We live at a time when our national government is transfixed with “tough on crime” policies. We also live at a time when crime rates are the lowest in decades.
Take British Columbia, which, until the late 1990s, had the highest rate of Criminal Code offences of the four western provinces. Today, its rate (third lowest of the four) is about where it was in 1970; it has been dropping for the past 10 years, with youth crime falling faster than overall crime. And yet, less crime has not translated into lower court costs. Crime is down 33 per cent in the past six years, but criminal justice costs are up 35 per cent in the same period.
Smacked in the face by these results, the B.C. government has been conducting internal reviews; it also issued a green paper on modernizing the justice system and appointed lawyer Geoffrey Cowper to study the problem. His findings, reported last month, were disturbing. In fact, if you took the words “lawyers,” “judges” and “justice system” out of the report, an innocent could imagine he was describing the health-care system.
To wit, these observations from Mr. Cowper:
“The system fails to meet the public’s reasonable expectations of timeliness.”
“There is a general sense of frustration that previous reforms have not succeeded at delivering change.”
“There is a general sense of frustration and anxiety that there is not enough money, compounded by the obvious context that we are in a time of fiscal restraint and competing demands on public resources.”
“Over a decade ago, Chief Judge [Robert] Metzger expressed concern over what he termed a ‘culture of delay.’ In my respectful view, the facts show that such a culture remains today.”
Just as physicians guard their professional autonomy, so judges defend “judicial independence.” They don’t like outsiders prodding them or poking about in their affairs, let alone criticizing the slow administration of justice. But Mr. Cowper found that, although the caseload at Provincial Court has been decreasing, “cases are still taking too long to go to trial.” Moreover, “the time to trial and length of trial in the Supreme Court both appear to be on the rise; the Court is struggling to effectively manage several very large and complex criminal cases.”
Just as in health care, where wait times for serious, non-acute cases sometimes cascade – getting an appointment with a family physician, a referral to a specialist or a date for surgery – so delays in the justice system can cascade with remands, collapse of the case on the first day of trial, procedural appeals or lack of modern communications and systems planning.
As in health care, some cases are dealt with expeditiously, but too many drag out, with attendant additional costs. Judges, like doctors, plead for more money and help as a way of dealing with backlogs.
B.C. is not alone in worrying about delays in the administration of justice. Ontario also has been trying to do something about its delays and high costs. Everyone in the field is aware of the Supreme Court of Canada’s 1990 Askov decision warning that “all members of the community are entitled to see that the justice system works fairly, efficiently and with reasonable dispatch. The failure of the justice system to do so inevitably leads to frustration with the judicial system and eventually to a feeling of contempt for court procedures.” And, it turned out, for prosecutions to be abandoned because of intolerable delays.
Predictably, because this is an instinctive governmental response, an additional $237-million over the next three years was allocated to the B.C. justice system to “stabilize” it at “status quo levels.” More study, new ministerial structures, new councils and new court procedures will be tried to get a grip on the problem.
But as the B.C. government acknowledged in its last budget, “there are real challenges in fixing the system. These include the complexity of the overall system, the entrenched culture and the traditions of the system, the interpretation of independence, and limited system-wide strategic and business practices.” The same can be said, with varying degrees of truth, about other large, complicated public systems.