Senate committee recommendations to address court delays

By Mark Bourrie Web Only

Senate committee recommendations to address court delays

The federal government should amend the Criminal Code to allow courts to order costs or lighter sentences to accused people whose trials are delayed, rather than issue stays of proceedings, a major Senate report on court delays says.

Bob Runciman, Chair of The Standing Senate Committee on Legal and Constitutional Affairs, says no other major country forces judges to throw out cases for delay.

The committee wants new remedies to replace stays granted under section 11(b) of the Canadian Charter of Rights and Freedoms. The Supreme Court of Canada, in the 2016 R v Jordan decision, ruled that long delays breached accused’s Charter rights. The court set a deadline of 18 months for provincial court cases, and 30 months in superior court cases, from the laying of charges to the end of a trial.

“The fallout from that (the Supreme Court’s 2016 decision in R v Jordan), stays granted in very serious criminal matters: first and second-degree murder charges, child sexual assault charges, put court delays squarely in the public consciousness,” Bob Runciman, chair of the Senate’s Legal and Constitutional Affairs Committee, said at a news conference Wednesday.

He pointed to witness testimony at committee hearings arguing that the system must change. Sir Brian Levison, chairman of the Court of Queen’s Bench for England and Wales was, Runciman said, shocked that the only remedy available in Canada is a stay. Academic Peter Hogg also testified that the Supreme Court made a “terrible mistake” when it determined that the only remedy should be a stay of proceedings.

"We're saying for very serious cases, this is a shock to the conscience of the community,” Runciman added.

He wants trial deadlines similar to those in the United States that set time limits on the issuing of indictments and the beginning of trials, written into the Criminal Code.

Runciman also urged the government to send changes to the stay system to the Supreme Court in a reference.

Shortly after the report was released, Justice Minister Jody Wilson-Raybould said the government would consider the Senate committee’s recommendations.

“(A)fter I appeared at the Senate committee and looking at the discussions and the witnesses' testimony, I recognized that there were some experts… that proposed some alternate remedies to stays. We have looked at those remedies and we're going to continue to work with the provinces and territories to see if in fact those will contribute substantially towards alleviating delays,” she said

George Baker, the deputy chair of the committee, said he believes tens of thousands of cases stand to be thrown out because stays are the only remedy available to the courts. He compared the post-Jordan situation to the fallout from the 1991 Askov ruling, which caused about 50,000 criminal cases to be stayed or dropped.

Runciman also said new laws and more money alone won’t end the delays in Canada’s courts, citing what he called a “culture of complacency” as part of the problem.

The Senate committee has crossed the country, hearing from 39 judges, as well as Crown attorneys, defence counsel, academics, victims’ advocates and foreign jurists.

Runciman said members of the Senate committee, which has seven lawyers and three former police officers among its members, sat in on court cases and saw what the report claims was waste and undue delay. Runciman said some chief judges didn’t want to discipline unproductive and sloppy subordinates because the senior judges didn’t want to upset relations with their colleagues.

“It’s the legal culture that needs to change. Delay is regarded as the norm, cases are adjourned for no good reason, and judges, prosecutors and defence counsel, police, are all brought in for court appearances at which absolutely nothing happens. The case is not advanced a single stop.

“Crime is down, yet the number of cases disposed of in Canada’s criminal courts has decreased by 19 per cent in the last five years. The number of criminal trials is decreasing yet court delays persist.

“These are systemic problems that will require a new mindset for many. The Minister of Justice can help play a role here by establishing methods of courthouse performance and setting targets for court proceedings,” Runciman said.

“Legislated solutions can take you only so far. For example, curtailing preliminary inquiries is a good recommendation because the disclosure function they provide has been replaced by Supreme Court decisions that require disclosure. We need to remember that preliminary inquiries are held in less than five per cent of cases.

On top of those problems, there are now 48 unfilled superior court vacancies, which, Runciman said, are caught up in a “snail-like appointment process”.

“The committee finds no reason why a recruitment process cannot be in place to fill vacancies immediately in the case of a known retirement of a judge. Instead of sometimes after a judge retires, except in the instance of a death of a judge or an unexpected retirement,” he said.

(Wilson-Raybould defended her department’s handling of judicial appointments, noting she announced the hiring of four new judges the day the Senate report was released.)

Other Senate committee recommendations included:

  • Amending the Criminal Code to set out a presumption that the Crown will disclose all evidence in accordance with any timelines set by the judge prior to trial and that any evidence introduced thereafter will need to be justified based on due diligence or previous unavailability. Runciman said trials are often adjourned partway through for days while defence counsel deal with disclosures made after the trial began.
  • Improved legal aid and better support for unrepresented accused people. Specifically, Ottawa should work with the provinces and territories to create user-friendly computer portals for managing court appearances and understanding court procedures.
  • Co-operation between the federal and provincial governments to reduce the number of people remanded in pre-trial custody. Electronic monitoring is suggested as one way to cut the number of people held in provincial jails awaiting trial – who outnumber sentenced people in jail.
  • Provinces and the federal government should find alternative ways of dealing with administration offences such as failing to appear in court and breach of bail conditions.
  • A co-ordinated effort from several federal ministries and the provinces to improve mental health services, including alcohol and drug treatment.
  • Creation of more efficient diversion programs for less-serious offences and the creation of more drug treatment and mental health courts.
  • Better help for Indigenous accused, including more resources for the preparation of Gladue reports.
  • The establishment of a system similar to civil court case management and federal court prothonotaries who can collect counsel and judge’s availability information by email or phone and set dates without having court hearings.

 

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