Justice Delayed: Part 1 of 3

“I can’t wait any longer.”

The defence lawyer has been in court for nearly an hour, and court staff are still unable to locate the “Information” for his client, a few pieces of paper that outline the charges, but also past and future court dates for the accused — which are handwritten and not always legible.

The up-to-date Information is not available on a computer. Without it, the case can’t be heard.

The lawyer says he’ll have to leave a note about the next steps for the case with duty counsel, the legal aid-funded lawyer who can assist accused persons during court appearances. That is, of course, if they ever find the Information. The clerk has called the court support counter more than once but no one is picking up.

It’s a busy May morning in the rather humid and chaotic set-date court at Toronto’s Old City Hall, possibly the busiest courthouse in Canada, where numerous lawyers, paralegals and self-represented litigants parade in front of the justice of the peace, while a Crown attorney with a stack of files next to him tries to keep the routine appearances moving as quickly as possible.

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Read more:

Part 2: How the underfunding of legal aid is clogging up the justice system

Part 3: Federal government urged to rein in mandatory minimum sentences

Some of these individuals will wait nearly an hour or more for appearances that will last less than a minute, during which they’ll set the next court date to provide an update in their case, receive further disclosure of evidence from the Crown, or possibly even set a date for the actual trial.

There are problems. A cracked DVD provided by the Crown as part of its disclosure in one case doesn’t work. Missing Informations mean individuals will have to wait even longer for their brief appearance.

At 11:45 a.m., the justice of the peace apologizes to a man who has been waiting for his case to be heard since 9 a.m. But they have now found the Information in his case. It is then quickly adjourned to a date in June.

“It’s actually shocking how archaic the criminal court process is,” criminal defence lawyer Annamaria Enenajor told the Star. “One of the biggest revolutions that hit the criminal courts in the last five years is that disclosure no longer came in paper form; it now came on CD.

“This is dinosaur era-type administration. So many times I’ve had to physically chase my client’s Information … God forbid that one copy gets misplaced.”

Delays and the inefficiencies that can cause them have come under heightened scrutiny since the Supreme Court of Canada’s landmark 2016 ruling R v. Jordan, which set strict timelines to bring criminal cases to trial: 18 months in provincial court (such as at Old City Hall) and 30 months in Superior Court, which deals with the most serious criminal offences, including murder.

As part of its response to that ruling, the federal government introduced Bill C-75 in March to revamp the justice system in the hopes of making it more efficient.

While the bill — which has been sharply criticized by defence lawyers who say it takes away procedural rights from accused people — does contain some clauses on technology, such as allowing remote appearances via video by an accused person (which already happens in some courts), it doesn’t really touch on many of the day-to-day headaches in court that lawyers say could be improved by technology, which could ultimately reduce delays in the system.

Modernization efforts would fall under the responsibility of the Ontario government, which funds the courts. While the previous Liberal government instituted some technological advancements on the civil and family side — such as the ability to file statements of claim and defence online — next to nothing was added on the criminal side.

“The attorney general is always interested in exploring ways to modernize the legal system and improve wait times through the use of technology,” Jessica Trepanier, spokesperson for Ontario’s new attorney general, Caroline Mulroney, told the Star last week.

Ottawa criminal defence lawyer Michael Spratt describes the overreliance on paper in court as not only inefficient but “shocking,” citing cases that drag on because they literally fall between the cracks.

“I wanted to transfer an Information from the remand court to just two courtrooms over, and it took two hours because they couldn’t find the Information. It fell between the court reporter's table and the clerk’s table,” he said.

“Having a system for not relying on physical attendance in court to case manage or to shepherd matters through the early stages would free up judicial resources and court space for conducting trials.”

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Lawyers should be able to conduct “digital or virtual appearances through email” as a way to get the case moving forward without having to take up time and space in court, said Michael Lacy, president of the Criminal Lawyers’ Association. Disclosure should also be available online through a secure server accessible to the defence, along with notifications when new disclosure has been added, Lacy said, calling the current court system “antiquated.”

“Ontario lags behind other jurisdictions, including other jurisdictions within Canada in that regard,” he said.

Both levels of government have said since the Jordan decision that there is no “silver bullet” for reducing delays, but modernizing the justice system in Ontario — notorious for its continued reliance on paper and the fax machine — could prove to be one solution.

“The better use of technology and case management practices will assist judges and their courthouses to address the challenges of delays,” concluded a massive 2017 study by the Senate committee on legal and constitutional affairs.

The committee had studied court delays across the country, and heard testimony from numerous judges, lawyers, academics, bureaucrats and others.

“The committee agrees that, wherever possible, routine appearances should be replaced by having the lawyers and judge log into a shared system and provide whatever key information will move the case forward,” says the report.

In one of their recommendations, the senators urged federal Justice Minister Jody Wilson-Raybould to “take a leadership role” in the design of a computerized system that the provinces could use that would, among other things, allow for routine procedural appearances to take place through a computer, as well as facilitate disclosure.

Ideally, the system would also “provide a user-friendly access portal to unrepresented accused persons, witnesses, victims and other affected parties concerning criminal proceedings in which they are involved,” the senators recommended.

Wilson-Raybould told the committee in her official response that developing such a program falls under the responsibility of the provinces and territories.

“Canada has a two-tiered justice system,” said criminal defence lawyer Daniel Brown. “Wealthy clients pay their lawyers to attend court for them without having to miss time from work, while the most marginalized members of our community are forced to make repeated and unnecessary court appearances.”

All criminal cases in Ontario begin in the Ontario Court of Justice, including the most serious ones, which will eventually move to the Superior Court for trial; that’s what makes the Ontario Court the busiest level of court in Canada.

Technology, or lack thereof, is not so much a cause of delay in Superior Court compared to the lack of resources such as courtrooms, judges and staff, said Norine Nathanson, senior counsel in the office of the chief justice. She said judges are ensuring that pretrials are being used as effectively as possible to identify issues ahead of trial in an effort to reduce delay.

There have been some recent improvements in the Ontario Court of Justice, which includes Old City Hall.

The court has piloted an electronic scheduling tool, “a critically important initiative that will allow the Ontario Court of Justice to more effectively schedule and monitor cases to ensure compliance with Jordan timelines,” said court spokesperson Kate Andrew.

“The investments made in modernization initiatives in the courts are welcome and necessary improvements, but much remains to be done,” she said.