SLOW JUSTICE: TRIAL DELAYS COULD PUT B.C. CRIMINALS BACK ON THE STREET

Criminal trial delays of a year or more in some of B.C.'s busiest
provincial courts are precariously close to the point where a judge
could decide to dismiss charges and set criminals free because of
unreasonable trial delays -- a right enshrined under the Charter of
Rights and Freedoms.

B.C. Attorney-General Wally Oppal said such delays are unacceptable
and undermine public confidence in the justice system.

"I'm very much concerned because there's no better way of losing
public confidence in the system than having lengthy delays in the
trial process," said Oppal, a former judge whose ministry budget is
nearly $500 million a year to run the justice system.

Slower justice is not only more expensive for B.C. taxpayers, it is
also a heavy financial burden for those who want their day in court.

The worst trial delay in B.C. -- 13 months -- is occurring in
provincial courts in Fort St. John and Dawson Creek, mainly because
of the booming oil and gas industry and population growth.

In Surrey and Vancouver, two of the busiest provincial courts in
B.C., it can take up to 12 months to get a criminal matter to trial.

Provincial Court Chief Judge Hugh Stansfield, concerned that the
backlog is causing justice to be delayed, says it's time to make
significant changes to streamline the system.

He said the problem isn't just a rising caseload in provincial court,
which handled 235,097 new cases last year, an increase of about five
per cent from the previous year.

About three per cent of that increase, he said, was the result of
more small claims cases being filed in provincial court after the
limit was raised last year to $25,000 from $10,000, shifting some of
the caseload from B.C. Supreme Court.

Stansfield also pointed out that only three to seven per cent of
cases get to trial, mainly because of guilty pleas or other
resolutions in criminal files, and settlements in civil cases.

"In the trials that actually proceed, they proceed in a reasonable
way," the chief judge said, adding provincial court judges do a good
job of handling trials.

The main problem, he said, is the criminal process, which results in
too many people coming to court too many times to appear before a judge.

He said judges should be hearing trials rather than dealing with
routine appearances that could be handled by a judicial case manager
- -- a justice of the peace who could set trial dates.

Stansfield said he isn't asking government for more judges -- there
are currently 135 full-time judges of the provincial court and
another 17 part-time judges, who actually sit the same number of days
as full-time judges, giving the court a full-time equivalent of 142 judges.

"I would love to have more judges. I could take five new judges today
and have them kept very busy," he said. Instead, he added, "we have
to use existing resources optimally."

Part of the backlog in criminal cases was caused by the provincial
government deciding to close 24 courthouses around B.C. in 2002 as a
cost-cutting measure, which shifted cases to already busy provincial
courthouses. Surrey received cases for the closed court in Delta.
Vancouver Provincial Court at 222 Main took over adult criminal cases
from Burnaby.

By early 2004, the provincial court realized the criminal case
backlog was creating unreasonable delays and Judge Carol Baird Ellan,
chief judge of B.C.'s provincial court until 2005, set the acceptable
trial delay standard at six months or less.

She launched a judicial blitz, shifting judges from other areas to
courthouses that had growing backlogs, and successfully reduced the
trial delay to eight months by March 31 last year. The exception was
the North Fraser region where trial delays of 11 months remained.

Although Stansfield said he also plans to blitz busy courts
experiencing trial delay, it's a short-term solution with a downside:
"We rob Peter to pay Paul," he explained.

Asked if criminals are walking free because of trial delay, the chief
judge said: "I expect there are."

He added: "While I'm extremely concerned about the delay and believe
we need to bring it down and apply resources to do that, I'm not
aware of it yet having got to the stage that it's causing a
significant number of cases to collapse."

Province-wide, he said, the average trial delay is between six and
seven months. But a delay of a year or more is unacceptable, he said.

"There are too many cases set for trial," Stansfield added. The
current "collapse rate" -- the term applied to trials that are set
but don't proceed -- is about 65 per cent, which he says is unacceptable.

The collapse rate is partly caused by overbooking courtrooms. At one
time, for example, up to three criminal trials were booked in a
courtroom for the same day, assuming two would collapse because of
either guilty pleas, civil trial settlements, consent orders or discontinuance.

Stansfield said the long-term solution is to make changes to the
criminal process, which he has discussed with the government.

