Not built for speed: Studying the delays in criminal hearings

  • February 24, 2016

When the Senate Committee on Legal and Constitutional Affairs launched its study into delays in hearing criminal cases in Canada in early February, it gave the CBA a chance to hold forth on a subject on which we have many things to say, but gave us very little time to prepare to say them.

On Feb. 18, Tony Paisana of Peck & Co. in Vancouver and Ian Carter of Bayne Sellar Boxall in Ottawa appeared by videoconference and in person, respectively, before the committee on the CBA’s behalf with a submission compiled from previous comments and submissions to government made by the Criminal Justice Section.

In a Feb. 16 letter to Senator Bob Runciman, who chairs the committee, Criminal Justice Chair Suzanne Costom said while the Section was “severely constrained by having limited notice about this opportunity,” its members “would be happy to appear before the Committee on a subsequent occasion, with more notice, at which time we could provide additional detail.”

It may have been hastily compiled but the submission to the committee was nevertheless replete with areas of concern and ideas for mitigating the issues that cause lengthy delays in criminal matters.

For example, the Section notes that disclosure – gathering the information, preparing it, adjourning cases while more is gathered, and reviewing it – is a significant factor in delaying court cases. The Section recommends “improved Crown and police policies for preparing disclosure, particularly for matters that do not require immediate charge approval. The goal should be to have near-complete disclosure ready at the first appearance.” It also recommends that police services be able to hire counsel and support staff to vet disclosure before it is handed over to the Crown.

Failing to accurately estimate how much time a court case will take is frequently a factor in court delays – a case that takes longer than estimated pushes back those behind it, and also lengthens the trial in question, as defence counsel, Crown and judge will have all filled their calendars in anticipation of a trial ending on a certain date, and finding a new date when all are again free can be problematic. “The CBA Section recommends a more robust pre-trial procedure, requiring appearances before case-management judges with focused submissions on the structure and anticipated nature of trials and hearings,” the letter says. “It is better to have slightly more delay at the intake stage to ensure an accurate estimate of time required than for the matter to be hastily scheduled and rescheduled when it becomes obvious that more time is needed.”

Technology could take care of another time waster by allowing accused or counsel to appear electronically for routine appearances, “unless there is a dispute that requires judicial oversight.”

Other recommendations in the letter:

  • Prioritizing early resolution: More than 90 per cent of criminal cases do not end with trial, the Section says. “If trials are not set unnecessarily, then no court time is wasted when the matter is inevitably resolved.” This is another argument for adequate disclosure, because often the merits of a case aren’t entirely clear until disclosure is complete, which could take months. Mandatory minimums and constraints on Crown discretion add to the delays. Solutions could include giving greater sentencing credit for early pleas; paying legal aid counsel in such a way as to encourage early resolution; and a more robust Crown charge approval system.
  • Filling vacancies on the bench and appointing experienced criminal lawyers as judges.
  • Enhanced federal funding and responsibility for legal aid; and legal aid plans and Crown offices resourced to attract experienced lawyers.
  • Reinstating the Law Reform Commission of Canada so that it can continue its work of building an evidence-based foundation for further legislative changes.

“Finally, we suggest a cautious approach when considering changes to fundamental concepts of criminal law,” Costom writes.

“Complex and often interrelated issues are at play, and an adjustment that may seem uncontroversial can have unanticipated ripple effects in other areas of the system.”

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