[ql06] CRIMINAL: Ontario's clogged courts
- From: "Kenneth Campbell [QL06]" <2kc16@xxxxxxxxxxxxxxxx>
- To: <ql06@xxxxxxxxxxxxx>
- Date: Sat, 6 Dec 2003 18:01:54 -0500
Sheldon wrote, in the previous post about TORT:
>I know you are all studying away, or finishing those
>last minute assignments, but--the news don't stop. (What
>do you think, Ken--spoken like a real newsman?)
Grin. Sure thing!
Even more than that... the newsman aspect... there's the lawyerman, news
don't stop there either. (Sorry gals.)
If we hope to be any good at it, rather than becoming "paper clerks"
working on other lawyer's files all our lives, we have to keep up with
endless flows of new stuff -- or at least note it in the back of one's
mind.
For instance, I finished my Public case comment this morning (worked on
it back in Nov.) and it was on the 2003 Martin-Laseur, the SCC decision
over-turning 1996 Bell-Cooper -- particularly, dealing with the question
of whether tribunals have the jurisdiction to use s. 52(1) to declare
enabling legislation invalid.
But I also read the other part of the decision, dealing with "chronic
pain" syndrome and whether the Workers' Comp regulations were
discriminatory. (While many of you will feel that chronic pain syndrome
is having to read PUBLIC law, it was dealing with the work-related
problem.)
The Martin-Laseur decision uses the charter process that Stan is
probably going to use in one of the questions: both the Law Test (is it
discrimination in the substantive s. 15(1) way) and the Oakes Test (can
the government explain itself sufficiently to save the Act per s.1).
These are both clearly enunciated by the Oct. 3 2003 decision, for which
I'm kinda thankful I chose it way back when.
Anyway, it struck me at how ENDLESS it all is. This is a non-stop
learning trip, maaaaan. I mean, just in this case:
- A new physical syndrome (medical discovery)
- Workplace against it (labor law)
- Administrative bodies within Parliamentary democracy structures
- Charter 15(1) developments (Law Test)
- Forgetting all that Bell-Cooper stuff (which I had to still read
through and through, to understand the debate in Martin-Laseur), not to
mention Douglas, Cuddy Chicks, etc.
- What Lamer CJ and McLachlin CJ are really at odds about
- The nature of substantive law v. procedural law
Etc.
After all that, a little news story from Kirk Makin reads like a dream.
So, here's another one.
All about the current crisis the Ontario criminal justice system is
undergoing -- could be lots of new Crown jobs opening up, folks.
Sweet dreams.
Ken.
--
Never let the future disturb you. You will meet it,
if you have to, with the same weapons of reason
which today arm you against the present.
-- Marcus Aurelius
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More judges not sole answer
Major overhaul may be needed in Ontario's clogged courts
IAN URQUHART
TORONTO STAR
Dec. 6, 2003
This week brought news of another mess the Liberals have inherited from
the Conservatives: a huge backlog in the criminal courts.
The provincial auditor reported that as of February, 2002, some 99,000
criminal cases in the province have been awaiting trial for more than
eight months, up from 60,000 four years earlier.
There are "serious ramifications" to such a large and growing backlog,
said the auditor's report. Among other things, the report cited the risk
that many of the charges could be tossed out of court on the ground that
the accused persons' rights had been violated by the delays in bringing
the cases to trial.
That's exactly what happened in 1992 following the Supreme Court's Askov
decision, which resulted in more than 50,000 criminal charges being
dropped because the trials had been delayed past the eight- to 10-month
threshold that the court considered reasonable.
Now, it could happen again, with the result that accused murderers and
rapists would get off scot free.
The Liberals pounced on the auditor's findings as one more example of
the failure of their Tory predecessors to maintain the basic necessities
of government as they pursued their tax-cutting agenda.
"We were taken aback, frankly, by the provincial auditor's report, which
demonstrated so clearly the extent of just how far we have fallen behind
after the Tory government," said Premier Dalton McGuinty in the
Legislature.
As well, the Liberals darkly suggested that the backlog was at least
partly attributable to Tory attempts to politicize the judicial
appointment process.
Since 1988, Ontario judges have been named according to the
recommendations of the judicial appointments advisory committee, an
arm's-length body that was established to depoliticize the process. The
government of the day may appoint only those persons who make it on to
the committee's list.
But the government may send back the list with a request for more names
if it doesn't like the ones provided. That, say the Liberals, is exactly
what the Tories did, with the result that appointments were delayed and
the backlog of criminal cases grew.
As if to underscore this point last week, within one month of taking
office, the new attorney-general, Michael Bryant, appointed 10 new
judges.
But the Tories were quick to plead not guilty.
"The previous government had taken significant steps to deal with the
court backlog situation," protested Norm Sterling, the last in a string
of attorneys-general during the eight-year Conservative regime.
Sterling noted that last June the Tory cabinet approved the expenditure
of $15.8 million to hire 15 new judges, 36 crown attorneys and support
staff.
The reason Bryant was able to make judicial appointments so soon after
taking office was that the process had been started by the previous
government, Sterling said.
But if the backlog problem has been brewing for the last few years, as
the auditor's report suggests, why did it take the Tories until June of
2003 to act?
David Young, Sterling's predecessor as attorney-general, answers that
the Conservative government was well aware of the problem during his
tenure (2001-2003) and appointed "dozens" of new judges and crown
attorneys as a result.
"But it was a moving target," he said. "Trials that used to take three
hours began to take three days or even three weeks due to the growing
complexity of the law." And the criminal law is the responsibility of
the federal government, not Queen's Park, Young noted.
One change that Ottawa should consider is the scrapping of preliminary
hearings, Young said, arguing they were no longer necessary.
Young ? now back in private practice after losing his seat in the
October election ? also said the suggestion that the Tories delayed the
appointment of judges is "a red herring."
Asked if he ever requested a longer list from the appointments
committee, Young replied: "Maybe once."
But another accusing finger was pointed at the Tories by NDP Leader
Howard Hampton, who, as attorney-general in the early Rae years, had to
deal with the mess created by the Askov decision.
One approach Hampton pursued then was "diversion" ? keeping less serious
crimes out of court entirely. The Tories, with their law-and-order
outlook, de-emphasized this approach, he said.
In Hampton's view, the Tories also encouraged the police to lay more
charges, cut back legal aid and antagonized the judiciary. All these
were factors in the growing backlog.
Another factor, which politicians of all stripes are reluctant to
discuss publicly, is the growing number of drunk-driving cases going to
trial as penalties for this offence have increased in severity.
In short, fixing the backlog problem is going to take more than the
appointment of a few more judges or crown attorneys. What may be needed
is systemic change, which is the most difficult kind of change to
attempt.
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