Justice system grinds along too slowly
Even with fewer crimes, courts are clogged
Canada’s Byzantine criminal justice system, faced with generally declining crime rates and fewer cases, is nonetheless taking longer to complete them.
The finding is contained in a new report on inefficiencies in the system prepared for the Macdonald-Laurier Institute by former Crown prosecutor Scott Newark.
Released Tuesday, it marks the second shot over the bow of the system within a week from the Ottawabased public policy thinktank.
Last week, the institute released a report card on the system, grading each province’s performance in five areas and finding what it called “a justice deficit,” a growing gap between aspirations for the system and its real performance.
In the new report, Newark uses Statistics Canada’s own data to show that, except for a recent hike in crime reported in 2015, the volume of crime reported to police over the 10 years ending in 2014 has steadily declined.
But, the report says, from 2005 on, “there has been a steady decrease” in the number of completed charges in the courts.
“This means the justice system is facing fewer cases, but somehow also completing fewer of them,” Newark says.
For example, while many more young offenders are being diverted from the system, the time to process a youth case rose to 120 days in 2013-14 from 114 days in 2012-13.
In other words, despite a 12 per cent decrease in the volume of youth court cases, they take five per cent longer to make their way to the finish line.
“This seeming contradiction is an insight into an increasingly process-focused system,” he says, and requires more study.
Among the factors clogging the courts the report identifies: offences against the administration of justice (basically breaches of court orders), which slow the progress of any case to which they are attached; the “culture of complacency toward delay” among justice participants; and compulsory preliminary inquiries for such a broad range of offences.
The preliminary hearing is mandatory under the Charter of Rights and Freedoms in cases where the potential punishment is five years or more in prison.
But while many offences carry that penalty, for many, the maximum sentence is seldom imposed.
Break and enter of a house is an example, Newark says: The maximum penalty is life in prison but “virtually no one ever receives such a sentence.” He suggests the Criminal Code be amended to create hybrid offences with a five-years-less-a-day maximum, so that such cases could be heard in provincial courts without a preliminary hearing.
Interestingly, several times in the report Newark notes that “this issue merits further analysis by Juristat,” the justice and public safety data arm of Statistics Canada, and bemoans, as have others before him, the general lack of good information in Canada.
“Statistical analysis of justice issues is hindered in some areas by the failure of Statistics Canada and its Juristat program to report relevant data, even though it is gathered by and available from policing agencies,” Newark says. “Good justice policy can only be informed by gathering and analyzing the right data, but this has rarely been undertaken in Canada.”
The report is also critical of the courts for “exacerbating” the growing remand population — those who are in jail awaiting trial — by awarding extra credit for serving such time, until recently as much as on a twoor three-to-one basis.
The former Conservative government changed that to a maximum of 1.5-to-one, but, Newark says, stopped short of a clear amendment that permits pre-trial credit, but precludes it when bail has been denied because of the person’s past criminal conduct or because he or she was in Canada illegally.
Otherwise, Newark says, repeat offenders will continue to be rewarded.