A Tainted and Expensive Report

Posted on by Pete Cross

Hard to imagine, but it may be time to starting to feel sorry for Commissioner Lucki. The bombardment of the RCMP image continues unabated– the latest being the internally commissioned “Final report” by the team headed by Mr. Michel Bastarache. It is sometimes referred to as the Merlo-Davidson settlement on harassment and gender based discrimination.

Bastarache,  a former Supreme Court of Canada judge, has since October 2016 been assigned to oversee the sexual and gender harassment claims process as part of the settlement. As a parting note Bastarache issued this Final Report and in doing so unabashedly took centre fire aim at Commissioner Lucki and the RCMP. 

Titled, “Broken Dreams, Broken Lives” the cover sets the tone found in the pages of the report –featuring a stark image of a clearly distraught woman, hands over face, over a dark background also reflecting a grim and fractured reality.    

The dramatic title and the subsequent press conference were also designed to inflame and garner those action demanding headlines. It served as a justification and delineation of this groups efforts over the last four years and naturally leading to their recommendations. The overriding theme –everything is wrong in the Mounties and it is time for outside direction.

The problem is that Bastarache has jumped from specific privacy protected examples to broad open-ended generalizations. He describes the atmosphere within the Mounties as “toxic”. That the RCMP “tolerates misogynistic and homophobic” behaviour and that what the women told the assessors was so outrageous that it “shocked them to the core”. 

This type of language and allegation demands some level of examination. Journalists as is their practise repeated the allegations to the applause of Ms Merlo and Davidson on the nightly news. A reading and look at the contents of this report suggest that at best this is a highly subjective document and it may even be deeply flawed. 

One needs to understand the process, the people involved and the evidence that was presented. The eventual conclusions that this group arrived at, given the structure of the process and the makeup of the individuals who participated, was both predictable and suspiciously may have been pre-ordained. Cynically, it could even be interpreted as a platform for the eventual transformation of the RCMP as now envisioned by this Liberal government with their current 21st century sensibilities.

This is not to deny or downplay sexual harassment and serious sexual assault as having occurred within the RCMP.  That would be ridiculous. 

The question that needs to be asked is did the results and determinations made in this report, by this group, justify the language and national condemnation of the RCMP?  Does the RCMP deserve to be depicted as an organization locked in a vacuum of unbridled misbehaviour —far beyond what could be imagined or found in other parts of society or other organizations? 

Michel Bastarache  sat on the highest court in this land from 1997 to 2008 and then joined a group of other Supreme Court judges who went into legal practise after retirement. (Beverly McLachlin and Thomas Cromwell are a couple of the others) This judicial “double dipping” is something of a new and somewhat controversial phenomena. It has been discouraged in the past because of some clear conflicts in perception and possible undue influence. 

In fact, Mr. Bastarache did get caught up in one such incident in 2018 —he appeared as a counsel of record for a client— for a case in which he had sat while on the SCC.  In fact, he wrote the majority opinion for the SCC. (Dunsmuir case 2008SC9). He got caught out appearing on behalf of a client but managed to skirt allegations of impropriety as the Law Society rules only state that he could not “personally” appear before the Supreme Court judges. He was allowed to go ahead with the written submissions on behalf of his client. 

Despite this apparent ethical contretemps, Mr. Bastarache enjoys a very lengthy and commendable career coming out of his New Brunswick roots. His legal background for the most part notable for his writings and championing of human rights. That being said, it would be difficult to mistake him as anything but a left-leaning card carrying Liberal. It is also unlikely in this current political climate that the Liberals would appoint anyone who did not at least fit the expected dialogue. 

The Liberal government hires and assigns Bastarache to this four year odyssey. In turn he brings in some like-minded lawyers; some from his previous firms such as Power Law, but all of similar legal backgrounds. The other two official “assessors” were Lynn Smith (named as a “Trudeau mentor” in 2017) and like the second assessor, Marion Allen, were both former Supreme Court of B.C. Judges. Another lawyer on staff was Emily McCarthy —who at one time was the Director of Legal Operations at the Privy Counsel Office in Ottawa. 

Again, there is nothing objectively wrong with their legal background or their capabilities, but one would have to conclude that the predilection of these individuals would be to a very socially left and broad interpretation of the individual cases.  

