Clogged courts focus of Senate recommendations

John Cairns' News Watch

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You don’t have to look far to see that Canada’s courts are under strain.

Even at the North Battleford courthouse, the court docket is usually filled with people whose cases are moving slowly through the judicial system.

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But it’s an even worse situation elsewhere in Canada. There, the situation is approaching a crisis level as criminal charges such as murder are increasingly being tossed out entirely due to unreasonable delays in getting matters to trial.

“Court delays have effectively paralyzed Canada’s judicial system,” said Senator Denise Batters of Saskatchewan, “and the time to act on criminal court delays is now. We can’t afford to wait because justice will suffer.”

To that end, the Senate Committee on Legal and Constitutional Affairs released their final comprehensive report Wednesday on how to alleviate the strain seen on the court system. This follows up on the release of the interim report last August.

The findings were presented at a news conference in Ottawa attended by Sen. Bob Runciman of Ontario and Sen. George Baker of Newfoundland.

The Senate committee released some 50 recommendations in its report to deal with the situation. Their wide-ranging recommendations include creating alternatives to issuing stays of proceedings, addressing the need for better case management, and addressing judicial vacancies, among others.

Batters said the Senate legal committee has been studying the issue of criminal court delays for the last year and a half.

Those included intensive hearings including a day-long one in Saskatoon, because “Saskatchewan in many ways is a leader in Canada’s criminal justice system as far as trying to reduce court delays as much as possible.”

What prompted the Senate to ramp up their efforts was a Supreme Court decision from 2016 in R. v. Jordan, that established time limits from the time changes are laid, right to the end of the trial. Delaying these limits would be a violation of the accused’s rights to be tried in a reasonable time under the Charter of Rights and Freedoms.

The Senate had been studying the whole issue for eight months prior to that decision, Batters said, but with the Supreme Court ruling the issue really was “coming to a head.” Very strict time limits were imposed in that ruling including 18 months for provincial court cases and 30 months for Superior Court cases. If those couldn’t be met, the charges would be stayed.

There is a transition period before the full impact of the time limits comes in during January 2018. But the fear was expressed by the Senate committee is that once January hits, there is the potential for thousands of stays of proceedings to be issued, including for particularly serious offences such as murder or child sexual assault.

Already, there have been some cases where people charged with serious crimes are seeing their charges being thrown out because of court delays.   

“The very serious consequence of a major court delay is that some very serious cases of murder, child sexual assault, organized crime – those types of cases are being stayed,” said Batters.

“People potentially convicted of these charges are going free. And this is a shock to the conscience of our communities and a denial of justice.”

She notes the impact to victims of crime who may not see justice done, as well as to the accused who may be stuck waiting for years for cases to be resolved due to court delays. And the public’s confidence in the justice system is undermined, she said.

As for what is causing the delays, Batters acknowledges they have heard of instances of accused people or their lawyers trying to game the system and create delays, although they have also heard from people saying that doesn’t happen.

What the real problem is, Batters said, is “a culture of complacency” in the courts, but also in the government.

“We have a significant problem with judicial vacancies in Canada,” said Batters. She noted there are now 81 judicial vacancies in Canada.

As well, there are massive vacancies in the judicial advisory committees that make recommendations on potential judicial appointments, and that is holding up the appointment of judges as well.   

One of the interim report’s recommendations addresses this issue directly. It called for Superior Court judicial vacancies to be filled immediately. This was included again as a priority recommendation in the final Senate report released Wednesday.

The other priority recommendation in the report calls for the remedy for unreasonable trial delay to be found in sentencing and in costs, particularly for the very serious offences.

“Stays of proceedings, throwing a case out of course, should not be the only judicial remedy available for unreasonable delays in criminal proceedings,” said Batters.

The Senate committee is also recommending that the Attorney General refer the issue to the Supreme Court of Canada to determine how this proposed change to the Criminal Code could be implemented constitutionally.

Other recommendations address specific charges such as impaired driving, an issue of importance in Saskatchewan. Certain types of offences, which could include lower-level impaired driving offences, could be potentially dealt with as administrative penalties, therefore freeing up the courts to handle other cases.

The Senate committee is also putting forward a recommendation to eliminate preliminary inquiries or at least limit their use. This has been an idea floated in Saskatchewan lately by the provincial government as a way to deal with court delays.

They are now hoping the federal government will move forward and implement some of these recommendations right away, particularly ones such as getting judges and judicial advisory committees appointed.

But Batters doesn’t have a lot of confidence in the government to be able to do that.

“Quite frankly the Trudeau government has been all talk and no action,” said Batters.

“Platitudes won’t fix this court delay crisis, and frankly we need more of Saskatchewan in the Canadian justice system because Saskatchewan is a leader in the country when it comes to innovation to address court delays, and that’s one of the reasons they have one of the lower levels of court delay problems in Canada.”  

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