Law Times

lAw Times • April 19, 2010 An online resource 1.800.263.3269 Focus On ADR / MEDIATION Jury still out on Justice on Target Program aims to cut appearances, but counsel have yet to see results BY JUDY VAN RHIJN For Law Times I n the last decade, the number of appearances required to deal with a criminal charge has more than doubled. In an eff ort to speed up decision-mak- ing, the provincial government has introduced a range of strat- egies to divert less serious cases out of the system and down more constructive avenues. Th ere are seven initiatives in- volved in the Justice on Target program, which aims to reduce the average number of appear- ances in criminal matters by 30 per cent over four years. Crown and defence counsel are expect- ed to commit to a standard of three appearances — with set tasks to accomplish at each one — after which most cases should be set down for trial or resolved. Prior to the fi rst appearance, the Crown must screen the case and provide disclosure. Th e Crown and defence have to make themselves available for early discussions about resolv- ing the case, and there is to be an increased availability of plea courts. In addition, there has been an expansion of on-site le- gal aid offi ces and a simplifi ed online application process put in place at designated sites in Ontario, including Newmarket, North York, London, down- town Toronto, and Brampton. A policy of direct account- ability involves off enders facing community-based sanctions in- stead of being subject to pros- ecution. Th e direct accountabil- ity program includes a range of viable alternatives when off end- ers are willing to assume respon- sibility and make amends. Th ere are also implications for Crown offi ces, where a policy of dedicated prosecution is see- ing cases assigned to particular Crown attorneys who have full discretion and responsibility for the conduct of the matter. Th e policy is to be offi cially in place at all 17 high-volume court lo- cations by the end of 2010 but is already pervading the system as a practical matter. Brendan Neil, a criminal de- fence lawyer based in Oakville, Ont., says the program is unof- fi cially in place in almost every courthouse he visits but, he notes, "People are still feeling it out." Neil is positive about what he calls the "grand inspiration" behind the scheme but is am- bivalent about the actual results. "Th e premise is great: to reduce the negative eff ects of multiple appearances," he says. "It's great for the accused, for al- leged victims, for police offi cers, and it even helps court staff by reducing stress within the court." But in his opin- it's not always ion, so great for defence counsel. "Like any other beast, lawyers are a bit afraid of change. We like to have a form of con- trol and not have something imposed on us. Th e media and government and perhaps the public like to put the blame for delays on defence counsel, and that's a real sore spot." Joseph Di Luca, a vice president of the Criminal Lawyers' Association who serves on the expert advisory panel for the program, lauds the government for Justice on Tar- get and, in particular, the recent increase to legal aid funding. "Fixing legal aid and fi nding extra funding for it goes a long way towards complementing Justice on Target," he says. Neil notes the program is also leading to changes aimed at speeding up legal aid appli- cations. "It's one of those silent things that aff ects the speed of matters. It's easy to say there must only be two or three ap- pearances, but if someone can't get representation in time, there's not much that can be done." Di Luca also has praise for other measures in the program. "Streamlining appearances, meaningful fi rst appearances, and standardized disclosure briefs are all valuable initiatives that make everyone's life in the criminal justice system easier," he says. As a result, there is now a two-stage disclosure system. Th e Crown is to provide fi rst-appear- ance disclosure within a set time frame after laying a charge to al- low defence counsel and the ac- cused to make an informed de- cision on how to proceed. Th ey are to receive trial disclosure once a case gets to that stage. But Neil points to the dif- ferences in disclosure require- ments for the prosecution and defence as a key issue. "We operate under a diff erent set of parameters, although we are working in the same system," he says. "If we believe certain outstanding disclosure is neces- sary to estimate a proper num- ber of days for the trial, then we can't set it down for trial until we have it. If you estimate two days, and it takes fi ve days, it explodes the system." Th e Justice on Target web site now makes criminal case statis- tics dating back to 2000 pub- licly available so interested par- ties can track any changes. "Th e program has been set up with 'The media and government and perhaps the public like to put the blame for delays on defence counsel, and that's a real sore spot,' says Brendan Neil. transparency," says Di Luca. Neil, however, has yet to see any actual reduction in the number of appearances. "People are hopeful that the program will assist," he says. "As a busi- ness model for defence counsel, the fewer the appearances, the better. It's better for the client as well. Th e most common ques- tion we are asked is, 'Why is this taking so long to get to some sort of closure?'" Di Luca, though, isn't both- ered by the lack of tangible progress in that area. "Criminal justice is a bit like a big ship. It takes some time to change its course. We are starting to see positive changes. Eventually, it will change the entire system, but it is easier to change it one small piece at a time. Th at is why the government is rolling it out in waves, a few courthouses at a time. We are learning les- sons and building on them at subsequent courthouses." For his part, Neil has ob- served improvements in fi le management at Crown offi ces. "We are dealing with one specifi c Crown up to a certain stage," he says. "It's easier to determine who you are dealing with, and you can get a quicker decision if you have a better relationship with the Crown. We're not jumping to a diff erent Crown on every appearance." Di Luca agrees. "File ownership is absolutely integral to keeping the pro- gram going. If the person who has to stand up and argue the case on the day has had the manage- ment of it all along, they will make much more eff ective decisions." Neil has observed that since the changes took ef- fect, Crowns have been more motivated to seek alternative outcomes. "I think there's been a hard push from the attorney gen- eral's offi ce that things that need to be resolved should be resolved to free up more court time," he says. "In a lot of less serious mat- ters, the Crown is looking to see if this is a reasonable case for proactive intervention based on rehabilitation rather than pun- ishment. Th ey are allowing a di- version to other programs: drug programs, counselling programs or they can clock up some com- munity service hours with a veri- fi able source." For Di Luca, that's a good thing. "I don't think anyone would disagree that there are a lot of charges at the bottom of the system which are serious, but when you compare them with other charges, you can see that the court system may not be the most suitable home for them." LT PAGE 9 www.lawtimesnews.com

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