It’s been two years since the Supreme Court of Canada imposed strict time limits on criminal trials, citing a “culture of complacency” among governments that has left the justice system underfunded and under-reformed for too long.
Since that ruling, people who have been charged with child abuse, murder, manslaughter, sexual assault against minors and many other horrible crimes have been set free, their guilt untested, because their cases have dragged on for far too long.
You would think that would have spurred the federal and Ontario governments into action the Supreme Court had in mind when it imposed deadlines of 18 months for cases before provincial courts and 30 months for superior courts.
But as a series of recent articles by the Star’s Jacques Gallant makes clear, governments are still dragging their feet when it comes to making even the most elemental changes to an archaic and systemically unfair system.
This has to change. Otherwise Canadians will, understandably, lose faith in an underfunded, unfair justice system that may too often be freeing the guilty and jailing the innocent.
A Senate report issued last year made 50 sensible recommendations on how governments could curtail lengthy court delays and make the system more fair.
But federal Justice Minister Jody Wilson-Raybould and her newly installed provincial counterpart, Caroline Mulroney, could start with the three issues highlighted by Gallant.
First, Mulroney could start pulling the provincial and superior courts out of what one critic termed a “dinosaur era” and into the modern age.
For example, implausible as it seems, many proceedings in Ontario’s court system rely on handwritten documents, with no computerized backups, that can easily get lost, creating huge delays.
Meanwhile, valuable court time and space is taken up on routine proceedings that could be conducted by email or by having lawyers and judges log into a shared system to provide whatever key information will move the case forward.
“It’s actually shocking how archaic the criminal court process is,” defence lawyer Annamaria Enenajor told the Star.
Second, the provincial and federal governments should increase funding of legal aid to reduce the number of delays caused when a litigant is not represented by a lawyer.
Indeed, at present, Canada effectively has a two-tier judicial system that favours the wealthy, who can easily afford lawyers, or the indigent who make less than $14,500 and are thus eligible for legal aid.
Everyone else must use up savings or go into debt to pay for lawyers. The alternative is to try and navigate a judicial system – with time-consuming aid from judges and prosecutors – that can be a daunting puzzle even for trained legal minds.
Finally, the federal government must address the issue of mandatory minimum sentences, something it ignored last March when it introduced Bill C-75, legislation meant to reform the justice system.
Mandatory minimum sentences contribute mightily to delays in the criminal justice system. As lawyers point out, there’s little incentive for a person to plead guilty if they are going to get the same sentence – especially if it involves jail time – that they would receive if they went to trial and were found at fault.
If mandatory minimums were removed or reformed, many issues could be resolved at an earlier stage in legal proceedings.
Further, mandatory minimums should be reassessed for the sake of fairness. Currently, they unfairly impact Indigenous and other marginalized Canadians because they make it much more difficult for a judge to hand down a sentence that takes into account the background of the accused.
Wilson-Raybould promised in March that the Trudeau government would “not stop working until we have a modern, efficient criminal justice system.”
It’s past time she led the way and encouraged the provinces to get on board.
Faith in our justice system – and ultimately in our democracy – depends on it.