Speed up criminal cases without sacrificing Canadian’s fair trial rights: 11 easy fixes

Last week, Ontario’s Attorney General Yasir Naqvi called upon the federal government to consider a drastic reduction, and removal in most cases, of a long lasting right of Canadians who are prosecuted for serious crimes: the removal of the preliminary hearings.

Preliminary hearings are not new.  They have been around, and served and essential part of our justice system since 1893 when our Criminal Code was enacted. They only apply when a person is charged with (most) indictable offences (the most serious types of Criminal Code offences).  When they do apply, an accused has a right to have one, as does the Crown.

The argument to remove them is also not new.  As one very experienced Toronto criminal defence lawyer (Daniel Brown) mentioned in a recent Toronto Star Opinion, this “is a tired idea that arises every time a tempest erupts over trial delays“.

Indeed. It’s tired. It’s unoriginal. And most importantly, its entirely wrong.

The truth of the matter is that there is no evidence to suggest that preliminary hearings create delays. If anything, preliminary hearings serve to increase efficiency in court. Preliminary hearings are highly effective in narrowing issues before trial, ensuring that only cases with merit proceed, and allowing lawyers to properly assess the issues and merits of their cases so informed decision can be made on concessions (or guilty pleas and withdraws) before the matter proceeds to trial.

So, if we are truly serious about radical change in addressing delay in Ontario’s criminal courts, let’s look at actual solution, rather than the seemingly endless political assault on individual’s rights.

Time for real change. 11 ideas that will unquestionably decrease delay in the Canadian Justice system:

Attorney General Naqvi Preliminary Hearings Canada

Since the Supreme Court of Canada’s case in R. v. Jordan, there is a panic among not just Ontario’s Attorney General’s office, but also in other provinces with Manitoba considering the same solution (its noteworthy to add this was done without any input of defence lawyers).

Yet, these solutions won’t work. In my view, they are nothing more than empty political platitudes that defer the issue and deflect from problems of complacency, inefficacy, and an unwillingness to adapt to modernized systems. 

If we want real change, the provincial governments need not ask the federal government for assistance, or funds.

The overgrown garden that chokes efficiencies in criminal courts is in provincial back yards. Courts and provinces need to look inward, not outward. Defence lawyers and Canadians before the Courts cannot, and should not, give up any more ground for there is no more to give.

If the provincial governments and Courts are serious about radical change, here it is:

1) Extend Court Operating Hours

A typical trial or guilty plea court (presided over by a judge) in Ontario sits from 10-4:30. (6.5 hours)

In between there, and in the best of circumstances, there are two breaks of 15 minutes each, and a lunch period of typically an hour and fifteen minutes. (minus 1.75 hours). Total court time = 4.75 hours.

= 23.75 hours a week of judicial court time. (Monday to Friday)

This can be better or worse depending on a particular court, or judge, but in my experience over a decade of practice is that these conditions above are optimal. All too often are breaks longer, lunches longer, and court time wasted. This issue is well known and reported on frequently, yet the government refuses to act upon it.

Increasing Court hours by an hour and a half Province-wide, for trial court as well, would fix the R. v. Jordan issue alone.

I challenge Minister Naqvi to ask Ontarians what they would prefer to solve Ontario’s Court delay problems: 1) take away their right to a preliminary hearing, or 2) have Court open 9-5. There will be no doubt in my mind the latter choice is preferred.

2) Open Saturdays and Sundays for certain matters

Along the same lines as the last suggestion, why can’t Courts remain open on Saturdays and Sundays for limited hours when there are urgent matters to address?

What many people don’t know is that bail court is open every day on weekends as a requirement that an individual has to be brought before the Court within 24 hours. Since we are already there, with the expenses of opening Court and staff, why can’t this be a more extensive solution?

Even if we exclude trials, I can think of many courts that would be highly efficient to have open on Saturdays and Sundays. Guilty plea court, bail court, practice court…

If anything, these things would come at great convenience to Ontarians, while at the same time massively reducing delays in the justice system that by relieving pressure on weekday courts.

3) Greater enforcements and accountability of having accused arrive on time

Having people brought before the Court on time is a crisis across Ontario.

It is far more reliable to guess your client will not arrive on time, than they will arrive on time if they are travelling from an institution in Ontario. It appears that this is not just a provincial issue, but one of national importance and national waste. It also seems that no trial, no matter how high profile or important is immune as can be seen from significant delays in the Travis Vader case and delays in bringing him to Court. 

