Collapse Rate Feedback Loop

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 such possible worse failure is that the collapse rate of cases increases to a breaking point as the time to schedule trials continues to grow.

There is nothing more motivating for settlement in a case than the steps of the courthouse. This addage is tought to every litigator that I’ve ever met. When I myself was a litigator, I used to tell witnesses that there was always - at best - a 50/50 chance that a trial would run. It turns out that I was optimistic. The collapse rate, which Ontario defines as “the percentage of cases that are disposed of at trial without a trial”, hovers closer to 65 percent in most regions of Ontario. Breaking that definition down a bit, it means the cases that have been adjourned to their trial date, and then are resolved on that day without a trial taking place. Normally, either because they are withdrawn or because the accused person pleads guilty. That number does not include those that are adjourned to a new trial date because of overcrowding. It’s no secret that the operation of the criminal justice system in Canada relies on guilty pleas and early resolution for its survival. About 90% of criminal cases in Ontario resolve before a trial is even scheduled. It’s less widely known that even cases where trials are set, they are also very likely to be resolved “on the courthous steps”. In 2024, for every case that was disposed of a trial, more than one and a half cases were resovled on the courthouse steps without one¹.

The risk is that this collapse rate can combine with incentives that have been amplified by Jordan to make the collapse rate a vicious feedback loop that could lead to runaway. I should explain what I mean by runaway. Runaway is a compounding feedback loop where something in a system increases the likelihood of that thing in the system and this loop compounds. A great example is thermal runaway in lithium ion batteries. If you’ve ever seen one of these spicy pillows erupting, it it a dramatic demonstration of thermal runaway. Heat in the battery (sometimes caused by abuse or “poking”), leads to more heat in the battery, leads to a dramatic fireball. This metaphor is potentially illustrative for collapse rate as well. A high collapse rate is self-reinforcing because it can encourage cases that would otherwise be dealt with before trial to be dealt with at trial. Why wouldn’t you wait for the courthouse steps if trial collapse is at a high, and predicable rate?

Another factor is that many courthouses overbook their trial lists. They book far more cases than they could possibly hear in a day to compensate for the same collapse of trials. There will inevitiably be some cases that fail to go ahead and are rescheduled. The public Ontario dashboard, unfortunately, does not break down the collapse rate by the reason for the collapse. Judges often mention the lack of sitting judges on a given day in their 11(b) decisions when they are staying charges that have been up for trial before. But even if there were double the number of judges the administration would still overbook the courthouse. And they have to. With over 60 percent of the case collapsing, it would be irresponsible not to.

I admit that there are other factors here. There are sentencing incentives to early guilty pleas. There is a huge issue with use of detention as bail and the leverage that puts on a person to plead guilty. If you look at the disposition rates boken down by case type you can see some of the effects of these incentives play out. For drug offences, which include almost exclusively professional witnesses such as police officers and are typically decided by Charter-related issues, the collapse rate is around 4 times lower than a personal injury offence where there are less likely to be professional witnesses and the evidence is more complex.²

The decision to have a trial or not should never be based on the misery of the pre-trial process. It’s part of the reason that I’m studying this part of the system. But there is no doubt that there’s a percentage of cases where the calculus for the accused person is to look at the collapse rate, look at the ticking Jordan-clock on the wall, and then decide to roll the dice. I don’t think that this is happening yet in large numbers. Looking back to a study done in the late 70s, Professor Baar and Justice Millar noted a collapse rate in BC in the same ballpark that we presently see in Ontario, roughly 60%³. But if more people accused of crimes decide that this is their best decision then more cases are going to collapse on the courthouse steps. This risks undermining the system entirely by pervering the incentives for trial and making early guilty pleas less palatable in most cases. I believe that there are worse ways than lethargy for the administration of our justice system to fail. I think that a runaway increase in the collapse rate leading to a baked in unfairness for those able to afford the wait is one of them.