Senate report on court delays lays bare some big truths
Earlier this week, in a grovelling exercise that is the norm for journalists wanting copies of court exhibits in most parts of this country, I found myself in line at the clerk’s counter at the main courthouse in downtown Toronto.
I was already beside myself with indignation, having spent the morning trying to hear the lawyers and witness in a significant sex- assault trial I am covering — microphones that amplify are a rarity in Ontario courts — and being stymied in my efforts to even physically get the permission form for exhibits to the judge.
In the end, I stood up and addressed Her Honour in court, and she settled the whole business with her usual efficiency, fixing what she could.
Still, I was luckier than members of the public, who endure the same time-wasting lunacy and often also must engage in the courting of lesser clerks in order to ascertain the correct counter, room and staff in front of whom to perform the full grovel.
And I was certainly luckier than the lawyer in line before me. Six hours earlier, as she reminded one of the clerks, she had won bail for her client. Alas, he was still languishing locked up in the cells, there being not enough staff to process the paperwork to get him released and no justice of the peace to sign his bail in any case.
There was only one JP in that day, the lawyer was told. And he was a half-hour late so was running behind.
Around her were distraught family members of her client.
It is with this recent anecdote that I segue to the long report released Wednesday by the Standing Senate Committee on Legal and Constitutional Affairs.
It’s this committee’s final report on the crisis of delay, and what the Supreme Court of Canada famously called the “culture of complacency” that infects Canadian courts.
Complacency is exactly what happened in my court two days ago, at the clerk’s office, and most outrageously, to the poor S.O.B. who should have been feeling the sun on his face well before he did, if that is, he ever got his bail signed and was sprung.
Far be it for me to engage in wanton praise of anything that comes out of the Senate, but this report is one of the smartest things I’ve read about justice and the system in Canada.
I give credit for that, at least in part, to senators Bob Runciman, a level-headed veteran former Ontario Conservative MPP who was the committee chair, and George Baker, whom I don’t know but who is a Newfoundlander and therefore entitled to be presumed wise and pragmatic both.
It takes far too long to get to trial in this country, a situation recognized by the Supreme Court last July in a case called R v Jordan. The court set strict new time limits for addressing the delay and ever since, as cases that exceeded those generous limits were granted “stays” and accused people walked free, the courts have been in their genteel way, crying that the sky is falling. All the while, the various participants in the system have been throwing proposed solutions at the federal justice ministry, often with an eye to protecting their slices of turf or advancing their particular agendas.
The Senate committee heard them all — 138 witnesses, including sitting and retired judges, prisoner advocates, Crown prosecutors and defence lawyers — over the past 16 months.
Not everyone will agree with all of their 50 recommendations. I don’t myself.
But the thrust of the report is fabulous because it tackles the system as a whole and recognizes certain big truths.
The first is, there are too many people in jail. Prison is not the place for drug users, the mentally ill, the impoverished aboriginal offender and the poor bugger who is granted bail, with hopelessly unrealistic conditions (e.g., to the alcoholic shoplifter, don’t drink or steal stuff ), and then finds him or herself criminalized because of administrative offences.
And jail is certainly not the place for the unlucky sods who don’t qualify for bail solely because they are homeless, indigent, addicted or mentally ill and there aren’t bail programs that will accept them.
As one of my favourite contributors to the discus- sion, Saskatchewan deputy justice minister Dale McFee, told the committee: “It’s time to change the conversation, folks, from debating soft on crime or hard on crime — ‘ hard on crime’ being arrested and incarcerated, ‘soft on crime’ being prevention and intervention — to one that is smart on community safety…”
And if a country is smart on community safety, the first order of business is to acknowledge that most offenders don’t belong in prison except for those who commit violent crime — convicted murderers, rapists, child abusers, etc.
The committee never explicitly says that prison should be for the few, not the many, but it’s that principle that drives its cry for reform — for better ways to handle impaired driving offences, for more restorative justice, for alternatives to jail.
The courts have to recognize their core business is providing fair and speedy justice, and that justice doesn’t always equate to appearing 25 times before a judge.
And, oh yeah, the committee urges modern justice — with computers and a national electronic system that even accused people and their lawyers could access, the whole shebang — and an end to the Dickensian sort, with its paper files, shucking and jiving before functionaries and people rotting in the cells below.
Good work, Senators; who would have thunk? It’s online for free.
IT TAKES FAR TOO LONG TO GET TO TRIAL IN THIS COUNTRY.