Canadian Lawyer

w w w . C A N A D I A N L a w y e r m a g . c o m J U L Y 2 0 1 6 29 remotely for a court appearance. "Sometimes, the client is the only one who is not being heard," states Dawson. While the caseload is lower in provinces such as Saskatchewan, it has also been more successful in reducing the time before a trial, according to Statistics Canada data. Possible dates for trials of relatively straightforward matters are posted on the court's web sites, says Plemel. "In almost all cases, we will be able to offer a date within three to seven months," he says. "I get monthly updates in my office, and as the chief judge, if I see the delay is getting close to or exceeds seven months, I will contact the judge or administrative judge in the area to see if assis- tance is needed." Not surprisingly, by far the busiest provincial court is Ontario, with more than 215,000 "cases received" last year, according to annual sta- tistics issued by the Court of Justice. On average, it took 4.5 months and close to seven appearances to dispose of a case, which is better than a num- ber of smaller provinces. There is a very wide range, however, depending on the offence. Administration of justice offences averaged 83 days to disposition in 2015, while it was an aver- age of 280 days from the first appearance in court to the end of a sexual assault case. "The statistics on number of appearances and the time to trial are ones we monitor closely," says Ontario Court of Justice Chief Justice Lise Maisonneuve. Last fall, she established a criminal mod- ernization committee that she co-chairs with the province's deputy attorney general. Other members include senior corrections and policing officials as well as Crown, defence, and legal aid representatives. "One of our court's priority initiatives and one I am personally very committed to is enhanced judicial pre-trials. This is an area where I believe judicial leadership is critical," says Maisonneuve. As well, a greater use of technology in areas such as electronic forms for bail, recognizance, and probation orders permit court staff to process these docu- ments immediately, saving time for defendants, she points out. "Sometimes, the improvements don't need to be dramatic new technology to be meaningful," she says. The Ontario Ministry of the Attorney General is also in the pro- cess of expanding a new case management system known as SCOPE, which facilitates electronic disclosure from police to the Crown. Brendan Crawley, a spokesman for the ministry, says the system includes tracking features, with automated followup messages to try to ensure that material is received in advance of court appearance dates. "SCOPE also eliminates delay in receiving paper briefs physi- cally from the police. The minute they are ready on the police side, they are transmitted electronically to the Crown side." Both the ministry and the judi- ciary have recently focused on a few specific issues in terms of trying to make the provincial courts run more smoothly, says Moustacalis, which he believes is a more effective strategy. He also supports other proposed technol- ogy-based initiatives such as the use of a secure video link so that a lawyer can speak with a client who is in custody without having to travel to the jail. "That is a good innovation," he says. For the changes to have real impact though, all of the different participants in the court system need to be more collaborative, including defence lawyers, suggests Moustacalis. "You have to be motivated to make it work." Charter, because the provision could also capture addicts who sell small amounts to pay for their own drugs. At the original trial, B.C. Provincial Court Justice Joseph Galati ruled that the mandatory minimum was unconstitutional. While agreeing with this conclusion, the Supreme Court stressed that the law is clear that pro- vincial court judges cannot issue a formal declaration that a law is invalid. However, in reasoning similar to that of Paciocco, the Supreme Court suggested that full Charter challenges are not required each time. "It is open to provincial court judges in subsequent cases to decline to apply the law, for reasons already given or for their own," it stated in Lloyd. The scope of the power to award costs arose in a long-running legal battle over properties that included a former Molson Brewery plant north of Toronto, later discovered to be the site of a large marijuana grow-op. The federal Crown alleged that the owners were using the properties as an instrument of crime. Ontario Court Justice Peter West ultimately ordered $1 million in costs against the Crown after a lengthy court hearing where he dismissed the application to have the properties forfeited. West made the award as a result of what he called the "hardball" attitude of the Crown that was a "marked and unacceptable departure" from the standards expected of it. The Court of Appeal, in its April decision in R v. Fercan Developments Inc., agreed that provincial courts have the jurisdiction to make a costs order in appropriate circumstances. Justice Harry LaForme, writing for a unanimous three-judge panel, found there is an "implied power" for statutory courts to be able to award costs as part of its authority to control its own process. As well, since the authority of provincial and superior courts is similar when the Crown is bringing a forfeiture application under the Controlled Drugs and Substances Act, it would be unfair for them not to have the same powers. Otherwise, the Crown could engage in severe misconduct without cost implications in provincial courts, noted the Court of Appeal. "This would undermine the efficacy of forfeiture applications heard in provincial courts," wrote LaForme. — SK e in court to the end ult case. "The statistics on number of appearances and the time to trial are ones we monitor closely," says Ontario Court of Justice Chief Justice Lise Maisonneuve. Last fall, she established a criminal mod- ernization committee that she co-chairs with the province's deputy attorney general. Other For participa including motivate Charter, because the provision could also capture addi t h small amounts to pay for their At th

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