Defending criminal justice

COVID-19 must be a catalyst for positive change in the criminal justice system, writes Bill Trudell

Bill Trudell

The federal government has promised an ambitious and responsible plan in its upcoming budget.

We have, during COVID-19, witnessed extraordinary -- and historic in peace time -- government funding programs including the Canadian Emergency Business Account and Canada Emergency Commercial Rent Assistance, grants for Indigenous communities, seniors, Black entrepreneurs and students, and significant investments in medical research.

The financial support for hospitals, health workers and schools at the provincial levels has been a drain on fiscal resources and has inflated deficits everywhere. The quest for government handouts grows everyday along with the uncertainty and lack of control over what tomorrow will bring.

In all of these funding initiatives, however, is a vital institution that seems to lie at the bottom of government priority lists, and that is criminal justice.

The criminal justice system has been devastated by this crisis. Courts have been closed, thousands of cases adjourned and put on hold. COVID-19 fears are everywhere: in the courtrooms, police stations and jails.

Criminal lawyers have had no work for months, trying to survive on a shoestring with little hope for recovery. Offices are empty, rents are unaffordable, and stress is everywhere.

Legal aid plans, underfunded and spasmodic across the country, are in real trouble. We have been talking about technology and remote hearings for at least eight years; it took over in eight weeks. The adaption to this has been difficult and necessary but enormously expensive for all concerned, and the unexpected costs to the criminal justice system have been akin to a tsunami.

As courts across the country open up -- with one eye on an ever-present threat of having to close down again -- backlogs, priorities, public health measures, empty courtrooms and unpredictable schedules stand in the way of efficiency and fairness.

The criminal justice system is seldom praised or publicly embraced by politicians. It is more often the victim of sloganeering and fearmongering for immediate political gratification: the judges don’t get it, they’re soft on crime, and too many accused are out on bail are all mantras churned out during every election.

This must stop.

We need to recognize that the criminal justice system has been tasked to solve all of society’s ills, including mental illness, drug addiction, family breakdown, joblessness, and spontaneous violence as well as the terrible crimes committed by the few. Our courts are going to be overwhelmed with the impacts of COVID-19, and the strains will be enormous.

The government’s “ambitious and responsible plan to address COVID-19,” as Prime Minister Justin Trudeau called it on Wednesday, must recognize this and be creative in helping the provinces cope. We need to rethink funding for criminal justice and, indeed, for legal aid.

A strange anomaly exists whereby the federal government introduces criminal legislation but the provinces and territories are responsible for the administration of justice. This too often leads to new legislation or initiatives with no funding estimates.

This dichotomy is tangible. If the federal government introduces tougher sentences or zero-tolerance initiatives, the cost of implementation reverberates from the police to the courts to legal challenges, appeals, and to the jails.

On the other hand, if the government introduces a new regime, as it did with Bill C-75 to divert administration of justice offences, it risks being met by provinces that don’t buy in because they can’t afford it.

It is time to stop thinking in fiscal silos.

A review of Hansard will often reveal witnesses before the House and Senate committees testifying on proposed legislation and questioning the lack of information on costs.

It is pleasantly fascinating during the COVID-19 pandemic to see the cooperation between the provinces, territories, and the federal government.

This new approach should spill over into government cooperation when criminal legislation is introduced, so that funds can accompany initiatives. Right now the government should be talking about COVID funding for criminal justice. There has been timid cooperation and jurisdictional reticence because the federal government cannot tell the provinces how to spend their money, but this has all the earmarks of unhealthy social distancing.

Courts in every region need help to aggressively case-manage delayed trials, and governments should work together to establish a special COVID fund to address this issue. Courts in every region need funding to afford the new technological age.

The importance of vibrant, effective legal aid plans across this country is acute and more important than ever. There will be an increase in offences committed by those forced into poverty and drug addiction. They will need lawyers. The federal government funds only a portion of Legal Aid. The provinces, going forward, will assuredly prioritize health, education, housing, and policing at the treasury table. Criminal justice and legal aid funding, already surgically emaciated in most provinces before COVID, will be on life support.

It is too often said that a healthy democracy depends on the strength of its institutions, not the least of which is justice. Let us be frank: the criminal justice system has been continuously defunded.

All levels of government have an opportunity and, indeed, the duty to properly ensure the health of criminal justice in this country. COVID-19 cannot be an excuse for inaction; rather, it must be a catalyst for positive change.

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