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Culture of delay is inexcusable

Most Canadians’ experience of the Peel Region is limited to Pearson International Airport, where frustrating delays are a fact of life — attributable, in large part, no doubt, to the unforgiving Canadian weather. In the legal community, however, Peel is better known for delays of the man-made variety.

On Oct. 18, 1990, the Supreme Court released its decision in R. v. Askov, in which it stayed a conspiracy prosecution originating in the Peel Region. In his majority judgment, Justice Peter Cory noted that Peel had “long been notorious for the inordinate length of time required to obtain a trial date,” a situation “said to be caused by lack of facilities.” In the aftermath of Askov, about 50,000 charges in Ontario alone were stayed for unreasonable delay. When a new Brampton courthouse was finally opened in 2000, it was almost immediately recognized as too small to serve the burgeoning population.

Fast-forward 28 years to Nov. 19, 2018. Superior Court Justice Peter Daley, the regional senior justice of the region that includes Brampton, invited reporters to what amounted to a courtroom press conference, during which he denounced the provincial government’s inaction in building new courtrooms and office space despite serial promises and false starts. The situation he described is truly a disgrace: litigants and jurors being shipped off to Kitchener or Guelph in search of available courtroom space; judges sharing haphazard, cramped offices; a skeletal six-story add-on looming next door, behind schedule once again, with plans to outfit only the bottom two floors with actual useable space. Daley reported that the criminal courts, operating within the Jordan ceilings, are fully booked for the next 10 months. Civil and family litigants need to wait much longer to have their cases heard.

The response of the provincial government to all this? Silence punctuated by buck passing. Daley pointedly noted that Ontario Attorney General Caroline Mulroney declined to send a representative to receive his remarks. Then, instead of providing a meaningful response in the form of an actual commitment, Mulroney’s predictable response was to blame the previous government.

To me, this whole saga reinforces a familiar truth: When partisan politics engages with the machinery of justice, the results are rarely edifying. Provincial governments quickly learn that spending money on court facilities and legal aid pays meagre political dividends, if any. Substantive law-making at the federal level fares no better. The previous government gave us mandatory minimum sentences and tough-on-crime bills with cartoonish titles. The current government has given us marijuana legalization on the one hand but regressive amendments to the sexual assault provisions and the abolition of peremptory challenges on the other. Its promises to undertake a more systematic review of the Harper criminal justice legacy have come to nothing. Reactive moves promising quick, crowd-pleasing fixes remain the order of the day at both levels of government. The nuts and bolts are neglected.

Not too long ago, substantive law reform was to a substantial extent the purview of federal and provincial law reform commissions, whose expertise was taken seriously by the governments of the day. Governments were not bound by a commission’s recommendations, of course, but acceding to them often gave governments political cover to make sensible, evidence-based reforms that may otherwise have been unpopular. Likewise, the delicate question of judicial compensation has for many years been determined by independent commissions, with the government retaining the final say.

Daley’s remarks got me thinking: Why can’t we take a similar approach to the funding of the judicial infrastructure on which our court system vitally depends? If a non-partisan commission were given the mandate to make public recommendations to the government on expenditures for the judicial infrastructure, couldn’t this help change the government’s normal political incentive to deprioritize and defer needed investment? Following such a commission’s recommendations could, ideally, become the path of least political resistance. One might have hoped that repeated pleas from the judges themselves would have had a similar effect. But Daley’s press conference notwithstanding, judges’ ability to influence public opinion is limited by their role. An independent commission could be more visible and less constrained.

Of course, implementing such a mechanism would itself take some political initiative. It’s always easier to pin the blame on lawyers and litigants for court congestion and delay. The Supreme Court, regrettably, has not been immune from this tendency, most notably in Jordan. But the Jordan majority’s diagnosis of a “culture of complacency toward delay” had always rung hollow for me. I’ve never actually observed such a culture. In my own experience, parties operating in an adversarial context can usually be counted on to get on with a case as soon as is reasonably feasible — that is, if the system can accommodate them. The real question is whether the government will honour its constitutional obligation to ensure a properly functioning system, in Brampton and elsewhere, and whether we will hold it to account if it does not.

Matthew Gourlay handles criminal and regulatory matters at Henein Hutchison LLP with an emphasis on appellate litigation. He’s available at mgourlay@hhllp.ca.


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