Addressing delay in the courts: Flirting with transformative change

Posted on in Governance Delivery System

TheGlobeandMail.com – Opinion
APRIL 2, 2018.   DAVID BUTT

David Butt is a Toronto-based criminal lawyer.

Imagine a multibillion-dollar enterprise flung far and wide from the tiniest hamlet to the densest urban centre, handling millions of transactions annually. Imagine this enterprise with no unifying org chart, ultimately run by no one group or individual, and populated with professionals who have both entrenched independence from each other and often a staunch duty to oppose each other. Imagine the prevailing mindset of this enterprise being fundamentally precedent-based or backward rather than forward-looking, and thus constitutionally resistant to transformative improvement. Imagine this enterprise as creaky, interminably slow, chronically underfunded, littered with baroque complexities and perpetually at risk of collapsing under its own weight.

You have just imagined the real-life behemoth known as the Canadian criminal-justice system and begun to imagine the challenges of increasing its speed and efficiency, despite widespread consensus that more of both are needed.

Last Thursday, the federal government announced the biggest attempt in a long while to speed up the criminal-justice system. Once these reforms are injected into the veins of the hoary justice behemoth, we will see if they vanish without a trace or rouse the beast out of its lethargy. With this package of reforms, the government is injecting the right compounds, but may need a larger dose to get results.

First on the government’s hit list is the preliminary inquiry, which will almost totally disappear. The preliminary inquiry historically served the central purpose of weeding out non-viable cases. But it is a resource- and time-intensive procedure. And with the evolution of professional policing, constantly improving investigative standards, talented and spirited defence-bar oversight and pro-active case-vetting by prosecutors, the preliminary inquiry as a screening mechanism has been in a death spiral for years. And while it certainly still has utility in a small cohort of cases, the costs and delays to maintain it system-wide are no longer broadly justifiable.

Some will inevitably bemoan the preliminary inquiry’s demise, and the sky-is-falling trope may trend yet again. But justice players are resilient. They will quickly return to the constantly pressing business at hand, the imperatives of the new normal will scream out for attention and grieving for the preliminary inquiry will end quickly. Chalk one up for successful reform that can make a small but real difference.

The next suite of changes in the recent announcement is potentially more transformative. The government has begun to declutter the criminal-justice system.

Whenever a criminal charge is laid, the system must impose appropriate controls to ensure an accused person shows up for trial and does not commit any crimes in the meantime. So the courts make various demands of accused persons which, if breached, lead to further charges. The basic idea of regulating accused persons before trial is sound, but the unintended present consequence is an internally generated and thriving industry of charges related to alleged breaches of these pretrial orders, which sucks up limited justice resources in the manner of a dog chasing its own tail.

The current reform proposals aim to reduce the justice system’s largely self-generated consumption of its own capacities by expanding ways of regulating accused persons pretrial: for example by delegating to the police regulatory powers previously exercised only by the court after an expensive, time-consuming hearing. And the changes will, if they work, reduce the default resort to new criminal charges every time a pretrial condition imposed on the accused person might have been breached.

The new bill is 300 pages long, and so of course much bedevilment may lurk in so many details. But in embracing the concept of decluttering in even a limited way, the bill has made a refreshing conceptual step forward. If we are to achieve meaningful delay reduction in our perpetually resource-strapped courts, we have to move beyond the “do more with less” cliché and wrestle seriously with doing less: i.e., using limited resources more strategically.

Not every minor transgression belongs in a cumbersome court system designed to wield the prospect of incarceration, which is the heaviest hammer of all in our societal tool kit. One hopes the government has the resolve to continue and expand their decluttering efforts. Spring cleaning is a good thing.

https://www.theglobeandmail.com/opinion/article-addressing-delay-in-the-courts-flirting-with-transformative-change/

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