The Senate Legal and Constitutional Affairs Committee’s Eight Report: Delaying Justice is Denying Justice: An Urgent Need to Address Lengthy Court Delays in Canada (published, August, 2016), must produce a final report by March 31, 2017.
1. The Major Shortcomings of the Committee’s Report
Appendix A to the Report is this List of Recommendations (p. 16):
Recommendation 1: The Committee recommends that the Government of Canada work with the provinces and territories as well as with the judiciary to examine and implement best practices in case and case flow management across Canada to reduce the number of unnecessary appearances and adjournments and ensure criminal proceedings are dealt with more expeditiously.
Recommendation 2: The Committee recommends that the Government of Canada take immediate steps to ensure that an efficient and expeditious system is in place for making the necessary judicial appointments to provincial superior courts.
Recommendation 3: The Committee recommends that the Government of Canada provide leadership and invest resources in collaborating with provincial and territorial governments in order to develop and make available research on best practices and implementation procedures for mega-trials and for alternatives to the traditional criminal justice system model, including restorative justice programs, integrated service models, “shadow courts” and therapeutic courts.
Recommendation 4: The Committee recommends that the Government of Canada provide leadership and invest resources to collaborate with provincial and territorial governments to develop and make available suitable technology and computer systems to modernize court procedures and court infrastructure and to more efficiently handle the monitoring of accused persons and offenders.
The Report does not deal adequately with these causes of “delay of justice”:
(1) the very inadequate resources that governments provide to their courts and justice systems;
(2) the complex technology that now produces a large portion of the evidence that courts deal with, which requires time to challenge its reliability; and,
(3) the unaffordable legal services problem, i.e., the majority of the population cannot afford a lawyer’s advice, therefore they must go to court unrepresented by counsel. Their cases take longer to go through the courts.
2. Government Strategy in Coping with Pressure to Improve the Justice System
There needs to be a more knowledgeable appreciation of what happens when governments are forced to improve the efficiency of the justice system. Politicians appear to have a deeply entrenched belief (during my 50+ years as a lawyer) that there are no votes to be gained by improving the justice system. The result is that governments respond to pressures to improve the justice system’s performance by reducing procedures and safeguards against wrongful convictions, and wrongful decisions in civil cases. The result is that they do not have to spend more money on the system—a system they perceive as not being politically profitable to improve. See: “No Votes in Justice Means More Wrongful Convictions” (pdf.). It deals with the criminal justice system in Toronto beginning in 1966, when I became a Crown prosecutor in the criminal courts in Toronto, Ontario. (No change is needed to be made to this paper because it was published on the SSRN before the Supreme Court of Canada’s “unreasonable delay” decisions in, R. v. Jordan 2016 SCC 27, and, R. v. Williamson 2016 SCC 28, were released, concerning Canadian Charter of Rights and Freedoms s. 11(b).)
Governments may use the Committee’s recommendations as a justification for abolishing the preliminary inquiry. Removing such safeguards would speed up the processing of cases. But it would weaken the ability to prevent wrongful convictions by removing an opportunity to test the reliability of the Crown prosecutor’s evidence. Significant amendments have already been made to Part XVIII of the Criminal Code towards abolishing the preliminary inquiry.
This Senate Committee report shows no sign of the history of government performance in regard to such problems within the criminal justice system. If history repeats itself, the Committee’s recommendations will be used to create the appearance of reform without the substance of real reform, because substantive reform costs money.
3. Evidence produced by technology has to lengthen court proceedings to test its reliability
For example, abolishing the preliminary inquiry as a way of reducing the time needed to process criminal cases through the criminal court system has been a favorite topic of discussion for many years. That would reduce cost and delay. But it would also remove an important safeguard against wrongful convictions. All evidence that isn’t witness’s direct evidence now comes from various forms of electronic technology. But almost all electronic technology lacks legal infrastructure to control its use and enforce quality standards in the production of such evidence. People can manage their electronic records management systems in any way they wish, good or bad. And many organizations believe that they can perform sufficiently well relying only on their most recently made and received records. Therefore they neglect systems maintenance. As a result, records are frequently lost, destroyed, corrupted, and are very much lacking in records management control such that originals are lost among altered duplicates. And police and prosecutors don’t ask their sources about the quality of their records management in preparation for making “Stinchcombe disclosure” to the defence; see: R. v. Stinchcombe  CanLII 45 (SCC),  3 SCR 326; and, R. v. McNeil 2009 SCC 3,  1 SCR 66.
Therefore electronic technology has created an increased need for a right to a full preliminary inquiry whereby the reliability of such evidence can be challenged. Otherwise, the probability of wrongful decisions will be substantially increased. Plea bargaining as we know it today, was thus caused by governments starving the system of necessary resources. When I started as a Crown, we never spoke to quantum of sentence, therefore we had almost no plea bargaining power. R. v. Butterwasser (1948), 32 Cr.App.Reports 81 applied. See: (1) “The Triumph of Plea Bargaining,” (2011), 85 Criminal Reports (6th) 29; and, (2) “Plea Bargaining Is Sentencing,” (2009) 14 Canadian Criminal Law Review 55.
