Courting disaster? The long, long wait for justice in Ontario
NationalPost.com – news – In this three-part series, the National Post takes a closer look at Ontario’s crowded court system. First of three parts:
Jun 9, 2012. Megan O’Toole
Inside a richly appointed courtroom on the fourth floor of the Ontario Superior Court in downtown Toronto, Justice Ian Nordheimer is flipping through his calendar. In seconds, he pinpoints the first available trial date for Brian Dickson, accused in the high-profile “webcam slaying” of a York University student: April 2, 2013, nearly a year after last month’s court appearance and two years after the crime.
This set-date hearing is just one of about a dozen procedural appearances before Mr. Dickson’s case goes before a jury and that is by no means an unusual number in Ontario’s clogged justice system. Indeed, the slow grind often begins a few blocks northeast, where on a typical day a steady stream of defence lawyers approaches the bench inside the College Park courthouse, the first point of judicial contact for many of the city’s accused criminals. As prisoners look on dispassionately, a justice of the peace adjourns each case within minutes to another date, as lawyers cite delays in Legal Aid or the disclosure process.
Despite efforts by the provincial Ministry of the Attorney-General to speed up the criminal court system, which receives more than half a million charges in dozens of courthouses annually, persistent backlogs continue to fuel frustration among lawyers, judges, accused persons and members of the public. This month marks the deadline for the ministry’s four-year push to slash by 30% the average number of appearances and days required to complete a criminal case, but the latest numbers show the province has achieved barely a fraction of that goal, reducing appearances by about 6% and days by about 1%. Though the province’s so-called Justice on Target strategy continues past the June benchmark, experts and insiders say it is failing to tackle some of the fundamental problems within Ontario’s $400-million court system.
“[Lengthy delays are] unfair to everyone involved,” said James Stribopoulos, a criminal procedure professor at York University’s Osgoode Hall Law School. “It’s unfair to the victim who has to wait that long to see justice meted out. It’s unfair to the accused, who is entitled to a trial within a reasonable period of time. It’s unfair to witnesses; with the passage of time, their memory fades.”
There are also unnecessary costs when cases drag through the system, consuming precious court resources, from judges and lawyers to security and courtroom staff, Mr. Stribopoulos said. These resources should be freed up to focus on the most crucial cases, he said: “My biggest concern is that dangerous people not slip through the cracks.”
Lawyers point to a number of measures they say could ease the heavy burden on Ontario courts, from electronic scheduling systems that could eliminate the need for procedural court appearances, to a process called pre-charge screening designed to toss out weak cases before police lay charges. A veteran judge, speaking on condition of anonymity, said Justice on Target has ignored the larger problem of why certain cases are entering the system at all.
“The real problem, which all criminal-justice professionals know, is that it targets only surface targets, such as the number of appearances,” he said. “What is not targeted, for political reasons, is the harder question of why we expect our criminal justice system to accomplish something which it is simply not designed to do — to ‘solve’ our social nuisances.”
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Four years ago, then-attorney-general Chris Bentley publicly acknowledged a significant problem in the Ontario court system. In 1992, it took an average of 4.3 appearances and 115 days to complete a criminal case. By 2007, a year before the province launched Justice on Target, those numbers had doubled to 9.2 appearances and 205 days.
“Lengthy court delays are unacceptable so Ontario is moving to justice faster,” Mr. Bentley said in a June 2008 news release, announcing a four-year plan to reduce those numbers by 30%.
In the months that followed, the ministry set up an expert advisory panel to provide insight on how to move cases through the system faster. Teams of judges, lawyers, police, victim-services staff and other participants soon identified a list of seven initiatives to reduce delays, including on-site Legal Aid applications, a speedier disclosure process broken into two stages, and certain commitments — such as the “three-appearance standard” — aimed at ensuring Crown and defence lawyers work together early in the process to find a resolution and eliminate unnecessary court appearances.
By March 2010, after nearly two decades of increases, the number of appearances required to complete a charge had started to fall. To date, more than 500,000 court appearances have been eliminated through Justice on Target, and the province considers it a resounding success story.
“If the rising trend had continued at [the rate it had been], we could expect the average number of appearances to be 11.3 by now. Instead we are almost 24% lower than where we could have been had we done nothing,” ministry spokesman Brendan Crawley said. The fact that Ontario has not come close to its 30% target should not be considered a sign of failure, he noted.
“Thirty per cent targets are aggressive. Aggressive targets and deadlines encourage people to be innovative and that’s exactly what is happening,” Mr. Crawley said.
