How long is too long in the courts?

Last summer a narrow 5-4 majority of the Supreme Court of Canada defined “unreasonable delay” in prosecuting criminal charges as longer than 18 months in provincial court cases and 30 months in superior court cases.

The fallout was immediate. Defence lawyers filed hundreds of requests to have charges dropped. At least one first-degree murder charge has since been tossed for unreasonable delay, although that decision has been appealed.

Seeing extremely serious charges dropped has spiked public concern, but many of these cases involve hardship and, yes, injustice, for accused who have been dragged through the justice system wringer far too slowly.

Linda “Montana” Jones is a case in point. The Hastings-area owner of a farm for heritage animals was charged in 2012 with spiriting away a flock of sheep about to be euthanized for fear they were infected with scabies.

In December, 4 1/2 years later, Jones and a co-accused had their charges dismissed under the unreasonable delay provision. The sheep had long since been been found and destroyed; Jones was broke and no longer able to afford a lawyer.

Trial delays have been a concern for decades and the Supreme Court decision reflects the court’s frustration with government inaction. Now some fairly radical steps are being proposed.

Just this week the judges who oversee Manitoba’s highest court asked the province for a four-year experiment in which preliminary hearings would be done away with.

The purpose of a preliminary hearing is to test the evidence in a case and determine if it is strong enough to go to trial.

In reality, very few charges are dropped at that stage. Historically the primary role has been to allow the defence to see the Crown’s evidence so that someone facing charges stands a fair chance at trial.

Defence lawyers have reacted strongly against any cutback of preliminary hearings, something Ontario is also considering.

However, the Crown is now required by law to fully disclose all the information and evidence it holds. That makes a preliminary hearing much less necessary, if not redundant, in most cases.

It would be beneficial to have Manitoba go ahead with its experiment. Other provinces would learn from the experience and it shouldn’t take four years to weigh the advantages and disadvantages.

Better yet, Ottawa could pass legislation imposing its own time limits for cases to be disposed of. California’s Trial Court Delay Reduction Act, which has been law for nearly 30 years, sets much more precise regulations and overrides than any court decision could.

Federal legislation would make the Supreme Court ruling redundant and put responsibility for framing how the legal system works back where it belongs – in the hands of elected members of Parliament.