The group reviewed a total of 3086 claims. This was out of a potential 33,513 female officers, public servants and civilian members who had worked for the RCMP between Sept 1974 and May 30th 2017. (It should be noted that the public servant members of the RCMP have a current class action pending in their own right – represented coincidently by the very same law firms) 

So out of a potential client base —9.2% of all the female employees over the last forty years claimed some form of sexual harassment. 

Of the 3086 female applicants, only 2304 were then forwarded for processing and for consideration of some level of compensation. Therefore, roughly 25% of the initial claims were considered invalid. They explain “a significant number of claims were not compensated because a claimant did not demonstrate sufficient connection to her gender or sexual orientation”. The fact that 25% of those that were applying had insufficient evidence supporting their claims seems worthy of comment. It is not polite to ask, but one has to wonder what the incentive that money brings to these claims; it is a legitimate concern that goes to motive.   

For those that were approved, there were six levels of degree of severity. 

“Minimal”-  possible payment of up to $10,000

“Mild”- possible payment of up to $35,000

“Low Moderate Injury”- possible payment of up to $70,000

“Upper Moderate”- up to $100,000

“Significant Injury”- up to $150,000

And finally “Severe Injury”- with up to $220,000

For their purposes, the Bastarache group interviewed only those they assessed as being in Level 3 or above. 

Under the first two levels, claimants were only required to describe a “sexualized environment” —which could be portrayed as “frequent use of swear words”, “sexual jokes and innuendo”. The definition of harassment included “objectionable art, comment, or display that demean, belittle or cause personal humiliation or embarrassment”. Patterns of egregious conduct included “working conditions”, “disparaging women in general”, and “treating claimants unfairly with respect to training opportunities”.

Even if a claimant had one or two individual incidents and did not meet the threshold for compensation —the group decided that there was a need to consider that the harassment “was systemic” and therefore may still warrant compensation. 

There was a total of 644 individuals who they determined to be Category 3 or higher. This represented 20.86% of the 3086 claimants. If you consider the ratio of the overall female members that went through during those 43 years, this number gets down to a much smaller 1.9%.  

The number which was emphasized in the news was that 130 of the claimants disclosed “penetrative sexual assaults”. This is a number which is initially staggering but this too demands some further dissection. 

The examination of the “evidence” behind these 644 claimants were considered under a set of guidelines and rules, which were stringently and purposefully one dimensional.

a) First and foremost was that the “assessors” were not “required to investigate claims”. The assessment of those claims would be “based almost exclusively on the information provided by the claimant”. 

b) The assessor role was further limited by the fact that there was “no cross examination of the claimants” and that evidence

c) “of the persons whose conduct was culpable was also not available”.

d) The interviews were directed to be conducted in a “non-adversarial” way so as to limit “re-victimization”.

e) Allowances were also to be made for “difficulty remembering key details and specifics” because of the passage of time.

When all these rules were followed then the case would be judged on— a “balance of probabilities”.  No criminal proof needed to satisfy the “substantial likelihood of conviction” or even “beyond a reasonable doubt” was needed in these cases. A “sworn statement” from the victim therefore could constitute almost the sum total of the evidence.

As explanation and in a rather telling bias Bastarache stated that  “I have tried to give the claimants a voice”.  

A total of $125,266,500 was paid to claimants. 

Two legal firms, Klein lawyers and Kim Spencer McPhee received $30,789,975 in fees. (Bastarache does not outline his costs and that of his team over this four year period)

Some of the recommendations based on this uncontested testimony; with no investigation undertaken, or room for a counter narrative were then detailed.

a) Training will include “screening” for “misogynistic, homophobic or racist tendencies in the past”.

b) In the future to get into the training academy you should have “two years of post secondary education”.

c) Those applying from “diverse” groups should have programs in place to “assist them in the meeting the entry requirements”. 

d) Training will need to find a different “esprit de corps”; as the “para-military” nature of the current environment must change. The current climate they say does “not extend to women”.

e) Recruit field training should be changed, so that female officers are no longer exposed to “trainers”, but instead are assigned “mentors”. 

f) There should be a “counselling program” for all the recruits who are part of the current LGBTQ2S+ community. 

g) Postings to remote locations are “detrimental to women”. They believe that for a female to be assigned to one does not offer a sufficient  “social support network”. At those isolated locations they were being forced to “share common housing” and “forced”  to be “reliant on colleagues”. 

