The Supreme Court of Canada has recently ruled twice, most notably in the 2016 Jordan decision, that it is a violation of Canadians’ rights when criminal cases are not completed in the courts in a reasonable period of time. These rulings have given rise to intense concern that many cases will be dismissed due to delays. There has been much less attention to the enormous harm created by delays, including harm to victims, or to the reasons why criminal cases take so long.
In June, 2017, a committee of the Canadian Senate a report on this issue, entitled ‘Delaying Justice is Denying Justice’. This report documents the many interlocking reasons that court cases do take so long in Canada and makes recommendations for improvement.
It’s worth noting, as the Committee does, that this is not a new issue. The Supreme Court originally ruled on excessive delays in 1992, yet since then the problem has got worse, not better.
Reasons for delays
The 200 page report (it does have a 4 page summary) describes several main reasons for delays and then makes 50 recommendations for improvement. The Committee identified as a primary cause the ‘culture of complacency’ in the system; the unwillingness to do things in different ways that would be more efficient. The report attributes this complacency to all parties in the system – judges, prosecutors and defense lawyers, although it notes that each group tends to blame someone else for the problems.
The Committee found that Canadian court procedures are ‘outdated’. There is not enough use of technology to move things along more quickly. There are too many unnecessary procedures – for example frequent meetings of judges and lawyers that are used only to set a date for yet another meeting. Judges, the report concludes, need to take a more active role in managing all these processes.
Criminal cases are more complicated than they used to be for many reasons, such as the increasing element of technology in crimes (think DNA analyses or analysis of computers) and the additional procedures police and prosecutors must go through to ensure that legal rights are being respected.
As well, the Criminal Code has become a confusing document, with too many similar and overlapping offenses (see earlier post on over-criminalization). Successive governments have been willing to add more things to the Criminal Code, but not to streamline and reorganize it. As a result, there may be too many criminal charges being laid in Canada, given that more than 25% of all cases end up being stayed or withdrawn, yet these can still take a lot of court time. Meanwhile, the number of people being denied bail and held on remand has gone up dramatically, which again creates more court procedures.
Another issue is lack of access to defense lawyers by many accused due to the unavailability or limitations of legal aid in Canada, which is now only given to people who are essentially destitute. Delays occur when people are forced to represent themselves because they cannot afford a lawyer. At the same time, the report reminds us that prosecutors can become too focused on getting a conviction whereas their actual job is to represent the interests of justice in each case.
The courts are dealing with too many issues that don’t need to be or should not be managed in a court room. Too much court time is being taken up with minor items such as violations of excessively stringent bail or probation conditions; these now account for 20% of all criminal charges yet few of them involve any harm to anyone.
When the Jordan decision first came out, there was much media reporting about getting rid of preliminary hearings as a way to speed things up. A number of provincial governments made this proposal to the federal government. However the Committee found that less than 3% of criminal cases ever had a preliminary hearing, so eliminating them would hardly seem a solution.
The Committee writes that mandatory minimum sentences creates delays because those accused are less likely to be willing to plead guilty if they face what seems an unreasonable sentence.
Similarly, the lack of alternative approaches to mental health and addiction forces issues into the courts that could better be dealt with in other ways. Criminal charges for drugs and impaired driving are among the most common yet in neither case does involvement of the justice system seem to have made a positive difference; the same people often end up in court repeatedly. Using other means to deal with these issues could create improvement. The disproportionate number of Aboriginal and other minorities in courts suggests another set of problems that are not best handled by the justice system.
The report has an entire chapter on the significant harms to victims of crime when court processes take years; it notes that victim supports in Canada remain more rhetorical than real.
One instructive minor aspect of the report was its repeated use of ‘murder and the sexual assault of children’ as the two worst examples of crimes where stays of proceedings are worrying. It seemed odd for the report to single out these two since both are rather rare; there are other crimes whose results are just as bad and are more frequent. In 2014-15 there were 238 homicide cases in Canada, and 33,000 impaired driving cases (Report page 28), out of about 240,000 cases in total. So murder cases are one tenth of one percent, and are not what is clogging up the courts. Moreover, in the case of murder, more than half of those charged in Canada are not found guilty, so delays or stays are actually less likely to result in guilty people avoiding the consequences. The repeated use of these two examples seems a revealing statement as to how we rank the ‘badness’ of crime, which is not necessarily related to their frequency or overall harm created.
The broad scope and thoughtful approach in the Senate report is important reading for anyone interested in problems in Canada’s criminal justice system. Later posts on this site will revisit many of the issues mentioned in the report more fully.