Many lawyers, judges and academics, however, see things differently. Of a random sample contacted by the National Post, none believed Justice on Target had achieved meaningful change. Some simply laughed when asked about the program. Others declined to speak on the record, citing potential fallout.
Lawyer Anthony Moustacalis, who participated in a committee that provided input to Justice on Target from the defence perspective, said the strategy was a good idea “in principle” more than practice.
“They’re trying to make court appearances more efficient, but they’re trying to do that within an existing system and without applying any new money to it, so that’s where the tension is,” Mr. Moustacalis said.
One area where experts cite a need for change is the province’s remand courts, where offenders routinely appear simply to have their cases adjourned to another date. Often just seconds long, the appearances allow the Crown and defence to provide an update to the presiding judge or justice of the peace. Postponements are frequently required when disclosure materials are not ready, or an accused person is going through the process of retaining a lawyer. Such matters could be dealt with much more expeditiously via email or telephone, Mr. Moustacalis noted, as is the case in other provinces such as Alberta.
“You’re constrained [in Ontario] by how you can increase the efficiency of what’s essentially an appearance-based, paper-based system,” he said.
In Alberta, a recently implemented court case management program has reduced procedural appearances by allowing defence counsel to appear at a court counter for administrative matters or to book trials — things done within the courtroom in Ontario.
“The counter has taken a large volume of matters out of the courtroom and allows more time for those matters requiring judicial intervention to be dealt with in a courtroom by a judge,” said Julie Siddons, a spokesperson for Alberta Justice and Solicitor General.
The province has also introduced a process called remote court scheduling, which allows Crown and defence lawyers to set hearing dates remotely via computer or BlackBerry. The programs have diverted thousands of matters from the courtroom, Ms. Siddons noted.
To reduce the number of cases even reaching that stage, however, some experts advocate pre-charge screening, a formal process by which the Crown, instead of police, decides whether there is sufficient evidence to lay a charge; this is already the practice in New Brunswick, Quebec and British Columbia.
An Ontario Crown attorney with more than two decades of experience says pre-charge screening could eliminate many of the cases that “churn” in Ontario’s courts.
“A lot of those cases are the ones that fall through the cracks. They’re too serious for diversion but they’re not serious enough for jail. Those are the people that churn and churn in the system.”
When the Crown opts to pursue charges after pre-charge screening in Quebec, meanwhile, “he has to be reasonably convinced that he will be able to convince a judge [of the accused’s guilt] beyond a reasonable doubt,” prosecutor Jean Pascal Boucher said.
Recent data from Statistics Canada illustrate the difference: Of close to 160,000 court decisions in Ontario in 2010/2011, 56% were guilty verdicts, while 43% of cases were stayed or withdrawn. Of Quebec’s approximately 66,000 decisions in that timeframe — Quebec has roughly two-thirds the population of Ontario — 75% were guilty verdicts, while 9% were stayed or withdrawn. The remainder ended in other ways, including acquittals.
“[Pre-charge screening] is a really effective way of ferreting out meritless cases early on in the process and also noticing deficiencies in cases early on in the process, which translates into tremendous savings in terms of resources,” Mr. Stribopoulos said, noting a key flaw of Justice on Target is its focus on cases already in the court system. “They’re not even thinking about things they could do before cases get into the system.”
Mr. Crawley, however, says the ministry is satisfied with its existing post-charge screening system, noting the “distinct line” between investigative and prosecutorial functions “forms part of a system of checks and balances.”
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While there is no constitutionally prescribed time limit for completing a criminal case, “an 8 to 10 month period is generally considered to be reasonable,” Statistics Canada noted in a recent report, citing the landmark case of R. v. Askov, in which the Supreme Court of Canada blasted as “grossly excessive” a three-year delay in bringing an Ontario case to trial. The precedent set, scores more cases were tossed out for similar reasons.
At 105 days, Ontario’s median case length remains well below that threshold, but with trials becoming longer and more legally complex, experts say, the courts may be approaching a critical mass.
“The truth of the matter is that we probably don’t have a sufficient number of judges in Ontario… The court faces a lot of special problems,” said former Ontario chief justice Roy McMurtry, who now works as counsel to the Toronto law firm Gowlings.
“It’s too much. We can’t bear it,” added the Crown attorney who spoke on condition of anonymity, citing frequent wait times of 10 to 12 months for trials in one Toronto court. “We’re heading for another Askov.”
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