Toronto criminal lawyer Colin Adams says there are a number of barriers to reducing court delays that are often unrecognized. “Some of these are a result of false economies,” says Adams, a partner at Hicks Adams LLP.

Adams was responding to word that the Ontario government will likely fall short of its own mandate to reduce court delays via its Justice on Target program. Law Times

Read Story 

Adams points to Legal Aid funding of bail hearings as one example.

“At present the basic fee for a bail hearing is two hours. Often such a hearing will be delayed for several hours – or even remanded to another day. It is economically impractical for private counsel to respond promptly and effectively and duty counsel are already overburdened in the GTA courts,” says Adams. “The result is that accused persons often spend unnecessary nights in custody, which, apart from the delay aspect, incurs the daily cost of incarceration. As Metro detention centres are necessarily ‘maximum security,’ this is a substantial expense.”

Adams says the move to “rationalise” the court process has resulted in “other practices that have, in fact, exacerbated delay.

“Vertical file management, is now standard practice in the GTA,” says Adams. “In effect this means requiring accused persons with names from one section of the alphabet, to appear on one day of the week. (As in “A to F will appear on Tuesdays.”)

“As sole practitioners’ schedules rarely coincide with these dates, it may be several ‘Tuesdays’ before he or she can attend for the required pre-trials, discussions with the Crown and client etc., that are now required before a trial date can be set or a resolution given effect,” says Adams. “This is a system that is time/cost effective for the Crown office – but delay producing in the long run.”

Adams says “future legislative changes at the federal level will certainly promote further delays. At the present level of funding, the criminal justice system depends heavily on the assumption that a large number of accused persons will plead guilty. There are built-in incentives to do so and some of these are vanishing.

“The traditional two-for-one credit for pre-trial custody has already gone. Minimum sentences are on the way; they may be emotionally satisfying to the proponents of punishment as a deterrent, but they come at a cost,” says Adams.

Says Adams: “Removing from judges the discretion to structure sentences that properly reflect the complex factors of the offence, the offender and the mitigating and aggravating circumstances will certainly further reduce the number of early guilty pleas. Given that the costs of trial time and incarceration are perhaps the highest in the whole process, the urge to ‘speed things up’ may prove to be far from cost-effective.”