And yet, nothing seems to be done.

No studies on the impact that this daily shortening has on the justice system, the problems it creates for defence lawyers who need to speak to their clients at the commencement of each Court day, or the frustration it causes jury members waiting patiently as a van unloads your client in the back of a courthouse, late again.

Simple solution Ontario: if we, as lawyers, can ensure our clients arrive on time when they are out of custody, please do the same when you have them in your jails.

4) Uniformity in procedures and protools across the province

As a defence lawyer, one travels throughout the province representing clients. Crowns and judges generally do not.To the extent travel is required of Court or Crown staff, it is within their own Regions and therefore procedures generally remain the same.

In these travels, defence lawyers come to realize very quickly that there are large, and incompatible differences from Courthouse to Courthouse. Some idiosyncratic procedures work very well, other fail terribly.

Ontario needs to have far greater uniformity in procedures, protocols, and even integration across the province if we are to have an efficient system. Similar hours, similar procedures, forms, and expectations. This uniformity would make it far easier to implement province-wide or national systems to modernize the courts (like digitizing court records, etc.).

No other major institution would dream of allowing every regional office to run their own show with their own unique and inconsistent procedures – the reason is that it is wildly inefficient.

Courts and Ministries must reflect upon how these discrepancies across the provinces and nation impact upon efficiency.

5) Reduce needless forms and bureaucracy

Courts are required to have a reliable record of proceedings.

However, that should not equate into bureaucracy for the sake of bureaucracy. Not only are Courts still insisting that paper (over electronic records) be used, they are used with far too frequency. Virtually everything one has to do in Court requires a form.  A form to speak, a form to confirm, a form to ensure your forms have been filed…

Forms, forms, and more forms. And for what? Clearly it is not making things more efficient.

I can not imagine a business sitting around an  production inefficiency problem and sponsoring the idea of “more forms” to increase output. Forms should be minimal and only to the extent they are necessary.

Courts must lose the false sense of security that forms provide in the quest for efficiency.  They add little and significantly detract from the ultimate goal.

The Courts must come to (re)learn that trusting lawyers to act dynamically and using their judgement on matters, without the need for over formalization and forms for everything, is far more efficient and entirely sufficient.

6) An End to Paper

End paper. Simple as that.

Electronic records have taken over every aspect of our lives including vastly complicated systems: medical records, flights, tax records, travel bookings…

I would hazard a very confident guess that ending paper alone would solve the R. v. Jordan problem by increasing efficiency of form filling (see above) by 80%.

Imagine in your business you had to handwrite and send a letter for everything you do on a day to day. Now open your eyes: you’re in Court.

It’s 2017. Digitize. There is no excuse.

7) Ending the complacency towards accused and defence lawyers time

Jordan preliminary hearings canada ontario

Everyone’s time is valuable.

An accused’s time is valuable. A witness’ time is valuable. A defence lawyer’s time is valuable. A journalist’s time is valuable.  Interpreters time is valuable. A juror’s time is valuable.

Time comes at an expense. In law, that expense is considerable.

Yet, all too often, time of anyone other than the Court itself is looked with complete complacency (or at times, utter disdain). Yet this cannot continue. 

All too often defence lawyers, and/or their clients, are required to attend entirely pointless appearances that can easily take up an entire day of their time and the costs that are associated with that.  Employment is missed, legal fees are charged, Legal Aid funding (i.e. taxpayer dollars) is depleted.

The Courts must do everything in their power to respect the time of the people that come before it and how massive of an impact it has upon them when a case is not reached, an appearance is unnecessary, or its purpose is to do nothing other than benefit the Court on an unnecessary administrative task or confirmation.

Everyone’s time is valuable. This needs to respected and cherished.

8) Electronic adjournments for non-contentious matters.

Most appearances in Criminal Court are administrative in nature. Many more of those are non-contentious matters on consent.

Yet, every day, thousands of lawyers and accused are required to attend Court, take time off work, pay for parking, find baby-sitters, only to adjourn cases that take no more than 30 seconds to speak to.

Appearances of this nature should be done electronically.

A wise suggestion I recently heard is that once a person has retained counsel, they are taken out of the regular stream and placed into the “Electronic Court System” whereby layers and Crowns can adjourn matters electronically in a reliable, and in a manner that is duly recorded.

