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Gary Mason

Canada's drowning in a procedural legal swamp Add to ...

Canada’s judicial system is groaning under the weight of a procedural quagmire that threatens its very existence.

The problems are many, but chief among them is protracted court battles that engender massive legal costs that middle- and low-income wage earners can’t afford. And so, as Supreme Court Chief Justice Beverley McLachlin recently warned, our legal system is increasingly becoming the exclusive domain of the rich and powerful.

Many would argue it’s been that way for some time.

So-called mega-cases – the Air India bombing, the serial killer Robert Pickton, the trial of B.C. political aides Dave Basi and Bob Virk, all of which took years and millions of dollars to prosecute – get most of the attention when it comes to discussions about the glacial pace of justice in this country. But even routine trials for robbery, assault and murder are taking longer than ever.

The reasons are many: the Charter of Rights, changes in the laws around evidence, increased use of expert witnesses and wiretap evidence. But few legal rulings have had a more profound impact on our legal system than R. v. Stinchcombe (1991), where the Supreme Court found that the Crown had a duty to provide the defence with all evidence that could be even remotely relevant to the case. In the Basi-Virk case, the disclosure process took the better part of four years.

Disclosure has also put new and extraordinary pressures on our police forces, which often have to hunt down, tag and catalogue evidence demanded by the defence. This has had a sometimes crushing impact on police resources, which are already stretched to the breaking point. Meantime, judges are so petrified of denying a disclosure request and setting up grounds for a mistrial or appeal, they grant everything.

The repercussions of long trials are many: massive costs; the implications, financial and otherwise, for jurors; the domino effect it has on cases waiting behind it. An increasing number of cases are being thrown out because they have taken too long to get to trial. For instance, to get to trial in an Ottawa case in 2008, it took 13 court appearances and more than 14 months.

Former B.C. attorney-general Wally Oppal gives a popular after-dinner speech these days in which he tells his audience that U.S. swindler Bernie Madoff was charged, tried, convicted and sentenced in eight months. If he had been in Canada, his lawyers would still be getting disclosure.

Mr. Oppal is among those who believe that taxpayers have a right to demand changes to a legal system that costs more to underwrite each year. He sees no reason, for instance, why judges can’t impose stricter time limits on everything from closing arguments to cross-examinations.

The federal government has introduced legislation, Bill C-53, that would help streamline the process around the so-called mega-trials. More important, a government steering committee is looking at ways to better manage disclosure, in particular determining what is and isn’t relevant to a case. This could help avoid the daily reality of Crown lawyers disclosing thousands of documents that are ultimately meaningless to the defence but, nonetheless, takes months of court time to process at considerable expense.

Assigning Crown lawyers to work closely with police early in cases is also helping to reduce court times in some provinces. But we’re still far slower than the Americans.

The U.S. system is faster, in part, because more plea bargaining takes place in advance of a trial. Since the U.S. has such lengthy prison sentences for many crimes, there’s obviously more incentive to strike a deal. In big cases, that has a cascade effect. One guilty plea often leads to others.

In Canada, some of the government’s “tough on crime” measures (such as mandatory minimum sentences) have reduced the incentive of the accused to plea bargain.

In 2005, Mr. Justice Michael Moldaver of the Ontario Court of Appeal said long trials are a cancer on Canada’s justice system. The problem, he said, belonged to everyone: Parliament, judiciary, the Crown, police and defence lawyers. Six years later, the system remains extremely ill, maybe gravely so. Emergency measures may be required to save it.

 

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