Financial penalties sure way to speed up excessive trial delays

Allowing people accused of serious crimes to walk is a bad remedy,

The Supreme Court of Canada has rightly condemned excessive trial delay, which in some extreme cases has resulted in an accused person spending as much as five years in custody before the trial begins.

Unfortunately, the remedy so far has been to grant a stay of proceedings, which means a person accused of murder or other serious violent crime walks out of jail after a court decides the delay has been excessive.

This should not happen. Some of these people represent an immediate danger to the public and it is wrong that they should never be tried for the offence for which they were charged.

The court recognizes three types of trial delays: those caused by the defence, the Crown or simple logistics. If delays are caused by the defence for no justifiable reason, there is no reason to grant any remedy to the accused. If there is excessive delay caused by the Crown for no adequate reason, such as a lack of prosecutors or a slow case preparation, it will result in a stay of proceedings and the accused being set free. Institutional delay — too few courtrooms for the case load in the jurisdiction, too few judges, too few court staff, or any other reason connected with the administration of justice — can also result in a stay of proceedings.

When an accused person is jailed, or even if free on bail, and waiting years for his trial, most rational people would accept that his right to a fair and timely trial has been violated. But surely just wiping out the charges, especially the most serious ones, is not the best remedy.

The administration of justice is a provincial jurisdiction. The provinces are responsible for creating the courts, staffing them and appointing prosecutors. It should be noted there are also federally appointed prosecutors who handle some federal offences, primarily drug cases, in provincial courts.

The Supreme Court of Canada has noted a “culture of complacency” in the prosecution of criminal cases which has contributed to the unacceptable trial delays. What is needed is something to goad the provinces into action.

Here is what I suggest. Using the maximum times established by the Supreme Court of Canada to get cases to trial, and where the delay is Crown or institutional delay, a financial penalty should be imposed on the province. That penalty would be a daily amount, say $300, to be deposited by the province into a personal trust fund in the name of the accused. It would start the day after the maximum time set by the Supreme Court and end on the day the trial commences. This would be compensation for the accused being held in jail, or out on bail with his activities restricted, with the charge hanging over his head for a time deemed excessive by the Supreme Court. The accused would have access to the fund only with the approval of a professional administrator who would ensure the accused used the money for housing, food or other proper and lawful expenditures. The accused would also not have access to the fund until after trial, but win or lose, the fund compensating for the excessive delay would belong to the accused who was denied his right to a timely trial by Crown or institutional delay.

Ordinary folks aren’t happy with the idea that a serious criminal might be released and charges stayed if there is excessive delay, but most won’t worry that they will be the next victim. On the other hand, once people realize that the provincial government is paying $300 a day of their tax dollars in compensation for a delayed trial, there will be general outrage.

There will be tremendous public pressure on provincial governments to fix the system, create more courtrooms and staff them, and ensure the Crown gets its work done promptly. That will cost money, but better to spend it that way than to use it to compensate accused criminals for excessive delay in dealing with their cases.

How could such a scheme be imposed on the provinces? The Supreme Court of Canada has, on other occasions, ordered the provinces to enact legislation to ensure charter rights are given effect. It could do it again in respect to the right to a timely trial.

Better than just letting the accused go, don’t you think?