Law Times

Law Times • December 3, 2018 Page 11 www.lawtimesnews.com Court delays persist, despite Jordan BY SHANNON KARI For Law Times T he Supreme Court of Canada decision in Jor- dan and the problems it tried to address are still top of mind in the criminal courts in Ontario nearly two- and-a-half years after it was re- leased. The ruling sparked discus- sion among all justice partici- pants, some pilot projects to address systemic issues and the appointment of several new pro- vincial court judges. For the criminal defence community in Ontario, how- ever, there has been more dis- cussion taking place than real change to move cases through the system more efficiently and update the technology used in the courts. "Everyone loves to talk about increasing access to justice. But when the rubber hits the road, few people are willing to do any- thing," says Leo Russomanno, who heads Russomanno Crimi- nal Law and is an Ottawa direc- tor of the provincial Criminal Lawyers' Association. "The system is trying to ma- noeuvre in the absence of a real commitment from government. There is still chronic under- funding and there needs to be a culture shift in terms of making hard choices about which cases to prosecute," he says. Statistics released by the On- tario Court of Justice — where more than 95 per cent of all criminal cases are concluded — show that neither the average time to disposition nor the num- ber of court appearances has de- creased in the province since the decision in Jordan. For offences listed as "crimes against the person," the aver- age time to disposition for the 12 months ending Sept. 30 was 191 days and an average of nine court appearances. That was up slightly from 2016. The slowest cases to move through the system are sexual assault offences. They were an average of 284 days and 11 court appearances to disposition in the 12 months ending Sept. 30. Defence lawyer Stephanie DiGiuseppe says the lack of im- provement is not a result of a lack of desire among any of the participants to make the system more efficient. "Judges are being very vig- orous. The problem is we don't have the resources," says Di- Giuseppe, a partner at Ruby Shiller Enenajor DiGiuseppe Barristers in Toronto. In some jurisdictions, the Crown office has moved to "ver- tical file" management, where a specific prosecutor is assigned to a case at an early stage. "I think vertical file manage- ment is very good. It provides accountability and we are get- ting more resolutions at an early stage," says DiGiuseppe. Other regions, such as Ot- tawa, use a "team leader" format, which Russomanno suggests is not resulting in early decision- making by the Crown. "We don't get a Crown as- signed until shortly before the trial date. Sometimes, even a week before the trial, I do now know who the Crown will be," he says. Both lawyers agree that out- dated technology and the re- quirement for defence counsel to appear in person for court dates that will not deal with substan- tive issues is another source of frustration. "Why are we not doing this by teleconference or video tech- nology? It would cut down on inconsequential appearances," says DiGiuseppe. As well, the daily volume of traffic and time it takes to travel from one Toronto-area court- house to another "is sucking the life out of everybody," she adds. Laurie Gonet, president of the Ontario Crown Attorneys Association, did not respond to requests for comment. In the past, the association representing Crown attorneys in the province has also called on the government for more re- sources. One change since Jordan is that Crown attorneys can now access disclosure online as soon as it is uploaded by police. However, that has not result- ed in more timely disclosure to the defence and the information is still generally downloaded to a CD or DVD, unless it is a com- plex case and then it may be put on to an external hard drive. "Video disclosure seems to be a real problem," says Di- Giuseppe. "I have waited six months to get video. There is no universal player format, and if you use a Mac, then 90 per cent of the time it won't play," she adds. Jaime Stephenson, a criminal defence lawyer in Hamilton, says she encounters the same issues. "We get disclosure on DVD when most computers don't have a DVD drive anymore. There are also delays in downloading it [by Ministry of the Attorney Gen- eral staff ]. We should be able to log on and have electronic access to dis- closure," says Stephenson, who is also the Hamilton director of the CLA. As well, she says, there are bureaucratic obstacles such as a prohibition on defence lawyers being able to bring their com- puters into the detention centre in Hamilton. Instead, they have to make hard copies of any information they might want to show clients. There is also a lack of consis- tency in the policies in each ju- risdiction, says Stephenson. When she asked for disclo- sure in a Toronto case to be cou- riered to her office in Hamilton, the request was refused. "I gave them my courier num- ber; I wasn't asking the province to pay," she says. In Brantford, however, the Crown's office changed its poli- cy and agreed to send her disclo- sure by courier. Christine Lund, a Brampton- based defence lawyer and the Peel region director of the CLA, says the front end of the criminal trial process still needs signifi- cant improvement. "A significant amount of time is wasted just waiting in line — waiting to pick up or check for disclosure, waiting on a list to speak to a Crown to have a pre- trial, waiting in a courtroom to speak to a matter. It is incredible FOCUS © 2018 Thomson Reuters Canada Limited 00252WD-93315-NP The ideal courtroom companion Available risk-free for 30 days Online: store.thomsonreuters.ca Call Toll-Free: 1-800-387-5164 In Toronto: 416-609-3800 Print + ProView eBook Order # L7798-8638BE-65203 $128 Softcover + eBook approx. 670 pages July 2018 L7798-8638BE ProView eBook only Order # A08207-18ON-65203 $107 Print only Order # L7798-8638-65203 $107 Annual volumes supplied on standing order subscription Multiple copy discounts available Shipping and handling are extra. Price(s) subject to change without notice and subject to applicable taxes. Find clear, concise summaries of legal issues from bail to sentencing with Mack's Criminal Law Trial Book – 2018 Edition. 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See Some, page 13 Age of cases pending in the Ontario Court of Justice* Percentage Cases 0-8 months 69.6% 77,163 8-10 months 7.7% 8,497 10-15 months 13.7% 15,175 15-18 months 4.1% 4,494 Over 18 months 4.9% 5,460 Source: Ontario Court of Justice * As of September 30, 2018. A significant amount of time is wasted just waiting in line . . . Christine Lund

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