The Problem of Delay – A Pragmatic Approach

By: A. Scott Reid

Much has been written about the problem of delay in our courts. Particularly since the Supreme Court of Canada’s decision in R. v. Jordan there has been a disproportionate amount of hand-wringing about how to deal with, and reduce, delay so that trials can be heard in a reasonable time.

The doomsayers put forward ridiculous proposals, like eliminating a defendant’s right to a preliminary hearing. There are, however, many simple, obvious, steps which can be taken by governments, and the Courts themselves, to reduce delays, even without buy-in from Crown or defence lawyers.

To put things in perspective, it should always be remembered that it is the obligation of the Crown to bring a matter to trial. Accordingly, when considering various options for getting matters to trial more expeditiously, the first place to look should be at those options that are within the control of the Crown.

Secondly, it should be remembered that the interest of the Defence is to have a fair trial and be able to mount a vigorous defence, including attacking the credibility and reliability of Crown witnesses, as well as challenging the admissibility of evidence based on alleged Charter violations. Accordingly, removal of the preliminary hearing should not be considered a viable, reasonable option. Please see my previous blog HERE for a full explanation.

If there is a sacred cow in the discussion about reducing court delays it is Justice On Target (“JOT”). JOT is an advisory program which aims to reduce delay. The proposals put forward by JOT in the past have included mandatory Crown pre-trials, mandatory judicial pre-trials, mandatory secondary judicial pre-trials in certain cases.

As should be obvious to anyone who can count, past JOT proposals have necessitated additional court appearances. It is difficult to see how adding additional court appearances can possibly speed up the progress of a criminal trial. JOT proposals usually focus on reducing the amount of trial time an individual trial takes, reducing it from say a full day trial to a half day trial. While there is some merit to that goal, it fails to see the forest for the trees. Each mandatory appearance prolongs the progress of each case, often by a matter of weeks or months.

One simple solution to reduce delays would be to eliminate Judicial pre-trials unless Crown or defence counsel reasonably feels one is necessary. If two (or more) experienced counsel feel a particular amount of time is necessary for a trial, let them set the trial for that amount of time. Trials and preliminary hearings will be able to be set much sooner if Judicial pre-trials are not required for every case coming into the system. This proposal will also have the added benefit of not burdening judges with having to preside over Judicial pre-trials, which should free up courts and judges to preside over substantive hearings – prelims, trials, guilty pleas.

Another suggestion would be to have judges preside over bail hearings. Currently only Justices of the Peace preside in bail court. If bail court ends early, the JP cannot assist with anything else. If a judge were presiding over bail court, once the bails were concluded, they could assist with short prelims or trials waiting to be reached, or with guilty pleas. I cannot begin to express the frustration of clients who want to plead guilty on a Friday for time served, but there is no court that can accommodate their plea and so they have to go over to Monday when they will effectively be sentenced to time served plus three days.

It should be obvious that easiest fix would simply be to hire more judges, and this is a necessary component of any effort to significantly tackle the problem of delay. Without judges, the criminal justice system will grind to a halt. But more than just judges are required. The government has to invest in courts, courtrooms, clerks, court staff, court reports, cells officers. Remember, judges need chamber days when they write rulings, so other judges need to preside on those days. Courts can run from 8:30am – 5:00pm.

Some commentators have opined that just hiring more judges is not the solution. I disagree. It is the single most important thing governments can do to solve this predicament. If more judges (and court staff to assist and accommodate them) are presiding in the system, more cases can be heard. Court space is not the problem. Every day in every court I see empty courtrooms with the lights out. Add another judge, and the court staff to support that judge, and the courtroom could be being used to hear cases.

Another option, put forward by other commentators, would be to allow electronic remands, or some form of non-attendance for simple remands. This proposal would be a huge shift for defence counsel. It would allow defence counsel to essentially touch base with the Crown and adjourn the matter without appearing in court. That would allow counsel to actually be at their office to prepare their cases – review disclosure, prepare trial applications, meet with clients and witnesses to prepare for trial, rather than sitting in court for days on end to remand clients, often for unnecessary pre-trials. How much faster could a matter proceed to trial if lawyers didn’t have to waste countless days in court for no reason?

In my view, however, there is one other solution to the delay predicament, and one which can be solved only if the Attorney General enforces by-in of individual Crowns. Day in and day out in this country, Crowns screen minor offences for prosecution. Shoplifting, personal disputes that end up with one party charged with a minor assault where no injuries were suffered, or threats uttered in the heat of the moment.

These offences, frankly, do not need to be prosecuted. In most of these cases, there is no injury and no risk of re-offending. Prosecuting such cases only wastes court time and potentially saddles an otherwise non-offending defendant with a criminal record for life. Often, the charges are withdrawn on the day of trial, but only after months of appearances and pre-trials taking time away from other cases which could have been reached much sooner, if more time had been available. Removing these cases from the system early on, such as at the first appearance, could free up much needed court time for other cases.

Many of these cases could be diverted from the court stream on their first appearance in court. Perhaps a parallel stream for direct accountability / diversion or some other process could be set up. Those first time offenders with minor charges could be diverted to that alternative stream, thus freeing up the space needed for more significant prosecutions.

Finally, a more controversial proposal. Attend any trial court in the country on any random and you will see one inevitable truth – most trials in the Provincial Court are trying cases of Impaired Driving and Over 80 offences. These cases take up an inordinate and disproportional amount of time and resources. They are often complicated with novel Charter applications. They are usually heavily litigated, with few to no concessions. They are usually set for at least one day, often more than one. There is no downside to the defendants to litigate the cases, because whether they are convicted after a trial or after they plead guilty the results are virtually identical – loss of their licence, a fine in the range of $1,000, and being labeled a criminal with a criminal record. Most of these defendants are non-offending, productive members of society who have never before been charged with a criminal offence.

To be sure, Impaired Driving and related offences are serious problems. No one is suggesting for even a moment that drinking and driving a good thing, or that it should be encouraged.

At the same time, however, it must be recognized that the vast majority of cases of impaired driving result in no accident, no property damage, and no injuries. It seems passing strange that such a disproportionate amount of court resources are taken up by prosecutions where no harm actually occurred.

So, one final suggest would be to not prosecute Impaired Driving or Over 80 offences where no property damage or injury occurred, and where the defendant had never before been charged with a similar offence. Divert these charges into a parallel stream, perhaps under the Highway Traffic Act. Or perhaps simply withdraw the charges entirely after the defendant successfully completes counseling for alcohol consumption or the like.

If some or all of these suggestions were implemented, within a year there would cease to be any sort of delay “crisis” in our courts. Crowns could focus on the cases that matter. Court time would be used for important cases, cases of injury, property damage, and recidivist criminal behaviour.

Let us hope that Courts, Crowns and governments take these suggestions to heart. Only then will we be able to reduce delays and still preserve important preliminary hearings and fair trials.