Appointing judges will not fix the criminal delay problem

Posted on April 20, 2024 in Governance Delivery System

Source: — Authors: – Opinion/Contributors
April 20, 2024.   By Jody Berkes, Contributor

Most trial delays do not result from too few judges, but from too many cases clogging the system.

Toronto Star reporter Jacques Gallant’s recent article about sex assault casesfailing due to a lack of judges is about the right to trial within a reasonable time, of the Canadian Charter of Rights and Freedoms. The Charter right allows criminal cases to be thrown out due to delay in getting the matter to trial.

Justice Michael Code has been quoted as blaming a trial’s collapse on the federal government’s failure to appoint more judges. Justice Code focuses on the end of the process, when the delay has already happened and cannot be fixed, instead of the beginning of the matter where delay can be remedied by better government policies and allocation of judicial resources.

The Superior Court of Justice, where Justice Code presides, handles 1.5 per cent of criminal cases in Ontario (6,662 cases in 2017 — 2018). The Ontario Court of Justice, handles the other 98.5 per cent of criminal cases in Ontario (460,000 cases in 2017 — 2018). While the federal government appoints judges to the Superior Court, the provincial government appoints judges to the Ontario Court. Consequently, no matter how many judges the federal government appoints, it will affect a maximum of 1.5 per cent of criminal cases.

Most delay does not result from too few judges, but from too many cases clogging the system. Numerous zero-tolerance policies, which forbid dropping certain categories of charges in exchange for mediation, restitution or non-criminal sanctions put an additional burden on the system.

Minor matters, which could be diverted out of the criminal justice system with non-criminal resolutions, are treated the same as serious ones. Crown prosecutors are prevented from resolving less serious matters to focus on more serious ones.

Another factor causing cases to pile up in the system is ill advised, hastily passed criminal legislation that pushes more cases to trial instead of early resolution. Preliminary inquiries, which gave Crown prosecutors and defence lawyers a chance to properly assess the seriousness of a case and come to a just resolution without a trial, have been eliminated, resulting in more cases being litigated.

Normally a criminal case has two lawyers, the defence representing the accused’s interests and the Crown representing the public interest in criminal prosecutions. Another recent law allows witnesses to have their own lawyers, in addition to the Crown, argue evidentiary issues, which causes delay and can derail a case midtrial. This causes a scheduling nightmare, as well as a domino effect on other cases, resulting in additional delay to the system.

Finally, mandatory minimum sentences have caused and will continue to cause delay. Instead of resolving a matter early for a lenient but just sentence, an accused takes a chance at an acquittal after trial, rather than a face a mandatory minimum sentence.

I have been a criminal defence lawyer for over 20 years. I often propose alternatives to prosecution (mediation, restitution, letter of apology, counselling, donation, volunteer hours or other “restorative” principles).

Even if the Crown prosecutor agrees in principle to the proposal, they often must consult parties or seek their manager’s approval, resulting further delays.

Occasionally, we can resolve a case, but often the matter simply languishes, pending trial. On the day of trial, faced with having to prosecute a failing case, the Crown may offer the same alternative resolution, only after wasting months, as well as a day of trial time that would be better spent on a more serious case.

Clearly, federal judicial vacancies must be filled. The government has a plethora of great candidates right now and I hope that are not holding positions vacant waiting for the “perfect” candidate.

The criminal delay problem will not be solved by judicial appointments, as delay is a result of the policies and procedures administering an overburdened criminal justice system.

Continuing with the status quo will ensure resources that should be spent on serious cases are squandered on matters better dealt with early on in the process. The resulting increased delay risks serious cases being thrown out no matter how many judges are appointed.

Jody Berkes is a Toronto criminal lawyer.

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