Fixes for court delays should have us on edge

What, exactly, a justice system is supposed to do is at the root of last week’s monster Senate report detailing solutions for delays plaguing the courts. It’s not explicit, mind you, but implicit, because some of the recommendations sniff about at the roots of justice.

The impetus for the report is the fear that murderers are stalking the streets because their charges have been stayed (meaning they go free) after their trials took longer than is constitutionally allowed. Specifically cited by the honourable senators is Ottawa’s Adam Picard, whose firstdegree murder charge was stayed because of delays.

On justice issues, there are two kinds of people: Those who believe rights are rights and would rather see 100 guilty men walk free than tolerate even minute violations by the state, and those who think rights can be trammelled by other considerations, whatever those might be.

The honourable senators occupy the second group, believing as they do that there must be alternatives to staying charges once a trial’s gone on for too long.

Their suggestion, rather analogous to the Charge of the Light Brigade in its likelihood of success, seems even less likely in the wake of Friday’s Supreme Court ruling in Cody, a trial delay case from Newfoundland, which essentially affirmed that, yes, courts are going to have to abide by the time limits the top court laid out less than a year ago. The court didn’t re-open its long-established principle that the only remedy to a too-long trial is to end it.

Happily, many of the other suggestions the senators make do right by the principles of justice while being practically helpful. Key among them: There ought to be fewer people caught up in the criminal justice system. Sometimes, politicians boggle with their gift for noticing the perfectly obvious.

Of course there are too many people facing charges for crimes that shouldn’t be crimes. Obviously, drug use shouldn’t be criminalized. Nor should, say, public drunkenness or violating bail conditions when it’s nearly impossible to abide by them.

And yet — caution, ladies and gentlemen.

There’s going to be trouble when it comes to activities most people think ought to be heavily censured, but the senators suggest they might be dealt with outside the criminal system, to get these cases out of the queue. We’ve seen, for example, the creep of extra-judicial tribunals in Canada, particularly with human rights commissions, which can regulate speech.

The most obvious example, from the report, is drinking and driving. About 33,000 drunk driving cases were completed in Canada’s courts in 2014-15; it’s among the most disdained crimes in Canada. Some provinces are experimenting with nicely euphemistic “administrative” solutions to inebriated motoring.

For example, the Senate report speaks approvingly of British Columbia, where there are roadside driving bans and fines for people with a certain amount of alcohol in their blood, even when it falls short of criminal intoxication.

“The government essentially opted out of the Charter and Charter rights, opted out of any meaningful disclosure process and opted out of any meaningful test of police evidence,” Vancouver defence lawyer Paul Doroshenko warned the senators.

In May, Alberta’s top court firmly rebuked that province for suspending drivers’ licences upon being charged with impaired driving — essentially, a punishment before a finding of guilt. This is an obviously offensive proposition, but precisely the sort of thing governments will do when protections courts offer are diluted.

If activities that are still conceptually criminal are dealt with through an alternative system of some sort, “accused” people are not getting their day in court as they deserve.

Sure, it might offend some people and some principles of justice that those who are likely guilty can walk free because of court delay.

Then again, it’s far more offensive when we replace a process meant to protect people with one that lacks sufficient accountability. Rights cannot be tossed aside like a dead plant, no matter how bad the delays are.