Frequent Bulldog contributor Ron Benn has worked up about as good a comment as you could ask for on the state of our legal system.
Ron is responding to The Bulldog post, Our 21st-Century Legal System Is A Mess.
The challenges our society faces when it comes to the administration of the law (as contrasted with justice, which is not really the purview of the courts) are cultural, not regulatory. In Canada, it has long been accepted that a multi-year lag between the time that someone is charged and that person comes to trial is the norm.
In the U.K., soccer hooligans are arrested and charged on the weekend of the offence, stand in front of a magistrate on Monday, and if found guility, are sentenced immediately, with an escort to jail if deemed appropriate by the judge. Similar time frames occur in Switzerland for civil disobedience infractions. Contrast this with what occurred several years ago in Vancouver, after the Canucks lost in Game 7 of the Stanley Cup final. Arrests were made months later, and if memory serves me correctly, the last of the trials took place in 2016, some five years after the event. I am not advocating the U.K. or Swiss timeliness standard, rather I am using it to point out that in some nations the rule of law is considered to be a primary role of governance (as contrasted with government), and some of those nations are not the so called developing nations.
There is a solution to this cultural problem. It involves four steps.
First, governments (provincial and federal) must accept that the timely administration of the law is a fundamental right. It is right there in the Charter of Rights and has been since 1982. The Supreme Court of Canada pointed it out recently. The time for action has passed.
Improvements to the timely administration of the law must start with having appropriate resources directed towards it. If this means hiring more court staff and judges, then do it. If this requires the redirection of funding from programs and policy initiatives that do not address fundamental rights, so be it.
The physical courts exist 24 hours in a day, seven days per week, 52 weeks of the year. The physical courts are used less than eight hours a day. Capacity utilization is somewhere in the vicinity of 20 per cent. Extend the use to 12 hours a day, six days a week. This would double the capacity utilization. Appoint senior lawyers, the ones who are considering a career change to the Bench, as part-time judges. Assign them the late shift (6:00-10:00 pm) and Saturdays, and direct all non-contested (those involving a guilty plea) cases for relatively straight forward infractions (e.g. impaired driving, bail and parole violations) to them. This will free up time on the more seasoned judges’ calendars to handle the more complicated cases. If that concept looks familiar, it may be because you remember the sitcom TV program Night Court.
The fourth step involves the decriminalization of a number of transgressions arising from the application of antiquated laws. There has seen some progress, but primarily these changes are the result of rulings by the Supreme Court of Canada. One example that comes to mind involves the sex trade, which the Court ruled on in 2013. The election promise regarding marijuana laws may help reduce the number of charges for minor infractions, but it is my understanding that precious few simple possession charges (i.e. the type that the federal government is considering making legal) have actually been filed in the last decade, so the actual impact on court case loads is questionable.
This cultural change will not be easy, especially for our elected officials, too many of whom spend too much of their time trying to figure out how to get re-elected, and not enough time on doing what they were elected to do. They will be subjected to loud barking sounds in their right ears from the law and order special interest group, while putting up with shrill intonations in their left ears from those special interest groups who are seeing a reduction in funding for their favourite initiative. They will encounter resistance from the court staff and Crown Attorneys who are not accustomed to shift work. Similar sounds will emanate from the defence counsel industry. At issue is whether the people who claim to have the best interests of the nation front and centre are up to the task.
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