Garth Drabinsky and Myron Gottlieb - Justice Delayed

In 2002 the RCMP laid charges against the founders of Livent, Garth Drabinsky and Myron Gottlieb. A little over two years ago, in August 2009, they were convicted and sentenced to seven and six years respectively.

On Tuesday the Court of Appeal for Ontario will decide if the pair are to go to jail or are to have a new trial.

That decision will come nearly a decade after charges were laid.

Now, in fairness, fraud cases are among the most difficult to prosecute and defend. They involve complex matters of accounting and, more generally, what the accused understood the accounting issues to be. As a result the Courts have made it clear that the usual timeframes for a trial in due course are extended in fraud cases.

Nevertheless, a decade is a very long time for a case, no matter how complex, to get to its first appeal. By contrast, Conrad Black was charged in November 2005 and following trial, appeals all the way to the US Supreme Court, and two Court of Appeal decisions, went back to jail earlier this month. Should the Drabinsky/Gottlieb case go to the Supreme Court of Canada (and a leave application seems certain) that will add at least a year, more likely two years, to the time to date.

Things used to move faster. 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. Delay is common and not merely in fraud matters. The opening paragraph of the decision of the Ontario Court of Appeal in a murder case, 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.

Why is there such a delay?

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.

Charges are laid for tactical reasons (charging an accused with ten charges when one or two are genuine in the hope that will lead to a plea) and cases are pursed that a generation ago would have been ignored. Discretion has been removed from police and Crown Attorneys – zero tolerance is an expensive proposition.

Disclosure by the Crown has become a legal industry in itself. In the Toronto police corruption cases (granted, a very complex matter) 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. Attempts to streamline the process, Ontario’s Justice on Target for example, are a good first step but they do not get to the root of the problem – trials are not being limited.

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.