WAIT TIMES

WAIT TIMES
Our judicial system is mired in delays
What happened to the right to a speedy trial?
CLAYTON RUBY
Toronto-based lawyer
November 11, 2008
Globe and Mail

Embarrassing delays plague the Canadian judicial system. The tasering of Polish immigrant Robert Dziekanski in Vancouver International Airport at the hands of the RCMP cannot even get to a charging decision after a full year. Ontario's Attorney-General is under fire for a system that provides trials set so far into the future that further serious crimes are committed while out on bail.

The right to a trial within a reasonable time is fundamental in Canada. It is protected in the Constitution. It is essential to the presumption of innocence. It should be inviolable - period. But it is not. Canadian appeal courts have simply failed us.

In 1990, the Supreme Court of Canada brought to a halt thousands of cases that had been impatiently waiting their turn for years in criminal courts across the country. Not only were institutional delays beyond six to eight months declared excessive, but accused are prejudiced to such a degree that they could not have a fair trial. Memories faded, witnesses disappeared - all while accused persons, some who would eventually be acquitted, suffered the "exquisite agony" of having no idea of when their cases would end. Such delays hurt each of us. If Canada could not provide a fair trial, there should be no trial at all.

The wait until trial has almost doubled since the reforms that followed the 1990 Supreme Court decision. Without a doubt, the government has failed its constitutional duty to provide sufficient resources to the courts. Legal Aid defence lawyers are paid much less than their overhead; not surprisingly, criminal cases drop to the bottom of the priority list. At the same time, the system seems to bleed money through every crack; we see repeated meaningless court appearances and a burdensome bureaucracy that would produce a grimace of recognition in Franz Kafka.
There is little point in excoriating government for doing what government does best: delay, obfuscate and falsely promise funding. The failure of the right to a trial without delay is the legacy of our courts, which have consistently enabled Crown attorneys to stretch the time to trial beyond recognition. Not long after 1990, the courts began "interpreting" the acceptable amount of delay. Now the acceptable range takes into consideration "local conditions" and "changing circumstances"; there is an "intake stage" that does not count as delay; and newfound "complexity" excuses delay everywhere.

Six to eight months, the target range, became a generous eight to 10 months, and even that became merely a "guideline" as appeal courts repeatedly displayed none of the courage required to keep governments spending money to keep trials timely.

This fundamental right has drastically eroded. Between 2000 and 2007, the average days to disposition of a criminal matter has jumped from 6.8 months to 8.3 months. And yet the murder rate has not changed significantly in decades. Crime has dropped and is still dropping. A few "guns and gang" prosecutions have emerged as complex, but the rest have remained as they were. The wait for justice gets longer and longer because it can, because courts permit it.

Ontario Attorney-General Chris Bentley has responded typically: He studied the problem and buried the answers he got. University of Toronto law professor Michael Trebilcock recently completed a report on legal aid in which he criticized the Ontario government's failure to adequately fund access to justice. The Attorney-General released the report without even a press release on a Friday afternoon - a well-known government trick to make sure no one pays attention. He then said that, while Prof. Trebilcock had some "great ideas," any increases in funding were "not going to happen overnight."

Rather than take action, Mr. Bentley postponed the problem. Why? Simple: Speedy trials require better paid defence lawyers and faster disclosure. The government would rather twiddle its proverbial thumbs until the legal community and a few editorial writers forget about it than finance something as unpopular as justice for the poor.

But what model can Canada follow? Strangely enough, in the U.S. federal system, trials often take place within three months and rarely reach six months delay. Some states have the acceptable time period statutorily entrenched. In New York, a motion for dismissal of all charges must be granted when the prosecution is not ready for trial within six months of the laying of criminal charges, except for a very few crimes such as murder and manslaughter. The right to a "speedy trial" is protected in the United States.

In 1990, then-justice Peter Cory declared that the right to a trial within a reasonable time protects the innocent because there can be "no greater frustration imaginable for innocent persons charged with an offence than to be denied the opportunity of demonstrating their innocence for an unconscionable time as a result of unreasonable delays in their trial."

Eighteen years ago, the Supreme Court demonstrated toughness on speedy trials. It has been downhill ever since. Governments will not act until appeal courts compel them to do so. Where are the judges who will take on the government and make the Constitution real?