“You need to return on a Wednesday at 9:00am or a Friday at 2:00pm.”
“Oh wait, sorry. You’re client’s last name begins with ‘G’. That’s a Tuesday matter.”
“But I’m back here this Monday…”
“Oops. Hang on. It’s a domestic. Thursdays at 10:00am. Definitely Thursday.”
The above is a pretty faithful recounting of nearly every day in set-date courts across the Greater Toronto Area (GTA) and, perhaps to a lesser extent, across Ontario. I don’t have a sufficient personal sample size to gauge whether the alphabet soup insanity that has infected my home province has spread its viral tentacles across the rest of the country but if it hasn’t, I advise counsel to begin work on the vaccine NOW for the plague is coming.
Earlier this month, just a day after his swearing in as Chief Justice of Ontario, Justice George Strathy remarked, “Having been a lawyer and a judge in this province for over 40 years, it strikes me that we have built a legal system that has become increasingly burdened by its own procedures, reaching a point that we have begun to impede the very justice we are striving to protect.”
Justice Strathy was sounding a call to action to stall the steady deterioration of access to justice in this province. There are a number of ways to skin this cat but with Ministry budgets in a perpetual state of belt-tightening, throwing more money at courts, crowns, cops and (if anyone remembers to save the table scraps) legal aid, only scratches the surface. The system must be proactive in holistically seeking streamlined simplicity at every stage in the litigation process. Strathy’s comments were intended as a broader indictment of the crushing costs imposed upon litigants in an increasingly process-laden system but if the courts are ever to get a handle on spiralling fees in the criminal law sphere, attention must be turned to the daily grind of the local set-date docket.
As it now stands, the date, timing and courthouse location of any given case depends on a dizzying array of factors. Is the Crown Federal or Provincial? Is this a ‘special prosecution’ such as domestic violence, impaired driving, guns & gangs? (I’m still waiting for the creation of a court dedicated to witchcraft prosecutions – in an era of Harry Potter fame that day is surely not far off.) Is the client a youth or an adult? What police division made the arrest? Is the case in the Superior Court, Court of Justice, traffic court, or Provincial Offences court? Is the client appearing in-person or by video link from a local jail? Is the attendance for a guilty plea, crown pre-trial, judicial pre-trial? And, most hilariously but no less important to the magic of scheduling, is the letter that begins your clients’ last name.
Defence lawyers spend so much time juggling the calendaring atrocity of Ontario’s courts, it’s a marvel anyone has any time left to actually address trial issues. The extent of the problem has grown so overwhelming that I predict, only half-jokingly, the defence lawyer of the future will not sub specialize as a ‘drinking and driving’ or ‘homicide’ lawyer but rather as a lawyer for all clients whose last names begin with the letter ‘Q’. It’s about the only way to ensure that you can make it to court for a given case without being quadruple booked.
The road to hell is paved with good intentions and so it is with the path that brought us to alpha-numeric justice. As the volume of cases in the system grew and the quantity of disclosure ballooned, Crown offices were struggling to ensure that the administrative requirements of organizing such cases kept pace with constitutional demands for speedy trials. Thus was “Vertical File Management” (VFM) born. The idea had merit: ensure that Crown attorneys had more hands-on intimate knowledge of their briefs by sub-dividing the deluge of cases flowing through the system into smaller more manageable streams. Each Crown office took a different approach to implementing VFM case management with some opting for alphabetical sub-categories, while others used the offence type or police division as the dividing line.
As VFM was touted ‘coming soon to a courthouse near you’ defence lawyers began to squirm. Promises were made and assurances given that the new system would be flexible and respectful of lawyers who race from courthouse to courthouse juggling a handful of clients on a daily basis. While lip service was paid to accommodation and flexibility, VFM quickly devolved into a rigid scheduling nightmare for busy defence lawyers. Today, a lawyer can reasonably be expected to race between three or more courthouses on opposite ends of a traffic-choked city struggling to meet seemingly arbitrary times and dates just to provide a sixty second update on a case as it crawls through the system. Woe be to the lawyer who needs to set a trial date or pre-trial where he or she may be required to navigate a complicated ballet of courtrooms, trial coordinators, and police leave dates while waiting interminable hours for someone to carry the Crown file thirty feet down the hall (defence lawyers being deemed too unsavory and inherently dishonest to handle this lofty task themselves).
Who pays the price for this colossal inefficiency? It’s not the Crown civil servants whose offices are housed in the very same courthouse within a hallway or two of any given courtroom in which they might be required. It’s the defence lawyers who work on increasingly razor thin margins in the criminal law sphere, and their vulnerable cash-strapped clients.
But there is a ray of light at the end of this twisted tunnel. The words of Chief Justice Strathy, themselves echoes of other senior justice officials, are beginning to resonate. There is increasing recognition that the system – and not just its individual participants – shares the responsibility of encouraging and ensuring access to justice. In a digitally connected, smart-phone enabled internet era, there are early signs that the necessity of physically attending monthly set-dates could become as quaint as reading a pulp newspaper while getting your shoes shined down by the old five-and-dime. The time has come for process to take a back seat to the real end-game of our court system – justice.