Once you are firmly ensconced in the Mounties, according to Bastarache, one must remember that “staffing members” are biased, and that “promotions are fundamentally flawed and unfair”.  

There are many other recommendations, but there is no need to go further. Some of these recommendations should actually offend some female officers.

Do some of the recommendations have merit? Possibly, but if one doubts the accuracy of the findings in terms of the numbers and if incontestable content is the foundation of the eventual recommendations should we assign them any weight?

If the behaviour found in the RCMP,  was applied with the same strictures to other employment groups would the numbers be different? If  for instance one examined the legal community and the Law Societies for the last forty years, would that bastion of male dominance not end up with similar figures to the RCMP? The medical profession? Any profession which for the last number of decades has had a glass ceiling. 

Pick any “Mad Men” era communities and then introduce women to the Type A male component — would they not all have examples of bad behaviour? It doesn’t make it right, but is there no need for context or historical parameters? It was not 21st century appropriate, but were the Mounties any different from any other segment of society?

Unfortunately, Commissioner Lucki has never demonstrated any willingness to question and as a result her executive group have trotted out the classic pathetic –governance by more government solution.

The RCMP will be introducing: “Gender Based Analysis”, they will be establishing an ” Independent Centre for Harassment Resolution”, and instituting a“RCMP Diversity, Equity and Inclusion strategy” to of course, “articulate a firm stance against racism and discrimination”. 

They will be “re-vamping our recruitment process” and the “training model at RCMP academy is under review. They are going to develop; a “Character Leadership Approach”. The evolution of changing bias and gradual acceptance takes time, but time is not a dimension considered in this age of quick fix and tidy political announcements. 

Do I believe that almost all females that have gone through the decades have experienced and could argue for being in Categories 1 and 2?  Yes. Completely. 

Do I believe that the recommendations of this group— based on their interviews of Categories 3 to 6 should be seriously considered? No. This was a complete ivory tower biased exercise. He produced and did what he was paid to do: advocate, not judge.

As I have opined before. If there were serious sexual assaults there should have been criminal charges. Those officers should have been fired as a matter of course and as a first step. This settlement agreement and the  compensatory process allowed a papering over of some serious wrong-doings. A great number of Mounties, some very high placed Mounties, have been allowed to skate with their pensions intact, when they should have never been allowed to wear the uniform. Some are still wearing those uniforms. 

It is all too sad. 

Photo Courtesy of Flickr Commons and Cal Injury Lawyer – Some Rights Reserved

Getting away with murder..there is a “substantial likelihood”

Posted on by Pete Cross

In October 2014, Theoren Gregory Poitras, 25 years old,  was found dead in Richmond, B.C.. Poitras, chose to re-locate to Richmond British Columbia from Edmonton, Alberta in what sounds like the proverbial “get out of town” scenario. Allegedly he was involved in the drug world there.

It was then  “alleged” that Sean Jacob Lee Jennings and David Nguyen also ended up in Richmond, also originally from the drug world of Edmonton, and in typical gang style killed Poitras, leaving him in his own blood, in front of an Elementary school.

The pair were charged with 1st degree murder. But in June 2017, three years later, Crown Counsel in British Columbia, very quietly, days before the trial, stayed all charges. They cited that “further evidence had been received…and there was no substantial likelihood of conviction”.

There it is, the statement, which like the Damocles sword is held over the police for each and every case which has been forwarded for charge approval. The police submit the evidence, and the Crown decides whether there is a “substantial” chance of convicting the accused.

Over the past number of years, local scuttle butt amongst investigators )there is no measurement of this statistic to reference) ; say that fewer and fewer cases are making it to trial.

Judges have even lamented to me that it seems that no one is willing to take cases to the trial stage. Add in the affinity for plea bargains, and there seems to be little seeming to work its way through an incredibly slow moving court system and actually be decided at a trial.

Is the Crown office “trying” the cases in the reports, and not in front of the courts? Is the bureaucratic need to avoid public controversy, or god forbid, the fear of losing in court, and are exposed in the public eye, keeping them from pursuing charges, when in fact charges are warranted.

