Real change in court system must start with Crown attorneys
- Subtitle: The Woodshed
The fix to delays in our courts is not as easy as simply feeding the beast. But this was the solution proposed by Ontario’s Attorney General Yasir Naqvi earlier this month. Naqvi’s proposed solution of half measures including a handful of new judges and prosecutors is a Band-Aid that will not result in quicker justice.
The only real solution to court delays is to refocus and rethink how we use the justice system — maybe the beast needs a diet.
There can be no debate — delays in our justice system are a very bad thing. With every week, month and year of delay, memories fade, the quality of evidence degrades and victims are denied legal closure.
And, often intentionally overlooked is the reality that court delays mean that accused persons who are presumed (and often are) innocent suffer ongoing stigma, stress, loss of employment, oppressive bail conditions and incarceration waiting for their trial dates.
Let’s get one thing straight — there is not one accused person being held in our Dicken-sian provincial jails who is intentionally delaying their day in court. There is simply no benefit to do so. Ontario’s remand centres are violent, overcrowded, humanity-destroying hellscapes, which are completely devoid of any rehabilitation programming or basic human comforts.
No one wants to be in provincial jail waiting for their day in court and every presumed innocent but jailed client I have ever represented begs for a quick trial date.
Naqvi’s high-profile announcement of 13 more judges and 32 assistant Crown attorneys will do little to ensure faster justice. To put those numbers into context, there are about 60 courthouses in Ontario. So, I look forward to the extra 0.2 judge that the Ottawa courthouse will receive.
Why did Naqvi even announce this ineffective half measure? The answer is simple —court delays are now a political issue.
The seeds of the new political hot potato were sown earlier this year with the Supreme Court of Canada’s decision in Jordan where hard caps were imposed for the amount of constitutionally acceptable pre-trial delay.
It seems the Ontario government was shocked when lower courts actually implemented the time limits.
Last month, an Ottawa judge dismissed a charge of first-degree murder following 48 months of delay and in September the Ontario Court of Appeal threw out serious assault charges after applying the Supreme Court’s delay decision.
When serious charges are thrown out of court, the accused loses the chance to clear their name, victims are denied justice and the public has every right to demand answers.
In short there is public out-rage when cases are thrown out of court — this is what gets the attention of the political class.
So let’s clear the air. The first-degree murder charge was thrown out of court because of the actions of the Crown attorney. The serious assault charge was dismissed because of the ac-tions of the Crown attorney.
The indictment of the Crown’s conduct in both cases was damning. In the first-degree murder prosecution, the assigned Crown refused to allow a colleague to conduct the trial despite the fact his own unavailability caused more than seven months of delays. In the court’s words, “the Crown chose to deliberately ignore delay.”
Maybe this should not have come as a shock. A month earlier, the Court of Appeal de-scribed the same senior Crown’s conduct as “a poster child for the culture of complacency to-wards delay so rightly condemned in Jordan” and a “failure to pay any real heed” to the Charter rights of the accused.
Any public anger should rightly be directed at the actions of the Crown. And this is where the government’s attention should be focused. A handful of additional judges and prosecutors will do little to change a systemic Crown culture of complacency, possessiveness and overzealousness.
The cure to court delays is simple — there must be a culture change at the upper levels of our Crown attorneys’ offices. Resources must be allocated appropriately and rationally. Minor charges should be diverted. Mental health and addiction issues — the root causes of many offences — should be treated and understood not prosecuted. Reasonableness and efficiency — when called for — should be rewarded.
Perhaps if the government and its prosecutors had spent less court time fighting a heavy-handed battle to extract a few dollars in victim fine surcharges from the poor and more time focusing on serious homicides, there would be quicker trials (and fewer charges dismissed due to unconstitutional delay).
Maybe if the government spent money to implement rehabilitative programs in our pro-vincial jails instead of simply warehousing impoverished and addicted offenders, there would be less recidivism and fewer matters in our courts to begin with.
We don’t need more prosecutors — we need more reasonable leadership in government and the ranks of senior Crown attorneys.
If Naqvi is serious about modernizing and streamlining our courts, if he is serious about ensuring faster justice, if he is serious about seeing that murder charges are never thrown out of court due to delays, he must do what is wholly within his power: He must stop feeding the beast and reign in his prosecutors.
Michael Spratt is a partner at the Ottawa criminal law firm Abergel Goldstein & Partners. He has served as a director of the Criminal Lawyers’ Association and is currently the vice president, of the Defence Counsel Association of Ottawa. He is an award-winning blogger who frequently appears as an expert witness before the House of Commons and the Senate. Check him out at michaelspratt.com and on Twitter @mspratt.
Column: The Woodshed