‘Culture of delay’ plagues B.C. justice system: Cowper

With British Columbia’s criminal justice system in dire need of reform, three reports with recommendations for improvement were released yesterday.

All three were conducted in response to B.C. Attorney General Shirley Bond’s request for advice on reforming the criminal justice system earlier this year.

Geoffrey Cowper, senior counsel at Fasken Martineau DuMoulin LLP, was appointed chairman of the B.C. Justice Reform Initiative. His 277-page report calls for systemic change within the justice system. It also includes a review of B.C.’s charge assessment process by Gary McCuaig, Alberta’s former chief prosecutor.

Cowper calls out a “culture of delay” that continues to plague the criminal justice system and create backlogs in the courts.

“The culture of delay in the court system is resistant to change because there are several benefits to those working within the system that are gained from delay and no accepted means of enforcing timeliness as a priority. To change this culture we must fundamentally change the incentives that apply to the parties and provide the right tools to the right participants to make timeliness a necessity and not an option,” he writes.

Cowper does admit there has been some reduction in that backlog recently, but cases are still not being resolved in a timely manner. He calls for the appointment of five new judges to help with the backlogs.

“We have to move to measures that happen in respect of days and weeks of time, not months and years of time,” he said.

While Bond said: “We agree with Mr. Cowper that the criminal justice system moves too slowly. This report shows that the issue of timeliness in the justice system is critical for all justice partners - and for the public. British Columbia, like other jurisdictions, has a crime rate that is dropping, while experiencing increasing delays in cases,” the province made no commitments.

She said her department will be digesting the three reports and come out with its own report in the fall to address Cowper’s recommendations.

Cowper proposes a number of wide-ranging reforms including a province-wide crime reduction plan, measures to resolve criminal cases earlier and reduce the number of delays and backlogged cases and a major overhaul of how prosecutors handle files.

A significant recommendation Cowper’s makes is to establish a new Criminal Justice and Public Safety Council within the Justice ministry. It would be responsible for development of an overall strategy for the criminal justice system, one that ensures effective collaboration among the various stakeholders.

“Previous efforts to reform criminal case process have been disappointing. In my view their failures occurred for primarily two reasons: the failure to successfully collaborate with other justice participants in framing the reform, and the failure to ensure that needed changes would work across the system. There are many worthwhile proposals which will be reviewed and recommended, but success will depend greatly on effective collaboration in the detailed planning and introduction of new reforms,” says his report.

The Legal Services Society made a number of recommendations in its report. Mark Benton, LSS executive director, said in a release that the reforms are aimed at reducing costs and reallocating the savings to legal aid.

“Our experience has taught us that a small investment in legal aid can result in savings in other areas of the justice system,” he said. “We believe our proposals will help people resolve their legal problems faster and when that happens they are less likely to experience legal problems in the future which is an additional benefit not just to the justice system, but to society as a whole.”

Jamie Maclaren, a Vancouver lawyer and executive director of the Access Pro Bono Society of British Columbia, says although he agrees with the LSS’ recommendations, they don’t go nearly far enough to increase the incentive for private lawyers to take on legal aid cases.

“The most striking aspect of the report to me was the description of how our legal aid tariff rate has declined by 27 per cent since 1991, and how the number of practising lawyers taking legal aid referrals has nearly halved in the past decade,” said Maclaren.

“No matter how much we reform our family law and criminal justice systems — and heaven knows they need substantial reform — the government can’t expect LSS to switch from a staff lawyer service model to a private lawyer service model without substantially incentivizing the private bar to take on legal aid files.”

The LSS made recommendations in five main areas, including family law reforms, expanded criminal duty counsel, video and tele-bail, non-lawyer service providers, and problem-solving courts.

Under family law reforms, the LSS proposed that there be more duty counsel and community-based advice services to increase the availability of family law services; provide assistance for housing and debt problems; and expand mediation referrals.

For the criminal law system, the LSS suggested that rather than have lawyers accept assignments on an ad hoc basis, specific lawyers should be assigned to the same court on an ongoing basis.

The LSS also recommended that the justice system make greater use of video and tele-bail to cut down on transportation costs. It referred to the Burnaby Justice Centre that provides 24-7 access to judges for bail hearings via video link and telephone.

In terms of non-lawyer service providers, the report emphasizes the need for legal information outreach workers and aboriginal community legal workers to help people navigate the justice system.

Maclaren said non-lawyer service providers need to start providing legal aid.

“Many of the lawyers that are currently taking on legal aid files are treating the files as pseudo-pro bono work. To some extent, legal aid has become another form of charitable service rather than a robust system for ensuring that the rights of marginalized people are respected according to the rule of law,” he said.

Finally, the LSS suggested creating problem-solving courts such as drug courts, mental-health courts, domestic violence courts, and First Nations courts, which already exist in some provinces and territories.

Maclaren says he doesn’t expect these changes to happen overnight. “It will take much greater reforms to the justice system as a whole to make a noticeable difference in access to justice by way of legal aid, absent new funding,” he says.

The chief justices of all three levels of the B.C. courts yesterday said they had received all three of the reports and will consider further comment once they’ve had a chance to review them.

Bruce LeRose, president of the Law Society of British Columbia, provided the following statement to Legal Feeds: “The law society will study the report but notes on an initial review that Mr. Cowper has made a number of recommendations to address how he believes the justice system could be better managed and to identify the institutional elements he considers necessary for the system as a whole to succeed. His recommendations call on all justice system stakeholders to work together to address concerns raised during his consultations. The law society remains engaged in this important process and looks forward to working with everyone involved to improve public outcomes and maintain a sound justice system.”

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