Complacency is the culture in courts

The Supreme Court of Canada case known as R v Jordan is but eight months and change old. It’s in its infancy.

And by the standards of the Canadian criminal justice system itself, where things move along at a glacial pace, it’s far too soon to evaluate the sucker.

The decision by a majority of the court radically changed what is tolerable delay and what is not. The judges dared to impose a “presumptive ceiling” on how long it should take to bring an accused person to trial — 18 months in the busy provincial courts and 30 months for the serious cases destined for the country’s Superior Courts.

Perhaps more important, in the process the court attempted to shock the sleepy, lazy system and the somnolent governments that pay for it into reform. Naturally, the system and some participants have reacted as you might expect; they have a bad case of premature denunciation.

The farcical nature of this denunciation is best captured in a story in the other national newspaper, which appeared last week and kicked things off. The paper reported that lawyers across the country are seeking stays in about 800 criminal cases — including some murder and attempted murder charges — for unreasonable delay since the Supreme Court issued its decision last July.

What it failed to note is that most of those cases are the “transitional” ones, where charges were laid before R v Jordan and for which the court deliberately built in forgiveness. For the most part, these cases haven’t yet been reviewed by appeal courts, and thus it’s far too soon to say that the charges will be stayed, the prosecutions lost.

Two of the high-profile murders referred to in the story date back to 2012 and 2010 respectively, years before the decision in Jordan was issued.

But back to the farcical bit. The story quoted Anne London-Weinstein, president of Ottawa’s Defence Counsel Association, saying, with what sure seemed like evident disapproval, that “the Jordan shadow has fallen over the courtroom. Judges are hyper-vigilant about not wasting time.”

(With all due respect to London-Weinstein, I have spent four decades covering the courts, including several cases in Ottawa, and I’ve encountered only a handful of judges — John McMahon, Michael Code and the recently retired Eugene Ewaschuk, all of the Ontario Superior Court in Toronto — who displayed even the slightest inclination in not wasting time.

Indeed, a casual observer wandering into the ordinary courtroom across the land might imagine that wasting time, in fact, is the judge’s sole function. Start late, break often and long, wank on ad nauseam, and end early is practically the system’s motto.

And, the story went on, “In another case, a judge sought special permission from court administration officials to hear a jury trial into the summer months .…”

Can you imagine? The vision is horrific: A criminal court, having to work the summer, just like the rest of the schmoes.

This observation was couched of course in concern for the schmoes, the poor potential jurors, but with respect, they ain’t the ones used to having an entire summer off.

It reminded me of a story I found when I was writing about the unaccountability of the judiciary for my book on the justice system.

In 2006, Wally Oppal, a former B.C. Supreme Court judge, was the province’s attorney-general, and in a Vancouver Sun piece about “slow justice” in the provincial courts, Oppal was quoted posing a mild rhetorical question to the reporter.

“Why do we still start trials in the Supreme Court (the Superior Court in other provinces) at 10 a.m.?” he mused.

That earned him a rebuke from the then-chief justice, who dashed off an email demanding an apology. Blessedly, the Sun got a copy of the email too, and Oppal did not apologize.

But complacency is the culture in the criminal courts, and only those who are rarely in them would doubt it. That, in a roundabout way, brings me to an editorial that appeared in the same paper a few days after the story.

Now, it’s true that the sensible person doesn’t look to newspaper editorials for guidance — on anything really, from which party to vote for to what to wish for in health care to how to judge the worth of political candidates.

This may hold particularly true for a newspaper that lists in its masthead (the traditional place on the editorial page where the names of various editors appears) merely a “Head of Experience” and a “Head of Audience.” No journalism body this precious ought to purport to dispense advice.

As for what might help speed trials along, how about ditching the preliminary inquiry, that archaic time-waster of a procedure, in many cases? How about the feds fill some of those vacancies on the bench? How about the police lay only the necessary charges, not duplicates that allege the same thing? How about prosecutors whittle the charges down? How about considering a public defender system, as opposed to the broke, inefficient and flawed legal aid system?

R v Jordan may be trying to fix the unfixable; that remains to be seen. But at least the Supreme Court majority are trying.

HOW ABOUT DITCHING THE PRELIMINARY INQUIRY?