Many believe that the charter of Rights And Freedoms is the crowning achievement of modern Canadian law, and quite a few conferences and symposiums are being planned this year to celebrate its 25th anniversary. There is good reason to celebrate the creation of a document designed to limit the arbitrary exercise of state power.
But a storm is brewing that may rain on all the parades: the ever-growing backlog of cases languishing in the criminal justice system.
The auditor general of Ontario has warned that more than 91,000 cases are currently in jeopardy of being tossed because they've taken too long to come to trial. Many legal observers assert that the system is grinding to a halt because the Charter has needlessly complicated and lengthened trials.
There's no question that the Charter adds a layer of complexity to court proceedings. This is to be expected since the Charter gives the accused more ammunition to challenge the admission of evidence and the fairness of the process.
Nevertheless, it makes little sense to blame our legal rights for the crippling inefficiency of the system. Longer trials are a small price to pay for a set of rights designed to protect dignity and privacy. If the Charter is not an appropriate scapegoat for the problem of trial delay, then who should be blamed for the stagnation and bloating of the modern criminal trial?
In a speech last November, Justice Michael Moldaver of the Ontario Court of Appeal seemed to lay the blame on mercenary defence counsel who think the "Charter is a gift from heaven... the godsend of all godsends" when it comes to making money. Justice Moldaver called for urgent measures to address "the twin demons of complexity and prolixity" that "plague" the modern trial.
A year earlier he issued a warning to defence lawyers to "understand that the Charter is not your genie in the bottle that you can summon up with impunity whenever your spirit moves you." Obviously, this judge believes that defence lawyers are trivializing the Charter by raising frivolous constitutional challenges.
The judge is not entirely wrong. There are some defence lawyers who showboat and waste valuable court time.
His finger pointing prompted a quick rejoinder from prominent members of the defence bar who wrote editorials about the judge's "disturbing" and "chilling" comments. Quite predictably, the defence bar pointed out that police, prosecutors and judges are also responsible for the backlog crisis.
The defence bar is not entirely wrong either. Indeed, one need only read a select handful of decisions to see that many of our Charter decisions are rife with ambiguity and confusion.
For example, in a mundane case last spring involving the power of the police to search a vehicle stopped for speeding, Justice Richard Blair of the BC Supreme Court complained about the "Charter minefield through which the police must navigate, bearing in mind numerous trial and appellate decisions that offer a variety of conflicting paths." It's sadly remarkable that in 25 years the courts have not arrived at a clear set of rules for searching vehicles, considering that this particular interaction between police and members of the community is a daily occurrence.
As for prosecutorial complicity, the defence bar need look no further than last week's decision by Justice Colin McKinnon of the Superior Court of Ontario to stay murder charges against Richard Trudel and James Sauvé for the 1990 murder of two drug dealers. After more than a decade in custody, these men were freed. The judge held that it would violate fundamental principles of justice to proceed in light of the inordinate delays, the problems relating to full Crown disclosure and the fact that the Crown's case was built almost entirely on the testimony of unsavoury witnesses from the eastern Ontario underworld.
Finger pointing is easier and much more fun than repairing a sinking ship, yet nothing is gained by blaming court congestion on the prolixity of defence lawyers, the crusading myopia of police and prosecutors or the incomprehensibility of judges. These characters all contribute to the problem.
The root of the problem is found in system overload. The system is collapsing under the weight of its overly ambitious criminalization agenda, but no one in the legal profession or the political community seems to be interested in looking at its capacity to process the 3 million charges laid every year in this country.
It must be remembered that the vast majority of these are minor in nature, yet the same complex and rights-laden process applies to them all. The increased length of the modern trial is not just reserved for murder cases; even the simplest case can be spun into a long adversarial contest.
The legal profession will say that the way to clear the backlog is to hire more judges and prosecutors, but this self-serving solution will only clear the current backlog to make way for the next crisis 10 years from now.
Little will change until we start to look at alternatives to criminal courts for dealing with minor assaults, petty vandalism, disturbing the peace, possession of illicit drugs and a whole host of other misconduct that does not require the heavy, punitive hand of state punishment to achieve justice.
The formality and complexity of the contemporary criminal justice process should be reserved for serious, predatory crime, and with a limited but clear focus the system should never be burdened by a chronic backlog.