Law Times

Law Times • march 20, 2017 Page 7 www.lawtimesnews.com Jordan comes into clear focus BY MATTHEW GOURLAY T he Supreme Court decided R. v. Jordan last July, but its conse- quences are only now starting to come into clear focus. Hundreds of applications for stays of proceedings based on unreasonable delay are now be- fore the courts. Two murder cases have already been thrown out without a trial on the merits. With Jordan having set a "hard cap" on the amount of constitutionally acceptable delay, more stays and more public frustra- tion appear to be inevitable. Although the justices in Jordan ma- jority would probably be dismayed at the prospect of thousands of cases being turfed, I suspect they are pleased at the extent to which the decision has shaken policy-makers out of complacency and prompted a vigourous debate about how to reduce delay in the criminal justice system. I, too, think this is a healthy de- velopment. But I think the opportunity could largely be squandered if the discussion isn't properly grounded in evidence and guided by a realistic vision of what the system can and should accomplish. So far, one of the most prominent pro- posals to reduce delay has been the aboli- tion of preliminary inquiries. The basic idea, as I understand it, is that the preliminary inquiry adds months to the overall process without doing much to serve its two main ob- jectives, case screening and discovery. The threshold for committal to trial is low ("some evidence") and most cases easily pass the test; further, full disclo- sure of the Crown's case has been a constitutional requirement since 1991, reducing the need for in- court discovery. But as several com- mentators have pointed out, the problem is that we don't have any clear un- derstanding of whether and to what ex- tent preliminary inquiries are a net cause of delay. While relatively few cases are judi- cially terminated at the preliminary in- quiry stage, the preliminary inquiry of- ten serves as a useful dry run where both sides can observe the strengths and weak- nesses of their case, which can lead to a more focused trial or avoid the need for a trial altogether. Guilty pleas and withdrawal of charges are both common consequences of a pre- liminary inquiry. More data is needed to systematically measure these benefits and compare them to the costs of a preliminary inquiry in terms of resources and delay. If such data was avail- able, we could have a pro- ductive and informed debate about whether any delay caused by prelimi- nary inquiries is worth the benefit to the accused and to the system in general. While I think we should resist the impulse to cling to familiar processes and procedures just because they're familiar, I think we should also demand that reform be based on a transparent cost-benefit analysis rather than gut instinct. We need to remember that reducing delay is a means to an end — namely, a more just criminal justice system — and not an end in itself. In that respect, we need to think more broadly about what we expect from the system. In some recent coverage, a novel idea has been f loated. That's the concept that the criminal justice system can't do every- thing. Not only is it unable to remedy all of society's ills, it can't even be expected to address all conduct currently deemed "criminal" under Canadian law. All of us know intuitively that not ev- ery theft, assault or drug possession can result in a criminal case. Luck and social factors currently play a large role in deter- mining which ones get before the courts. And if that's the case, why not take a broader, more principled look at what kinds of cases should attract a criminal prosecution and which should be dealt with in some other way, if at all? This is the idea behind pre-trial "diver- sion" of many low-level criminal charges, common in many jurisdictions, which offers withdrawal of charges in exchange for completion of community service or treatment. The challenge may be to implement this principle more broadly with refer- ence to entire classes of offences. British Columbia has done that with low-end drinking-driving cases, divert- ing them into an administrative rather than criminal process, and the results ap- pear to be encouraging. Criminal court delays are down and the administrative response actually seems to have been better than criminal prosecution at deterring drunk driving. We need to consider whether a simi- lar approach to other offence categories makes more sense than the criminal pros- ecution model. LT uMatthew Gourlay handles criminal and regulatory matters at Henein Hutchison LLP with an emphasis on appellate litigation. He's available at mgourlay@hhllp.ca. Missed opportunity for family law BY ROBERT SHAWYER T he Ontario government recently released the findings of Justice Anne-Marie Bonk- alo, in the form of the long-awaited Family Legal Services Review. According to the government, the review was done because a "key priority for the Government of Ontario and the Ministry of the Attorney General is to focus on initiatives that promote fairness and access to the jus- tice system for all Ontarians." However, in my opinion, the government went about this in the wrong way, by construing Bonkalo's