Canadian Lawyer

54 S E P T E M B E R 2 0 1 7 w w w . C A N A D I A N L a w y e r m a g . c o m The 205-page tome comes after the Senate Committee on Legal and Consti- tutional Affairs, which Runciman chairs, heard from 138 witnesses, including lead- ing judges, lawyers, civil servants, academ- ics, police, non-profit organizations and aboriginal and victims groups. The bi-partisan report makes 50 sweep- ing recommendations for tackling court delay and provides an interesting backdrop for the next federal, provincial and territo- rial justice ministers meeting, slated for September. "We recommend fundamental change," Runciman says in an interview. "We are not talking about tinkering around the edges." Indeed, the recommendations play no favourites, targeting everyone in the justice system. It's a sober second thought on how to fix what ails Canada's criminal courts. Many recommendations will be welcome, but some will not; or, at least, they will be met with pushback by a profession that is slow to change. For example, the call for a full-scale review of legal aid to address insufficient levels of funding will be welcomed by defence lawyers and judges but maybe not so much by politicians who have to figure out how to pay for it. Prosecutors should like the call to eliminate preliminary trials, but defence lawyers won't. However, it's the more controversial recommendations that will likely ruffle feathers. From Runciman's perspective, the sin- gle most important solution for tackling court delay lies with judges. He thinks they need to be more activist when it comes to overseeing case management and their courtrooms. Runciman says some judges will ream a lawyer out over foot dragging and adjournments. However, he says, there is a "real reluctance in Canada to play that kind of role." The report notes that adjournments are the norm, not the exception, and recom- mendation 13 hopes to change that by calling on governments to work with the judiciary to "stress the need for judges to improve case management." The commit- tee calls on judges to impose deadlines and challenge unnecessary adjournments. It's far from a radical concept, but it's certainly overdue. The report also challenges the assump- tion that a s. 11(b) Charter breach should result in an automatic stay of proceedings, calling a stay a "drastic remedy." Instead, it calls for the sanction to be dealt with in sen- tencing and costs. It's a controversial posi- tion that will surely inflame the defence bar. However, it's an interesting proposal based on testimony from academics, who told the committee that an automatic stay is too focused on the accused interests and overlooks victims and the societal interests in having an accused face a trial. Moreover, because the stay remedy is so severe, it may actually dissuade some judges from finding such a violation in the first place. Testimony also showed that other coun- tries, such as the European Union, do not have an automatic stay for breaching the right to a fair trial. Should a murderer get off simply because it took more than 30 months to try that person? Why not try the accused and if guilty, discount the sentence. It's far from ideal, but it's certainly better than letting a killer go free. That brings us to the report's observa- tion that the justice system needs to be modernized. A number of recommenda- tions call for technology enhancements and standardization. Recommendation 21 is the most inter- esting. It calls on the federal justice min- ister to "take a leadership role and estab- lish a program to design computerized systems that can be adopted by provinces and territories" to manage criminal and courthouse proceedings and allow proce- dural matters to move forward without a court appearance. The feds, unfortunately, thanks to the Phoenix payment systems fiasco, have a tarnished image when it comes to tech- nology projects. As well, provinces have responsibility for the administration of jus- tice, so any solution can't be imposed upon them. However, provincial track records on developing their own systems aren't great either. But the reality is that something has to be done now, not later, and someone has to take the initiative. Runciman and Baker's report drops the criminal delay ball in the lap of federal Justice Minister Jody Wilson-Raybould. The government should step up and drive the change nec- essary to fix delay problems. Jim Middlemiss is a principal at Web- NewsManagement.com. B A C K PA G E O P I N I O N @JimMiddlemiss By Jim Middlemiss ob Runciman has seen the upside and downside of the Canadian justice system. Runciman was Ontario's solicitor general in the mid-1990s when the Askov fallout hit and the province was forced to dismiss thousands of charges because of trial delay. Now a Canadian Conservative senator, Runciman is once again star- ing down the court delay gun barrel following the Supreme Court of Canada ruling in R. v. Jordan, which recast the court's appetite for delay at 18 and 30 months before finding a Charter s. 11(b) breach. In June, Runciman and his colleague, Independent Liberal George Baker, penned one of the most comprehensive reports on court delays in Canada, entitled "Delaying Justice is Denying Justice." Sobering second thoughts on judicial delay B

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