Post #241

1000 words; 4 minutes to read

Summary: While timely appointment of judges is important, there are good reasons to believe that the delays in criminal courts are not primarily due to lack of judges, despite media reports.


Many recent media headlines have given the impression that there is a major problem in criminal justice in Canada due to the lack of appointments by the federal government.  Important cases, we hear, are being dismissed because there aren’t judges to hear them. But to what extent is this correct?

A recent piece in the Toronto Star by Toronto lawyer Jody Berkes  provides a rather different view.

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.

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.

Almost all criminal cases heard by provincial judges

Berkes points out that 98% of criminal cases are heard by judges appointed by the provinces, not those appointed federally.  So it is hard to see how the main problem could be federal judge appointments.

Beyond that, well over 90% of criminal cases in Canada do not end in a trial, with charges either dropped or resolved by a plea bargain, which raises the question of whether these cases could be heard more expeditiously.  Anyone who has spent time in a criminal court will recognize how much time is used simply to set dates for future meetings, a hugely ineffective use of everyone’s time especially in an era of online scheduling.

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.

Studies reach a similar conclusion

Other analyses of delays in criminal justice support Berkes’ points.  More than a decade ago, judge John Cowper was asked to do a review of criminal justice in British Columbia.  Cowper concluded that delays were a huge problem but were caused mainly by the unwillingness of people in the system to modernize their processes;  there is often a poor alignment between available judicial time and cases ready for trial. As a result there continues to be a significant under-utilization of available judicial time.

The culture of delay in the court system is resistant to change because there are several benefits to those working within the system that are gained from delay and no accepted means of enforcing timeliness as a priority. To change this culture we must fundamentally change the incentives that apply to the parties.

Changes in rules had been put in place in BC,  but ‘Despite the best of intentions, judges, prosecutors and defence counsel were not able to create the conditions for early resolution. Neither prosecutors nor defence counsel changed their practices in order to realize the potential of the new rules.  So delays remained common.

Indeed, at a time when BC judges were pressing for more positions, Cowper concluded that: In my view, the evidence respecting judicial utilization … do not support a general increase in judicial complement.  He noted that crime rates were decreasing, and they have decreased further since then.

Senate report has similar findings

In 2017, the Senate of Canada released a report on ‘Delaying Justice is Denying Justice’ .  This report drew similar conclusions to Cowper.  …a primary cause is a culture of complacency that has permitted unnecessary procedures and adjournments, inefficient practices, and inadequate institutional resources to become accepted as the norm.  Yet, like Cowper, they found that the various actors were mostly busy blaming each other for the problem instead of trying to improve practices.

Also like Cowper, the Senate analysis was that Canadian courts are not well administered and are not at all efficient.  The committee finds that resolution of many pre-trial procedural matters by judges is an inefficient use of their time and of court resources. Many of these matters could be handled by a judicial officer…

The Senate report also noted that too much court time went to very minor matters.  Nearly one quarter of all criminal cases in Canada involve ‘administration of justice’ charges, often for violations of minor bail and parole conditions, even though the Supreme Court has several times said that these conditions are often not justified.  These cases could well be resolved through means that did not require so much time from judges.

Another source of delay is the large number of criminal defendants who are Aboriginal or who have mental health issues, and for whom appropriate supports are not available, further delaying court processes, or pushing matters into court that could be resolved in other ways.  Simply put, the criminal law system is attempting to deal with too many cases that it is not suited to handle.

A need to improve

Of course it remains important to make timely judicial appointments.  That is one important part of having a well-functioning system.  But as Berkes’s comments indicate, and the other two reports reveal in detail, there are many other things we could do that would help our criminal justice system operate at a much better pace.  One would hope that the media would have analyzed these issues more fully to help us understand what changes would help most and be fairer to both victims and accused.

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