Justice delayed is justice denied

Justice delayed is justice denied
James Morton, National Post Published: Wednesday, February 06, 2008
In the early evening of Dec. 7, 1955, Joseph Gordon and a long-time partner, Peter Carey, were sitting outside a Vancouver-area fuel company depot, waiting for a chance to rob it. Because it was winter and in those days people often paid for home heating fuel in cash, there was a large amount of money available.
Unfortunately for the pair, a policeman, Constable Gordon Sinclair, noticed them and investigated. Tragically, Constable Sinclair was shot and killed.
Shortly thereafter, Gordon was arrested, tried for murder and convicted. His appeal was heard by the British Columbia Court of Appeal in October of 1956. After subsequent attempts to appeal the conviction and seek clemency failed, Gordon was hanged on April 2, 1957. The time between the offence and the execution was 16 months.
The Gordon case was not particularly speedy. As late as 1965, an Ontario capital murder case, R. vs. Black, involved a murder in January, a full jury trial in June and a Court of Appeal decision in November. Less significant cases moved even faster. Records suggest that Magistrate Court matters were often disposed of within a month of the offence. In Toronto, shoplifting cases were sometimes tried the same week.
Today, the situation is completely different. The opening paragraph of a recent decision at the Ontario Court of Appeal, R. vs. Walizadah, says it all: "The appellant … was tried before [a judge and jury] in Toronto for [a first-degree murder occurring] on December 30, 1999. The trial commenced on November 19, 2002. On April 4, 2003, he was convicted as charged." The Court of Appeal's decision was granted July 12, 2007, more than six years after the murder. Note that the trial portion of that time was about five months.
The public -- not just lawyers and defendants -- should be outraged by such delays. Just last week, the Ontario Superior Court decided that corruption charges against a group of Toronto police were too stale to proceed. The facts behind the charges, many of which were widely reported in the media, were a decade old, and the charges themselves were laid four years ago.
Last year, I was asked to take on a murder trial starting in the summer. There was no issue of who was involved; the only question was whether the death was intended or accidental. As murder trials go, this one was quite straightforward. I considered taking it until I learned that the trial was scheduled to last nine months. (As of today, that seems to have been too short an estimate.)
Our criminal justice system was not designed to accommodate such lengthy delays. They set everything off kilter, from pre-trial custody to sentencing.
The vast increase in delays in criminal cases has, among other things, made bail far more important than it was a generation ago. When the delay before a trial was a matter of weeks or, at worst, months, the release -- or non-release -- of people charged with crimes was not very important. Even if sentencing later took pre-trial incarceration into account, as it does today, nothing much turned on the point. Today, on the other hand, if someone sentenced to five years in prison has already spent two years in jail waiting for trial, and those two years are doubled to count as four (as the law permits), the whole point of sentencing is lost. As for those not released on bail and then found innocent at trial after months or years behind bars, they have been punished before acquittal.
Another result: The conduct of people released on bail has become more of a public issue. The main problem is not that the wrong people are being released on bail, or that people who should be released are not. The problem is that bail was designed to deal with accused people for a very short time before they went on trial. When that short time becomes a very long time, the system fails.
Assume, for example, that a career criminal is charged with a very minor offence, not one for which they ought to be held pending trial. If the criminal is released knowing that a trial is likely to happen in the next month, they will probably try to stay out of trouble for that time. But if they are released with a trial date 12 to 14 months away, the odds are all but certain that they will resume their life of crime. Result: Crimes committed by people on bail skyrocket, and the public comes to view the system with contempt and believe, wrongly, that criminals in Canada get a soft ride. (In fact, Canada imprisons people more frequently, and for longer sentences, than virtually any comparable jurisdiction except the United States.)
If the problem is delay, what can be done? The easy answer is to appoint more judges and prosecutors, and spend more money on legal aid. However, merely adding money would not provide a solution. That's because the underlying problem lies with the changing nature of trials themselves. Murder trials in the 1950s and 1960s were generally completed in a week or less. Motions pending trial were largely unheard of. Justice was far from perfect -- as the Steven Truscott case recently reminded us -- but justice was speedy.
Today's trials provide the accused with far more information and give them a far better opportunity to show up weaknesses in the prosecution's case. But it is not immediately obvious that the trials themselves are necessarily fairer. Rates of conviction have not changed materially since the 1950s, which would suggest that while injustice may be avoided more often in individual cases these days, the overall system is convicting roughly the same sort of people for roughly the same sort of offences -- but at greatly increased cost and effort. The problem seems to be that the system itself, in striving for perfection, has hit a point of overload.
There are ways to simplify it. Early fixed trial dates, for one, would motivate lawyers and police to move quickly. Our preliminary inquiry system -- for some serious cases, effectively a trial before trial -- adds a layer of complexity to many cases for no obvious reason.
Disclosure by the Crown has become a legal industry in itself. In the Toronto police corruption cases dismissed last week because of delay, disclosure came in bunches of 65,000 and 80,000 -- and even 110,000 -- pages. Even minor cases now involve numerous pre-trial attendances -- usually to schedule other pre-trial attendances. No viable criminal justice system, no matter how well funded, can function in such an ocean of process.
To eliminate the delays that now afflict the system, it will be necessary to simplify and limit pre-trial mechanisms, and to shorten and simplify trials. This will be hard, and we must protect the rights of the accused. Still, we have no choice but to reform the current system: The best has become the enemy of the good. The concept of justice delayed being justice denied is not merely a platitude -- it is reality. We need swifter justice.