We will probably never know. Crown can make these decisions in private, out of the public eye, and so far never seem to be held accountable for these decisions, or more accurately these non-decisions.

The Poitras investigation was part of a large IHIT, CFSEU, Edmonton Police and the Alberta Law Enforcement Response Team investigation. It seems Mr Jennings, upstanding citizen,  was also allegedly involved in a murder in Alberta; where he has also been charged with 2nd degree murder in a street shooting death of Alor Deng in Edmonton in July 2014.

Millions of dollars were no doubt spent in this Project, and numerous resources employed. When Jennings was arrested  for the Poitras murder, CFSEU and IHIT called a press conference to announce their successes. Now that the charge has been stayed in the Poitras murder there is now deafening silence from Crown, CFSEU and IHIT as to why this particular case has been dropped.

No one feels a need to explain.

The public will never know what “new evidence” was learned, new evidence which apparently was so significant that their case had been blown up. Did they charge the wrong guy? Did witnesses fall by the way side? Did the police contaminate evidence? Did the Crown drop the ball? This lack of openness helps no one. In fact it leads to greater distrust.

Which leads me back to this “substantial likelihood of conviction” phrase. It is used every day. Every police officer knows the phrase, from the earliest days on the job when they have been pursuing charges, submitting reports to the Crown, and awaiting their decisions. There is little questioning of the eventual decision, and more often than not there is no detailed rationale given.

All cases involve this process. As the more serious cases unfold; murder, extortion, or kidnapping for example, this same process is followed. The police meet with Crown but ultimately Crown decides with the ill-defined “substantial likelihood..” being the most significant criteria, and being their ultimate measure. I personally spent hours in Crown offices disagreeing with a lack of charge, arguing that the merits of the evidence warranted charges. Sometimes you were able to convince, but other times you were not. Sometimes you were wrong, and in my opinion sometimes they were wrong. I was fortunate to have a good relationship with most, and there were no ill-feelings even though sometimes these meetings would become quite heated. We would often leave frustrated, shaking our heads at the level of proof that was being demanded.

By way of example. Our team was investigating a shooting in Port Moody in the middle of the night between two groups of equally criminal gangsters. One was trying to “rip” the drugs of the other. It led to one group opening fire on the others, and a stray bullet went through a residence striking a lady who was laying on a couch watching television. The bullet entered her head through her eye. She awoke in a hospital with brain damage, with no idea how she got there. Many years later she is still recovering, but will never be the same.

The only witnesses in this case at this time of date were the gangsters themselves. There was no changing this fact.  After months of investigation we managed to turn one of the “victim” gang members to assist us. He agreed to testify even as to who was the “shooter”. This, now witness, did not want anything in exchange. No preferential treatment.

Crown refused to use his evidence, due to his lack of credibility since he was an admitted gangster. We argued in over three meetings that we met the threshold of charge approval, that they needed to put him on the stand and let the courts decide if he was credible. We lost all arguments, with the Crown wanting a credible witness which did not exist. The Crown and I remain friends and understand each others argument, but totally disagree with the not laying of charges. The “shooter” in this case went on to further criminal activities.

The problem of course is obvious. How do you define “substantial”? And because it is such a subjective measure, different Crown lawyers could  give different answers. It seemed to me that the more experienced, the more willing they were to go to trial, and therefore the more willing to have less of a hurdle for the evidence to jump over. I have had certain Crown Counsel say that on a scale they want a 90 % success rate. This is high and therefore to maintain that level, the cases that are maybe a 60 % or 70 % probability are pushed to the bottom and not chanced.

Substantial is defined partially as “having a solid basis in reality or fact”.  Pretty general one would have to say, which whether planned or not has led Crown lawyers in to an obvious way to side step the difficult cases. And of course some of the more difficult cases are the gang style killings.

BC has developed a reputation of a place where gangsters can free wheel (we have not even been successful in having the Hells Angels designated as a criminal organization), and I believe part of that blame falls on a Crown Counsel not willing to push with the more difficult cases. There is no incentive for them to do so, but they are contributing to an endangered public. A safety issue because there is a lessened fear of prosecution.

