“Tim, meet Justice system. Justice system, meet some guy and his lawyer.”
A few weeks ago, “Tim” (not his real name) approached our firm to represent him on serious criminal allegations.
He was arrested, charged, and released from police custody mid-March.
So, Tim diligently and promptly scheduled an appointment for an initial consultation with our firm, along with several other lawyers of interest. Tim is not a wealthy man, but a person who can afford reasonable legal fees; he is one of the lucky ones in the criminal justice system.
Tim’s story is a common one.
It is a story about institutional inefficiency, complacency, and a steadfast unwillingness to adapt in meaningful ways. Despite Tim’s case being his own, this is not about any particular accused, courthouse, procedure, or practice direction. The focus is panoramic; the indifference pervasive; the issues ubiquitous.
Tim’s story is one of frustration, unfamiliarity, and unnecessary cost. It is a story of complacency. A complacency that has not only continued since the Supreme Court of Canada has condemned it in the seminal case of R. v. Jordan, but has worsened. Worsened by added procedural steps to increase efficiency but in the process, creating inflexibility and rules that (ironically and expectedly), create more inefficiency.
Running to stand still.
After Tim was arrested and released on bail, he called our firm and scheduled a meeting and met in a boardroom with two lawyers and one legal assistant.
The meeting was calm, attentive, and at the pace of the client. He was treated with dignity, empathy, and offered a freshly brewed coffee. It is what anyone would expect when retaining a service: immediate, professional, and responsive to an urgent situation. Like most of our clients, this was Tim’s first experience with the criminal justice system. He was anxious of outcome, ignorant of procedure, and eager to resolve the matter. He planned and acted accordantly. To him, like everyone else who is involved in the criminal court system, the situation is urgent.
My associate and I explained to him court processes, options of legal representation, and potential costs. We continued with discussions of timelines and setting reasonable expectations of pace despite his desire to contest these allegations as soon as possible. Quietly in the background, our legal assistant obtained his basic information and inputted it all into our digitized client management workflow.
It was a 45-minute meeting.
Within that time, the client was placed at relative ease and became knowledgeable of the crisis he now faces. He understood how we would manage this for him and the general costs behind it. Before he left our office, we completed the professional documentation for retaining our services, which awaited in his email inbox for his review.
While our intake could easily accommodate an immediate retention of our services (in the spirit of efficiency), it is firm policy to insist clients not retain us in the first meeting. At a minimum, we ask clients to reflect on their own time on what may be the most important decision in their life; namely, what lawyer they will entrust to defend them on matters of profound consequence.
Later that evening, we received an email back advising us that Tim decided to hire our firm.
He was impressed by our professionalism, modernized systems, efficiency, and candour on all matters. He felt optimistic that this case would resolve justly and promptly. I advised him while I was confident in a just result, I did not share his confidence in promptness. I explained that the efficiency of our firm and practices can only work within the pace the system permits. Below sets out the concerns and experience I predicted for Tim.
A zero-sum prosecution.
Tim’s case is the type of charge that is very unlikely to be resolved.
Put in simple terms: it is the type of case that should be set for trial as quickly as possible. Any defence lawyer or Crown Attorney looking at a file of this nature knows within two minutes that unless the accused wishes to plead guilty or the complainant recants (even then, it is not determinative), there is no chance of resolution.
The client has vehemently denied the allegations. The investigation is complete. There is no reason to wait any further on the inevitability of trial. No amount of discussion with a prosecutor or mediation with judge will change this.
While serious, the allegations are simple. One person says something happened, and another says it did not. There are no more than four witnesses (including the complainant and the accused). My estimate places this trial at no less than five hours of court time to entirely hear and decide the matter.
Considering all this, and retained by Tim to manage the file as quickly and inexpensively as possible, the goal is to set a trial date promptly. The sooner a trial date is scheduled, the sooner both sides can commence preparation. The sooner a date is set, the fewer Court appearances are required
As one can imagine, Court appearances are expensive. Not only for the client, but also upon government funding that must pay judges, court staff, law enforcement, correctional staff, and countless other administrative costs. Add to that the costs upon participants who must take time off work, delegate childcare responsibilities, and other societal impacts of court appearances where personal attendance of counsel or the participant is required in almost all instances.
All of this is to be avoided, especially in the era of Jordan– or so we are told.
The sound, fury, and significance of first appearance Court.
The docket placed Tim for a 09:00 a.m. appearance.
I arrived early.
A month has passed since his arrest. This is typical: first appearances are usually scheduled a month (or two) after a person’s charge or arrest. Not a typo, month(s).