"We will be making some fairly significant changes to criminal
process," he said. "We need to reduce significantly the number of
times people come to court."

In order to make the justice system more efficient, Oppal said he is
considering eliminating preliminary hearings, changing the rules to
have the defence disclose its witness list to the Crown, and have
judges sit longer hours, possibly by having night sittings.

"We've got these very expensive structures sitting there and they
only get used five hours a day," Oppal said.

"I think we can use our judicial resources more wisely than we have
been using them."

He added: "Why do we still start trials in the Supreme Court at 10
a.m.? The judges will tell you that we have pre-trial conferences and
pre-hearings. They do that. You know, they do them in Seattle
Superior Court at 8:15 in the morning and they start their trials at 9 a.m."

He also pointed out that the court system only operates at about
60-per-cent capacity in the summer.

"Why is that? Part of the reason is that society shuts down for July
and August, so we can't get witnesses and can't get jurors and a
whole bunch of other reasons. It is something that really concerns me."

Should Courts Sit In The Evenings?

"We are considering that," Oppal said, "but it would have to depend
on the availability of staff, the availability of witnesses and the
availability of judges. But I'm not above looking at that option."

Oppal said he recently met with the attorneys-general from western
states in the U.S. and may borrow some ideas from them. He said some
U.S. courts set limits on cross-examination, final arguments and make
the defence disclose its planned witness list.

"That might eliminate some delays," Oppal said. "Historically, under
our system, because of the presumption of innocence, we've never made
it mandatory to have the defence disclose its hand. And the Americans
do that. So do they get any lesser justice by virtue of the fact that
they require the defence to disclose who their witnesses are going to
be? Maybe we should be doing that."

Oppal is concerned that an accused person currently seeking a trial
in Vancouver Provincial Court has to wait 12 months to have their day in court.

"That's a major reason why we're moving some of our major cases into
B.C. Supreme Court by direct indictment," he said.

"The McMynn case is the perfect example of that, where we decided
that it just wouldn't be in the interests of justice to leave it in
provincial court, and we're going to do more of that."

He was referring to the case of six men accused of the high-profile
kidnapping last April of Graham McMynn. The Crown elected to bypass a
preliminary hearing in provincial court and have the case go directly
to trial in B.C. Supreme Court, where trial delay isn't an issue.

"We could have got a trial date in November," he said of the McMynn
case. But the trial will be delayed at least until spring because the
police investigation is continuing and DNA test results won't be
ready until then.

Oppal said the trial delay problem in provincial court hasn't
resulted in accused criminals getting charges thrown out because of
Askov rulings. Askov is the landmark Supreme Court of Canada case
that found an accused has the right to a speedy trial.

The nation's highest court determined that between eight months and a
year was a reasonable delay, but anything beyond that can lead to a
judge staying charges because of Crown or systemic delays. In the
Askov case, charges of extortion were thrown out because of a
two-year trial delay, mainly caused by an overly busy courthouse.

That sort of remedy can bring the administration of justice into
disrepute, said Oppal, citing the case last week of Prince George
RCMP Const. Justin Harris, who was accused of disgraceful behaviour
by having sex with teenage prostitutes.

The officer's lawyer, Reginald Harris, successfully argued that the
internal disciplinary hearing charges should be thrown out because
the RCMP took too long to launch its case -- exceeding the one-year
limitation period.

"There's a perfect example of people bringing disrepute, criticism,
upon the system, even thought the adjudicating officers really had no
choice but to dismiss the charges," Oppal said. "It's the system that
maybe needs to be re-examined."

Oppal said he has taken the unusual step of going to Vancouver
Provincial Court and sitting in the courtrooms to find out where delays occur.

"It's sort of a chain reaction," he explained "We can't always get
the prisoners there in time because we have trouble retrieving them
from the institutions. Sometimes the police are late in getting their
reports to Crown counsel, so the defence counsel don't get their
particulars and circumstances until late."

He said he is reviewing the entire system and has had discussions
with Stansfield about where to improve efficiency.

Another issue under discussion is whether there is a need for
preliminary hearings, where a judge assesses the Crown evidence in
provincial court and decides whether to order an accused to stand trial.

Oppal said there is a trend across Canada to question the need of
having preliminary hearings, although defence lawyers have lobbied to
retain them because they are good tests of the Crown's evidence.

