David Butt is a Toronto-based criminal lawyer.
Victorian novelist Charles Dickens's masterwork Bleak House teaches that soul-crushing delay has plagued our justice processes for far too long. Dickens's critique is blistering. More than 150 years later, our justice system is still wrestling with how we handle such delay: Our Canadian Supreme Court has voted 5-4 to address the problem by throwing out solid prosecutions that are now dying by the handful across the country. Alberta, the first province to do so, had prosecutors cull 15 criminal cases for no other reason than to combat the backlog.
Countless barrels of ink have been spilled in recent decades by various delay-busting working groups. All these well-meaning legal technocrats have tried to wrestle down courtroom delays. Delays that welcome naive justice seekers at the front end, then relentlessly grind their hopes of a prompt outcome to a dispirited pulp. And yet, today, our problem-solving efforts remain mired at square one.
Why is it so hard to move cases through the justice system at a humane pace?
The truth is, all the legal brainpower in the world can't crack this nut alone because delay in the courts is not a legal problem. It is a political problem.
Under our Constitution, the provinces for the most part fund courthouses, Crown attorneys, legal-aid programs and judges who do most of the criminal work. So pick any province and look at the budget for justice spending compared with health or education. Justice gets a fraction of the money these other areas get, for a solid political reason. Every voter and their loved ones need both top-notch public education and top-notch health care. Democratic governments fund health and education because that's where the votes are.
By contrast, who needs justice services? Only a tiny minority – victims of crime, and accused persons. And as crime rates fall, this demographic shrinks. Further, apart from their small numbers, justice-services consumers are uniquely disempowered politically.
Seeking more resources for accused murderers, bank robbers, etc., is a heavy political lift, especially when your competition for public money is school kids and sick people. Victims of crime are more sympathetic politically than accused persons, but they are randomly sprinkled throughout the population, isolated from each other and often too grief-stricken to agitate politically. So funding for justice processes chronically hovers just barely above crisis levels without political consequences. Democratic governments underfund justice systems because that's where the votes aren't.
This voter calculus of resource allocation looks appropriately democratic but is quite dangerous when applied to justice services, because while justice-service consumers are comparatively few, the consequences of service failures are enormous. The grief for victims whose cases are tossed out for delay is immeasurable. One such mistake is far too many. And conversely, how many people properly charged with serious crimes should walk the streets, never having been held to account? None.
Justice is an essential service and tolerance for justice failures is rightly at or near zero. But justice-service seekers are numerically insignificant and politically weak. Thus, what we desire and need socially, we are unable to obtain politically.
Cue the Supreme Court. Recently, in a case called R. v. Jordan, the Court reversed itself and approached the issue of delay in a fundamentally different way. For 30 years prior, the Court had taken a soft-cap approach to delay: no firm deadlines for cases, but rather soft guidelines that fluctuate based on various elements of each case, for example the complexity of the evidence or the seriousness of the charge. In Jordan, the majority imposed a hard-cap system of timelines. If the hard-cap timeline is surpassed, the case is presumptively dead, unless truly exceptional circumstances warrant a reprieve.
What was the Supreme Court doing? Without saying so, the Court recognized the essentially political nature of the delay problem and, in its own genteel way, entered the blood sport of politics. The unelected Court cannot allocate tax dollars to the justice system as elected legislatures should, but don't. So the Court played a different card, the hard cap, knowing this: hard caps lead to hard decisions. Good cases get tossed out, people walk free who shouldn't and victims' bottomless grief is deepened. The Court is gambling that a few such fiascos, widely publicized, will stoke public outrage and force governments to pay serious attention to delay – a strategy both bold and dark.
Time will tell if this gamble pays off. Dickens wasn't holding his breath for transformational change in 1853, so we probably shouldn't either. But make no mistake: the Supreme Court has firmly thrust itself into the middle of some high-stakes statecraft.