It has also created an us versus them relationship between the police and the Crown. There is an element of distrust, and in many cases now, Crown will not even make a decision without full disclosure of the entire case, in other words not trusting the police to deliver what they say is in the Crown submission. This too is causing grief and public safety issues (but that is for another blog).

The police of course will not criticize the Crown. They still have to live with them on a daily basis, as many Crown reports are forwarded and any criticism may be met with even further intransigence.

The decisions of the Crown are done without any oversight and accountability, other than by their peers in their own offices, or a possible appeal up the chain into the Attorney Generals office. And like all government offices, when the bureaucracy decides to turtle, it is more difficult to dig down through the layers, or find someone willing to buck the system. Their future promotion or judge appointment is decided by these very same people.

The American system, of politically elected District Attorneys is quite the opposite. Those elected want to make a name for themselves, they want to take on the big cases, they are less worried about losing in exchange. Now, before I go further, this is not an ideal system where political gain can be a factor in deciding charges, but it does make one pause.

Preet Bharara, the recently fired District Attorney of New York (fired by Trump which may make him a martyr rather than a villain) led over 100 prosecutions of Wall Street executives for insider trading, he reached settlements with the four biggest banks, conducted public corruption investigations into both Democratic and Republican officials, and was known for its terrorism cases that reached around the world.

Do you think such prosecution is a possibility in any Province in Canada? Is it because we have no crime here, no white collar crime or terrorism cases? Of course not, quite the opposite, Canada is developing quite a reputation for harbouring white collar crime in fact.

In Canada, we are seeing some prosecutions which they do go forward with blown completely out of the water, and criticism being directed at Crown and the police. Look no further than the Duffy case where he was acquitted of all 31 charges, and now there is a lawsuit against all involved for $8 million.

The Supreme Court of Canada Jordan decision which put a time limit on trials getting to court is putting added pressure on the Crown across the country, and causing apoplectic fits.

Apparently 30 months, once the charges are layed, and Crown has all the evidential material, and now need to get it into court, is beyond their capabilities.

The Supreme Court called the current Crown system a “culture of complacency”.  High Judge speak for a slow and dull bureaucracy, and one apparently not that interested. I don’t think anyone who has worked in any Federal or Provincial bureaucracy would be surprised by this description.

In this day and age, can we afford to have no accountability in such crucial matters. Maybe an independent oversight of Crown is necessary, we certainly don’t seem to be reluctant to have oversight of the police. Remember the police are only half of the judicial process, maybe its time to demand some answers from the other half of the equation.

Our Crown system needs to be subjected to a complete managerial overhaul.

Is Solicitor General Jody Wilson-Raybould the one to lead us out of this morass?  It seems unlikely.

She says that there is nothing gained by “appointing blame”. and really it is a problem for the Provinces. Sounds like a statement from a bureaucrat who has been rolling in the clover of a Federal system. Someone willing to accept complacency.

The Jordan problems are now beginning to surface. It was recently announced that notorious, full patch Hells Angel Larry Amero has just been released by judicial authorities in Quebec, due to the time it has taken to get him into court. He was arrested in November 2012 under Project Loquace, one of 100 arrested,  being one of the primary targets of the extensive investigation. He was released from organized crime charges and cocaine importation. You will remember him as being one of the victims of the shooting in Kelowna in 2011 where Jonathan Bacon was killed.  Of course this was because of the Jordan decision.

He will probably come back to work on the Vancouver docks where he is a card carrying longshoreman, that is if he is not too busy with his other life.

Clearly five years was not enough time for the Quebec prosecutors.

But hey, there is no sense in appointing blame.

 

Image courtesy of the_whiteness via Creative Commons with some Rights Reserved

 

 

 

 

 

lawyers, judges, and the need for a speed

Posted on by Pete Cross

 

In  2016 the Supreme Court threw out its previous guidelines on trial delays, and in a 5-4 decision they said that the previous rules of 1992 had created a “culture of delay and complacency”. In other words, the previous rules had given the lawyers and the judges to much leeway, allowed them to go beyond a reasonable time limit for cases to get before the courts.  So in 2016,  they are now saying that there should be a limit, and have now put in place a guideline to put a limit of 18 months for a Provincial case, and 30 months for a Supreme Court matter.

