Last June, Justice Peter Fraser of the Ontario Court of Justice stayed a sexual assault charge against a person under the age of 18, who by law can only be identified as C.L.
The judge did not find the charges to be without merit. Nor was the case dropped because the Crown no longer wished to pursue it. It evaporated because the new provincial courthouse in downtown Toronto didn’t have enough staff to put on a trial.
According to Justice Fraser’s ruling, between March 31 and July 6 of this year at the new courthouse, “343 courtrooms were closed due to staff shortages.” He described the number as “clearly staggering,” and as having “caused significant disruption to criminal matters.”
I wrote earlier this week about how Canada has a lot of Important Stuff That Isn’t Working, and how getting things to work better can only happen if government does better.
Consider government’s most basic function: doing justice.
The idea of the “King’s peace” goes back to medieval England, when it replaced the traditional dispute resolution system, the family blood feud. Today, when someone steals, assaults or kills, they are not only harming the immediate victim. The crime is against all of us, represented by the figurehead of the Crown. That’s why every criminal case is described as “His Majesty the King” against the accused.
When the law is broken, we need government – representing us and acting on our behalf – to mend the tear in the social fabric. Our Constitution’s keystone phrase is “peace, order and good government,” because securing the first two depends on the last one.
Back to the goings on at Toronto’s new courthouse.
An old legal maximum says that justice delayed is justice denied. That principle – the right to a reasonably speedy trial – is also in Section 11 of the Charter of Rights. For criminal matters before provincial courts, the Supreme Court has defined “reasonable” as 18 months.
In the charges against C.L., more than 18 months had passed. And “government didn’t hire enough staff” is not a valid excuse.
C.L.’s trial was scheduled for March 23-24, 2023, in courtroom 602 of the new courthouse.
But on the morning of March 23, four out of 12 courtrooms with criminal cases had to be closed because of staff shortages. Hearing and rescheduling matters from those shuttered courtrooms became Justice Fraser’s job. That ate up half a day.
The next morning, five courtrooms had to be locked because of staff shortages. C.L.’s trial was able to start, but could not be completed by the end of the day.
And because of months of cascading cancellations and rescheduling, the earliest available court date to resume the trial was July 5. That was beyond the legal time limit, so out the case went.
It was hardly the first time that serious criminal charges at this courthouse were tossed because of staff shortages, and it may not be the last. Earlier this month, a judge threw out another sexual assault case; he called the result “shameful.”
The principle of justice delayed equalling justice denied does not only apply to criminal matters. The entire basis of our free-market economy is contracts – billions of interlocking promises and obligations, enforceable in civil court.
But what if courts don’t enforce those contracts, or take too long?
That’s what’s been happening at Ontario’s Landlord and Tenant Board, the special court for contractual disputes between landlords and tenants.
According to a May report from Ontario Ombudsman Paul Dubé, the backlog of cases at the tribunal had by then reached more than 38,000, with waits for a hearing of up to two years.
Such huge delays punish the good and reward the bad. Tenants can get away with not paying rent for months or years. Abusive landlords can get away with not making repairs.
Mr. Dubé described the board as “fundamentally failing in its role of providing swift justice to those seeking resolution of residential landlord and tenant issues. In doing so, it is denying justice to a significant segment of Ontarians.”
Meanwhile, back at the provincial courthouse in Toronto, things have apparently improved. The Toronto Star reports that, between mid-September and late October, no courtrooms were closed because of staffing delays. Good government isn’t just essential; it’s even possible.
But I can’t help but notice that Ontario’s planned spending on the “justice sector” is budgeted to fall next year, and fall again the year after that. I wonder what the consequences will be.