From my experiences dealing with the different participants in the justice system (accused, victims, witnesses, court personnel, etc) and listening to the public’s opinion, I feel confident in saying that most people are frustrated with the length of time it takes for a case to be completed in court after an offence is actually committed.

I think that most people believe in the old adage that “justice must be swift to be maintained” and the perception is that this is not happening. Indeed, this is not merely perception, but reality. Statistics from 2009 indicate that the average number of days a court case takes in the Province of Ontario until a disposition is reached is 214, with an average of 9.2 appearances in court. In some regions in Ontario these numbers are as high as 330 days and 13.1 appearances. This is an increase of 21.6% and 42.4% respectively.

Based on these numbers I would suggest that the public’s perception is very justified and polls show just how widely held this perception is. According to the Department of Justice’s Review of Opinion Polls of Public Perceptions of Crime and Justice in Canada, 36% of Canadians claimed to have little to no confidence in the provincial court system, with a further 48% stating that they have only “some” confidence.

Might that be (at least in part) because, like Pavlov training his dog, people understand on some level that the effect (the punishment) must be proximate to the cause (the crime) in order for the association to effectively be made? If it is not, how can the offender understand the consequence of their actions? How can their sentence properly act as a deterrent? If your five year old child draws on the wall with crayon and 7 months (214 days) later you punish them for it, are they really going to learn their lesson?

Disparity in the proximity between the time of the offence and the time of sentencing causes problems for other participants in the justice system than just offenders, including victims, witnesses, and police.

Victims of crimes I’ve investigated have often expressed to me that they feel as though they are continually being victimized while the court process drags on and that they can’t really move on until it’s complete and they have some sense that justice has been done. This is especially true in cases where the crown intends to seek restitution from an offender for some loss that a victim has suffered.

Witnesses in cases I’ve had have often become more reluctant as time goes on to testify in court. Sometimes this is because their memory of the incident gets less clear as time goes on and they don’t want to put themselves in a position where they will be asked about details that they can’t remember. Sometimes, in cases involving criminals who are witnesses against other criminals, this is because there has been time for the accused to tamper with or intimidate the witness or because they’ve had a lot of time to dwell on the possible repercussions of testifying and have convinced themselves that the worse case scenario will happen, that the accused will “get them when they get out.”

Police are subject to the same problems as other witnesses with respect to their memory of an incident degrading over time. This is why police make notes of the incident to refresh their memory in court, but when you’ve dealt with a hundred similar cases since the one in question, the details sometimes blend together and answering questions about details strictly from your recollection (that you made no notes on) becomes very difficult and can adversely affect the prosecution of a case.

This happened in my first impaired case. I stopped a young man just down the street from where he had dropped his friend and his (the friend’s) girlfriend off. They were both drunk and were fighting and rolling around on the boulevard and the in the street. I suspected, based on the driving I observed and the report of the complainant who stated that he thought that all three were drunk, that the driver might have been drinking, but I didn’t have time to confirm the grounds.

Immediately after stopping the vehicle, I took the keys from the driver to keep him there and went to deal with the other two, who were in danger of being hit on the road. I ended up having to arrest both of them for public intoxication, for their own safety, in order to get them off the road. I called for another unit to take over their arrest and dealt with them until the unit arrived. A short time later I returned to the vehicle, confirmed that I had grounds to make a roadside demand and produced the breathalyzer, which the driver blew into and failed. He was arrested for Impaired and Over 80.

When the case came to court, over a year and many impaireds later, I was asked specific questions by the defence counsel about how long the accused was detained while I dealt with the other two and what exactly I was doing with them the entire time and how long it took me to get back to the accused and form my grounds. I couldn’t remember all the details and I hadn’t made notes on what I was doing at every moment. The case was dismissed based on the fact that the judge felt that we had unjustifiably detained the accused for too long without having formed grounds and made the breath demand.

Had I been able to recall better what exactly I had been doing during this time and articulate how I couldn’t have gotten back to the accused any sooner, the case might have gone differently. That is just one personal example of the problems associated with delays in court. I have many more.

Fortunately, the provincial government has acknowledged these issues and has developed a strategy to deal with them. But this post has gone on long enough so check out my next one for the details of how the government is addressing these issues.