Reinventing criminal justice funding in Canada

It must be said that the federal government did an admirable job in providing emergency funding during COVID.

If our institutions and businesses survive COVID and resume some sort of new normal, government support will have been a significant contributor.

However, there is one vital institution that is, and will be at the back of the funding queue, criminal justice, as health care and regional economies will certainly be priorities for increased financial support.

Very few, if any, politicians run for office supporting a strong, independent, properly funded criminal justice system.

That is likely because, not everyone encounters the criminal justice system. In fact, most shun it or tend to shamefully whisper their involvement.

This is tragic, as an independent, respected, and properly funded criminal justice system is integral to democracy. It guarantees the rule of law, the presumption of innocence, and provides checks on government overreach.

Sadly, criminal justice has become the dumping ground, the unwitting and ill-equipped recipient of too many of society’s ills, including mental health, joblessness, homelessness, collapsed relationships, poverty, addictions, and non-existent mentors. Society doesn’t sweep these issues under the rug; we shovel them into the courts.

That practice has been exacerbated during COVID. Isolation, hopelessness, partner violence, addictions, and depression, have increased, and so has the resort to the criminal courts.

Many courts, however, have been intermittently closed, causing cases to be put off, leading to an approaching log jam, and one that will cripple our system.

Judges and court staff, counsel for the Crown and defence are exhausted. Many prosecutors and defence counsel have fled the system during the pandemic. Some “set date lists” can take an entire day, often into the evening, simply to have cases put over to another date, causing delayed resolutions for accused, complainants, victims, the police and society.

Community organizations which often help with housing, mental health support, or jobs, are also suffering from the ravages of COVID, and unable to support the courts. Important cases require dedicated resources to be available to deal with them fairly and efficiently.

Criminal justice stakeholders, before COVID 19, talked for countless years about the need for technology. It seemed to be invented in about nineteen minutes. It has been a life saver for the system in some ways, but it is expensive and unavailable in many locations. Not everyone has an iPhone. Not everyone has a laptop. Not everyone has a computer.

It is time for the federal government, in collaboration with the provinces and territories, to establish a special COVID funding program for criminal justice. Admittedly, we have a constitutional hurdle that needs to be addressed. It is the provinces who are responsible for the “administration of justice.” The federal government introduces legislation but then cannot dictate how money is allocated to pay for it. This hurdle must not be a roadblock.

I suggest the federal government set aside a one-time COVID fund for criminal justice, a collaborative pilot project. Paying for criminal justice must be shared.

The provincial courts of justice in this country are the busiest, where 90 per cent of criminal cases are dealt with. This court should be the target of this funding.

The federal government could set up an independent management committee. It would review applications from the provinces or territories for targeted funding.

The three chief justices of each province could collaborate and establish their own committee to decide where the funds are most needed. It might be in appointing counsel for the unrepresented. It might be in scheduling judicial management meetings to address cases contributing to the log jam. It could be increased funding for legal aid to allow representation for cases not covered. It could be for increased resources to enhance specialty courts such as mental health courts or drug courts, to divert cases out of the criminal justice system. It could be for increased staff, for community organizations to provide jobs, shelter, and counselling, or for the expanded implementation of technology for remote and virtual appearances.

The federal panel would review the applications and allow the funding with the condition that it must go to the specifically proposed solution. The provinces and territories could be required to report back in twelve months as to the use and success of the program.

There are ten provinces and three territories in this great country.

My proposal is that the federal government set aside 130 million dollars with the anticipation of allocating ten million to each region.

Some may argue that Nunavut for example, has a smaller population and should not receive as much as Ontario. This is political gamesmanship that is not helpful. I suspect Nunavut has less infrastructure, less technology, less mental health support than others, and a significant issue of access, given the remoteness of many communities.

Criminal justice is a vital issue for all of society. Supported properly, it promotes safer, healthier communities. It promotes and protects the rights of individuals, often racialized. It decreases incarceration. It honours a system in an age of rapidly increasing artificial intelligence that protects the dignity and privacy of each one of us.

This special COVID fund could be a catalyst to preserving and enhancing this system, at a time when governments will be prioritizing elsewhere. It may even lead to inventing a new approach to funding.