The solution to court delays
- Subtitle: Editor's Desk
Did the Supreme Court of Canada help anything when it released R. v. Jordan last July, giving courts a timeline before criminal charges are stayed due to delay? Regardless of how you answer that question, you can’t deny that the decision has had an effect. The SCC essentially launched a grenade into the debate about trial delays and how to fix them.
There are a number of critics of the decision who think the court overstepped its bounds. These include some in the media who have accused the court of letting criminals off “scot-free” and threatening “legal anarchy.” The dissenting SCC judges put it more mildly, saying it is Parliament’s job to make those kinds of rules. These critics see it as the government’s job, not the courts, to deal with how the system is — or isn’t — funded.
But the problem with this argument is that without a grenade, the government will likely never act. As lawyers all know, pumping money into our justice system doesn’t buy votes. And as politicians all know, spending money on education and health care often does. People understand that the sick need to be cared for and children need to learn. Voters don’t sympathize so much when you throw money at “criminals.”
That is why Jordan, instead of overstepping any bounds, was actually a gift to politicians who privately acknowledge that fixing trial delays should be a political priority. Provincial governments can now tell their voters that they are working with Ottawa to prevent murderers from walking the streets.
Like any complex problem, however, there are entrenched interests and wide-ranging views on just how to fix the problem. And as our cover story explores, solutions are starting to bubble up across Canada. Some ideas are not so good, such as eliminating preliminary inquiries that often speed up, not slow down, the resolution of cases. But other ideas — such as Alberta’s “triage protocol” for Crown Counsel or B.C.’s use of pre-charge screening by the prosecution and administrative penalties for impaired driving cases — may be working.
As many less dramatic commentators have pointed out, the fear that a flood of people facing serious criminal charges are going to be released may be misplaced. The real meat of the problem is not the high-profile murder cases where someone could potentially be “let off.” It is the mid-level offences, such as theft, impaired driving and failing to comply with a court order. Solving the bottlenecks for these offences may not be as politically urgent — theft charges being stayed does not make as dramatic a headline as murder charges being dropped — but expediting these cases is where the real reform is needed. But Jordan again may help, if governments can argue that “diversion” programs are more necessary so that scarce criminal justice resources can be redirected to the more serious cases.
Certainly, Jordan didn’t solve the problem of court delays. The Supreme Court can’t do that. But it launched a grenade, which will always cause people in the room to focus their attention and speed things up.
Published in Commentary
Tim Wilbur is a senior editor and licensed lawyer with over ten years of experience in the legal media. He is responsible for the editorial of Canadian Lawyer and Findlaw.ca.