mandate far too narrowly. In the terms of reference for the review — released in February 2016 — the government said it was look- ing to improve access to justice by seeking out "alter- native and affordable models of family legal service delivery." It also identified an access to justice problem, where "the access to justice challenge is very apparent in the family justice system, where a large number of self- represented litigants struggle to resolve their personal family law disputes." In the same terms of reference, a mandate was spelled out for Bonkalo. The mandate included identifying service provid- ers, other than lawyers, who may be capable of provid- ing legal services. It also set out that Bonkalo identify legal services that could improve access to justice, in addition to those provided by lawyers. The mandate also asked Bonkalo to make recom- mendations about what procedures, mechanisms, training and safeguards would be needed to allow ser- vice providers other than lawyers to offer family law services to the public. Bonkalo's report should have recommended trans- formational reforms to the family justice system. Instead, by construing her mandate so narrowly, the provincial government ensured that it got a report that is a hodgepodge of proposed solutions. When the Family Legal Services Review was re- leased, the provincial Ministry of the Attorney General accompanied it with a press release that called for the expansion of unified family courts provincewide. The reasoning behind this is that they would streamline the family court process by ensuring On- tario families have to go to only one court to resolve their legal issues, no matter where they live. Objectively, this makes sense and has a sound ratio- nale. Further, in the report, Bonkalo made a significant number of recommendations that make sense and should be implemented immediately. These include that court staff should be trained to provide as much assistance as possible to the public within the limits of their role and that lawyers should be encouraged to continue to offer and promote the use of unbundled legal services in the delivery of family law matters. It also includes the recommendation that fam- ily court forms should be amended to indicate when a self-represented litigant has been provided with help drafting family law court forms by a trained legal pro- fessional. However, some of Bonkalo's recommendations, es- pecially those relating to the role of paralegals, don't make sense. This is because they are premised on the idea that allowing paralegals to offer limited legal services in the area of family law is the panacea that will cure the ills affecting the family law system, as it is currently con- stituted. Bonkalo was set up to fail. She should have been given a mandate that would have allowed her to propose a potentially radical over- haul of the family law system or global solutions, which is what is sorely needed. Instead, the provincial government asked for and received a report that proposes stop-gap measures when radical surgery is required. These revelations are no surprise. In 2013, the Canadian Bar Association's Access to Justice Committee released a report called "Reach- ing Equal Justice: An Invitation to Envision and Act." This report proposed a complete overhaul of the civil justice system. This report recommended that courts be reorga- nized so that, instead of becoming the option of first resort for litigants, they become the "main path to dispute resolution processes and [a centre for] referral to other services that can assist with the non-legal as- pects of people's problems, like mediation." "This re-centring of courts would involve transfor- mation and overarching innovations," said the report. The report said courts should be a community hub where litigants can go to gather information, get refer- rals to the services they require and act as the last resort only if all other options fail. "Effective triage and referral to appropriate services and processes is key to transcending the unrepresented litigant phenomenon and transforming courts to be fully centred in the broader civil justice system," said the report. "Re-centred courts will develop capacity for triage and referral that complements and works in coordina- tion with the jurisdiction-wide and community based networks that facilitate everyday justice. . ." Unfortunately, due to the narrow mandate provid- ed by the provincial government, the Bonkalo report missed its opportunity. The report could have recommended reforms to the Ontario family law justice system that would, if adopted, affect lasting and truly transformational change. And this change is sorely needed in order to solve the access to justice issue as it relates to family law in Ontario. Now, one can only hope that those with the power to make changes to the justice system see the f laws in Bonkalo's report and adopt the CBA's recommenda- tions instead. LT uRobert Shawyer is a senior family law lawyer practicing in Toronto and the principal of Shawyer Family Law and Mediation PC. He can be reached at robert@shawyerlaw.ca. u SPEAKER'S CORNER COMMENT A Criminal Mind Matthew Gourlay

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