Let's say, for the sake of argument, that Livent Inc. founders Garth Drabinsky and Myron Gottlieb, yesterday convicted on charges of fraud and forgery, had been in jail for even some of the six years it took before their trial began.
In truth, as is often the case with members of their otherwise law-abiding, affluent and well-connected set, Messrs. Drabinsky and Gottlieb spent but a few uncomfortable hours in custody before handing over their passports and being released on bail of $150,000 each.
They have been free since first being charged in the fall of 2002.
But had they been in custody for a year or two, when they come to be sentenced, would the scandal really be if the judge gave them "two-for-one" credit for every day of pretrial custody they served?
Wouldn't the real outrage properly be that it took six years to get the bloody case to trial and that a verdict came only in the seventh?
All this is by way of saying that the federal Conservatives have the trees firmly in their elephant-gun sights, but remain steadfastly oblivious to the forest.
Justice Minister Rob Nicholson was yesterday talking up the Tory plan to end the notorious "two-for-one" practice; the government will introduce legislation to this effect tomorrow.
But the problem isn't the double-time - or triple time - credits, or even the judges who dispense them like bonbons.
The extra-credits practice is just a symptom of what everyone who works in the courts knows very well is the real problem - the egregiously glacial pace of Canadian justice - but which no one much wants to discuss, let alone fix.
Cases routinely get mired in the muck of the system such that accused persons - these are presumed-to-be-innocent persons, remember - who don't have the resources or sterling records of Messrs. Drabinsky and Gottlieb are stuck in jail, often the worst jails, awaiting their day in court.
Occasionally, this works to the accused's advantage; if he knows he is guilty or is likely to be found guilty or is intending to admit the essentials of the offence at a later date, the smart accused or his lawyer may do the math and not apply for bail. I covered one recent case where the accused, facing a murder charge, did just that.
But more often, the accused has been denied bail and is desperate for his trial to start; I was in court recently when the lawyer for a young man accused of murder was furious when the presiding judge told him the earliest possible trial date was in 2010.
I presume there are also cases where accused people are acquitted after spending months or years in pretrial custody, but, unlike their convicted cousins, have no way of getting "credit" for the time lost.
For all that the Livent case took as long as it did, it isn't unique. It isn't even the slowest-moving case I know of.
Take, for instance, Regina versus John Magno.
Mr. Magno was charged on Aug. 7, 2002, with second-degree murder (via a little-used section alleging the death was by way of "an unlawful object") in connection with an infamous Christmas Day fire at the Woodbine Building Supply store the year before.
Ruled an arson, the fire was one of the biggest in Toronto's history, a six-alarm job that saw the surrounding residential neighbourhood spared only through exceptional efforts by firefighters. The destruction of the building was so extensive it wasn't until Jan. 9, 2002, that workers discovered the severely burned body of a young man, later identified as Tony Jarcevic, in the basement.
Mr. Magno and his brothers were the owners of the building, and subsequently filed claims to their insurers for a total of $3.5-million.
Mr. Magno, who was at home during the fire, and two others, who were at the scene with the unlucky Mr. Jarcevic, were charged with second-degree murder under the "unlawful act" - in this case, arson - provision. It is the prosecutor's theory of the crime that Mr. Magno planned to burn the property to obtain the insurance monies and that the co-accused, and the deceased man, were recruited to assist.
Seven years later, Mr. Magno's trial has yet to even begin; fortunately for him, he spent only about two months in custody before being granted bail. The trial was slated to get under way this spring, but this week was delayed again; at the earliest, it could start in the fall, but it could also be as late as next year.
There are various reasons for the delay. There always are. Sometimes these are valid, sometimes not. Sometimes the guilty benefit; sometimes the innocent suffer; justice never wins. Surely this is the problem Ottawa should be tackling, not the judges' controversial remedy.