Tim is not present today as I am appearing on a “Designation of Counsel”. This authority is derived under the Criminal Code of Canada and allows lawyers to appear on behalf of clients. For those who are fortunate enough to afford legal counsel, it permits people presumed innocent to avoid missing work or child care responsibilities.
For those without lawyers who must attend on their own, it is a full day affair despite the dockets usually commencing at 09:00 a.m. Lawyers matters are called first, then typically unrepresented persons in alphabetical order. If lucky, an unpresented person on a 09:00 docket will get out of Court before the 1:00 to 2:15 lunch period. If not, they are lucky if they can make it to pick up their kids after school.
One might reasonably think, “this must be an important appearance if it takes so long for the court to address.”
The purpose of this type of appearance is entirely administrative.
It serves no other purpose than to pick up “disclosure” and, if one is hyper-efficient, schedule a meeting with a Crown to discuss the file at a later date. As I say to all my clients “nothing important happens on the first day of Court”.
It shouldn’t be this way, but it is. To repeat: “nothing important happens on the first day of Court”.
A sensible observer looking on might ask “why isn’t this all done online?” Indeed, but the system isn’t designed that way. As lawyers have heard so many times over in trying to address inefficiency in the system, “It’s not the way things are done”. In the context of Court, this refrain seems to trump all arguments and alternatives. If a stronger pronouncement is required, the inefficiency may be reduced to a “practice direction” which judicially endorses the phrase of “the way things are done around here.”
Using the first appearance as an example then, let’s walk through what I am referring to and the impact it has upon participants in the system and the costs associated with the same.
The first appearance cannot be done by telephone, email, or video link. It is an appearance where an accused must either attend in person or hire a lawyer like me to attend on his behalf.
In instructing us to proceed to Court on his behalf, the client was concerned about missing work and the impact it would have on his small business. Customers would be affected, his services would need cancellation, and he would need to forgo lost income for that day. It was a prudent and thoughtful decision and one premised upon efficiency.
To make this appearance, I drove an hour to Court. Paid for parking, and hoped for a quick appearance where I could pick up disclosure, schedule a Crown meeting, and set the next obligatory step in these proceedings, known as a “judicial pre-trial”.
If possible, I would schedule a trial date on the first date; however, I also know that “it is not the way things are done” despite the inevitability of a trial on this matter. If it were up to me, I would have logged into an online system to schedule a trial date as soon as the client retained us (defence lawyers reading this likely laughed out loud to this utopic, but entirely sensible vision for the future).
Practically speaking, the first court appearance is for nothing more than picking up documents and scheduling meetings.
In any other context outside of Court proceedings, all of this is easily achieved in advance via email and in 5 minutes. In the business context, this is the sort of work that administrators complete from their computers hundreds of times a week. Despite the title of “court proceeding” there is nothing judicial about it. It is scheduling and courier work, plain and simple. Anything beyond that characterization is artificial, grandiose, and redundant to subsequent proceedings in any event.
Calling the docket.
Despite the Court docket saying 09:00, we do not open.
Accused people waiting.
Crown Attorney waiting.
At about 9:30, Court opens.
Instead of speaking to the dozens of participants waiting, we move directly to “video court” where we speak to those people in custody being videoed in from jails (I hope that the irony is lost that people in jail can do their appearances via telephone or video, but lawyers can’t). Anyone who has sat through video court knows how painfully inefficient it is. Jails are called in via video link. Each appearance takes on average five minutes while we wait for a prisoner to appear before the screen. Once we are done with one institution, we move on to the next with court on hold in the interim minutes.
This continues for nearly twenty minutes. During these 45 minutes, we likely spoke to no more than 10 matters. All of them simplly asked their message from the lawyers to be read out.
“My lawyer said I need to come back in two weeks.” Or “There is no message from your lawyer Mr. Doe.” Or “Does the Crown have disclosure ready yet? We will pass the message on to her.” And so on. Pointless, wasteful, and absurd. We all watch what might be described as the most boring episode of Orange is the New Black ever conceived. We are watching short, video, phone calls about administration. Imagine a secretary reading out ten email exchanges about coordinating meetings and pick-ups for couriers, and you have an idea.
Finally, my matter is called.
Arriving early placed me first on the 9:00 list (it is now 9:45).
I receive disclosure and inform the Crown and Court I would like to schedule a judicial pre-trial so we can get a trial date set as quickly as possible. The thought of such a thing drew scoffs of “On the first appearance!?” from the Crown. The Court advised me they can “hold the matter down” to see what I can do. The cynicism towards such a stated objective was clear.
A meeting to schedule a meeting to schedule a meeting.