"The question of the preliminary hearing is something we're in
discussion with now with the federal government because there's a
movement across the country to eliminate the preliminary hearing," he said.

"We gone on the record in this province, that with the expansive and
comprehensive rules on disclosure, a preliminary hearing may not be
appropriate any more," Oppal added.

Not only because of the expense, he said, but most of all because of
the inconvenience and stress caused to the victims who have to
testify twice. "That's the matter that really concerns me."

He's also concerned about the increasing length of criminal trials in
the last 15 years. "A four-month trial has become a norm in the
Supreme Court," observed the former judge of the B.C. Supreme Court
and Court of Appeal.

Look what happened with the Enron fraud case in the U.S., he added,
where the prosecutions happened quickly and most of the accused
executives are now serving their time.

"Contrast that with what took place in the Eron Mortgage case, how
long it took us to get those people to trial

. . . probably about three or four years," Oppal said. "I think
there's something wrong with our system."

(The two former Eron Mortgage executives, Brian Slobogian and Frank
Biller, were convicted in Vancouver of fraud and sentenced last year
to prison terms of six years and three years respectively, even
though regulators had shut down the company in 1997. Company
investors lost $175 million.)

The fact that accused serial killer Robert (Willie) Pickton has been
in custody for almost five years, awaiting trial since February 2002,
also causes Oppal concern.

"Now Pickton is very unusual," he added, noting the trial was delayed
by a unusually complex police investigation that is still continuing.
"Nevertheless, I don't think it's acceptable to have people in
custody that long."

A trial delay of 13 months is too much, Oppal said.

"But one of the tests is: Does it cause prejudice to anybody? I think
the greatest prejudice is to the system itself -- the reputation of
the system and the witnesses who are inconvenienced.

"I think it's a very significant problem but I don't think it's
reached the Askov stage. But I think all trials should be dealt with
within six to nine months."

There also has been discussion in the past about the need to change
the "culture" of trials, an adversarial system involving lawyers
trained to "battle" to defend the rights of their clients.

Stansfield pointed out that defence lawyers in B.C. are generally
cooperative, but they, along with Crown prosecutors and judges
themselves, may have to rethink their roles.

Defence lawyers may have to look more holistically at a client's best
interests in order to find a sensible solution, the chief judge said.

Stansfield also pointed out that judges like to see themselves as
neutral adjudicators but they may have to take on more
case-management responsibility.

"We have to look at changing the legal culture in promoting early
resolution," the chief judge said. Not to push people to plead guilty
but to make the criminal process more efficient, he said.

One of the provincial court's new solutions to slow justice is a
community court opening next year that will try to address people
with mental health problems and other issues that cause them to
appear in court far too often.

The community court, which will open next September in the now-empty
Vancouver pre-trial centre, adjacent to the provincial courthouse at
222 Main Street, plans to offer "wrap-around services" that will
include offices in the same building of health and probation
agencies, who will monitor the progress of those appearing in community court.

"The hope is that it may divert off a fairly significant volume of
cases," Stansfield said.

Elliot Poll, a senior prosecutor who is president of the B.C. Crown
Counsel Association, said there are about 400 provincial prosecutors
in B.C. that handle files in provincial courts and B.C. Supreme Court.

Workload and case complexity has been an issue since he started as a
prosecutor 14 years ago, he said.

"When I started, a month-long trial was long. Now it's the norm,"
Poll explained.

Complex pre-trial constitutional challenges of search warrants and
wiretap evidence can take months to resolve before a trial, he said.

While the average person may think the court sitting hours -- five
hours a day -- seem short, sitting hours don't reflect the amount of
work done outside the courtroom to prepare for a trial, Poll said.

He said he begins work at 7:30 a.m. every day and tries to leave at 6
p.m. to spend time at home with his family. He spends evenings
reading and planning "what you're going to do [in court] the next
day," Poll explained.

On average, it takes two days of preparation for every day of trial,
he said, adding prosecutors often spend weekends reading material,
preparing legal arguments to counter defence evidence and dealing
with difficult witnesses.

When systemic trial delays get to the point where an accused makes an
application for charges to be stayed, arguing his Charter right to a
speedy trial has been violated, it only adds to the stress load of
prosecutors, he said.

"It puts stress on more of us to do more so that doesn't happen," Poll said.