Federal Minister of Justice Wilson-Raybould is meeting with her provincial counterparts next week to discuss delay in the criminal courts. I am a fully retired judge of the Ontario Court of Justice, appointed in the wake of a similar Supreme Court induced crisis on the same issue over twenty-five years ago (in the case of R. v. Askov). During my twenty-year career on the bench, I spent most of my volunteer time as a judge on the issue of delay. And still the problem remains. I have three systemic suggestions to throw into the discussion.
1. Download more “hybrid” criminal offences from the Superior Court to the provincial courts. During the 1990s, the federal government amended the Criminal Code to increase the maximum sentence possible for summary conviction on “hybrid” offences. These are offences where the crown has a choice to proceed by the more complex indictable route or by the simpler summary conviction procedure. Before, the highest sentence on summary conviction was six months in custody. When the amendment “supersized” the cap on sentence for these hybrid offences to a potential eighteen months in custody, crown attorneys assessed the facts of particular cases in light of the higher penalty and, if appropriate, often elected to go ahead by a summary trial in the provincial court. That meant that trials were held more quickly, and the accused had no right to a preliminary hearing. The result was that thousands of cases were downloaded from the Superior Court to the provincial courts, even high-profile criminal trials like those of Jian Ghomeshi and Mike Duffy. That downloading was successful. If the maximum sentence for summary conviction “hybrid” offences were raised again so that it could incorporate more aggravating facts, I suspect that many more cases would proceed in the lower courts.
2. Divert simple drinking and driving cases to an administrative enforcement procedure such as British Columbia implemented in 2010, which was upheld, with some changes, by the Supreme Court of Canada in 2015. When I sat in the Ontario Court of Justice in Brampton, post-Askov, drinking and driving offences made up 45% of our caseload. Even today, drinking and driving cases are the most hotly litigated of charges, and take months to process through the criminal courts. In British Columbia, the Automatic Roadside Prohibition (ARP) scheme provides that drivers who register a “fail” on a roadside breath test can have their licenses suspended immediately for up to 90 days, those who register a “warn” can have shorter suspensions of between three and 30 days, their cars can be impounded, a fine and mandatory remedial education imposed. Apparently, deaths caused by drinking and driving in B.C. have decreased since the administrative enforcement scheme was put in place, and criminal prosecutions of simple drinking and driving charges are down by about 85%. Where there are aggravating factors, a high roadside breath test reading, a prior record of administrative suspensions or criminal convictions, driving while disqualified, or any injury to persons or property, the criminal process should be invoked and sanctions increased. Apparently even MADD Canada is in favour of the B.C. model and has been lobbying the Ontario government to implement it. Now that driving while impaired by marijuana is being added to the Code, a rethink on how enforcement is to be made effective without swamping the criminal courts is imperative.
3. Give the Chief Justice of the provincial courts direct access to the Court of Appeal by enacting a power to “state a case.” Prior to the mid-1990s, Ontario judges had statutory authority to put a factual case to the Court of Appeal for an expedited decision on a legal issue. That power was taken away, a change which in my view has proven dysfunctional. New laws come first to lower trial court judges who have a duty to apply them to the fact situations before them. Sometimes those fact situations are clear and uncontested. The only issue is whether the fact situation involves a breach of the Charter, or some narrow legal issue which needs a definitive resolution by the highest court authority, as speedily as possible.
I had such a case in 2000. It was a simple police stop on the street, a conversation between two officers and a young man, a delay while the police did a computer check on his identity, and then an arrest on unrelated charges. When the charges came before me for trial, both counsel agreed on the facts and the only issue was whether or not the stop amounted to “a detention” which had Charter consequences. As a lower court decision, my written judgment, although published in the national criminal reports and argued repeatedly, had no value as a precedent within the hierarchical structure of our court system. But my case crystallized the issue as a systemic matter. With no power to state a case for an expedited definitive decision from the Ontario Court of Appeal, the issue of what constitutes a detention on the street churned around the lower courts until finally, nine years later, the Supreme Court of Canada decided the issue. Nine years is a long time. Too long.
That case had to do with detention on the streets. There were other issues: whether a new drinking and driving law had retrospective application to cases currently before the courts? whether the crown had a Charter duty to disclose repair records of Intoxilyzer machines? Both technical legal issues which, in my view, caused what I can only consider constipation in the lower courts. The enema of an expedited Court of Appeal decision was needed.
The existing criminal appellate process in Canada proceeds in a non-systemic, random manner, totally dependent on whether the crown or a defendant has any interest in an appeal. For many pragmatic reasons, neither may want to appeal a particular case, and the issue churns on, wasting endless hours of redundant argument in the lower trial courts. This ad hoc, leisurely and languid appeal process contributes considerably to delay in the courts. If speedy justice is in the public interest, then the Chief Justice of the provincial court has a systemic interest in cutting through the verbiage and getting some authoritative direction on these types of issues on an expedited basis. For this reason, the Chief Justice should be able to “state a case” for a definitive decision from the Court of Appeal. The faster the provincial Courts of Appeal deal with the issues, the faster they will reach the Supreme Court of Canada if necessary, and the faster the lower courts will know how to deal with the trials before them. What’s the downside?