As expected, I was informed that I must first attend a Crown resolution meeting. Fortunately (or so I thought), there is a “duty crown” whose sole purpose is to conduct “on the spot” resolution meetings so we can move to the next stage.
I met with her in her office and asked her how I can get a trial date or judicial pre-trial scheduled so we can get the case set down for trial as quickly as possible. The friendly scoffs, with a hint of admiration towards my ambition, continued.
The Crown, while pleasant and a helpful person, advised me that due to the seriousness of the charges a further meeting with an assignedCrown is required.
Further, without a meeting with an “assigned Crown”, I likely could not even schedule a judicial pre-trial today, let alone a trial date. However, I was told that if I could at least schedulethe meeting with the assigned Crown, the trial coordinatormightpermit a scheduling of the judicial pre-trial to follow.
Undeterred by the war of attrition created as a by-product of institutional complacency towards lawyers’ time, I attempted the impossible: schedule the mandatory judicial pre-trial (a fancy word for “a meeting”), on the first day of Court.
The time now is 9:52.
Upon these inside-track instructions (that she likely got reprimanded for later on), I called the Crown’s office seeking to speak to a particular administrative assistant, CODE NAME: “Loraine” (not her real name). Apparently, this is the only administrative assistant who can schedule a meeting with this particular prosecutor. I was handed off to voice mail. I left my name, number, and the fact that the Court is now “holding the matter down” while I attempted the impossible.
At 10:04, I called again and was put through to the same voice mail. I should point out that I am calling a number to someone who is presumably in the same building.
At 10:20, rather than continue to harass the same receptionist, I tracked down the email address via internet searches of the person I was seeking. Email sent.
I waited some more.
My parking meter was only good for an two hours from 8:30, so I refilled my parking meter.
Then, I started writing this reflection you’re reading right now.
I thought to myself “Every day this happens in nearly every courthouse in Ontario. Lawyers wait. People wait. Staff wait. Police wait. We wait, and wait, and wait.” Whatever I was suffering of on behalf of Tim, this is compounded thousands of times over throughout courthouses in the province. If this were the airline industry, it would say “FLIGHT DELAYED” every day, every hour, on every board, in every airport. There is no refund or meal voucher coming for these trips.
Waiting is expected for ends, not means.
In life, waiting is expected.
Waiting is even acceptable if we know there is a goal achieved at the end.
We will all wait for a good meal, a good doctor to treat us, or an exciting new roller coaster.
What we should not have to wait for is hours on hold to make the restaurant reservation, or wait (in person) at a medical office just to schedulean appointment with the doctor, or wait to talk to a park manager about how awesome the roller coaster ride that we can ride in 18 months from now will be.
Think of how frustrating it is to wait on hold while awaiting support on your internet; now imagine when you finally get through, the person says “Thanks for waiting, we can now schedule a meeting in three weeks to discuss your problem.”
We are content to wait for results; we should not wait for process; and certainly not at the rates it costs to run courts, pay public servants, law enforcement, lost wages, and lawyers’ fees.
This, in clear and stark terms is the problem with access to justice.
What costs money is the means of access, not the end result of justice. We wait to wait some more and only to then schedule meetings to wait and talk about procedures. In short, we don’t get anything done. This inefficiency comes at an incredible and exorbitant cost to clients, lawyers, the government and us taxpayers who fund it.
The Courts need to get serious and say “Enough. We refuse to accept that the time of our participants is an endless and worthless resource.”
Trusting counsel, not procedures.
Critics of my analysis might suggest I am being unfair to the productivity of certain court appearances or Crown resolution meetings.
Some might argue that Crown resolution meetings and judicial pre-trials can accomplish a lot in resolving a case or fine-tuning trial issues. While there is truth to such a criticism, it is outweighed when mandatory procedures take over common sense, discretion, and judgment of counsel and even judicial officials by requiring procedures that are unnecessary or redundant to certain cases.
Put simply, we have to trust counsel to deal with cases in a manner that they consider most efficient and in accordance with their client’s instructions. Similarly, the Crown should be afforded the same discretion. So, if either party says “this case cannot be resolved” then Courts must not only recognize but appreciate the value of counsel’s judgment, experience, and knowledge of the file.
Conversely, if both parties indicate that “we would benefit from a judicial pre-trial” the Court ought to welcome that rather than being tied to dogmatic rules such as “unless the matter is expected to take more than six hours of trial, we do not schedule JPTs.”
Courts must come to terms in recognizing that this is a human system where dynamic approaches are guided by sophisticated players (i.e., lawyers) acting on instructions of their clients, consideration of fees, and other valid and rational factors in procedural efficacy and efficiency.
