To deal with the problem of unconstitutionally long court delays, Alberta is grasping for a cure that may turn out to be worse than the disease. New provincial guidelines, obtained by The Globe and Mail, suggest that Crown prosecutors consider watering down or dropping criminal charges – including charges as serious as murder – in instances where prosecution is likely to prove particularly expensive or time-consuming.
Canadian prosecutors have always been encouraged to dismiss or plead down charges lacking strong evidence and a high chance of being proved in court beyond a reasonable doubt. Those are the kinds of judgments, intended to increase the fairness of the justice system, that Crowns are supposed to make. But Alberta's new "triage" rules appear to be something else. There is reason to worry that, in some cases, the bottom line for the justice system will become the bottom line – not justice.
Shakespeare's Hamlet complained of "the Laws' delay" as one of the causes for despair. For anyone accused of a crime, they most certainly are. Timely trials are guaranteed in the Charter of Rights, and they should be. The Supreme Court recently laid out a need for trials involving major charges to be completed in no more than 30 months, and minor charges in 18. We disagree with the details of the ruling – as did four of the court's nine judges, including Chief Justice Beverley McLachlin – but nobody can call into question the constitutional principle of speedy justice.
To be accused of a crime is to become the target of all of the state's awesome power. If charges can't be proved within a reasonable time, they should be dismissed. It's only just.
But for actual lawbreakers to avoid a recognition of their offences, because our courts are insufficiently resourced or poorly organized, is also an injustice. And it's an injustice that hurts all crime victims, and all of society.
Surely the land of peace, order and good government can figure out how to provide for both of these elements of a just society. A criminal charge shouldn't hang over someone's head for years – but neither should serious lawbreakers ever get off scot-free, due to lack of Crowns, judges or court time.
For an accused, justice delayed is justice denied. But for Canadians, and for the idea of the rule of law itself, impunity for lawbreakers is also justice denied.