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Delay and Access to Justice: The Never Ending Story

“Fresh justice is the sweetest”, Sir Francis Bacon, 1618

“..we may look forward to a near future when our courts will be swift and certain agents of Justice”, Dean Roscoe Pound, 1906

“Our system…has come to tolerate excessive delays”, SCC majority in R. v. Jordan, 2016

Delay in court or tribunal proceedings has been an issue at least since the Magna Carta of 1215, when King John promised that “to no man will we sell, to no man deny, or delay right or justice”. Over 800 years later, the Supreme Court of Canada has revisited the issue of delay in R. v. Jordan. The SCC set deadlines for criminal trials that have caught the attention of Attorneys General and the public.

The impact of this ruling on the civil justice and administrative justice system is only starting to emerge. The first and immediate impact has been a delay in civil trials, as judicial resources are moved to criminal proceedings to avoid the dismissal of criminal charges. It remains to be seen if there will be a similar impact on the hearing of judicial review applications.

The principles set out in Jordan will likely start appearing in quasi-criminal or regulatory cases that involve the Charter right to a trial within a reasonable time. For example, the Jordan principles have been recently considered in by-law enforcement proceedings by the City of Mississauga against Uber. What is less clear is whether there will be any impact on administrative tribunal proceedings that do not attract the Charter right to a trial within a reasonable time.

The leading case on delay in administrative proceedings remains the SCC decision in Blencoe v. British Columbia (Human Rights Commission) from 2000. In that case, a human rights complaint that had dragged on for 30 months was determined to not be an abuse of process. In Blencoe, the SCC confirmed that a stay of proceeding is available for “inordinate delay” that “comprises the very fairness of the hearing” or leads to a “gross or shocking abuse of process”.

Delay alone does not warrant a stay of proceedings, however, according to the court in Blencoe. There must be a finding of “significant prejudice” that results from the “unacceptable delay”. The SCC provided a list of examples of significant prejudice:

  • The impairing of a party’s ability to answer the complaint because of faded memories;
  • Witnesses no longer available;
  • Lost evidence;
  • Delay has caused significant psychological harm to a person; and
  • Delay has attached stigma to a person’s reputation.

In all of these examples there is also an element of the reputation of the administrative justice system in question being brought into disrepute.

The threshold for granting a stay of proceedings of administrative proceedings is a high one. The granting of a stay of proceeding not only requires a “clearly unacceptable delay” and significant prejudice. It also requires a weighing of the damage to the public interest should the proceeding go ahead against the harm to the public interest in enforcement should the proceeding be halted. The SCC recognized that few lengthy delays would meet this test. Justice David Stratas sets out an instructive list of cases where a stay of proceedings was not granted, providing a good illustration of the very high threshold established by the SCC.

In Jordan, the SCC majority deviated from previous jurisprudence by discounting the need to demonstrate prejudice. The majority held that prejudice was inferred from the length of the delay. Will courts start to apply a similar analysis to administrative law cases and move away from the emphasis in Blencoe on demonstrated “significant prejudice”?

A stay of proceedings is an extreme response to delay and one that will always, I suspect, be used sparingly. Justice Stratas noted a serious remedial gap for addressing delay in administrative proceedings. He suggested that until the remedial gap is filled there is little incentive for tribunals to address issues of delay, “to the extent that those issues are within their power to control”. The justice system is called a system for a reason – like any system, it is made up of disparate parts that do not always work in concert. No one actor has the power to control the justice system.

Former Justice Lesage in his report on complex criminal trials pointed out the negative impact both of errors and the fear of errors on the justice system. New and more complicated rights, rules of evidence and procedures have helped to create a system “with too many difficult and nuanced decision points” leading to errors that are “hardly surprising”. Judges and lawyers, are afraid of making these errors, proceed in an “overly cautious manner”:

calling more evidence than they need to, including marginally useful evidence, listening to more argument than they need to, disclosing more information than they need to, taking too long to rule and then ruling in the most protective way, out of undue concern for appellate review. All of these trends contribute to overly long trials….

Tribunal adjudicators have more leeway in process and rules of evidence. But, as in the criminal justice field, there may be undue concern about judicial review. Justice Stratas noted that there was anecdotal evidence that tribunal members were no longer making oral decisions because of judicial review decisions on sufficiency of reasons. In more recent times, the SCC has endorsed the use of implied reasons (which take no time to write at all) and condoned plagiarism in decisions (which takes no more time than it takes to “cut and paste”). However, there is heightened attention paid to administrative decisions that can result in a longer writing time.

As stated by former Chief Justice Antonio Lamer in 1995:

Does our thoroughness, at times, place substantial justice out of reach? Of course, the process must be fair, but so must be the result. Do we run the risk, at times, of concentrating on micro justice so that we lose sight of macro justice?

Reviews and inquiries on delays in the criminal and civil justice systems have revealed that the reasons for delays are many and therefore the solutions are complex. The situation is similar in the administrative justice system. There is likely no one single solution, or even several. Solutions require discussions with all participants in the administrative justice system.

The dissenting judgment in Jordan is an excellent demolition of the idea of fixed time limits on criminal proceedings. One of the arguments of the dissenting Justices is that setting time limits on trials is the responsibility of the legislature, not the courts. One of the reasons for leaving the issue of delay to legislatures is that legislatures can “more comprehensively address the root causes of delay, rather than merely responding to failures to meet the standard”. The same applies to administrative proceedings. Solutions to delays require a comprehensive examination of the root causes and the collective desire to fix those root causes.

