The province that suffers most from criminal case backlogs – Ontario – need have little fear of a public backlash over cases that are thrown out due to unconstitutional delay.
The reason? The province doesn't keep figures showing how often cases are dismissed.
Stays based on unreasonable delay are the canary in the judicial coalmine when it comes to packed courtrooms and swollen dockets: Tossing out a prosecution is the ultimate penalty for a violation. And the backlog will only worsen if defence lawyers advise clients against pleading guilty in hopes that their cases will be take so long that they are stayed, and if new mandatory minimum sentences prompt more defendants to opt for a full trial rather than pleading guilty.
The policy – or lack thereof – was revealed by the Ontario Ministry of the Attorney-General in response to an access request for the total number of cases stayed due to violations of the guarantee in the Charter of Rights and Freedoms to a trial within a reasonable time.
"Please be advised that the Ministry does not keep or maintain statistics about the number of successful and unsuccessful applications brought by accused persons persuant to S.11(b) of the Charter," Ruth Maillard, the ministry's freedom of information co-ordinator, replied by letter.
Given the explosion of bad publicity that often follows when a case is thrown out due to unconstitutional delay, critics believe the government wants to draw as little attention as possible to the problem.
Norman Boxall, president of the Criminal Lawyers Association, said the government has no justification for not keeping statistics. He said that unacceptable delays harm not only defendants, but the public, police and crime victims. "It's a very important measuring stick, otherwise the system cannot be held accountable," Mr. Boxall said. "I can't think of anything more important to the ministry or the public."
Judges on the front lines have repeatedly warned that they are forced to schedule cases too far into the future.
In a judgment two weeks ago, Ontario Court Judge Stephen D. Brown said that delays are so lengthy where he presides – Halton region – that the system is teetering on the edge of a precipice.
"Trial dates are now being set in this jurisdiction at the outer limit of tolerable delay," Judge Brown said in a ruling that threw out impaired driving charges against Antonio Papandrea. "Trials are being added onto impossibly overbooked lists in the hope that some trials on those lists will collapse and the trial list will become more manageable."
Judge Brown said that astute defence counsel will inevitably advise clients against pleading guilty before their trial dates since there is a good chance their charges will be thrown out on constitutional grounds if they wait.
Since the system needs a high proportion of guilty pleas to resolve cases quickly, the result will be a "perfect storm" that will cause exponential damage to the court system, he said.
Ontario discovered how outraged the public can become when tens of thousands of charges were dismissed in 1990 after a Supreme Court of Canada ruling in the case R v Askov. The court said that systemic delays cannot drag on much longer than eight to 10 months. Courts have since expanded the time frame considerably. The permissible limit is now more like 15-18 months.
"As the Askov crisis of just over two decades ago showed, governments that ignore adequate funding for the justice system do so at the peril of having society robbed of having trials heard on their merits," Judge Brown said in his ruling.
Ontario typically points critics toward the results of its Justice On Target program, set up several years ago to reduce the number of adjournments in each case.
From 2007 to this year, the average number of court appearances taken to complete a criminal case came down modestly – to 8.5 from 9.2. (In 1992, the average was 4.3 appearances.) The average criminal case took 192 days to complete this year, compared with 205 days in 2007.
Unreasonable delay rulings are not confined to Ontario. Last week, a firestorm erupted in Alberta after a sexual-assault case dating back to when the victim was just nine years old was thrown out based on unreasonable delay.
Greg Lepp, the associate deputy minister at Alberta's Ministry of Justice and the Attorney-General, expressed great frustration at the time over losing the case. "It's not what we want to have happen," he said. "It's not why we come to work every day."
However, Mr. Lepp denied that the solution was more Crown prosecutors and courtrooms. "I'm satisfied that [a delay by the Crown] would not have been the determining factor," he said.