Interestingly, when the guidelines were announced, there was a hue and cry from the lawyers. Even the minority group on the Supreme Court wrote that it was “wrong in principle and unwise in practise”.  So anytime lawyers get angry or judges speak up, I tend to perk up and take note, and in this day and age, this usually means that someone has cut into someones pay cheque.

At first blush, I thought that this 18 month parameter for Provincial Court seemed reasonable as did the 30 month parameter for Supreme Court matters.  I struggled to try and remember a Provincial court matter that took me longer than 18 months to put together; nor can I remember a Supreme Court matter, such as a homicide file which took me longer than 30 months to get before the courts once a charge had been approved.  That being said I can think of a few horrendous public files that seem to be taking forever to get to some settlement; for example the Surrey 6 file will be going on 10 years before Mr Bacon sees inside a Courtroom.  Why are these long winded affairs different than the others, is there some commonality to certain cases being a marathon more than a sprint?

How many cases are actually being  constrained by these timelines, how many are in jeopardy because of this ruling?

Statistics Canada measures the length of time for trials and the types of cases which are “completed” in adult court. So here are some of the things which stand out when you delve into the numbers:

In 2014/2015 in terms of all adult cases in Canada; 49% were completed in less than four months; 42 % between four and eighteen months; 6% between eighteen and thirty months; and 3% were greater than thirty months. So of all the adult cases in Canada, there is a potential for 9% of those cases be in some sort of time jeopardy.

Now one must also remember that this is when you lump all the adult cases both Provincial and Superior Courts into one envelope. An overwhelming 99% of all adult cases in Canada are at the Provincial level.

And 77% of those 99% adult cases are “non-violent” which include such things as impaired driving, theft, breach of probation and similar type offences.

The findings of these cases show that 63% of all cases are settled by a finding of guilt, or by guilty pleas. Probation is by far the most common sentence. Only 37% of cases end in custodial sentences, and 88% of those custodial sentences,  the average sentence was 6 months or less.

In terms of how long these cases take, the average or median length of time for the vast majority of Provincial cases is 120 days or 4 months. Clearly, these cases are falling inside the time parameters that have now been outlined, however, despite this decent average, 23,850 cases in Provincial court took in excess of 18 months.

One measurement of movement of a case through the courts would be how many times there is a court appearance, how many times are counsel and accused appearing, only to have the matter set further over. On average, again according to Statistics Canada, these Provincial matters took 5 court appearances, roughly the same amount of appearances that it took 10 years ago. So not much has changed in that regard.

That being said those matters going to a Superior Court took on average 565 days and over 15 court appearances. That is about 18 months, still in reasonable time considering these cases now have a 30 month window. (Homicide cases take an average of 493 days and 19 appearances)

In reviewing these numbers, there is one item that stands out, in terms of length of trials. That is the use of the Preliminary inquiry. For those unaware, a preliminary inquiry in effect is a trial before the main trial, where the Crown is obligated there is enough evidence to go ahead. One must keep in mind that this is a court option if you have been charged with an indictable offence, or a more serious offence under the law.

In Regina vs Hynes, the preliminary inquiry was described by Justice McLachlin as : “…the preliminary inquiry is not a trial. It is rather a pre-trial screening procedure aimed at filtering out weak cases that do not merit trial. It’s paramount purpose is to protect the accused from a needless, indeed improper, exposure to public trial where the enforcement agency is not in possession of evidence to warrant the continuation of the process.”

What is happened over the years is that Crown to avoid being rejected for trial often errs on the side of caution,  and produces its case in its entirety. In three decades of going to Court, I never experienced a case being rejected at the Preliminary inquiry stage. Its unlikely that I was lucky, the simple matter is that few cases get rejected at this stage. As a result there are two trials of similar duration and length. Now before one says that maybe it is time to get rid of what seems to be an increasing waste of time and effort for a minimal advantage to the accused, one must realize that the Preliminary inquiry as a process is fully codified in the Criminal Code of Canada beginning at Section 535.

Is there a chance it could be amended? Yes, but keep in mind lawyers in Parliament make up the vast majority of the House, so what is the chance that they are going to cut into a segment of the law society that benefits and is able to monetize some extra court work? Like the Charter of Rights a preliminary inquiry is a costly process, but make no mistake about it, it is something that benefits lawyers.