Comments

  1. WRONG! Ian Mackenzie is very wrong. The decision in R. v. Jordan 2016 SCC 27 (SCC), is very right. Governments will not deal with the causes of delay in the courts unless forced to. The forty of my 51 years as a lawyer spent as a criminal lawyer of all appropriate types, plus related writings then and since, prove to me that governments believe that, “there are no votes in justice,” i.e., there are no votes to be gained by spending money on the justice system. To say that, “legislatures can more comprehensively address the root causes of delay” as this post does, is to say that it is sufficient for the justice system to have a parliamentary democracy. For justice in the courts, it implies that a constitutional democracy is not necessary to deal with such problems as unconscionable delay. A mere parliamentary democracy would mean that governments in fact are not subject to the rule of law. They can make the law in its enactment and application serve their convenience and political ends, subject to no superior law.

    Consider this typical example of intentional, gross provincial and federal government neglect. On Wednesday, March 29, 1967, being Legal Aid’s first day in Ontario, suddenly many more accused persons had lawyers. And so there were many more trials that would otherwise have been guilty pleas by self-represented accused persons. But our Toronto Crowns staff was not increased in numbers of prosecutors. The jails across Canada, like Toronto’s Don Jail, became horribly over-crowded with accused person’s awaiting trial much longer. The “Dungeon by the Don River,” was built in the mid-19th century to hold one inmate per cell. In fact, cells were double-bunked to hold 2 inmates per cell, and sometimes with a mattress on the floor for a 3rd inmate. I was told by police officers that there were not enough guards to quell the violence or to give prisoners their half-hour out in the Don Jail’s quadrangle for some fresh air. There are judgments that state that those jail conditions did not meet the basic standards set by the United Nations.

    A guilty plea that typically would have taken a half hour, without a defence lawyer, in a lower court of first instance, could take a week as a trial in the County Court, with a defence lawyer (there were 3 levels of trial courts back then). At that time, I and Pat LeSage (later Superior Court of Ontario Chief Justice LeSage) were trial Crowns. As a result of such jail conditions, we took turns being the “trial coordinator”—the Crown whose job it was to keep the 7 County Courts occupied with a trial every available hour. As County Court Crowns, we prepared your next jury trial while finishing a current trial. One day when Pat LeSage was the trial coordinator, he came into my court and gave me a file I had never seen before, just as I finished a trial. He said me, “here’s your next trial; the jury panel will be here in ten minutes.” And so, my opening address was an on-my-feet paraphrasing of the written summary of the police officer in charge of the investigation.

    Finally, the federal Minister of Justice and Attorney General of Canada responded to such trial delay conditions endured by people awaiting trial in jails like the Don Jail, by having the, “Truth in Sentencing Act” enacted, operative from Feb. 22, 2010 (now, Criminal Code s. 719(3),(3.1)). His 2nd Reading House of Commons speech (April 20, 2009), blamed such over-crowding on the practice of sentencing judges awarding 2 days off an imposed sentence for every one day served awaiting trial in such jail conditions. Therefore, he said, accused persons didn’t want to apply for bail, which caused the over-crowding. “Truth in Sentencing” is a title that is very insulting to criminal court judges, implying as it does that judges were engaging in “untruthful sentencing.” The facts in R. v. Jordan are a recent example of the continuation of such government attitudes and neglect.

    This is an example of the long-standing and politically-entrenched belief that, “there are no votes in justice.” The “Truth in Sentencing Act” is legislation that was intended to provide an excuse for provincial and federal governments’ not making any increased expenditure of money to increase the number of provincial and federal prosecutors, or to improve jail conditions, and an excuse for governments not to have to appoint and pay for more judges to make more courts available.

    No government-sponsored report will ever blame jail or court conditions on such causes, or “address its root causes.” (An exception perhaps, if it can blame a previous government of an opposing political party.)

    Jordan shows that such examples are still occurring. And for the same reasons, that is why government action in relation to the justice system never costs much, or any, money. Instead, it removes procedures to reduce the necessary time for a case to move through the court system, such as abolishing the Grand Jury that existed in some provinces, and the Criminal Code provisions added to reduce the size of preliminary inquiry proceedings. (Unfortunately it’s on its way to being abolished now, at a time when the preliminary inquiry is more needed than ever before as the law becomes increasingly complicated and most evidence is produced by complex technology (such as that controlling electronic records and mobile phone communications) that is not able to be challenged before trial because the provisions and case law controlling the preliminary inquiry are not adequate).

    Without the Canadian Charter of Rights and Freedoms, there is no way to correct such occurrences as the conditions that led to the “Truth in Sentencing Act,” and the circumstances making a case as recent as, R. v. Jordan, 2016 SCC 27, necessary, and to control the application of Cr. Code s. 719. That is why the dissenting judgment in Jordan, and this article by Ian Mackenzie are wrong.

    For further context and background, see: (1) R. v. Safarzadeh-Markhali 2006 SCC 14 (CanLII) (using Charter s.7 re. s. 710(3),(3.1)); (2) Ken Chasse, “Untruth In Sentencing Credit for Pre-Sentence Custody” (2010), 15 Canadian Criminal Law Review 75-109; and, (3) the authorities cited therein in regard to jail conditions.

  2. “Solutions require discussions with all participants in the administrative justice system.”

    As someone who has had extensive experience with the administrative justice system I would suggest that many of the people who have brought their issues to A/J agencies and have contended with inordinate and unjustified delay should be invited to participate in the discussions you evidently feel should take place.

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