Ontario Chief Justice's practice directive brings bureaucratic absurdity to a whole new level

It is not about efficiency; it's about discouraging entry into the court system

Ontario Chief Justice's practice directive brings bureaucratic absurdity to a whole new level
Michael Spratt

My local supermarket ran a promotional draw for a dirt bike when I was a kid. I had never wanted anything more than I wanted that bike. Fast forward 40 years, and the details of that legendary bike are a blur, but the memory of diligently accompanying my parents every weekend to ensure they entered the coveted ballot is crystal clear.

I was never a math genius, but even at 10 years old, I knew that the more ballots I had in the draw, the better my chances of winning the coolest bike ever. And just like that, I stumbled upon a small print loophole – no purchase necessary! As a cash-strapped kid, I found a way to game the system.

Of course, my victory lap was cut short when I realized entering without a purchase involved mailing away for a form, filling it out, and mailing it back to receive a single ballot, which could only be submitted by fax – a bureaucratic marathon beyond my youthful stamina.

I didn't win the bike. But I did learn about bureaucracy, negative incentives, and inefficiency – all valuable skills to survive life in the Ontario Court of Justice.

Fast forward to adulthood, and navigating Ontario’s courts feels eerily reminiscent of deciphering rules for that elusive dirt bike draw. It's a bureaucratic labyrinth where efficiency is as rare as winning that childhood dream bike – and a recent practice directive is making it an Olympic-level challenge.

Setting a trial date should be straightforward, right? Wrong. Each jurisdiction dances to its own confusing and inefficient procedure. Typically, a counsel pretrial (CPT) with the Crown kicks things off, followed by a judicial pretrial (JPT) to obtain permission to set a trial. Defence counsel then navigates a paperwork obstacle course to eventually meet with trial coordination to select dates officially set at yet another court appearance – a weeks or months-long process involving emails, meetings, forms, and a dash of patience.

But wait, there's more! Ontario’s Chief Justice just dropped a practice directive bombshell. At the JPT, defence counsel is expected to foresee the future and advise the pre-trial judge about an 11(b) application for a speedy trial. It's a tad tricky when the JPT is a prerequisite to securing a trial date.

Adding to the absurdity, when we finally reach the trial date selection, the directive mandates: "If the trial date is more than 18 months from the Information sworn date, a s. 11(b) application date will be set unless the defense confirms on the record that they are not bringing a s. 11(b) application."

The new rules demand that defence counsel obtain client instructions before trial dates are even on the table, predicting whether the court can meet a trial within 18 months or pledge never to bring a delay application. Impractical? Absolutely. Lawyers shouldn't play mind readers, and clients shouldn't need to provide a 12-month notice for an 11(b) application. And courts shouldn't be cluttered with applications that may never see the light of day.

The cherry on top? All 11(b) applications must now take place four months before the trial date, causing even more delays.

Last week, after an elaborate bureaucratic dance, I attempted to set a trial date. The court generously offered a slot in December 2024 – a whopping 12 months away. Something has already gone awry when the first available trial date is a year in the future. Unavailable that day, I proposed January; this would be outside the 18 months. So, I was forced to set an 11(b)-application date or pledge never to bring one without instructions or a retainer. Who would've thought securing a trial date within the next 12 months would be challenging?

But this new practice directive isn't about efficiency; it's the "no purchase necessary" entry to the court system, designed to discourage setting trial dates and 11(b) applications. Make the process as convoluted as possible, load defence counsel with extra work, and perhaps, just perhaps, courts need to dish out fewer trial dates, or more accused people will waive their rights.

If the goal was to expedite justice genuinely, the solution is glaringly simple: streamline trial date setting, appoint judges swiftly, open more courtrooms, fairly compensate court staff, and stop cluttering court time with minor offences.

But alas, the true goal isn't efficiency; it’s all about downloading responsibility, offloading work, and avoiding accountability – because in Ontario’s justice system, there is “no purchase necessary” to set a trial.Bottom of Form

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