Michael Ford (post until Oct. 31/18)

AG's plan doesn't address 'systemic' court problems

Ontario’s Attorney General Yasir Naqvi's plan to help more accused get bail and to keep weak cases from going to court doesn’t go far enough to bring meaningful — and desperately needed — change to the justice system, says Toronto criminal lawyer John Rosen

“It’s too little, too late,” he tells AdvocateDaily.com. “It doesn’t address the fundamental, systemic problems we are facing.”

Rosen, founder of Rosen & Company Barristers, says for there to be any substantive change, there first needs to be a province-wide review of the system.

“The whole system needs to be looked at,” he says. “The whole justice system, both civil and criminal, has been grossly underfunded for decades. We are now seeing the impact, especially in criminal cases, where the problems are acute.”

Even with the crime rate on the decline, says Rosen, population increases in the Greater Toronto Area in particular, as well as the growing complexity and expense associated with litigating cases have caused backlogs.

“Some people wonder whether the system itself is sustainable,” he says. “Right now, the cost of litigation is driving many complainants out of the system. There is also a dramatic rise in the number of self-represented litigants, which is especially problematic in criminal cases.”

The changes Naqvi announced in the article included funding for Ottawa’s John Howard Society for 20 “bail beds,” where people waiting for trial can be sent if they aren’t a safety threat to the community and have nowhere to stay, reports the Ottawa Citizen

“The Ottawa Crown prosecutor’s office will assign one attorney to handle bail hearings full-time, so people accused of crimes don’t get sent to jail just because the prosecutors handling their cases don’t show up. The province will also pay for one defence lawyer to be on duty at the courthouse and another at the Ottawa-Carleton Detention Centre to make sure inmates always have somebody available to represent them specifically in bail hearings,” says the newspaper.

Naqvi also promised 13 new provincial judge appointments, two of which will be in Ottawa; two more judges will be placed in Ottawa to fill existing vacancies on the bench, says the article.

Similar reforms are expected in other areas of the province, including southwestern Ontario, reports the London Free Press.

The changes are a response to the Supreme Court of Canada’s decision in  R. v. Jordan, which stipulated that cases before the Superior Court shouldn’t take longer than 30 months to get to trial —  no more than 18 months at the provincial court level — unless there’s a good reason.

Rosen says the issue in Ottawa is replicated throughout the province in terms of the overall intake of individuals into the jail system. He says there are also problems in detention centres all over Ontario.

“For example, the new South Detention Centre in Toronto is not fully operational because of internal problems. The situation in the Thunder Bay jail is another," he says. 

A coroner’s inquest into the deaths of two men, months apart from each other, at the Thunder Bay District Jail in 2007 has recommended the acquisition of a new jail to replace the 100-year-old structure in that community, reports CBC News.

Part of the problem is directly due to the overuse of bail provisions by prosecutors to seek detention orders rather than considering release, says Rosen. Many prosecutors are "terrified of making a mistake and releasing someone who later might commit a more serious offence so they err on the side of keeping most people in custody," he says.

“The arrival of an individual for a bail hearing is like arriving at the emergency department of a hospital,” he says. “The case needs to be triaged properly.” “Once the case passes the bail stage, it goes off to set a date for court, where there may or may not be issues around counsel. Then, there will be delays in the prosecution delivering disclosure of information collected by the police. The amount and complexity of that material will ultimately impact on the time it will take to process the case from intake to either resolution or trial.”

By overusing bail, “you load up the jails with people who perhaps shouldn’t be there," Rosen says.

The other part of the problem is the underfunded justice infrastructure and its inability to deal with rising numbers of cases, he says. 

“Not only is it crowding the jails, it’s also causes backlogs in the system because people in custody need to be dealt first and kept track of on a regular basis,” he says. "The court cannot afford to lose track of them.  Technically speaking, anyone in custody is supposed to be remanded every eight days unless they consent to a longer adjournment. These repetitive appearances together with a large number of other procedural and administrative appearances result in the use of a courtroom, staff, judge and lawyers just to address administrative issues.”

He says a multitude of issues and delays can occur as a case makes its way through the system, and some of those are impacted by funding and infrastructure shortcomings such as a lack of available courtrooms and judges.  The problem is compounded for those in custody.

“You can appoint all the judges you want but if you don’t have courtrooms for them to sit in, then you have a real problem,” he says. “Some of the courthouses are full to capacity and others are old and in desperate need of replacement or renovation.”

Rosen points to the proposed new courthouse in the works for Toronto, where he expects shortages to continue because “the plan is to close all of the satellite courts in the city and bring them all to one building. 

"In Toronto, there are five satellite provincial courthouses with each one having about seven to 10 courtrooms. If you are going to move all of that into the new courthouse, that means you have about 40 courtrooms in the new building just to replace the existing infrastructure. I don’t know what they’re going to do."

Rosen says the justice system and the people it serves are in great need.

He characterizes the Attorney General's announcement as nothing more than a "Band-Aid solution" that highlights how "government refuses to understand in practical terms how the system is in trouble.” 

"I would recommend that Mr. Naqvi sit down with the stakeholders," he says. "The recent SCC decision in Jordan has taken a broad swing at the system in general and is designed to force changes."

Rosen says that when it comes to time limits for prosecuting individuals, "this is a historic moment in Canada's history."

He's concerned, however, that the timelines as outlined in Jordan were arrived at without empirical study and for that reason, he urges the government to consider reviewing this issue to determine a reasonable period to deal with cases in the justice system.

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