Geographical area

‘The system is sick’: Canada’s courts are choking on an increase in evidence


Source: National Post

Evidence, the single most important element of a court case, is choking the life out of Canada’s judicial system; or, more specifically, the analysis, management, disclosure and argument over evidence are the guilty parties at the end of this whodunit.

A Montreal judge this week scheduled Luka Magnotta’s first-degree murder trial for late 2014, more than two years after his arrest. It seems a long way off for such a notable case, but for those working in the cluttered and creaking court system, it looks like a speeding train.

Trials in Canada have become a dangerous waiting game.

“The courts are a cornerstone of our democracy and I see it starting to crumble because of delay,” said Rick Woodburn, a Nova Scotia Crown attorney who is president of the Canadian Association of Crown Counsels.

Mr. Woodburn dashed out during a break Friday from the association’s national meeting in Saskatoon, convened to address the very issue of workload and delay, to speak with the National Post.

“Ten years ago, my files for a homicide case were a centimetre thick. Now it’s at least two to three banker’s boxes full. We’ve gone from bringing briefcases to court to wheeling in boxes.”

The problems span the country: A trial over the fatal sinking of the Queen of the North ferry in 2006 is still underway in Vancouver. Last month, Alberta justice officials promised change after charges in a child sex assault were thrown out after taking 38 months to get to trial; and in Nova Scotia last week, a lawyer charged with 21 counts of fraud in 2008 and awaiting trial this summer won a stay of his charges after arguing an unacceptable delay.

Compare that to the United States, where a state capital murder trial can move from arrest to trial in three months.

If court delay itself was on trial, the presiding judge would be presented with a joint submission — a set of facts to which both defence lawyers and prosecutors agree.

“A case never gets better with age,” said Eric Gottardi, a Vancouver-based lawyer who is vice-chair of the Canadian Bar Association’s national criminal justice section.

Not only have cases been thrown out because of excessive delay in B.C., Ontario, Alberta and Nova Scotia, Crown attorneys from those provinces said many more are likely to follow.

There are likely thousands of cases in Canada staggering into the danger zone where a judge might throw them out for unreasonable delay, prosecutors said.

It is not that judges want to let potentially guilty people go, but that Canada’s Charter of Rights and Freedoms declares that those charged with a crime have a right to face trial in a timely manner.

When that doesn’t happen, one remedy is ending the prosecution altogether.

Even judges are exasperated.

We’ve gone from bringing briefcases to court to wheeling in boxes

Justice Stephen D. Brown in Burlington, west of Toronto, said he had no choice but to stay an impaired driving charge against a man arrested in June, 2011, and had his trial set for October, 2012.
“Because of the chronic persistent and growing demands on the limited resources in Halton Region, we are slipping further into a crisis situation where the lack of allocation of government resources [have failed to] deal with the explosive growth in this region,” Judge Brown said in his October ruling.

It is “leading to a breaking point,” Judge Brown wrote. “Governments that ignore adequate funding for the justice system do so at the peril of having society robbed of having trials heard on their merits.”

Each case has its own complications and trajectories, but those involved in the court system point to a common trend: courts are choking on the increase in evidence without adequate resources to compensate.

New technology, police techniques, scientific evidence, increased electronic communications and surveillance, the need for expert testimony and reports and analysis make even routine cases more complicated, lawyers say.

The Charter gives defence lawyers great traction for challenging all manner of evidence, testimony, searches and seizures during pre-trial appearances before a trial is convened.

Increased penalties for those found guilty — including the recent introduction of mandatory minimum sentences — has given greater incentive for charges to be more vigorously and aggressively fought.

Even finding a physical courtroom in which to hear a case has been problematic in some jurisdictions.
“The volume of information that police now have access to, which they have to examine and crunch and disclose, is massive and the costs are massive,” said Mr. Gottardi. “It may be the single biggest factor in trial delay, all tied into the Constitutional and Charter obligations.”

Mr. Woodburn adds one other ingredient to the alchemy that creates chaos out of law and order: resources for prosecution services have not kept up with the increasing burden.

Canada-wide, the median length of time to complete an adult criminal court case was 118 days, according to Statistics Canada’s data for 2011/2012, the most recent available. That includes everything from shoplifting to complicated criminal organization and homicide cases, accounting for about 403,000 cases.

In England, the average time between the filing of a criminal case in court and the final completion was 32 days in 2012, according to recent government statistics.

Among provinces, the shortest length of time — by a wide margin — was in Prince Edward Island, at 29 days.

The longest was Quebec at 191 days, although that statistic might be artificially high because it does not include municipal court cases, which tend to be easier cases.

The next longest was Manitoba at 140 days, followed by Alberta at 120, British Columbia at 114 and Ontario at 105 days.

Homicide cases generally took the longest to prosecute, with a median length of 391 days. The shortest was for being unlawfully at large, with a median of 18 days.

Mr. Gottardi estimates that about half of a case’s life revolves around disclosure — the information gathered by the Crown in the course of investigating and prosecuting someone charged with a crime, which must be turned over to the defence lawyer.

“A young or inexperienced defence lawyer might litigate every evidentiary issue,” he said.

We don’t have the resources to prosecute everything

In Ontario, prosecutors have resorted to “triage” prosecution, like the urgent, messy battlefield medicine practised in the TV series M*A*S*H, said Scott Rogers, president of the Ontario Crown Attorneys Association.

“We are forced to deal away less serious cases in order to handle more serious ones. So, we focus on crimes against the person and that means that crimes against property get dealt away. We’re forced to make a decision. We don’t have the resources to prosecute everything,” said Mr. Rogers.

The dirty secret of low-end cases, he said, is that prosecutors will drop the range of punishment for a guilty plea so low that it becomes almost irresistible for an accused not to take the plea. The trickle-down effect is that police start to know which cases to press ahead with and which ones might be handled in other ways, he said.

Some courts are worse than others.

In Ontario’s Niagara South region, the eight Crown attorneys are dealing with seven homicide cases on top of every other charge being brought in daily by police, he said.

The damage caused by clogged courts can be profound.

“If you’re a victim, you want to see justice done and if that doesn’t happen because a judge is not available, because the Crown prosecutor wasn’t available to look at a file or because a police officer forgot to photocopy a document, it is inexcusable,” said Mr. Gottardi.

Those accused fighting wrongful charges but can’t clear their name are also hurt by the backlog.

“When an impaired driver who killed someone is released without a trial, there is damage done. If that happens consistently, it’s the symptom that the system is sick.

The good news is, they are seeing delay times go down

Society is stuck with the causes of the more complicated cases for now, said Mr. Woodburn: “That’s something that is not going to change, so we need better resources to deal with it.”

There are signs of hope, he said.

In Manitoba, after Crown attorneys leveled workplace grievances over their workload, the province hired 65 new prosecutors. Quebec also saw an increase in court resources after prosecutors complained of burnout.

“The good news is, they are seeing delay times go down,” said Mr. Woodburn. “Unfortunately, in the rest of the country and in the federal prosecution service, it remains woefully under resourced.”

Until a fix is found, it seems likely more cases will be lost and those accused, like Mr. Magnotta, will have to wait for their day — or, more properly, their many days — in court.

Judge Brown, in his exasperation over freeing an accused drunk driver, wryly noted that when it comes to the buckling court system, the Charter of Rights is increasingly used “as a sword instead of a shield.”

  • Geographical area: Canada