Another year is in the history books as the creaking structure of the Canadian justice system stumbled along under the weight of crushing new legislation and in the face of chronic underfunding. What does 2013 portend? Read on for some predictions of trends to watch for in the New Year.
1. Prison Overcrowding
About a decade ago prison overcrowding was a major news headline in jurisdictions across the country as an under-funded system struggled to deal with a growing population and a steady increase in the number of incarcerated persons. A multi-faceted approach that included an increase in non-custodial sentences and the construction of new facilities bore fruit as 2000-2005 saw a drop in incarceration. 2005 marked the beginning of a return to a steady rise in prison populations – a trend no doubt hastened by the ‘tough-on-crime’ legislative agenda of the Harper Conservatives. With the recent closure of high-profile federal penitentiaries in Kingston, Ontario and Laval, Quebec, it is questionable whether new so-called “super-jails” will be able to keep up with the influx of prisoners. Vic Toews sparked a concern amongst inmates and prison guards alike when he famously suggested “double bunking” this past summer as the quick-fix to the overcrowding problem. The canaries in the coal mine of overcrowding are in fact the Provincial remand facilities where prisoners serving shorter sentences or awaiting trial are housed. Anecdotally, I am hearing disturbing reports of a return to the bad old days of three and four prisoners to a cell making the suggestion of double bunking seem like a pleasant sleepover opportunity. As new mandatory minimum legislation increasingly applies, these prisoners will be migrating to a Federal penitentiary system ill-equipped to handle the influx.
2. Crisis of Talent in the Defence Bar
Dramatically rising fees at Canadian law schools with equally dramatic reductions in provincial legal aid budgets have created the perfect storm for young talent in the criminal defence bar. Students who used to graduate law school with manageable debt had a reasonable expectation of finding articling positions and eking out modest but respectful livings under the tutelage of revered senior counsel.
Today, students commonly graduate with crushing debt levels approaching six-figure sums. The prospects of articling positions and future associate employment are indeed grim with even the Crown Attorney offices on extended hiring freezes. To invest three years of one’s life along with nearly $100,000 in tuition and related expenses seems hopelessly optimistic or downright stupid given today’s employment prospects in the field. While this means an immediate predicament for law school graduates it is the foundation for a crisis of talent within the defence bar that should be grave cause for concern for anyone who values a robust defence as a cornerstone in achieving justice. As the aging guard reaches retirement age, there are fewer and fewer young criminal lawyers to take their place. Those youthful counsel who have managed to weather the storm have had to be largely self-taught without the extraordinary benefit of a senior counsel’s guiding hand. With legal aid persistently on the verge of collapse, few young lawyers have had the opportunity to cut their teeth sitting second chair on complex trials. Clients, and ultimately the system itself which relies on skilled defence advocates to bring balance to trials, will soon be suffering the consequences and the outlook for 2013 is grim.
3. The growth of the unrepresented defendant
When potential clients hint to me that they are thinking about representing themselves in court I liken their efforts to attempting to perform open-heart surgery — on yourself. While that analogy sometimes shocks people into reconsidering, an increasing number of clients appear to agree with the general foolhardiness of the proposition but are left with no alternative as they are squeezed between the rock of dwindling income and the hard place of a legal aid program available only to the completely impoverished. When you can’t afford the surgeon and the State will no longer provide you with one, more and more people will be compelled to pick up the scalpel.
The consequence to our justice system will be increased delays and expenditures as judges, crowns and duty counsel struggle to provide fair trials in complex cases where the stakes are high to self-represented individuals.
4. The Tower of Babel comes crumbling down
It should come as no surprise to anyone who has been following the state of the Canadian justice system that we are facing a looming catastrophe when it comes to court-certified interpreters. Over the past several years, a handful of cases have arisen in which no satisfactory interpreters have been located. Such a situation leads to two equally untenable results: either conduct a trial in which the accused is unable to properly understand the proceedings, or face a stay of proceedings in which the guilt or innocence of an accused goes permanently unresolved. Either is a travesty of justice.
That handful is growing while seemingly nothing has been done to address the issue. In late 2011, two Ontario cases failed to find acceptable interpreters throwing the prosecution of an ‘over 80’ and drug trafficking case into doubt. 2013 will either be the year that Provincial governments get serious about building a roster of fairly compensated competent court interpreters or it will be the year when dozens of cases get buried in the Babel’s rubble.