Defence lawyers say their ideas to speed up courts being ‘met with silence’

The majority on the court called out a “culture of complacency,” saying all players in the Canadian justice system must find ways to speed up the process, to protect the rights of the accused and to satisfy the public that justice is being done promptly and fairly.

“Real change will require the efforts and co-ordination of all participants in the criminal justice system,” the majority of the court’s judges wrote in Jordan.

In Ontario, “real change” has so far meant appointing 13 new provincial court judges and 32 new prosecutors, among other developments. It’s led Attorney General Yasir Naqvi to ask his federal counterpart, Jody Wilson-Raybould, to think about scrapping preliminary inquiries in most cases, and to immediately fill the 11 judicial vacancies in the understaffed Superior Court.

 

PART 1: How an 'invented' ruling has rocked the justice system

 

PART 2: Scrapping prelims 'not going to solve' problem of court delays

 

But criminal defence lawyers are quick to point out that many of these ideas — particularly the controversial move to abolish preliminary inquiries — are nothing more than short-term, and in some cases short-sighted, fixes that don’t get to the root causes of delay. They’ve complained about being kept in the dark on reforms the provincial government is planning, and some of have said they would be more than willing to share their ideas with Naqvi.

 

“Criminal defence lawyers have always been, to some extent, the black sheep of the criminal justice system. We are like the opinionated uncle that you know you have to invite to family gatherings from time to time, but if you can avoid it you will because it will just make it less comfortable to push your own agenda,” said lawyer Michael Lacy, a vice-president with the Criminal Lawyers’ Association. “We get in the way.”

He acknowledged there have been examples of criminal defence lawyers clogging up the courts with unreasonable conduct, but “we are significant stakeholders in the administration of justice.”

Naqvi told the Star in an interview that he and officials from his ministry meet with the criminal defence bar regularly.

“The Jordan decision is real, it has been a game changer. That is why we have worked very hard to get the appropriate response with appropriate consultation,” he said.

Criminal Lawyers’ Association president Anthony Moustacalis has said he and Naqvi met soon after the announcement about prelims, and said Naqvi agreed to keep an open mind.

After the Jordan ruling, lawyers have circulated their own ideas to improve the system. The Canadian Bar Association has joined in by publishing a top 10 list of recommendations.

“As you can see from my blog that was widely circulated among justice system participants, I have stated 13 reasons that could vastly change the efficiency of the system,” said Toronto criminal defence lawyer Sean Robichaud.

“Yet I have not been contacted by any member of government to discuss these possibilities and how it could improve the system. I suspect that similar efforts to contribute by the defence are met with the same silence.”

Among Robichaud’s suggestions: extend court operating hours, including on weekends; ensure clients who are in jail pending trial are brought to court on time; reduce the need to rely on paper, a notorious feature of the court system; allow lawyers to adjourn matters electronically, rather than show up to court for most of the day only for the matter to take less than a minute to be heard.

He’s also urging Crown attorneys to consent to judge-alone trials in homicide cases when requested by the defence.

“Almost invariably, that request is denied,” Robichaud writes in his blog, meaning the trial will instead be heard by judge and jury. “Judge-alone cases are far more efficient and quick than jury trials . . . This is a very easy fix that will have profound benefits for court delay — all without sacrificing fairness or justice.”

For one thing, no jury would mean no jury selection, which can sometimes take weeks.

“It’s a balancing of how many resources we can devote and what we can really afford,” said Ottawa criminal defence lawyer Anne London-Weinstein, who supports the idea of judge-alone trials when requested by the defence.

“We may not be able to afford all of the procedures that we’re relying on now, and we should look at whether we can hang on to jury trials going forward if we can’t justify it in terms of how much time they take.”

The Canadian Bar Association is pushing for alternatives to prosecuting minor offences and for the repeal of federal legislation around mandatory minimum sentences, which the organization said prevents negotiated resolutions, meaning more matters go to trial.

As a way to avoid bringing weak cases into the system, the association is also calling for Crowns to adopt the standard used by the prosecution in B.C. on whether to pursue charges, which is whether there is a “substantial likelihood of conviction.” In Ontario, for example, the test is whether there is a “reasonable prospect of conviction,” a lower standard.