But lets at least consider the figures for those cases involving a Preliminary hearing. There were 9179 adult cases that were completed after having gone through a preliminary; 7432 were completed in less than 30 months; however, 1747 of those cases took over 30 months.

If we total those possible files that may be in jeopardy due to the length of the cases, there is clearly a problem, with just a rudimentary examination of the stats showing that in Canada there could be 25,000 cases both at the Provincial and the Superior court level.

The damage is now beginning to come to the fore and several cases have been dismissed by the courts for not meeting the now imposed deadlines. In a recent murder case in Alberta the case against the accused was dismissed, but the case had taken five years to get to court. The accused killer walked free of the charge. Is this not as damaging to the legal system as an improperly convicted accused?

A little closer to home, as another example, the police officers charged in the Surrey 6 case with four officers facing over 20 charges has yet to go trial, and that was six years ago.

The Willy Pickton case took three years to go from the preliminary hearing to the trial itself.

All countries don’t seem to share our problem, it does seem to be part of a Canadian narrative.

For instance, in comparison, the Oklahoma bombing perpetrated by Tim McVeigh and Terry Nichols, which killed 168 people, took place in April 1995 and was the deadliest terror attack prior to the World Trade Centre. The FBI conducted 28,000 interviews, and collected close to a billion pieces of evidence. Both parties were tried and convicted in 1997, just two years after the event.

There are many other U.S. examples but suffice to say, none seem to match the turtle like pace of Canada. And yes, their laws are different than ours in some respects, but in terms of getting the case into court and tried our Canadian courts are,  as now outlined by the Supreme Court, clearly built on delay.

More judges are clearly needed. Walk through the Surrey Courts anytime, and count the number of unused courtrooms if you want to see it for yourself. At a glance it would appear that at least half the courtrooms are empty. In a busy place like Surrey or Vancouver, should we not also be thinking of an evening court?

It is obvious to those who participate in this judicial system on a regular basis that the goings on inside these hallowed buildings is askew. The roosters are guarding the henhouse; what the Supreme Court calls “complacency” is actually a system well suited to lawyers, a system which is slow but lucrative. Every police officer who has spent endless hours sitting around a courtroom, can easily testify to the length of trials, the constant delays, the constant abuse of the system which seems to only aid the lawyers, and of course the accused.

There are many well known cases that seemingly drag on for months, even years. The delays are almost invariably the justice system itself, which in essence is the lawyers and judges, and to a lesser degree the Sheriffs.  (A recent case in Victoria was thrown out because there were insufficient sheriffs to get the accused to the courtroom, which after having spent 3 decades going to court was a new one on me)

Ask anyone who has had to be a witness to a case recently, and ask them what they thought of their experience there. To a person, I am betting, they will say that they will never get involved again, as they sit there day after day, delay after delay, usually all in aid of the accused. They sit on hard benches for hours on end, often taking time off work, only to have the case dismissed; or to be told to come back another day. Meanwhile the lawyers seem to be always scurrying about with a practised harried look on their faces.

It is a system that must change. Eliminate endless court appearances, look at getting rid of the Preliminary inquiry, appoint more Judges and Sheriffs. Always keep in mind that a wronged person going to jail is a horrible outcome that must be avoided at all costs, but the accused person walking free because of simple inefficiency is equally in-excusable in this 21st century.  Lawyers undoubtedly will be in favour of more judges, but don’t expect them to be carrying the torch for remedies which impinge on their livelihood. It will be interesting to see how many cases get dismissed before someone steps in to push things forward.

Photo Courtesy of the Author

Epilogue: On Wednesday the Senate Committee on Legal and Constitutional Affairs issued a 205 page report on legal reform in light of the Jordan decision. Not surprisingly they say that the justice system is in “urgent need of reform”. They say the courts need to do a better job of managing files (you think?) and they point out after numerous interviews of judges and lawyers in the system; that it takes 5 to 10 times longer for cases to get through the system compared to the U.K. , Australia, and New Zealand. They point to the Stinchcombe decision and the need for more urgent disclosure (see previous blog) and they also say that lawyers need to shorten the number of motions etc. They also affirm the “culture of complacency”. The Liberal government, and in particular Jody Wilson-Raybould are offering up no solutions yet, and in fact they are farther behind in Judicial appointments then ever.