Rules, practice directions, and regimented procedures have never made systems more efficient and they never will. The Court is no exception.
A paradigmatic shift in the delivery of justice is needed.
This problem is not about lawyers, about Legal Aid, or adding more judges.
This is about a deep and profound appreciation by the Courts to put their foot down and have an attitude that procedural efficiency must be prioritized. Adding more rules, procedures, meetings, and steps must be treated with avoidance. Codifying inefficient models into formal practice directions only makes matters worse and is compounded further when those practice directions have no ex post factometrics to analyse whether these directions are actually working or making matters worse.
The Courts must treat lawyers time with the same respect we treat theirs. As is often said, respect is a two-way street. An attitudinal shift is required. As odd as it may sound to judicial officials, the value of individuals and their counsel must be placed above their own.
This is why successful businesses succeed and how efficient infrastructures develop: by prioritizing the participants, not the employees.
We lost track of time. What is going on with Tim’s case?
At 10:35, a terse email comes in from Loraine. I can’t read tone into email, but it seemed annoyed. Two dates are offered in early May for a telephone call with the special Crown.
Yes, over two weeks just for a five-minute telephone call; a meeting to schedule a meeting. At this time, nothing will resolve, nothing will be decided. We will talk for 30 seconds and confirm that “this is a rather serious case and so the Court will require a JPT before we can set a trial date. Agreed.”
With this information in hand of the first dates offered and accepted, I attend the trial coordinators office and advise them that while I had not spoken to the assigned Crown, I did speak to a duty Crown today and have a date (in May) for the telephone meeting.
I am looked at with suspicion and concern.
“But you didn’t speak to the assigned Crown yet?” she asked
“No, but a JPT is required because it is proceeding to trial.” I replied.
We stared at each other blankly and confused. Me with the absurdity of the situation; her with the impossibility of what was being asked of her. For some reason, the passage in Through the Looking Glasspopped in my mind where Alice engages the Queen:
“Alice laughed: “There’s no use trying,” she said; “one can’t believe impossible things.” “I daresay you haven’t had much practice,” said the Queen. “When I was younger, I always did it for half an hour a day. Why, sometimes I’ve believed as many as six impossible things before breakfast.”
“Is this the first appearance” she asked?”
“Yes. Is that ok?” I stated with feigned naivety.
Whether it was confusion, or common sense, the impossible prevailed and a judicial pre-trial date was set.
In any other context, this “impossible” feat would be an email exchange among scheduling assistants and not a half day affair in Court involving multiple lawyers, judicial approval, and significant legal and societal costs.
The impossible is a low bar.
The meeting date was offered. I accepted the first date and then opened my computer to input the date into my calendar, somewhat concerned that the next week or two looked busy in our calendar.
The date scheduled for this meeting is the end of June, 2019.
To recap: the arrest was in early March; the first appearance was early April; the telephone meeting is early May; and the first judicial pre-trial is the end of June.
Assuming I can schedule Tim’s trial date at that time, at least three months have passed before we can schedule a trial date. By my estimate, we should have the trial date scheduled within a year of Tim’s charging date.
It is good measure then that the Supreme Court of Canada has said the Crown has eighteen months to prosecute this. Otherwise, it might be in contravention of what our Charter of Rights and Freedoms protects as a constitutional right “to be tried within a reasonable time.”
Understand this: what was accomplished is the best possible timeline for an accused. As the Queen might say, it was “believing in the impossible” and then making it happen.
This. This, is the gold standard of efficiency within the criminal justice system.
As I walked back into the Court at 10:55 (two hours after the time Tim is on the docket), the Crown was stunned by what just happened. He was so impressed that he took the time to set out to the Presiding Justice what I had just accomplished for my client. Local lawyers looked on in awe. The Justice expressed how I was the mark of efficiency and others ought to emulate this.
If a slow clap were acceptable, it would have happened.
Slow clapping our way to trial.
The thing is, as we can all see, this day did not deserve a slow clap.
The justice system’s delivery of efficiency is far off the mark on being self-congratulatory. More forms or mandated rules and practice directions framed under efforts towards efficiency will not change that. Efficiency must be directed outward, not inward. Look who is waiting, not who is setting the pace.
If we want to change this culture of complacency, the first thing we need to do is change the cultureof complacency.
Every minute that passes across the Courthouses of Ontario where an accused, lawyer, court staff, correctional officer, or law enforcement officer is waiting is a staggering cost to our society.
While our system should overall be proud of the end results, it delivers and the justice it delivers in the end; the means in which we get there are embarrassing and must change, and soon.
When that happens, I will gladly join in on the slow clap.