A Response to Sean Fine and the Supreme Court of Canada on “Justice Delays”

(This article was originally published March 14, 2017 by Marion Lane on The Effervescent Bubble.)

It was gratifying to read Sean Fine’s overview of how Canada’s criminal “Courts [are] shaken by search for solutions to delays” in Saturday’s Globe and Mail. In an intelligent and engaging analysis, he set out the essential message of last July’s Supreme Court of Canada 5:4 decision in R. v. Jordan: that criminal charges are to be tried within 18 months in provincial courts, and within 30 months in Superior Courts, and delays beyond those time periods shall be presumed to be unreasonable. He described the differences of opinion between the different Supreme Court justices, the reaction of the criminal justice system across the country to the new timelines, and the context of this particular decision over time. I commend his report to you.

This is not the first such crisis in the criminal courts. In R. v. Askov (1990), when the Supreme Court also defined what constituted “a reasonable time to trial,” the Ontario crown withdrew thousands of charges because of obvious delay, and thousands more came before the courts when accused persons made their own applications for a stay because of delay. In Ontario, I was one of 36 new judges, and at least two dozen new crown attorneys, appointed by the provincial government to help deal with the existing backlog in the criminal courts, and avoid the situation from recurring. Over 25 years later, Jordan is another SCC decision on the same subject, and another “kick in the pants” from the Supreme Court to all the courts across the country bound to apply their ruling. Equally if not more important, the Supreme Court decision is a clarion call to the federal government responsible for defining the criminal law and to the provincial governments charged with the administration of criminal justice. The Supremes are saying that delay in criminal courts must become a priority.

Sean Fine points out that the Supreme Court agreed on the facts of the particular case before them (that 49.5 months to trial on a charge of possession for the purpose of trafficking is unreasonable), but disagreed on almost everything else. In the fall-out from Jordan, all sorts of questions are being discussed. Some say there is a need to change “a culture of complacency” which exists in the court system; others deny that any complacency exists. Do away with preliminary hearings, implement a triage system, divert less important cases out of the system, require crown attorneys to lay charges and not the police, inject more resources into the system, speed up appointing judges; all are bandied about as obvious “solutions” to the problem.

Finding enduring solutions, however, requires appropriate empirical data about the different ways the system is actually working across each province and across the country. As Professor of Criminology Tony Doob noted in a recent Globe and Mail article with respect to preliminary hearings, such data is non-existent.

Throughout my 20 years on the Ontario Court of Justice, the 1990 Askov “kick in the pants” was a continuing incentive to reform within the Ontario criminal court system. The provincial government appointed more judges and crowns; the provincial bench became more diversified. In 1991, the Supremes mandated full disclosure of the crown’s case to the defence. For a variety of systemic reasons, making that aspiration real took more time and effort than would ever have been anticipated, and still sometimes falls short in particular cases. Thousands of charges were downloaded from the Superior Courts to the provincial courts, eliminating the possibility of a preliminary hearing and inherently ensuring a more speedy trial. This was done by the simple statutory expedient of “supersizing” the possible penalties available for “hybrid” charges (such as assault and sexual assault) where the crown can elect to proceed by summary conviction.

Numerous scheduling changes were attempted to reduce delay. We tried two tiers of courts: one in the morning and another in the afternoon; that didn’t work. Special plea courts with judges known to be lenient on sentencing were set up; that helped. Plea courts for early resolution of cases are now the norm. We implemented an intake cycle system where a single judge and crown took ownership of blocks of cases coming into the system with the expectation that they would be resolved or adjudicated within four months. That system was abandoned after several years without any formal outside evaluation. The administration monitored “time to trial” statistics and, routinely, assigned temporary judges to run “blitz courts” to clear local backlogs of cases in overworked or understaffed courts. “Shadow courts” were established with “shadow” dockets of cases which were fed into the trial courts offering help after their regularly assigned cases were completed. Experienced crowns were placed into intake courts to “take ownership” of cases, encourage early resolutions and ensure that multiple adjournments did not bog down the set date process.

Numerous task forces and commissions (both local and province-wide) were set up and recommendations made for changes in practices: early vetting of cases by experienced crowns, early resolution discussions, diversion of simple cases out of the system and to special programs, mandatory judicial pretrials to narrow the issues and encourage resolutions, rules requiring notice about witnesses and issues to be addressed on prelims, prelims moved out of courtrooms and witnesses examined on the record without a judge being present, special training and procedures for complex cases and for dealing with unrepresented accused, the use of trial coordinators to set dates outside of court, specialized crowns handling specialized courts with specialized procedures (e.g.: domestic courts, courts for children, drug courts, mental health courts, courts for Indigenous people), dealing with impaired driving administratively rather than through the courts.

There has been no shortage of problems identified nor recommendations made about how the system could be improved. The problem has been making reforms happen, and the systemic failure to evaluate the effects.

The criminal justice system, like the health care system, is a very complex institution with multiple ever-changing stakeholders, little routine outside evaluation, and, in my time, a woeful lack of institutional memory. The federal government defines the criminal law but it is not responsible for the administration of justice. Our constitution makes provinces responsible for the operation of the courts. The actions of one affect the other, and vice-versa. One obvious example: When the federal government cut its financial contribution to the Ontario Legal Aid Plan, the number of defendants able to obtain counsel through Legal Aid went down, and the number of accused persons representing themselves went up. Without counsel, there were fewer pre-trial resolutions and the time taken for trial, even for simple matters, increased. What else would one expect? Defence counsel are essential players in the system. Apart from the detriment to individual rights, cutting them back removed the grease that makes the legal system work.

Don’t get me started…. It’s a big issue. How the time limitations imposed by the Supreme Court of Canada will withstand the reality of fact situations coming before Canadian courts in the immediate future, only time will tell. Maybe, as in 1991, the jurisprudence will become nuanced. In my view, it is a very good thing that the Supreme Court has put on the pressure to make “speedy justice” a priority. We’re finally talking about delay, the real issue which has faced our courts for decades. Maybe this time, there will be a major rethink.

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