How to tackle court delays

Here’s the ugly choice the Senate seeks to grapple with in a new report on Canada’s faltering criminal-justice system: either we get unconstitutional court delays that deny justice to victims and the accused alike, or we watch people charged with serious offences go free without trial.

In the year since the Supreme Court imposed strict time limits on criminal trials, an alarming number of cases have been thrown out because the system failed to abide. People charged with murder, manslaughter, sexual assault against minors and many other crimes have been set free, their guilt untested. Victims in those cases will likely never see justice.

Yet given a chance to clarify its controversial ruling last week, the top court reaffirmed the need for deadlines. On Friday, it unanimously decided to throw out drug charges against James Cody of Newfoundland and Labrador that had been languishing before the courts for 60 months and 21 days.

Such delays, the court confirmed, violate the charter right to trial within a reasonable time. Notwithstanding the spate of stays and the threat to public safety it represents, the court stuck by its commitment to shake our justice system out of its “culture of complacency.”

The delays are truly out of control. In 2013-14, the median completion time of a case before superior courts was 514 days. Before the Supreme Court imposed its deadlines of 18 months for lower courts and 30 months for superior courts, it was not uncommon for proceedings to carry on for upwards of five years, like in the Cody case.

The Senate report, released last week, seeks to thread the needle, attempting to deal with both stays and delays. The product of more than a year of study, “Delaying Justice is Denying Justice” makes 50 recommendations for how to address the crisis, some of them minor tweaks, others major overhauls, all worthy of careful consideration.

On the issue of stays, it suggests Ottawa should add to the Criminal Code remedies for undue delays other than throwing cases out. These would include, for example, financial compensation for the accused. But whether such laws would pass constitutional muster or provide sufficient incentive for the courts to avoid delays is far from clear. In any case, rather than focusing on alternatives to stays, governments would be better served tackling the roots of the crisis.

On this, the report provides a worthy agenda. Several of its recommendations seem uncontroversial and ripe for immediate action. For example, it recommends that the court system finally bring its administrative processes into the 21st century by introducing technologies “that facilitate co-operation, permit increased information sharing and improve efficiency.” It also suggests that judges be given better training on case management, particularly on how to avoid the kinds of unnecessary adjournments that have become all too common.

More pressing still is the report’s suggestions on judicial appointments. The Trudeau government has been painfully slow to fill vacancies on the federal bench. Forty-eight such spots are currently unfilled, significantly contributing to the grinding pace of justice. The Senate sensibly recommends that, whenever possible, superior court judges be appointed on the day a seat becomes available. The justice minister should seek to make this a reality.

But the recommendations that have the potential for the most profound and enduring impact go to the very purpose of the justice system. It’s been 35 years since the federal government last formally considered this question. In 1982, at a time of rampant and rising crime, the federal justice department published a paper examining the role of criminal law. It concluded that incarceration should be a last resort and that less punitive and costly alternatives should be given priority.

But in the decades since, and with particular enthusiasm under the government of Stephen Harper, we moved in the opposite direction, stripping away judicial discretion and shunning alternatives to prosecution. In this context of increasingly punitive policies that bring more people than ever in conflict with the law, the Senate’s suggestions regarding restorative justice and other alternatives to traditional criminal prosecutions are particularly crucial.

For over a decade, governments have put profound pressure on the system without making the investments necessary to ensure it can handle the burden. We have been tough, but not smart, on crime. Thirty-five years after the justice-department report, crime has substantially declined, yet our prisons have become dangerously crowded and our courts so clogged that unconstitutional delays are commonplace.

The crisis of court delays requires urgent action and the Senate has offered a valuable roadmap. But to truly tackle the culture of complacency, it will not be enough simply to ensure the system works. Ottawa must ask itself again what purpose it works toward.

To truly tackle the culture of complacency, it will not be enough simply to ensure the system works. Ottawa must ask itself again what purpose it works toward