The Final Report on Early Case Consideration of the Steering Committee on Justice Efficiencies and Access to the Justice System

Background

The objective of a criminal court system is the just and timely determination of every case that comes before it. However, the Canadian justice system is taking longer to resolve adult criminal cases. The mean elapsed time from first to last court appearance is continuing a long-term trend toward increased duration[1]. Moreover, increases in elapsed times appear to have accelerated in the past four years. Overall, the elapsed time in the average case increased from 137 days ten years ago to 226 days in 2003/04. The mean processing time for the least complex cases, those with a single charge, increased from 121 to 215 days during the same period, while the processing time for multiple charge cases increased from 157 days to 236 days.

The Supreme Court of Canada considered the issue of reasonable elapsed time between the laying of charges and the accused being brought to trial, for the purposes of s. 11 (b) of the Charter of Rights and Freedoms, in R. v. Askov[2] and R. v. Morin.[3] While the Supreme Court did not prescribe a strict time limit within which all criminal cases must be completed, it did indicate that most cases should be completed within an eight to ten month period. This is not only to protect the security of the person, liberty and fair trial interests of the accused, but also society's interest in ensuring that lawbreakers are tried promptly and fairly on the merits.[4] There are also practical benefits to the quick resolution of criminal cases for witnesses and victims. The community at large is entitled to see that the justice system works fairly, efficiently and with reasonable dispatch. Public confidence in the justice system is diminished if cases are repeatedly stayed for unreasonable delay.

Another consequence of an increase in the elapsed time it takes to complete criminal cases is an increase in the time spent in custody by those who are detained pending trial. Time on remand is often referred to as “ dead time ” because the accused is housed in facilities designed for short-term detention and may have no access to recreation, work or rehabilitative programmes.[5] Since 1986/87, not only has the number of admissions to custody on pre-trial remand increased, the proportion of provincial admissions due to remands when compared with the number of offenders serving sentence has also greatly increased. Since 1986/87, the proportion of total admissions to provincial correctional facilities due to remands has steadily increased by 37% to almost 60% in 2000/01.[6]

In addition to an increase in mean processing time per case, the number of court appearances per charge has also steadily increased over the past ten years. In 2003/04, the average number of appearances was 5.9. Ten years ago the figure was 4.1[7]. This suggests that despite a decrease in the number of charges processed by the court system, the demand placed on court resources has actually increased over time. The number of appearances is an excellent overall indicator of court workload because it relates directly to the activity consuming the most court resources. The number of court appearances needed to dispose of a case is also the primary factor in determining the case elapsed time. Generally, each additional court appearance increases the median elapsed time from first to last court appearance by approximately 30 days.[8]

As the number of court appearances increase, so to does the possibility that the bailed accused will fail to appear as required or otherwise breach his terms of release. In 2003/04, failure to comply with a court order was the fourth most frequently occurring offence in Canada.[9] Administration of Justice offences, which include failure to comply with a court order, have steadily increased their share of the caseload over the past ten years. This offence group accounted for 19% of all cases in 2003/04, versus 16% five years ago, and 14% ten years ago.[10]

Only 9% of the cases coming into the court system are resolved by way of a trial.[11] The average number of appearances per case that goes to trial is 5.5. The case elapsed time for cases that go to trial is 150 median days. Of the 91% percent of cases that do not go to trial, 41% do not result in a conviction; they are withdrawn by the Crown or resolved without a conviction in some other way. In this category of cases, there is an average of 4.9 appearances per case and the case elapsed time is 103 median days. Of the 59% of cases that do not go to trial and result in a conviction,[12] 18% are resolved by an initial plea of guilty, with an average of only two court appearances per case and a case elapsed time of 1 median day. Sixty-nine percent of these cases are resolved by way of a change of plea to guilty. Cases involving changes of plea to guilty require, on average, 5.7 appearances per case and case elapsed time of 103 median days.

It appears there are a number of areas where case processing can be made more efficient and fair in the adult criminal court system.[13] Thirty-seven percent of all cases that do not go to trial (because the case is withdrawn or is otherwise resolved without a conviction) currently require, on average, 4.9 court appearances. This average is close to the average number (5.5) of court appearances required for cases that go to trial. It should not take almost as many court appearances for the parties to decide whether to resolve a case as it takes the court system to conduct a trial. Moreover, the average number of appearances per case (5.7) where the defence changes its plea to guilty exceeds the average appearances per case (5.5) where the court system conducts a trial.



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