Justice Delayed is Justice Denied – Section 11(b) Stay of Proceedings

Update:

The mandatory minimum sentences have met with stiff opposition from judges and lawyers. Discretion has been removed from judges and forces defence lawyers to fight every step of the way, as plea bargaining is no longer available.

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The Harper government passed legislation earier in the year, that will ensure that the legal system is further strained and exacerbated. On Monday, March 12, 2012 Prime Minister Harper’s majority passed Bill C-10 – The Safe Streets and Communities Act (which was an omnibus bill that included nine separate bills)  by a vote of 154 to 129, despite the NDP’s procedural delay of five days. Bill C-10 received Royal Assent the next day.

Bob Rae, leader of the Federal Liberal party stated that Harper’s “crime bill” wasn’t a “real crime prevention strategy” and was a “incarceration strategy” and he thought that “it will prove to be a very costly mistake for Canada”.

The Independent Parlimentary Budget Officer produced a 97 page report (Feb.28/12 – The Fiscal Impact of Changes to Eligibility for Conditional Sentences of Imprisonment in Canada) that said that Harper’s Crime Bill will cost the Provinces and Territories about an additional $140 million annually and produce fewer convictions.  Canadians would have to dig deeper into their pockets to pay for prisoners – as the cost will increase dramatically (16-fold) from $2,600 to $41,000.

The Crime Bill will ensure that there is a further backlog in the courts as those charged will choose trials over mandatory minimum sentences, which does not allow for plea deals. They have nothing to lose; especially if they are guilty.

Canadians would have to dig deeper into their pockets to pay for prisoners - as the cost will increase dramatically (16-fold) from $2,600 to $41,000. Some of the direction of Bill C-10 has been described as backwards and has even been criticized by other countries.

In the early 1990’s the Municipality of Peel was infamous for refusing to enter into plea-bargains.  The Crown or Prosecutor would prosecute every charge; there was no flexibility or common sense exercised.

This behaviour by Peel Region courts led to the renowned case of E. Askov et al, in which the Supreme Court agreed that their rights under section 11(b) of the Charter were violated, given the excessive and unreasonable delay. This decision led to Morin and others. All levels of governments knew, or ought to have known, since Askov, that resources were necessary for the administration of justice, in every province and territory, to ensure that defendant’s rights were not violated under section 11(b) of the Charter.

This means that there has to be adequate resources, including court houses, judges, justices of the peace, crown attorneys, prosecutor’s and lawyers.  Unfortunately, municipalities have fallen behind in this regard and provincial funding has been

Legal Aid in Ontario has severely restricted access to lawyers.  If you earn over $11,000 a year, you don’t qualify for legal aid.  In most cases, if the charge does not involve potential incarceration, then you don’t qualify.

Municipalities must come up with additional resources to ensure that people that are charged, have a trial within a reasonable period of time. The government has a constitutional obligation to provide resources to ensure that the Charter is respected and followed.

Halton Region’s courthouses are “slipping further into a crisis situation” because of growing demands and limited resources, says an Ontario Court judge.

Justice Stephen Brown made the statement in a written decision released last month in which he stayed charges against a man accused of impaired driving because of too many delays in court.

Antonio Papandrea arrived at the Burlington courthouse May 24 prepared for his trial. He and his lawyer, Jonathan Rosenthal, waited all morning only to find out shortly before 1 p.m. there was no way a judge could hear the case that day.

By September the case was still on hold, so Rosenthal argued the many months spent waiting for trial since Papandrea’s June 2011 arrest were just too long. By the time the case was supposed to have resumed, on Oct. 19, it would have been 15 months and 20 days.

Brown found the delays to be unreasonable and caused Papandrea to suffer “financial and emotional prejudice.”

He said in his decision that the need for shortage of judicial resources and court space to deal with “explosive growth” in the region is “leading to a breaking point.”

The situation is getting worse, even though colleagues are working hard on weekends, evenings and over vacation time, he wrote.

The argument that significant court delays violate a person’s Charter rights has been around since a Supreme Court of Canada decision in 1990. But experts warn the issue is set to become a major problem in many busy courts across Ontario.

Rosenthal, a criminal defence lawyer based in Toronto, said under-resourced and overwhelmed courthouses are a growing problem. He anticipates more and more charges will be stayed or withdrawn because of unreasonable delays.

“The backlog is easy to fix; it’s just a matter of resources,” he said.

Halton has two courts that deal with matters before the Ontario Court of Justice — in Burlington and Milton. Some 30 kilometres separate these courthouses, making transfers difficult or impossible, Brown said in his decision.

The region has seen a 13 per cent increase in new cases and a 17 per cent increase in hearings since 2006. But it has also had a 22 per cent increase in cases withdrawn or stayed during that time, with 11,598 cases disposed of in the 2010-2011 year.

The Ministry of the Attorney General does not keep statistics about why cases are dropped, said spokesperson Brendan Crawley in an email.

“The causes of delay are complex and inter-related,” he said, adding minimizing those delays requires partnerships across the justice system, including police, judges, prosecutors and defence lawyers.

“The ministry works closely with the judiciary to ensure that court locations are effectively resourced, including consulting with the Ontario Court of Justice to review the status of the judicial complement,” Crawley said.

Most criminal cases are dealt with in Ontario court; only the most serious of cases go to Superior Court.

There are seven provincial judges dealing with these cases, plus family court, which has also had 25 per cent increase in cases heard since 2006.

This is the same number of judges the region has had since 2004, Brown said in his decision.

The problem is compounded by the fact Halton Region is one of the fastest growing areas in the province, with a population of 518,660 in 2011 compared with just 390,235 in 2001.

John Hale, a criminal defence lawyer and part-time lecturer at Carleton University and the University of Ottawa, said the high incidence of cases being dismissed because of delays — a significant problem in the early 1990s — is creeping back up again, particularly in growing urban areas.

He estimates there will be a 10 to 20 per cent increase in cases withdrawn or stayed in the next few years.

It’s a complicated problem: Populations are growing, and while crime rates remain stagnant or are declining, criminal charges are increasing, he said.

Where prosecutors once had discretion about how certain charges are dealt with, Hale said, that’s no longer the case in matters such as domestic violence and impaired driving.

For instance, the Crown used to be able to offer plea deals on impaired driving cases that wouldn’t affect an accused person’s driver’s licence. Now they can’t, so many impaired cases proceed to trial because the accused has nothing to lose, he added.

The other major problem is that it’s become incredibly difficult to get legal aid funding. As a result, many people who can’t afford lawyers end up representing themselves in court, often turning matters that should take hours into days, Hale said.

Cases themselves are also increasingly complicated, with more paperwork and disclosure of evidence, he said.

“It’s the perfect storm of factors coming together.”

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