Crossing the Jordan: Five Obvious Ways to Combat Delay in our Criminal Courts

The release of R. v. Jordan by the Supreme Court last July revamped the way our courts decide whether a case has taken too long to come to trial. For some, this has led to panic and cries to have the decision, which is barely a year old, overturned. 

That's unlikely to happen. The lead voice behind the decision, Justice Moldaver, is hardly a novice at criminal law nor did he simply want cases tossed without regard to the seriousness of a criminal charge. This decision was meant to shake things up. It was not meant as a gift to the defence bar. 

The fact is, many aspects of our criminal justice system were created in the 19th century. Paper calendars in the sole possession of a trial co-ordinator whose crankiness is often seen as a testament to their abilities. Interim court dates by the dozen where people are made to stand around for hours just to get their crack at two  minutes in front of a justice - only to be brought back in three or four weeks time for another two minutes.

If you're a criminal lawyer, you're used to this. It's what wet is to a fish - you hardly remember that you're swimming in it. But it is exactly what the Supreme Court in sickened by - delays that made no sense. The notion that it is acceptable for a serious crime to take more than two or three years to come to trial.

That's not justice.

But it's not enough to simply cry at or applaud what the court did. They lit a fire under all justice participants. Recently, my office held a meeting where lawyers of all levels of seniority voiced suggestions to speed up the system. Comping some of what they said and some of has been voiced by others (like colleague Sean Robichaud or the Canadian Bar Association), here are my top five suggestions to make our system speedy:

1. ELIMINATE TOO-LONG TRIALS

Have you heard about the nine-month long murder trial? That's nothing compared to the 18-month murder case - which was overturned on appeal. These are real. Not only does a trial like that ensure your jury is totally unrepresentative of the rest of society, it is all you need to know that our system has the penchant to go off the rails.

I don't care how serious or complicated a case is. If you can't prove it in less than three months, get a new Crown attorney. Split it up. Figure out what the case is all about. 

2. ELIMINATE LENGTHY ADJOURNMENTS FOR FURTHER EVIDENCE

Along with one-year long jury trials, adjournments for further evidence are the bane of the justice system. Think Mike Duffy. His trial on breach of trust started on April 7, 2015. It ended more than a year later - on April 21, 2016. After 62 days of evidence.

Why did it take so long? Well, for one, that's the way things are done in the Ontario Court of Justice with trials in front of a judge-alone. The concept of a single, continuous trial - as is done in jury trials - is foreign.

Secondly, no-one in the system takes ownership for the scarcity of resources. As with the year-long jury trial, Crown attorneys sometimes think they have to lead every single piece of evidence that is remotely connected to a case. A similar criticism can be levelled against some defence lawyers. Cross-examination is the holy grail of the criminal lawyer - but there are limits. As I was told when I was growing up, what matters is quality, not quantity. Right?

If we can properly schedule trials and have them run more efficiently, we'll free up tons of resources.

3. EXERCISE DISCRETION 

This is directed at Crown attorneys and police officers. Stop charging for simple possession of marijuana. Now. Just don't do it. And dispensary raids? 

Stop prosecuting every trivial violation or seeming violation of our criminal laws. Don't engage in bargaining - just withdraw it. Every second of your day spent trying to get something from the defence in exchange for a withdrawal is another second that adds to the Jordan problem. 

Hint: marijuana is going to be legal in a year. Perhaps engage in a bit of discretionary decriminalization right now. 

4. DO SOMETHING ABOUT DRINKING AND DRIVING CASES

I'm not saying drop these cases. Drinking and driving matters. But they also clog up our courts. Almost every drinking and driving case involves a Charter challenge and at least one or two days in court. Almost every one is contested because a finding of guilt gives a person a criminal record. If these cases were removed from the criminal dockets, the crisis represented by Jordan could be eliminated probably by half.

This isn't exactly in a criminal lawyer's best interest. It is the bread and butter of a good part of the defence bar. But herein lies the problem. 

Look at British Columbia. The vast majority of drinking and driving charges are now dealt with by way of administrative suspensions, not criminal charges. A spokesperson for the BC Crown's office says they aren't worried about Jordan and are well-prepared to deal with it. They've instituted reforms other than removing DUI's from the courts, but that has to be unspoken reason why Jordan is not a crisis in BC. Let's do something similar. 

5. BRING IN ELECTRONIC OR NON-APPEARING REMANDS

After a person is charged in Ontario, on average they appear in court five to six times before they set a trial date, plead guilty, or have the matter withdrawn. We're talking about thousands of people every year who clog up our courts on different days for five-minute court appearances. This represents an entire bureaucratic layer of staff, courtrooms, lawyers, and non-essential paperwork. 

The brunt of this bears down on defence lawyers, their employees, and the accused. It takes them away from their lives in cases of the accused, away from file work for their lawyers, and builds up resistance and resentment towards common sense resolutions.

Change this. Eliminate non-essential court appearances. Free up resources to handle trials, bail hearings and trial prep. The result will pay off in dividends across the system.

That's my top five. There are a lot more. Like reform the bail system. Stop setting people up for breaches by placing unfair and unrealistic conditions on their release. Start releasing them automatically from the station when police know they'll get bail or suggest fair terms when they're in custody.

Increase resources for Legal Aid. Properly funded defence counsel are better-prepared and equipped to run an efficient trial and zero in on the real issues. 

We have real solutions. We can bring people to trial in months not years. It just takes a bit of work and common sense.