The call for additional judicial resources reached a peak in 2023 when the Chief Justice wrote an oft-quoted letter1 to the Prime Minister pleading for additional judges to meet the burden on the justice system. In it he noted that judges are overwhelmed and the result is delay: Despite all our judges’ professionalism and dedication, the staffing shortage inevitably results in additional delays in hearing cases and rendering judgments. Chief justices have indicated that, because judges are overburdened, delays in setting cases are unavoidable and hearings need to be postponed or adjourned

There are worse ways for the criminal justice system to fail than for it to be slow. Between the Jordan decision in 2016 and then the COVID-19 triggered court shutdowns in 2020, the last handful of years have been thoroughly focussed on trying to improve the timeliness of the crimnal justice system in Canada. But, in fixing the problem of delay in order to enact justice more speedily, we must be careful not to introduce worse failures.

One of the stickiest judicial concepts of the last ten years, as least as far as criminal procedure goes, is the idea that there exists a culture of complacency that must be rooted out. This culture is the root of many evils but principally it is blamed for much of the delay in the pre-trial process and for triggering hundreds of stays since R v Jordan. I wrote earlier about why I thought it was risky to assume such a monoculture on a national scale.

My last gig was as a software developer with a company that had an enormous monolithic application that handled billions of dollars a year for hundreds of thousands of clients. That system was complex, important, and ever-changing. Maintaining and improving it was the work of hundred of developers and dozens of teams. It would have been impossible for any of us to understand the entire codebase and this lack of omnipotence was the source of predictable problems.

One of the ruts that I, along with some of my colleagues, fall into when thinking about the pre trial process is to start optimizing for speed. The trap is that you start to think about the process in term of how quickly matters are processed to the exclusion of everything else. How to optimize the system for that problem of delay? I even routinely fall into this trap when I’m asked to explain my work because it’s the easiest to explain for folks that aren’t that engaged with the system.

Finality is sacred in the criminal justice system in Canada. The idea being, that outside of correcting major errors, the process will end when the last judge’s decision is passed down from the bench. Unfortunately, this sacrosanct principle combines with an overloaded system that has little time for reflection, and the result is a process that relives the same failures over and over again (or until the Supreme Court passes down a major shake up).