Look at local level in court delay saga

Data show local reforms are key, writes Anthony N. Doob.

Nobody appears to be willing to take responsibility for the efficient scheduling of cases.

In 2011, Canada’s Governor General noted that “the Ontario court system has been slowed by an inordinate number of unproductive (court) appearances and some of the longest court delays in the country.”

Last week an “emergency” meeting of Canada’s federal and provincial justice ministers met to discuss court delay. Reports of the meeting suggest that they are searching for a legislative fix for the very real — but obviously not new — problems in our courts.

Some of the things that were mentioned as possible causes of delay — the inexcusable growth in the number and severity of Canada’s mandatory minimum sentences, for example — certainly need attention. An examination of bail would also be welcome.

But the provincial ministers seem to believe that the fix lies in simple legislative changes to federal law. Since February, eliminating the preliminary inquiry seems to be the flavour of the month — three months in a row. Rather than look to the federal government to fix the problem of the provincially operated courts, however, the provincial attorneys general might have stayed home and looked carefully at the operation of these courts.

Publicly available Statistics Canada data show that the number of cases that Canada’s criminal courts completed has decreased by 19 per cent in the past five years.

But what about the flow of cases into and out of the court? Ontario data are on the Ontario Court of Justice website. The number of cases received by the courts decreased by 14 per cent between 2011 and 2016 and the number of cases disposed of by the courts was down 19 per cent. But last December, Ontario’s attorney general announced he would appoint 13 more judges (and everything else that goes with them) at a cost of $25 million per year to deal with our “bottlenecked” courts.

Apparently, Ontario needs more judges to do less work.

At the justice ministers’ meeting last week, the scores of mandatory minimum penalties legislated without justifiable purpose were seen as part of the delay problem on the plausible assumption that when facing a mandatory minimum sentence, accused people are less likely to plead guilty. But — at least for Ontario — this hypothesis is not supported by the data. In 2011, five per cent of all criminal cases were disposed of with a trial. In 2016, this had decreased to 4.5 per cent. The actual number of criminal trials in the Ontario Court of Justice had decreased from 12,913 to 9,325 — a 28-per-cent reduction.

The 2016 Ontario Court of Justice data tell us that 45 per cent of the criminal cases result in charges being withdrawn or stayed. There are good reasons for withdrawing all charges, though one could legitimately ask why these cases weren’t screened out before they went to court. It is harder to understand why so many are withdrawn late in the process after consuming considerable amounts of court resources.

It’s also difficult to understand why, in one province, in 2015, 46 per cent of the preliminary inquiries with five court appearances took more than three months for this five-day hearing to be completed.

Nobody appears to be willing to take responsibility for the efficient scheduling of cases.

If we took scheduling seriously, we could identify the most serious cases — homicide, attempted murder, robbery, sexual assaults and major assaults, for example — and treat them differently. These offences constitute eight per cent of the caseload and 22 per cent of the trials in the Ontario Court of Justice.

Scheduling to ensure that they — and in fact all other cases — were handled in an expeditious fashion shouldn’t be rocket science. Would it be terrible to give priority to serious cases? We might then work on the more systemic problems facing all cases.

I am not suggesting that “fixing” our courts is easy. But the available data suggest that a good starting point would be to look at what is happening at the local level rather than assuming that the fix requires changes to federal legislation.