Canada's criminal justice system is facing a rather unique
problem. In fact I suspect it may be the first jurisdiction in the western
world that has had to resolve this issue. The problem, quite simply, is that
the Supreme Court has said that people who have been charged with a crime, have
the right to have a trial within a reasonable time. It appears as if some of our
courts are so backlogged that it is not
possible in some cases to meet the Supreme Court's guidelines. Consequently,
people who have been charged with serious crimes will be freed with no trial
regardless of whether or not there is significant evidence that they may have
committed this crime.
There is no doubt that those who have been charged for a
crime but not convicted must be treated as if they are innocent. I am a firm believer in the general concept
that we need to err on the side of human rights rather than overzealous prosecution.
On the other hand it is concerning that
it is conceivable that people guilty of a crime will never have a trial because
the courts are too busy.
For anyone who has spent any time in court it is obvious
what at least part of the problem is. The lawyers, both the crown and the defence
are not in any particular rush. Both sides are busy, in some cases overwhelmed
with the number of cases they have to process. For those lawyers who work
within the legal aid system, the remuneration rate per case is so low that they
need, to make a reasonable living, to assume responsibility for too many cases.
The Crown is equally over burdened. It becomes much easier at the lowest levels
just to adjourned a case for another few weeks while both parties attempt to
gather, share and read the facts of the case.
As I have mentioned in previous posts, at one point in my
professional career I spent a lot of time in court supporting individuals who
had, for the most part, been charged with very minor offenses. A simple charge
could take six months to resolve simply because either the crown or the defence
requested an adjournment pleading a conflict in schedules or insufficient time
to read and discuss the information.
There were numerous mornings when the cases that had been adjourned two
weeks previously, were once again being adjourned because the work had not got
done. It appeared to me and to others sitting in the court room waiting for
their two minutes in front of the judge or the justice of the peace, that the
lawyers were spending more time in court waiting for the opportunity to
adjourned a case than they were spending dealing with the issue. If they spent
less time in court juggling their schedules and workloads - they would have a
lot more time to actually go to trial.
Like so many other problems, the obvious solution is to put
more money into the system. Allocate more money to the legal aid system, hire
more crown attorneys and perhaps more judges. But this solution only addresses
the symptoms of the problem. Hiring 10,000 more lawyers will not make the
system work better or faster. The courts need to insist that lawyers move along
with a bit more speed. There needs to be a sense of urgency injected into the
system from day one. I appreciate that some trials may be incredibly complex
and that people need to take the time to make sure that justice is served, but from
my limited experience, so many of the cases are not complex. We need to
streamline the system.
Streamlining the system means that the police and the Crowns
need to be more rigorous as to which cases they want to pursue (why are we
arresting young people for simple possession of marijuana?); for simple misdemeanour
charges, we need to create other more efficient and less expensive ways of
dealing with those cases and we need to somehow impress upon those who have
been charged with a crime and are guilty - to plead guilty sooner as opposed to
dragging out the process only to plead guilty five minutes before their trial. I am convinced that those who work in the
system full time know what needs to happen to be more effective. We should ask
them.
We have created a court room culture that says quite clearly
- there is no rush - it doesn't matter how long it takes or how much it costs.
But it does matter. Cost or time should never be the only reasons why the
criminal justice system makes decisions but that does not mean we should waste
those resources.
