'No justice' for accused, victims when court cases tossed by delays, lawyer says
Head of Crown Attorneys' Association says underfunding is a factor in case delays
Thousands of criminal charges are at risk of being tossed out of the courts due to delays caused by underfunding and the increasing complexity of criminal cases, says the head of Ontario's Crown Attorneys' Association.
Kate Matthews appeared on CBC Toronto's Metro Morning Tuesday and said the Supreme Court's new rules for length of trials, which allow cases to be tossed out if they take too long, have put new pressure on a system already struggling to keep up with the case load.
Below is an edited transcript of Matthews's interview with Metro Morning host Matt Galloway, which comes on the heels of a November decision to stay a first-degree murder charge against Adam Picard in the 2012 death of construction worker Fouad Nayel.
The judge ruled that Picard's Charter right to a fair trial was violated because he wasn't tried within a reasonable time.
Matt Galloway: How unusual is it for a first-degree murder charge to be stayed and the defendant to be set free after a lengthy delay in getting his case to trial?
Kate Matthews: "It is very rare. This is the most serious offence in the Criminal Code. It's happened before, but it would be years ago."
MG: Is it true there are something like 6,000 cases that are languishing, and could be at risk of being thrown out?
KM: "We estimate that there are approximately 6,000 cases in the criminal justice system in Ontario that are at the 18-month benchmark, which was set by the Supreme Court of Canada back in July. The presumption is if a case is at 18 months, that case is now at risk for these kind of stays."
MG: Why is it taking so long for these cases to come to trial?
KM: "Essentially it is because the nature of prosecutions has changed dramatically over the past 10 to 15 years. The nature of evidence has changed. The briefs that we receive now are much more voluminous, they are much more complicated. Five years ago, the Toronto Police Service released approximately 17,000 video tapes to the Crown. Five years later, that has increased to 30,000. All of those videos take a long time to view, they take a long time to process, they take a long time to play in court. That's just one example. There's an increase in electronic evidence, computer evidence, cellphone evidence, just for examples."
MG: Because of that increase in electronic evidence in particular, is it reasonable for somebody to sit for four years before their case makes it to trial?
KM: "I'm not going to speak about the Picard case because it is under appeal, but four years, in my view, is too long to take to go to trial. Because the nature of prosecutions has changed, it is going to take longer to process them, but it should not take four years. If we had the right number of courtrooms, judges, prosecutors to assign to these cases, we could get them on in a more timely fashion."
MG: Some say the justice system is under-funded. Is this what is leading to the delays?
KM: "That is exactly the case. We have been raising this alarm for years through successive governments. The Jordan case and the consequence of it was foreseen by our association."
MG Foreseen in that you could see that it was grinding too slowly?
KM: "That's exactly right. That is one manifestation of the under-funding. The other manifestation of it is that we do not have enough Crowns to actually work on the files that we have. Even if we can get them to trial in a reasonable time, we do not have enough time to adequately prepare those cases. Our view is there's a real danger about the quality of justice, not just the time-to-trial issue."
MG: What do you mean about the 'quality of justice?'
KM: "The ability for victims to feel they have the full attention of the Crown, for defence counsel to have the full attention of the Crown. For the Crowns to have the ability to fully assess the case that comes across them, to make timely decisions to make correct decisions."
MG: What happens if a case is thrown out because it takes too long to get to trial?
KM: "There is a sense that there is no justice at all. An accused person does not get the benefit of a full hearing and the chance to have themselves found not guilty. Victims and their families have no opportunity for any kind of meaningful resolution. To the general public, they have no opportunity to hear what that case is on its merits, what the evidence would have been."
MG: There have been accusations for some that the defence lawyers are gaming the system, knowing how broken the system is right now. That if you can figure out how to stretch a case out and delay, you can get your client off. Is that happening?
KM: "I don't believe that's what's happening here. I speak to a lot of defence counsel. I know their clients suffer for long trial delays. They have the same risk that a Crown would have, that they can lose evidence, they can lose witnesses, memories fade. In my experience, most defence counsel are interested in moving their cases along."
MG: Ontario Attorney General Yasir Naqvi says he now wants to tackle this and expedite some of the serious cases. What do you make of his sudden interest in this?
KM: "To be fair to this particular minister, he inherited this position and the Jordan case. We had the first opportunity to meet with him in late September. This government, and prior governments, have long known this was coming and the fact that there is a response now is somewhat frustrating. We had always feared there was going to be a crisis like this that would make governments act."
MG: Is it likely that several thousand of these cases could be tossed out?
KM: "I don't know if I want to say that it's likely ... but the Supreme Court has made it very clear that they expect these cases to be done 18 months in the Ontario Court of Justice and 30 months in Superior Court. In my view, 6,000 cases are going to be subject to significant scrutiny and they are at risk."