The time it takes to complete a charge in Canada’s criminal and youth courts has been steadily increasing according to a recent Statistics Canada report.
“Cases are more complex now than ever before. Accused persons are facing a greater number of charges and cases are taking longer to complete,” says Daniel Brown, lead counsel at Daniel Brown Law LLP in Toronto. He adds that the data should come as no surprise to anyone working within the justice system.
The report shows that adult criminal court cases are taking 10-per-cent longer, or a median of 124 days, to complete when comparing 2016/2017 from 2015/2016. Youth court shows a similar result during the same time periods — a seven-per-cent increase in time, to a median of 106 days in total.
Looking at the numbers from this report, charges have taken a median of 12 days longer to complete in adult criminal court between 2016 and 2017, compared to nearly a decade earlier — 2007/2008. Youth court’s result is comparable, with 14 days longer in the same time period.
Brown attributes the growing amount of time to complete charges, pre-Jordan, to the prevalence of technology in Canadian society. In the past, when crimes were committed, there wouldn’t be email and text message trails, security footage, digital computer evidence, production orders from banks, etc., whereas now these sources must be taken into consideration.
“Nowadays, just given how much of our lives are spent in the digital realm, there is far more evidence than ever before to support a Crown attorney's prosecution. There's so much evidence that cases are taking longer to obtain and digest that evidence,” he says.
Additionally, the average number of charges and appearances in court also continues to rise due to the complex nature of modern cases.
In adult criminal court, the number of appearances per case climbed to 7.7 in 2016/2017 from 6.7 in 2007/2008. Youth court’s increase went to 7.0 in 2016/2017 from 5.6 appearances in 2007/2008.
Joel Pink, a Halifax-based lawyer from Pink Larkin, says that the effects of the Jordan case will be reflected in future data because the court will have no choice but to “comply with what the Supreme Court of Canada says” — a case will have an 18-month window to go before provincial court and 30 months to go before the Supreme Court.
“As long as they're meeting the requirements set down by Jordan, there's going to be fewer delays,” says Pink. “I do know that in jury trials in Nova Scotia, especially in Halifax, that to get a jury trial, you're almost looking at 2021 before you will get a trial date. But once again, it all must be within the 30 months.”
Brown says there’s been a culture of change within the courts in the last two years, the kind of crucial culture change Justice Michael Moldaver spoke of in the Jordan decision, from complacency to efficiency.
While lawyers predict the court delay situation will improve for adult criminal court and youth court, there still remains the issue of over-incarceration, which is a product of more than half of cases resulting in a guilty verdict, according to the recent statistics.
Sixty-three per cent of adult criminal court cases resulted in a guilty verdict in 2016/2017, as did 54 per cent of youth court cases. Probation was the most common sentence in adult criminal court and youth court. Acquittals were rare in 2016/2017, with only five per cent of adult cases resulting in acquittal and two per cent of youth court decisions.
While there’s an increase in guilty verdicts, more than ever people are receiving sentences with jail time. In fact, Canada has more than 70 different charges that carry mandatory minimum incarceration time.
Busy city centres, such as Toronto, are most at risk for overcrowded jails, says Brown, because new jails aren’t being built. This is problematic because not only does it cause unnecessary suffering to offenders but, often, sentences are consequently reduced. This undermines the public’s trust of the justice system.
“It's hard to have confidence in the justice system if you're an inmate who's been mistreated in the justice system or if you're the victim of a crime who sees an offender's sentence cut in half because they were treated poorly in jail,” he says. “From both sides, it's a hard pill to swallow and it's the type of thing that can't continue if we hope to maintain confidence in administration of justice.”
About half of youth charges in the country are withdrawn. Brown adds that sentencing for youth matters is more creative than adult cases. For example, young offenders might be tasked to complete community service, attend counselling sessions or participate in other types of restorative justice resolutions without requiring the accused to be found guilty or not guilty in the court system, not being prosecuted at all.
The report also breaks down some of the most common offences in the justice system from 2016/2017, which evidently caused the most volume within the system. In adult criminal court, these were: theft, impaired driving, failure to comply with a court order, common assault and breach of probation. These offences accounted for 47 per cent of completed cases in 2016/2017.
“I think what we can expect is actually to have more of those offences, particularly the impaired driving offences, increase in the future. And that's because we now know that there have been some significant changes in the way drinking and driving offences can be investigated,” says Brown.
A lot of the procedural requirements for officers investigating possibly impaired drivers have been removed, he says.
Recent legislation, Bill C-46, removed previous requirements that an officer had to have reasonable suspicion of driver impairment to investigate. This cuts down any red tape, especially now with the Canadian legalization of cannabis, to investigate possibly impaired drivers.
“Given that there has been a 10-year trend in cases taking longer in the justice system, we have to look for other ways to find efficiencies in the justice system, and it may even require us to consider whether or not cases ought to be in the justice system in the first place, meaning rather than charging people for violating probation orders and court orders, is there another way, some extrajudicial measure that can be applied to these cases where misconduct to be addressed, without requiring them to go into the criminal justice system?” says Brown.