A substantial number of accused people must be released on bail because trials, even for minor offences, are routinely delayed by as much as 18 months.Mark Blinch/The Globe and Mail
David Cole is a retired Ontario provincial court judge and a former defence counsel.
The federal government has proposed amendments to Canada’s bail and sentencing laws this week. But by focusing only on increasing severity of punishments, they fail to even acknowledge – let alone address – the problem at the heart of the systemic dysfunction in our criminal courts: chronic delay.
The reality in most criminal courts is that substantial numbers of accused people must be bailed because trials, even for minor offences, are routinely delayed by as much as 18 months. Absurdly, 18 to 20 hours of court time are routinely slotted in to a six-hour day in many of our provincial courts. Not infrequently, an accused person will be released on bail because their trial must be postponed to prioritize more serious or already delayed cases awaiting trial in the same courtroom.
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Only 9 per cent of the cases coming into the adult court system are resolved by trial – meaning the vast majority are routinely disposed of without one. Yet the remainder nonetheless absorb considerable resources on their halting path to resolution.
There are many complex reasons why so few cases actually proceed to trial. The scanty national data confirm that many are disposed of on or near the trial date through plea bargains or withdrawals. All too often, witnesses – including victims – either do not come to court or, if present, indicate they are no longer interested in proceeding. Many other cases are formally diverted into various government-sponsored rehabilitative programs.
And the matters that do proceed to trial take too long. Even an uncomplicated drinking-and-driving charge can easily occupy two or three days of court time.
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Several effective changes could be quickly and readily implemented to speed up trials or promote earlier resolutions. Both federal and provincial governments need to assign a high priority to a whole-of-government approach to reducing trial delays, and announce publicly what immediate steps they intend to take. They must set time frames for implementation and report regularly to legislative bodies as to the monitored progress being made. And they must learn from the successes of our own youth justice legislation and from models successfully employed in other common-law jurisdictions around the world to sanction minor cases, to find alternatives to bringing them before our overly congested criminal courts.
Some effective innovations are already available. The York Regional Police have recently pioneered using a new app that reduces police officers’ notes of their arrest-related interactions to a format that can be made immediately available to the accused. Creative use of other communications technologies could undoubtedly ease the extraordinary disclosure delays which plague so many cases. And British Columbia’s model of replacing formal prosecutions for routine drinking-and-driving offences with immediate licence suspensions and vehicle seizure has demonstrated successful results for several years. That approach should be rolled out across the country.
Canadian criminologists have consistently warned of a culture of delay in this country, where too much of daily life in provincial courts consists of tacitly condoned repeated remands. To address this, the legal profession and its regulatory bodies need to re-examine their standards of professionalism in the conduct of prosecution and defence counsel. Court administrators (including judges) need additional resources to identify and accelerate attention to a greater range of stalled cases. And legal aid plans need to alter their funding models to support more effective representation at all stages of the criminal process, thereby promoting expeditious and fair resolutions. (This could result in a substantial reduction in charges – currently amounting to about 25 per cent of the total court caseload – for infractions of bail conditions).
New Zealand’s experiments at speeding up pre-trial processes may be instructive. There, each type of case is subject to mandated time limits. As determined by the complexity of the case, disclosure must be provided within fixed time frames. Lawyers for the prosecution and defence are then given deadlines to formally resolve what matters are conceded, how many witnesses are required, and to realistically estimate the length of the trial. The written agreement is then submitted to a supervising judge who may require the lawyers to discuss further shortening the trial and/or exploring a potential plea bargain.
The 18th-century Italian criminologist Beccaria rightly observed that “speed and certainty” of punishment are more likely to deter offenders than the severity of the potential punishment. The proposed increases in penalties disregard this wisdom by failing to address the true causes of dysfunction and ineffectiveness in our system. Unless we are prepared to meaningfully speed up trials, these proposed reforms are fair neither to accused persons nor victims – and they won’t do much to assuage the long-term safety concerns of the public.
Editor’s note: A previous version of this article incorrectly attributed to Statistics Canada 2022 data indicating that only 9 per cent of cases coming into the adult court system were resolved by trial. The 9 per cent figure has been cited for many years within the criminal justice system.