A DIFFERENT APPROACH TO JUSTICE \

Delaying Justice is Denying Justice: An urgent need to address lengthy court delays in Canada

Executive Summary of the Interim Report

Context
Criminals on our streets. Traumatized victims. Frustrated Canadians. The consequences of court delays are significant and severe, and all levels and branches of government must take immediate action to address them.

In February 2016, the Senate Committee on Legal and Constitutional Affairs began a study on delays in Canada’s criminal justice system.

It is no secret that delays plague criminal proceedings in Canada. Nevertheless, the Committee’s findings are alarming.

Serious criminal charges have been stayed as a result of court delays, convictions have been overturned and the Committee heard that complainants feel victimized all over again when the wheels of justice turn too slowly.

Consequences
Operation SharQc should have been a success story.

An extensive Quebec police operation arrested 156 people alleged to be members or associates of the violent Hells Angels motorcycle gang.

But during the resulting mega-trials, more than 30 accused people were released due to delays and five men accused of gangland murders and drug trafficking were freed after the Crown failed to promptly disclose evidence to the defence.

In another deeply disturbing case, Ontario teacher Kenneth Williamson — who had been sentenced to four years in prison for dozens of sex attacks on a troubled 12-year-old boy — had his convictions set aside and his charges stayed by the Ontario Court of Appeal because of excessive delay.

In these examples, Canadians wanted to see the accused people prosecuted fairly and promptly. Instead — after months and years of dithering and delay at the taxpayer’s expense — these people were cut loose without regard to the evidence for or against them.

Court delays cause Canadians to lose confidence in the justice system.

Recommendations
This interim report provides an overview of the Committee’s findings to date and makes four recommendations that the Committee believes will result in a more efficient use of justice system resources.

As the Supreme Court recognized in its July 2016 decision of R. v. Jordan, there is a “culture of complacency in the system towards delay” that requires a significant shift in attitudes.

That shift can begin the federal government’s appointment of judges. The Committee has noted that many judicial vacancies remain unfilled. This unnecessarily limits court resources.

The committee believes judges should take advantage of the tools at their disposal to improve case management practices.

Further, other potential solutions to court delays can be found in restorative justice programs and “alternative courts” — like drug treatment and mental health courts — which prioritize rehabilitation over punishment. When used appropriately, senators believe they would increase the fairness and efficiency of the justice system.

Additionally, employing “shadow courts” — the practice of overbooking trial time to avoid empty courtrooms — has significantly increased court capacity in Saskatchewan.

Provincial remand centres contain thousands of accused people who have not been convicted of any crime. Therefore, technological solutions could also make court appearances more efficient and could be used to monitor some accused people so they do not need to be held in detention while awaiting trial.

Next Steps
Senators are continuing to study court delays in the criminal justice system. In the fall, the Committee will begin a cross-country fact-finding mission to gather more evidence from justice system participants.

Their testimony will form the basis of a comprehensive report on court delays, which will contain more recommendations crafted to ease this crippling paralysis.

The final report is expected to be tabled in 2017.

HALIFAX, May 2016 — Halifax is infamous for its rainy spring weather and Friday’s visit by members of the Senate Committee on Legal and Constitutional Affairs was no exception.

But the city is also known for an aspect of its courts system: restorative justice.

The committee travelled to the slate-skied city to learn more about this approach, which could help reduce court delays across the country; the committee is currently studying ways to unblock the country’s clogged court system. Restorative justice is a response to crime that focuses on the losses suffered by victims and communities. Available to young people between 12 and 17 years old, it consists of face-to-face meetings between the victim, the offender and community members. The objective is to develop a common understanding of the impact of the offence and the steps needed to make amends.

It is thus a more holistic and inclusive approach. According to many witnesses, it’s particularly effective at meeting the needs of young people who have run afoul of the law.

“It’s a system that not only gives victims a voice, but also helps accused people to grow and avoid repeating their mistakes,” said Senator Mobina Jaffer, deputy chair of the committee.

That, in turn, helps alleviate pressure on the justice system.

Committee members began the day by taking part in a “sharing circle,” as though they were participating in an actual restorative justice session.

Key members of the Nova Scotia justice system sat in the middle of the room to share their experiences – the seven senators seated around them listened attentively and asked many questions.

Afterwards, they met with Chief Judge Pamela Williams.

According to her, restorative justice not only benefits victims and accused people, it also reduces costs that would otherwise be borne by everyone.

“It keeps youth outside of emergency rooms and hospitals, it reduces contacts with police and keeps them outside of jails,’’ said Chief Judge Williams.

Committee members also visited a mental health court.

“As a longtime proponent of diverting the mentally ill out of the criminal justice and correctional systems, I was especially impressed by the mental health court,” said Senator Bob Runciman, chair of the committee. “The approach they take and the inter-disciplinary team they’ve built are impressive and I think they’re having a measurable impact. “

After a meal with members of Dalhousie University’s law faculty the Senators spent the rest of the day in public hearings. Restorative justice programs can be especially beneficial to young members of First Nations.

The quick visit to Halifax may have lasted less than 24 hours, but the productive sessions brought a flood of ideas to reduce court delays in Canada and about how restorative justice may help to achieve this goal.

Setting the stage for the study on court delays
Canada’s remand population has increased more than threefold over the past 35 years. More people are in custody than are serving actual sentences in correctional facility.

Meanwhile, former Chief Justice of Québec, François Rolland, is projecting that there will soon be no available court dates in his province in 2017.

Witnesses have told the Senate Committee on Legal and Constitutional Affairs that unclogging the justice system may require a review and simplification of the Criminal Code and the bail process.

The committee has also heard testimony about restorative justice, a process that shifts the focus away from punitive measures and on to victims and communities.

Other ideas include expanding specialized courts for those suffering with mental illness or drug addiction.

The committee plans to travel to Vancouver, Calgary, Saskatoon, Toronto and Montreal in the fall.