KIRK MAKIN
From Thursday's Globe and Mail Published on Thursday, Jan. 28, 2010 12:00AM EST Last updated on Thursday, Jan. 28, 2010 3:09AM EST
JUSTICE REPORTER
The unshaven defendant in the prisoner's box of a downtown Toronto courtroom had already served five days of pretrial custody for shoplifting a $13.25 bottle of vodka and Judge Harvey Salem sounded skeptical about sending him back.
"I just don't see the purpose in having a body chucked back into a jail that is already strained," said Judge Salem of the Ontario Court.
He sentenced the 37-year-old man to time served - a rare moment of administrative efficiency at a courthouse where case lists are chaotic and nine out of every 10 cases drag out for months before collapsing on the day of trial.
The College Park courthouse serves as a microcosm of what ails the court system - particularly in Ontario, Quebec and Alberta. Elongated cases do not get tried on schedule because of remands, adjournments or unexpected guilty pleas. Their collapses empty teeming courtrooms and leave judges underutilized.
In an unusual ruling earlier this month, Ontario Court Judge William Horkins identified a major source of the problem: a prosecution system starved of funding.
"It is a startling fact that the backlog of cases in the College Park courthouse consists almost entirely of cases that will never actually proceed to trial," Judge Horkins said, as he tossed out a 20-month-old assault charge against a nursing-home employee for allegedly slapping and abusing an 86-year-old resident.
"I am the administrative judge in this courthouse and, as such, I know for a fact that during the material time frame of this case, every week - not just some weeks, but every week - 90 per cent of the cases forecast to last one day or more collapsed on the trial date."
Judge Horkins said routine delays of up to a year are flirting with the outer limits of what is allowable under the Charter of Rights and Freedoms.
"The failure of the criminal justice system to consistently deliver on this promise has generated more litigation than any other provision in the Canadian Charter of Rights and Freedoms," Judge Horkins said. "This seemingly perpetual lack of adequate resourcing across the board in the criminal justice system is without doubt the principle reason for this failure."
And the situation is growing worse, said Thomas Hewitt, president of the Ontario Crown Attorneys' Association.
"Certainly, the problem is not limited to College Park," he said. "Chronic underfunding for Crowns is an ongoing problem we have raised numerous times with the government."
Defence counsel Lon Rose said a prosecutor told him earlier this week that much of the office's support staff has been removed, while 15 prosecutors who are on sick leave or secondments have not been replaced. "But on paper, it says that they have a full complement," Mr. Rose said.
Down the hall, lawyers and defendants were jammed into first-appearance court. "This is ridiculous," said Paul Calarco, a veteran Toronto defence lawyer. "It's a waste of time. It's a waste of money."
Mr. Calarco said when a case finally arrives at the pretrial conference or trial stage, beleaguered prosecutors are often seen thumbing through case files for the first time. He said it is imperative to divert more petty offenders into social or rehabilitation programs and to give prosecutors the authority to winnow out cases that ought to be resolved quickly.
In an interview yesterday, Ontario Attorney-General Chris Bentley said an 18-month-old program, Justice on Target, will reduce adjournments and needless court appearances.
"When you take out 30 per cent of the appearances - as Justice on Target will - you free up huge capacity in the courts," he said. "Half a million people will not be coming to court every year simply to adjourn their case."
According to federal statistics, the average criminal case took 237 days to complete in 2006-07. In contrast to Ontario, Quebec and Alberta - where cases average about 250 days - it takes just more than 60 days to close a case in Prince Edward Island and the Northwest Territories.