Justice ministers searching for ways to speed up Canada’s court system and avoid cases being thrown out because of unreasonable delays aren’t looking in the right places, says a noted criminal defence attorney.
Federal and provincial justice ministers are meeting Friday in Gatineau, Que. to discuss measures to deal with a large backlog of criminal cases that could be in jeopardy thanks to a Supreme Court ruling last summer that defined an accused person’s constitutional right to a trial in a reasonable amount of time.
Lawrence Greenspon says the politicians should be consulting with those working daily in the criminal justice system to find ways to fix it and to deal with a “culture of complacency” that has set in over the last 15 years.
Spending more money and hiring more personnel alone won’t solve the problem, he says.
“The almost knee-jerk reaction is we have to hire more judges and more Crown attorneys and build more courthouses and so on. And that’s a good start but I think fundamentally, the problem is going to come back at us two, three, four years from now if there’s not a number of other steps taken in conjunction with that,” Greenspon told CTV’s Your Morning Friday.
To start, he says police and Crown attorneys should dump zero-tolerance policies for certain cases, such as like domestic and sexual assault and impaired-driving. There should be more funding for collaborative justice programs across the country that can avoid lengthy trials. And he says the justice system has to “seriously revisit how bail hearings have become mini-trials, taking up all kinds of court resources.”
In a split decision in R. v. Jordan in July, the highest court ruled that reasonable time to await trial means 18 months for provincial courts and 30 months for superior courts. The decision does allow for exceptions and for a transitional period for cases already in the system but the Jordan case has already led to a stay of charges in a first-degree murder case and an alleged child abuse case in Ottawa, a second-degree case in Quebec, and charges in a prison killing in Alberta.
Greenspon was the defence lawyer who represented former Canadian soldier Adam Picard in that first-degree murder case in Ottawa. Picard spent more than four years in jail before the murder charge was stayed in November. The stay of proceedings is under appeal.
“Anyone can understand that the person, if they’re going to be presumed innocent until the point of trial and beyond, they’re going to have to have a trial within a reasonable time. It’s a matter of fundamental freedom and liberty.”
Greenspon says the majority of cases being affected by the Supreme Court ruling are not those kinds of serious cases. He says Crown attorneys “are understandably taking emergency-type measures” to get at-risk cases into court.
The fear is a repeat of the results of a 1990 court decision about trial delays that led Crown attorneys to withdraw tens of thousands of charges.
Some provinces, including Ontario and Manitoba, are urging the federal government to curtail or eliminate preliminary inquiries that are used in some serious cases to determine if there is evidence to proceed to trial.
Greenspon argues they actually save court time.
“The fact is, preliminary inquiries take up something like three or four per cent of all the cases that are proceeding through the courts and they act as a very effective filter to ensure the more serious cases are focused on what the issues are ... This notion that we’re going to eliminate preliminary hearings and free up all kinds of court time makes no sense at all.”
Prime Minister Justin Trudeau has given Justice Minister Jody Wilson-Raybould a mandate to improve the efficiency of the court system by focusing on solutions such as the better use of digital technology, bail reform and sentencing alternatives, along with ongoing judicial appointments.
The number of vacancies on the bench has been a much talked-about issue. The Liberals brought in a new appointments process last fall, but as of April 1, there were 59 vacancies for federally appointed positions.
