Strategies announced last week by Attorney General Chris Bentley are a good first step toward shortening criminal court delays, but lawyers say the province still faces a long trek before reaching a solution to the problem.
“The review is long overdue, and I can say that improving the timing of disclosure and fostering ownership of files through dedicated Crown management and the improvements to on-site legal aid are all important first steps,” says Toronto criminal defence lawyer Adam Boni.
“But they do not go far enough in solving the entire problem. My view is that you cannot arrive at a solution by solving only part of the problem.”
Included in Bentley’s announcement was a commitment to reduce court delays and appearances by 30 per cent over the next four years, making publicly available criminal court statistics (http://www.attorneygeneral.jus.gov.on.ca/english/jot/stats_map.asp), assigning a “dedicated prosecution” to cases, and placing 17 more legal aid application offices in criminal court locations.
Bentley also has assigned Regional Senior Justice Bruce Durno and senior Crown attorney Kenneth Anthony the task of leading an implementation team to find other ways to speed up the criminal court process.
The government said that in 1992 it took an average of 4.3 court appearances to resolve a criminal case, but by 2007 that number had risen to 9.2 appearances. Also, while in 1992 cases were in the system for an average of 115 days, that number had increased by last year to 205 days.
The commitment to dedicated prosecution will see Crown prosecutors work with support staff in “small, tight-knit teams” to deal with cases from their entry into the court system to resolution, “or until it proceeds to trial,” said the ministry. Several Crowns previously dealt with a single case, which the ministry said caused delays.
The government said it aims to introduce the dedicated prosecution service to the province’s 17 high-volume court locations by the end of the year.
By committing to working with Legal Aid Ontario to add to the nine current on-site application offices, the government hopes to get more lawyers assigned to cases quicker, which it said will lead to fewer court appearances for accused persons.
Ontario Bar Association past president James Morton says the government has taken an important step by creating a target for improvement.
“The transparency is critical. The fact that we have quite explicit targets and will be able to track the targets courthouse by courthouse across the province means that these are realistic, achievable goals which will actually be fulfilled,” says Morton.
“There’s no real alternative - it’s one thing to say we’re going to work on speeding cases up, but unless you measure the effect of the changes, you have no idea if the changes are working, and it’s much easier to let the status quo continue.”
Morton expects Durno and Anthony will look at reducing the number of unrepresented accused, which he says has “skyrocketed” in the last two decades, as a way of further reducing delays.
“Unrepresented accused poses an enormous challenge for the courts,” he says. “Delivery of disclosure is problematic, they don’t know how to approach a hearing, how to do things, and they slow down the system immensely.”
County and District Law Presidents’ Association chairman Randall Bocock says the association is “entirely supportive” of the government’s plans, as they dovetail with many of the recommendations within a recent CDLPA report on judicial resources.
“We’ve recommended that there be an assessment of appropriate benchmarks and timeframes representing reductions in case file times and timeframes, and then monitoring and supervising to ensure those benchmarks are achieved,” says Bocock.
But he says the next steps toward solving the problem of criminal court delays are proper legal aid funding and judicial complement.
“If we focus on those two items, together with these amendments, we think we’ll go a long way to addressing the delays,” which he says strike at the heart of access to justice in the province.
“From the public’s perception, access to justice, where justice is delayed, whether you’re an accused, whether you’re a victim, whether you’re a Crown, or whether you’re the police, where justice is delayed because of the elongation of time from charge to verdict, that is effectively an inaccessible justice system,” says Bocock.
The government said the measures announced last week will supplement the efforts of former chief justice of the Ontario Superior Court Patrick LeSage and University of Toronto law professor Michael Code, who are leading a review of large and complex criminal cases.
Bocock says the government also must deal with delays in family law matters, child custody cases, and civil trials.
Boni says he’s “cautiously optimistic” about Bentley’s plans to cut delays. He says new protocols must be set up between the police and Crown and that judges must enforce disclosure timelines, senior Crowns must vet cases early on based solely on the merits of the specific case, and vertical case management must be eliminated in Toronto courts.