Don’t blame crown attorneys for court delays

The central thrust of Michael Spratt’s latest article is that the solution to Ontario’s overburdened criminal justice system is for the political wing of government to “reign in” what the author says are complacent, possessive and overzealous prosecutors.
He leads his audience to believe that the primary reason for delay is that Crowns are zealously prosecuting every charge that comes before them without any considered reasonable exercise of discretion, that no charge gets diverted and no case gets resolved. 

To read his piece, one would think that prosecutors are completely ignorant of, or unconcerned with, the impact of mental health, substance abuse, poverty and other social determinates of criminal engagement.

This is, quite frankly, astonishingly simplistic and misleading. Data that is readily available through the Ontario Court of Justice website reveals an entirely different picture.

Between October 2015 and September 2016, 219,021 criminal cases were received into Ontario’s court system. During the same period, 178,060 cases were resolved prior to a trial date being set. That is 81 per cent. A further 8.4 per cent were resolved at the trial date, which means only 10 per cent of cases actually went to trial.

Further, a number of diversion/alternate measure programs and “therapeutic” courts have been long established in recognition that not every case needs to be vigorously prosecuted and that there are more effective ways of dealing with certain offences and offenders. We have dedicated mental courts, mental health diversion programs, drug treatment courts, early intervention domestic violence courts, “Gladue” courts for indigenous persons and numerous programs for young people. Thousands are funnelled through these programs. We also have a robust continuing education program through which every prosecutor considers changes in law and our role and responsibilities. At our most recent conference, the agenda included sessions on mental health, trial efficiency, innovations in the Ontario Court of Justice and aboriginal justice.

How could anyone objectively look at that information and conclude that the prosecution service of Ontario is “overzealous?” On the contrary, even with all of the efforts outlined above, we are constantly triaging in order to cope with a crushing caseload and to avoid delays.

The author’s criticism of “possessiveness” by Crowns also demands further scrutiny. He characterizes it as a “refusal” to allow another Crown conduct a trial where the assigned Crown is unavailable on the first available court date. He imports individual professional negligence to any prosecutor whose other trial commitments may lead to delay without any consideration of whether a) there is anybody else available to pick up a serious lengthy trial (in our under-resourced system, there is most often not) or b) whether it is at all wise or appropriate to do so in the first place.

Sometimes, it is in the best interest of the administration of justice to maintain continuity — to ensure best use of resources, continuity with victims and families and keep the best-prepared and knowledgeable Crowns on the case. In fact, the courts and the defence bar have in the past been critical of the Crown for not having a robust system of “file ownership,” where the rights of the accused have been breached precisely because serious cases got passed from Crown to Crown in order to accommodate competing commitments. We’re damned if we do, damned if we don’t.

The author ignores what just about everyone involved with the criminal justice system recognizes as one of the biggest contributors to overburdened courts: the dramatic change in the nature and volume of evidence. There has been a drastic increase in video evidence, computer and cellphone data and other forms of electronic and scientific evidence. We used to measure cases by the number of boxes. Now we measure in terabytes. We are required to watch, read, assess and analyze every piece of disclosure that comes before us, whether it is for an assault or a murder. This means cases take longer to process. For those that proceed to trial, it creates more opportunities for defence to challenge the admissibility of evidence, which leads to more pre-trial motions. And, of course, it takes longer to present the evidence at trial. And while this situation has been steadily increasing over the last 20 years, there has, until last month, been a decrease in the number of Crowns and support staff to cope with it. The truth is, front-line Crowns are drowning under the weight of it.

The resultant problem isn’t just with trial delay. It also means that Crowns have less time to properly assess and prepare their cases. It means that it is increasingly difficult for defence counsel to have timely and substantive meetings with the Crown to discuss cases. It means an increased risk of inadvertent non-disclosure.

We agree that the additional 32 Crowns and 13 judges announced recently are not going to solve all of the problems of this overburdened system. As the author pointed out, there are approximately 60 courthouses in this province. Many will feel no relief at all by this announcement. But it is an important first step to addressing a problem everyone saw coming. We also agree that resources must be allocated appropriately and rationally, and that we must constantly reconsider and engage in how justice is administered. Any entity that refuses to do so would be properly labelled complacent.

The Supreme Court, through R. v. Jordan, has directed us all — governments, prosecutors, courts, defence counsel — to take a step back and re-evaluate our processes and priorities. None of us is immune to criticism or self-reflection. We must continue an open and respectful conversation with our partners in the criminal defence bar about how to advance our shared goal of a robust and fair system of criminal justice. But to suggest that “overzealous, possessive” prosecutors are a problem plaguing the criminal justice system, in light of the facts set out above, is simply wrong.

Kate Matthews is president of the Ontario Crown Attorneys Association.