Macdonald-Laurier InstituteScott Newark, writing in Sun papers, argues Canada's underperforming justice system is seriously hindering the proper administration of justice.

By Scott Newark, Oct. 1, 2016

The evidence is in, and there is simply no doubt that Canada’s criminal justice system has serious productivity and efficiency problems that can no longer be ignored.

Senate committee hearings, academic reports, provincial reviews and, last week, the Macdonald-Laurier Institute’s Report Card on the Criminal Justice System have all made the case.

No less an authority than the Supreme Court of Canada has confirmed it, in its recent R. v. Jordan decision, which referred to a “culture of complacency towards delay” in our courts. The case in question saw drug charges thrown out because it took 49 months from the laying of charges to the conclusion of the trial.

Canada’s criminal justice system has serious productivity and efficiency problems that can no longer be ignored.

However, it struck me while reading the decision that while the court bemoaned systemic delay, for a major source of the problem it only needs to look in the mirror.

Our criminal justice system was designed long before the Charter of Rights came into being and, as a result, multiple Supreme Court rulings have been made which are imposed on the existing system without specific consideration of the procedural impact.

Mandatory evidence disclosure, increased requirements of justification for police evidence acquisition, required case resolution “hearings,” pre-trial custody “credits,” and more, are all examples of charter-based rulings which can have a major impact on criminal case processing. Some defence lawyers are insisting on strict procedural compliance to delay proceedings in an effort to get charges dismissed. What was intended as a shield against abuse has now become a sword to avoid responsibility, and systemic delay is but one of the results.

Fortunately there are a few relatively minor changes that could have a significant impact on case-processing efficiency. Examples of this are offered in my own paper released this week by the Macdonald-Laurier Institute. For instance, despite recent reforms, the practice of rewarding repeat offenders, who are justifiably denied bail, credit for jail time pre-trial creates little incentive for the defence to move expeditiously. A Criminal Code amendment that expressly precludes pre-trial credit where bail has been denied because of past criminal conduct could significantly reduce such delays.

Consider also that preliminary inquiries are required for serious crimes, necessitating disclosure beforehand as mandated in the Supreme Court’s ruling in the 1991 Stinchcombe case, although many in the system consider them to be largely a waste of time. They also apply to a wide range of less serious offences which have long maximum sentences that are never imposed, including residential break and entry, which actually has a maximum sentence of life imprisonment.

The Criminal Code should be amended to create select hybrid offences with an option for a sentence of five years less one day to reduce significantly the number of cases requiring preliminary inquiry. These are just two examples, there is plenty of room for reform.

We don’t need to be “tough” or “soft” on crime, but we do need to be honest about crime, so we can be smart about crime.

Going forward we must ensure that new justice policies include an assessment of the expected impact on case processing. Legalizing marijuana, repealing mandatory minimum sentences, deliberately reducing remand populations, implementing pre-charge screening, ensuring judicial and prosecutor staffing levels, targeting repeat offenders, collecting unpaid fines and bail forfeiture … all will have systemic consequences, positive and negative, which should be considered beforeheand.

One thing is certain; as Manitoba Justice Minister Heather Stefanson noted in her response to the MLI Report Card, simply throwing more money at the system is not the answer. “I think we can create efficiencies within the system that we’ve got,” she said, and she is certainly right.

We don’t need to be “tough” or “soft” on crime, but we do need to be honest about crime, so we can be smart about crime.

Scott Newark is a former Alberta Crown prosecutor with a 35-year criminal justice career. He has been a security and policy adviser to both the Ontario and federal ministers of Public Safety. He is the author of the new Macdonald-Laurier Institute report “Justice on Trial” (macdonaldlaurier.ca).