Opinion: Fear Mongering No Solution for Criminal Justice Reform

  • April 24, 2017
  • Jody Berkes

A farmer was complaining to another farmer: “I had this great horse – he was strong, able bodied and did whatever I asked of him, but he ate too much, so every day I fed him half of what I did the day before. Just when things were getting good, and I was feeding him nothing, he died.”  

The administration of justice is expensive, and successive governments have sought to spend less and less, resulting in increased delays in the system.   

Last summer, the Supreme Court of Canada ruled in R. v. Jordan that the delays that have plagued the criminal justice system for the last quarter century will no longer be tolerated. The majority set a presumptive ceiling of 18 months to complete a summary conviction matter and 30 months to complete an indictable matter. As a result, some have panicked, decrying that we will drown in a flood of judicial stays. Some serious matters have already been stayed. While some of the stays may be upheld on appeal, others will not, and fear mongering does not help solve the problem.  

In light of that fear, some have asked for the Federal Government to abolish the preliminary inquiry, except for s. 469 matters, (e.g. alarming Her Majesty). Like an appendix, the fear mongers claim, the preliminary inquiry no longer serves any purpose. I recommend they read, Webster and Bebbington, “Why Re-open the Debate on the Preliminary Inquiry? Some Preliminary Empirical Observations” Canadian Journal of Criminology and Criminal Justice October 2013 before suggesting that eliminating the preliminary inquiry will speed up justice. The article suggests that:  

  • not every accused chooses to have a preliminary inquiry;  

  • (with the exception of Quebec) preliminary inquiries constitute less than 5% of the workload in the Provincial Court;  

  • when used, a preliminary inquiry is not as resource intensive as they would have us believe; and  

  • (in 9 out of 11 provinces), more often than not, a preliminary inquiry results in the matter being resolved without a trial in Superior Court.   

Yes, the system needs to be changed; yes, only the Federal government has the power to enact changes to the Criminal Code, but the fear mongerers seek the wrong change. 

The changes they should be asking for are: 

  • Appointment of judges to fill the Superior Court vacancies; 

  • Rolling back of mandatory minimum sentences;  

  • Increasing the number of matters eligible for conditional sentences; and  

  • Returning a judge’s discretion in awarding appropriate sentence credit for pre-trial custody.   

We appoint judges because they apply the law in a fair and evenhanded manner. Why then would we handcuff judges when it comes to sentencing? Mandatory minimum sentences are the single biggest impediment to resolving cases. Show me a case where all sides can argue fully and creatively about what a just punishment would be and I will show you a case that is two thirds of a way to a just resolution. Show me a case with a mandatory minimum, and I will show you a matter destined for a protracted, prolonged and pointless trial. 

Another party in the system than needs more discretion are Crowns. Not infrequently, a Crown tells me that they would like to withdraw or resolve a matter, but a MAG (Ministry of the Attorney General) policy prevents them from exercising their discretion. Zero tolerance policies clog our courts with the detritus of matters that should never go to trial. While I understand why policies are written, when a request for a peace bond is refused initially, only to be offered on the eve of trial, the paternalistic policy results in wasting court time, delaying other matters which could have used the court time.  

Recently Alberta has published “The Alberta Justice and Solicitor General Prosecution Service Practice Protocol” for triage of prosecutions. The media has portrayed Jordan as forcing prosecutors into an impossible choice deciding which cases should be prosecuted and which should not. While this decision may be hard, it is hardly unfair to ask of prosecutors. All government actors (and most of us who work for a living) must make choices as to the allocation of finite resources. Whatever decision is made, someone is going to lose out, which is how life works.   

Other significant steps both Provincial and Federal of government can take to reduce the delay are: 

  • increasing legal aid funding;  

  • using civil discoveries instead of formal preliminary inquiries;  

  • speeding up the bail process;  

  • giving the accused an absolute right to a judge alone trial in indictable matters;  

  • getting disclosure to the defence faster; and 

  • diverting more cases out of the Criminal Justice System (like those involving mental illness or drug addiction). 

Our system of criminal justice is not perfect, but I firmly believe it is the best in the world. Just like the farmer’s horse, our system has suffered too long from being denied enough judges, Crowns and court staff to handle its current caseload. We need to invest resources in the system, as well as giving judges and Crowns the freedom to use their judgement and discretion to dispense justice, instead of administering legislative policy.   

In terms of eliminating the preliminary inquiry, or other rights afforded an accused, the Canadian Bar Association wrote to Justice Minister Jody Wilson-Raybould and advised: 

...the issues highlighted by the Supreme Court in Jordan are not new and that decision has not led to a crisis across Canada. It has highlighted the need for a thorough, evidence-based approach to criminal justice law reform, rather than suggesting a need to simply ‘lop off’ important aspects of the criminal justice system with proven utility, like the preliminary inquiry. 

I urge the Minister (and Attorneys General) to sit down with the Canadian Bar Association and talk about their ideas for reform. I will show up, and even buy Timbits® for the meeting.   

About the author

Jody Berkes (or the other Jody) is a partner in the law firm of Berkes Newton-Smith, chair of the Ontario Bar Association (OBA) Criminal Justice Section and the secretary for the Canadian Bar Association (CBA) Criminal Justice Section. His views are his alone and do not necessarily represent the views of the OBA and CBA.   

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