The case law shows a similar impatience to simplify procedures and reduce costs by reducing other safeguarding procedures such as applications for third party records, and better searches of records systems. The result is that governments and the case law are moving in the direction of simplifying the system, but reality requires a more sophisticated system because the evidence used very often comes from complex technology. See such impatience expressed in, R. v. O’Connor 1995 CanLII 51,  4 SCR 411, at paras. 24, and, 168-187; R. v. Chaplin,  1 SCR 727, 1995 CanLII 126 (SCC) at para. 32; and, Zenex Enterprises Ltd. v. Pioneer Balloon Canada Ltd.  O.J. No. 6082, 2012 ONSC 7243.
There is inadequate understanding of the impact of technology upon the evidence that courts and tribunals deal with, and the need for evidentiary and procedural laws to be sufficiently flexible to deal with technologies that have different natures, uses, strengths, weaknesses and dangers. Instead, such committees and case law attempt to force the use of the products of all technology to submit to overly rigid procedural and evidentiary laws. Cost-efficiency may thereby be served, but the probability of wrongful decisions is thereby increased. Technology does not change its nature to serve an Evidence Act, or s. 11(b) of the Canadian Charter of Rights and Freedoms “to be tried within a reasonable time.”
There is a price to be paid in necessary legal infrastructure of laws and courts if it is to provide adequate controls and safeguards for the technology upon which our lives are dependent and judges’ decision are based; see: “Guilt By Mobile Phone Tracking Shouldn’t Make ‘Evidence to the Contrary’ Impossible” (pdf.; and see the summary, using the same title on Slaw, October 4, 2016).
To be adequate, that infrastructure has to be as complex and sophisticated as the technology it regulates. And the length of all proceedings has to increase if adequate opportunity is to be provided to challenge and test the reliability of evidence produced by large and very complex electronic systems. But, there is an unwillingness to pay that price. Those systems are very often poorly managed and very error prone in both their records management and in their software; see: “Records Management Law – A Necessary Major Field of the Practice of Law.
My experience in working with experts in electronic records management systems since 1978, and being a legal advisor in the drafting of the National Standards of Canada that provide the principles and practices by which they should be regulated, leads me to believe that there is no records system that does not have some serious errors. The most frequently used kind of evidence in all legal proceedings comes from electronic technology, particularly records. The courts are becoming less capable of testing the reliability of the majority of the evidence upon which they make decisions. But given the voluminous and complex nature of electronic technology, and the “unawareness” of judges and lawyers of that technology, the resulting reduction in the quality of justice will take time to reveal itself.
Prevention requires expert maintenance procedures. Large, complex electronic systems don’t have observable accidents like motor vehicles. Their errors are quiet and subtle. See R. v. Oland 2015 NBQB 245 (September 2, 2015), a pre-trial voir dire that led to a conviction for second degree murder and a sentence of life imprisonment, but with minimum parole ineligibility as recommended by the jury; see: R. v. Oland 2016 NBQB 43.
4. Access to Justice – the Unaffordable Legal Services Problem
The Committee’s Report makes no reference to the impact of the unaffordable legal services problem upon the court system and its unacceptable levels of delay. Because the majority of society cannot afford lawyers’ advice, their cases take much longer to process and therefore use up limited court resources. Dates for court proceedings are having to be set far into the future. Judges have been warning that their courts have been grinding to a halt because of the high percentages of self-represented litigants, particularly so in the family courts. They are sufficiently numerous that the websites of our Courts of Appeal have special webpages for self-represented litigants. A Lawyer’s Weekly interview dated March 1, 2013, of Federal Court Chief Justice Paul Crampton states that 20 to 25 percent of Federal Court litigants do not have lawyers. Next, the Supreme Court of Canada?
The law societies are doing nothing to solve the unaffordable legal services problem. Instead, they help the population learn to live with the problem. Promoting such programs leaves enough time to be practicing lawyers. Adequately managing a program to the solve the problem would not. But they are the agency in the justice system that has the power and duty to make legal services adequately available; see s. 4.2 of the Ontario Law Society Act. This article, “Access to Justice – Unaffordable Legal Services’ Concepts and Solutions,” (pdf) deals with the cause and the solution to the unaffordable legal services problem, and the responsibility of Canada’s law societies for that cause. It is a problem that is greatly adding to court delay as well as increasing the probability of wrongful convictions.
Therefore the situation is one in which provincial governments and law societies do not want to provide any additional resources to deal with the problems of the justice system, even though the complexity of our lives and the technology they depend upon requires a more capable and sophisticated justice system. A substantial reduction in the quality of Canada’s justice system and quality of justice is inevitable. The Senate Committee’s Report does not deal with the root causes of the problem—the attitudes of governments and of the law societies towards their duties to the justice system.
The Committee’s recommendations should be implemented. But they will not prevent the chronic illness that plagues the justice system from showing itself repeatedly. The necessary remedy is for the courts to use the Canadian Charter of Rights and Freedoms (Part I of The Constitutional Act, 1982), much more aggressively against governments and law societies because they control the resources necessary to make the justice system work adequately. But until governments fear punishment by voters, and law societies fear abolition, there will be no significant improvement in the performance of the justice system.