Eight factors that contribute to delays in Canada’s criminal justice system

On February 25, 2016, Legal Aid Ontario (LAO) CEO David Field spoke to the Standing Senate Committee on Legal and Constitutional Affairs. His contribution was part of a national discussion, hosted by the Senate, on delays in Canada’s criminal justice system. Here is a summary of David’s views about the problem (Part 1 of 2)

Today’s delays in the criminal justice system do not have a single cause, and no one justice system participant can “solve” or “fix” them. But it is time to think of new approaches and investments that will increase access to justice in the criminal justice system.

The most important factors

1. Numerous new “tough on crime” federal legislative amendments

The increase in mandatory minimum sentences arising out of Bill C-10, for instance, has resulted in lengthy Charter motions challenging the mandatory minimums.

The limited availability of conditional sentences as an option resulted in a challenging plea process. It also provides an accused with incentive to proceed to trial. More accused would likely opt to resolve their matter if they were facing less onerous consequences than losing their jobs or their homes.

2. Amendments to the Immigration and Refugee Protection Act, 2013

Parts of this legislation have been repealed, but what remains still holds potential for court challenges and appeals.

If you’re a permanent resident or foreign national and are found guilty of a crime, for instance, you become inadmissible on grounds of serious criminality, and you have only a limited ability to appeal your removal order.

With repercussions such as immediate deportation and loss of the right to appeal immigration status on the table, it’s not surprising that defense counsel would advise clients to seek immigration law advice. And this advice may include the fact that their clients do have grounds to appeal if a guilty plea was not informed or the issue of immigration status wasn’t raised at sentencing.

3. Bail system issues

Ontario jails are housing more people awaiting trial or sentencing than actually serving a sentence.

Bail system problems include:

• bottlenecks as a result of the need to prioritize trials for in-custody accused
• reliance on sureties, which means providing time for accused persons to seek adjournments to put together a release plan and for courts to work with sureties to make sure they are available to attend court
• unrealistic bail conditions that result in people breaching bail, and then becoming further entangled in the justice system.

These issues are well documented in the Reasonable Bail? report released by the John Howard Society of Ontario and the Set up to fail: Bail and the revolving door of pre-trial detention report by the Canadian Civil Liberties Association.

4. Over-representation of vulnerable client groups

• Aboriginal people make up only 2.4 per cent of Ontario’s population, but comprise 20 per cent of LAO’s criminal law certificates.
• Services to clients with mental health issues account for nearly 25 per cent of LAO’s annual budget.
• As many as one in three legal aid certificates is issued to a client with mental health or addiction needs.
• The lack of availability of beds in the health system for mental health assessments means that accused with mental illnesses languish in jails waiting to be assessed.

5. Ineligibility for legal aid for clients who have to go to trial

Clients who are ineligible for legal aid and must go to trial have limited options. They can:

• seek court-appointed counsel through the Rowbotham process
• represent themselves—which can be frustrating for the court, prosecutors and witnesses alike.

6. Problems obtaining and accessing disclosure

The volume of data included in disclosure continues to grow. For example, many cases now rely on evidence of tweets, texts, Facebook and other social media postings. These can number in the thousands.

7. Unused court time

When cases collapse on the day of trial, courts are left vacant. More effective pre-trial discussions could help alleviate this problem.

8. Paper-based court administration, management and processes.

These include scheduling and time-management issues relating to the hours of operation of courts, prisoner transport issues, the scheduling of appearances, and availability of interpreters.

We need better court management programs and electronic document management systems to allow for better scheduling and time tracking, greater accessibility to documents, and online filing.

Better systems would also produce better data about how the system is working, which in turn would allow for better management of resources.

In my next post, I’ll describe LAO’s recommendations to the Senate to address these significant problems in our criminal justice system.