual touching of a minor, which was stayed in court on Monday, and the other case, for an impaired driving charge, was stayed in February, Menard said.

She said they were both stayed by Moncton provincial court Judge Luc Labonté after he found there'd been unreasonable delays in getting the cases to trial, thus violating the charter rights of the accused.

On top of her own cases, Menard said she's also spoken to four other defence lawyers who've each led cases where charges were stayed since December.

The stay effectively brings the court proceeding to an end, but with no definitive outcome for the accused or victim.

Menard said delays caused by COVID-19 deserve part of the blame in delaying court proceedings, but a rise in crime seems to have made that worse.

"Statistically, we're told that there's not more crime, but anecdotally, those of us in the [justice] system can certainly tell you the violence related to crime has increased," she said.

"[Crime] has become more complex in the Moncton area. I'm sure in other areas as well — like charges are more serious."

The idea that more crime is clogging up court resources, leading to more charges being stayed, is shared by other defence lawyers from other parts of New Brunswick, and can be backed up by data showing crime is increasing in the province.

Statistics Canada tracks crimes reported to police, and compiles that data to create what it calls its crime severity index, which is a measure of both the amount of crime reported by police, and the relative seriousness of the crimes.

According to the federal agency, New Brunswick's crime severity index has gone up every year in recent years, from 61.56 in 2016, to 88.48 in 2021.

And last year, Statistics Canada reported that Moncton had the third-highest police-reported crime rate in Canada for 2021, after Kelowna, B.C., and Lethbridge, Alta.

"The crime is — no question in my mind — increasing," said Fredericton criminal defence lawyer TJ Burke.

"I've seen more impaired driving cases in the last two years, three years … than I've seen in the last 20 years. I've seen more sexual assaults in the last three or four years than I have in the last 20-plus years, and I've seen more guns involved in drug charges than I've seen in my entire career."

Burke said this increase has added pressure to the courts, with trials now being scheduled a year in advance, whereas it took half as long just a few years ago.

As many as four of his cases ended in charges being stayed in the last two years because of court delays, including a charge of sexual assault that was stayed last October.

"I wouldn't certainly say it's an epidemic, but I can say that it is happening."

Hampton-based criminal defence lawyer David Lutz said he hasn't had any cases result in charges being stayed, but he  has seen how clogged up the courts have become in recent years.

"I have never seen so much criminal activity in my 46 years as I'm seeing right now," Lutz said.

Lutz said a rise in illegal drugs — namely crystal meth — has led to police laying more charges against people for possessing and distributing it, as well as for committing other crimes to obtain it.

"It's generally overwhelming … so yes, that is contributing tremendously [to court delays]."

Solutions to the delays

Menard said she thinks Crown prosecutors could do more to prevent charges from being stayed.

In her most recent case, she said, Labonté ruled that there's no reason the Crown can't "triage" cases so that those deemed more serious get dealt with ahead of others deemed less so.

"And maybe that's one of the remedies for it as an emergency, but in the longer term, I think they're going to have to find more solutions to making this happen quicker," she said.

Last month, Shara Munn, the president of the New Brunswick Crown Prosecutors Association, said staffing shortages for prosecutors had become a crisis in recent years, contributing to the delays in the justice system, and charges ultimately being stayed.

Burke, who served as New Brunswick's attorney general from 2006 to 2009, agreed that the Department of Justice deserves more funding to help speed up legal proceedings.

"I think the government is going to have to wake up and say, look, we've got a serious issue out here on the streets," Burke said.

"And the only way that I think you can address it is resource properly, which means more Crown prosecutors … and then the appointment of more judges to give the system more judicial resources."

Justice officials to talk to Crowns

CBC News asked for an interview with Justice Minister Ted Flemming about what the province is doing to reduce delays in the province's courts.

In an email, spokesperson Geoffrey Downey said Flemming was unavailable for an interview.

Downey said the department is talking with the New Brunswick Crown Prosecutors Association to better understand their perspective.

"This is an important conversation," Downey said. "Neither the department nor the association has any interest in Crown resources getting stretched so thin its effectiveness is compromised."