And then there’s legal aid, which has been a contentious topic in Ontario, even more so post-Jordan.

At the end of their judgment, where the majority wrote about the kind of changes Jordan will likely elicit, the judges said: “Legal Aid has a role to play in securing the participation of experienced defence counsel, particularly for long, complex trials.”

Naqvi said the government has made “historic investments” in legal aid to increase access to services, and will continue to add money.

But the low-income cut-off for an individual with no dependants to qualify for legal aid is $13,000, which critics say does not adequately reflect the face of poverty in Ontario and is leaving many individuals unrepresented in court, which in turn clogs the system. A previously planned six per cent increase to the eligibility threshold takes effect April 1.

A veteran judge of the Superior Court called out the low-income cut-off in a ruling last year, when he stayed drug charges against an accused man until the province picked up the tab for a lawyer.

“It should be obvious to any outside observer that the income thresholds being used by Legal Aid Ontario do not bear any reasonable relationship to what constitutes poverty in this country,” wrote Justice Ian Nordheimer, saying that Statistics Canada calculates the low-income cut-off for a single person living in a metropolitan area as closer to $25,000.

One thing all parties agree on in terms of resources is the need for more judges. Naqvi said the number of judges he appointed to the Ontario court of justice, which handles less serious crimes and most family matters, was exactly the number requested by Chief Justice Lise Maisonneuve.

But appointing judges to Superior Court, which handles the most serious crimes such as murder, as well as all civil matters, is a federal responsibility.

Yet Ottawa has failed to quickly fill a near record-level number of judicial vacancies in superior courts across the country. There are 11 vacancies in the Ontario Superior Court, and four at the Court of Appeal, the province’s top court.

The 17 judicial advisory committees — which screen applicants for federally-appointed judgeships — was left vacant for months, as the Liberals looked to revamp them to make the committees more diverse and transparent.

In late January, Wilson-Raybould announced appointments to seven of the committees, including two that cover Ontario, and said they would immediately begin reviewing judicial applications and create a short list of candidates.

“Ontario commends the federal government for the steps it has taken to restructure its judicial appointments approach,” Naqvi wrote to Wilson-Raybould in February.

“That said, Ontario is currently losing hundreds of hours of judicial time every month due to lingering vacancies on the Superior Court bench. In affected regions of our province, this is having a material impact on our ability to meet the Jordan challenge. We therefore request that you, as Minister of Justice, move as expeditiously as possible to fill these positions.”

And while Naqvi may have appointed enough provincial court judges, he didn’t appoint nearly enough Crown attorneys when he announced the hiring of 32 new prosecutors last year, said Kate Matthews, president of the Ontario Crown Attorneys’ Association.

“There was also no announcement of support staff in Ontario,” she said, adding Crowns are already overburdened and spend most of their days in court, and can’t get to other work or find time to speak with the defence.

“Alberta and Quebec both added support staff and that is important because a lot of the reason for trial delay in our view is that cases are far more complicated, there’s far more disclosure, the nature of the disclosure is much more complicated, and a lot of the work that needs to be done is by admin. staff.”

Matthews said a “massive part” of the delay in the court system is related to disclosure — the Crown’s obligation to turn over its evidence to the defence. While Crowns generally get the blame from judges when delayed disclosure leads to a case being tossed, Matthews said it’s difficult to turn over evidence then the Crowns themselves are still waiting for it to come from police.

“We feel there has been a downloading of responsibility from police to Crowns with respect to organization and vetting of disclosure,” she said, with the Crown attorney having to find the time to sift through all the material, which can include a massive amount of paper, in-car camera footage and hard drives.

All things considered, the Jordan decision should not have come as such a shock to governments, say Crown attorneys and defence lawyers, some of whom have long pushed for the reforms that are only now being given more attention.

“This isn’t like Jordan dropped out of the sky and nobody saw it coming,” Matthews said. “This has been an issue brewing for a long time, and to the extent the provincial governments didn’t react right away, even that is a bit distressing. All this shows is there’s no proactive approach to justice. It’s all reactive.”