Canadian Lawyer - sample

w w w . C A N A D I A N L a w y e r m a g . c o m M A Y 2 0 1 7 31 stage. You can't get to them, though, if you are in court all day," says Matthews. In recent years, the Crown policy man- ual in Ontario that all prosecutors must follow has also reduced the discretion of individual prosecutors for certain types of offences, says Matthews. Ontario Attorney General Yasir Naqvi announced last December that more Crown attorneys and support staff would be hired to try to deal with delay issues. Matthews welcomed the announcement, but she says the addi- tional resources are being added rela- tively slowly. Marion Lane, who served as a pro- vincial court judge in Ontario from 1991 until 2001, agrees that there needs to be more early screening of minor criminal charges. "The dockets are full of charges that are never going to go anywhere," she says. In her tenure as a judge, Lane remembers numerous attempts to address systemic delays. The measures would often work for a time and then the same problems would creep back. "The criminal justice system is con- stantly changing [the participants]. If a party does not buy in, it fails," she says. The retired judge suggests that pro- vincial courts have long been under- resourced. "The provinces are left holding the bag every time the fed- eral government or the Supreme Court changes the laws," she says. According to the Ministry of the Attorney Gen- eral, federal funding over the past five years covered two per cent annually of the cost of administering the courts in Ontario. One area where there appears to be widespread agreement among defence lawyers and trial Crowns is that any reduction or elimination of preliminary hearings is a bad idea. Prosecution ser- vices in British Columbia and Alberta have increased in recent years the use of the preferred indictment power to send a case directly to trial. Usually, this involves prosecutions with multiple accused or alleged gang or organized crime ties. In Ontario, the deputy attor- ney general approved 11 direct indict- ments between Dec. 1, 2016 and the end of February this year — compared to five for the previous 11 months last year. Pink, who has practised for more than 45 years, says limiting this right of a defendant is not going to make an impact on delay issues. "The prelimi- nary is not a stalling tactic," he says. In Alberta, there have already been three Court of Queen's Bench decisions that found that the 30-month ceiling for a case to come to trial in that court should not be reduced, even if the attorney general exercised its right to eliminate the preliminary hearing. "I don't think this is fair. This needs to be clarified by the Supreme Court," says Jugnauth. The criminal justice section of the Canadian Bar Association, which includes defence lawyers and prosecu- tors, sent a letter to federal Justice Min- ister Jody Wilson-Raybould in March, urging her not to enact new restrictions on preliminary hearings. Kathryn Pentz, chief Crown attorney in Cape Breton and a member of the CBA criminal justice executive, says all sides gain from these hearings. "Pre- liminary hearings are just as beneficial for the Crown as the accused. It actually helps avoid delays," says Pentz. One of the only academic studies into preliminary hearings was conduct- ed in 2005 by Cheryl Webster, a crimi- nology professor at the University of Ottawa. "While there are clearly costs to this criminal procedure [in terms of court time and appearances], these costs appeared to be small as prelimi- nary inquiries did not seem to account for a large portion of the courts' busi- ness," says Webster. A greater issue affecting delays is what Webster refers to as a "culture of adjournment" in the criminal courts. "The problem would appear to be sys- temic in the sense that generalized expectations that adjournments are somehow unavoidable or inevitable are embedded in the daily practices of all of the principal court participants," she says. As well, a general tougher line on bail across the country takes up more court resources at the earliest of stages, she says. There is one province where dif- ferent policies appear to be successful in reducing at least some of the delay issues in the criminal courts. B.C. is one of only a few provinces where there is pre-charge screening by the prosecution, after police present a report to Crown counsel. It is up to the Crown to decide if charges are laid and which charges are issued. Defence lawyer Michelle Daneliuk says she believes this is a more efficient method than having police file charg- es. "Charge approval has been very important in dealing with delay," says Daneliuk, a Victoria-based lawyer and co-chairwoman of the criminal defence committee for the Trial Lawyers Asso- ciation of B.C. In certain cases, defence counsel can also approach a prosecutor in advance of charges being filed and discuss resolu- tions such as diversion if it is appropriate in the case. Even though the Jordan case actually originated in B.C., "I don't gen- erally see the delay issues here that it is meant to address," Daneliuk says. Kevin Marks, president of the B.C. Crown Counsel Association, says charge screening also encourages communica- tion between police and the prosecution. "Police need to provide all relevant infor- mation. I am not going to lay a charge until I have everything," says Marks. The other major difference in B.C. is in its handling of so-called "over 80" impaired driving cases, which are now almost exclu- sively handled through immediate admin- istrative penalties, including suspensions of drivers' licences. The measures have been upheld by the Supreme Court, are endorsed by organizations such as Mothers Against Drunk Driving and taken more than 80 per cent of impaired driving cases out of the criminal courts in B.C. The changes were controversial when introduced in 2010, but there are also fewer impaired driving fatalities on the roads in B.C. since they were enacted, according to data released by the province. So far, in responding to the Supreme Court's attempted wakeup call last year, there have been promises of action by provinces and additional fund- ing pledged. What remains to be seen, though, is whether the so-called "middle cases" — the bulk of criminal prosecu- tions that never attract public and media scrutiny — will be processed in a funda- mentally more efficient way.

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