Any contentious or non-admistrative matters can then easily be switched to the actual Court as needed.  It’s hard to conceive how massive the saving would be not only for the time and expense of the Court, but also for lawyers and accused individuals – which in turn increases access to justice by reduced lawyers fees.

9) Reconsideration of jury selection and use

It is hard to imagine a more ancient system of panel selection than the present jury process.

Literally speaking, hundreds of individuals in the community are required to come to Court (sometimes for days on end) so that 12 of them can be selected in a very drawn own, over formalized manner.

In the process, countless hours and revenue is lost in time and wages of Ontarians. There are many solutions to this that would work, especially if technology is used properly, but suffice to say – this selection process is long overdue for an update.

10) Crown reelection in murder cases when asked.

When a person is charged with a homicide (or other serious offences set out in section 469 of the Criminal Code), the accused no longer has a right to chose judge alone or judge and jury. It is required the case is tried before a jury unless both parties consent to a reelection before a Superior Court judge.

In many cases, and some I have personally done, requests for this sort of reelection is requested by the defence. Only with the specific consent of the Attorney General (i.e. Minister Naqvi in Ontario) can the Crown agree with this request.

Almost invariably, that request is denied.

Judge alone cases are far more efficient and quick than jury trials. Yet, with all the complaints about delay, I do not see or hear of any policy changes to agree to reelections in homicide trials despite defence lawyers requests.

This is a very easy fix that will have profound benefits for court delay – all without sacrificing fairness or justice.  Frankly, I am at a loss as to why such consents are not made almost as a matter of course.

This needs to change and it can come immediately, without cost, and without sacrifice.

11) More technology

I recently did a number of radio interviews with CBC on this controversial measure proposed by Attorney General Naqvi on removing preliminary hearings and one theme that was recurring was lack of technological adaptation in the Courts. In the course of those interviews, I said repeatedly that if you walked into a court in 1965 and walked into one in 2017, you would be hard pressed to notice any real difference.

This needs to change.

There is some good news in they regard as the Crown Attorney’s office has moved to a new system called “SCOPE” that digitizes their briefs and files.  This is an excellent measure and should be commended.

However, we are a long way off in implementing technology that can benefit us all and increase efficiency. Canadian Courts needs to seriously look at technology far beyond “using email” and figuring out how to use Power Point. There are far fewer systems more complex than a judicial system and our technology running it needs to reflect that.

Let’s fix the problem but do it right.

I hope that Attorney General Naqvi reflects upon the systems that can readily be fixed to address the problem of R. v. Jordan without have to sacrifice the importance of the preliminary hearing.

We can never forget that the purpose of the system of justice is to ensure fairness. Every small bite we take off this concept is lasting and profound. Preliminary hearings not only add to the efficiency of our Court system, but enhance it by protecting Canadians who come before it.

Preliminary hearings bring us not only protection, but truth – and that is what every reasonable Canadian wants: a justice system that is fair, efficient, and protective of everyone’s rights.

Addendum:

Since the publication of this article, and its surprising popularity in the Ontario legal community, several other suggestions have come forward.  If you have some suggestions yourself, please feel free to email me at sean@robichaudlaw.ca and offer them.  We will happily add any valuable insights and solutions to this problem that the Courts are facing.

The additional suggestions:

Appointment of Lawyers of Justices of the Peace

A problem that has persisted in the criminal justice for some time is the appointment of non-lawyers as Justices of the Peace. Much has been said about this so it need not be repeated, but suffice to say that having Justices of the Peace who have practices law in the relevant areas, greatly increases the efficiency of the Court they preside over. There is likely no empirical evidence in this regard but it is quite apparent that this helps.

Indeed, Minister Naqvi in his “2016 Parliamentary Assistant Mandate Letter: Attorney General” saw it important enough of an issue to specifically mention this:

As Parliamentary Assistant to the Attorney General, your specific responsibilities include:

[…]

Continuing to review the current roles and responsibilities of Justices of the Peace, as well as the qualifications necessary to be appointed a Justice of the Peace.

Perhaps it is time that this issues is expedited to assist with delays in bail courts which have a very strong triple down effect on the administration of justice and the speed it operates moving forward.

2017-03-08T12:05:52+00:00

About the Author:

Sean Robichaud is lead counsel and owner of Robichaud's.