Four Phases of Criminal Latency

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

He also noted that the consequences are being felt, in real numbers on the ground right now:

the Court of King’s Bench of Alberta has reported that over 22% of ongoing criminal cases are passing the 30-month deadline and that 91% of those cases involve serious and violent crimes.

While this letter was written a couple years ago, little has changed. To my mind though, judicial resources can’t be the only solution for the criminal justice system. It is impossible to scale the judiciary horizontally enough to keep up with the growth in complexity of the current system. That’s not to say that we also need to hire the appropriate number of judges. But doing that alone is just kicking the can further down the road. To explain why that is the case, I will break down the time spent in criminal courts into four distinct phases: before disclosure is substantially complete, after disclosure is substantially complete, the lead time for scheduling a trial, and the trial. I have dellineatied the phases by what would be part of the function for considering the length of that portion of the process.

The impact of having a larger judiciary is still bounded by other these other variables and while expanding the judiciary may very well help in the short term and more robust and balanced approach will be needed to keep up in the long term.

Phase 1 - Pre-disclosure

The first phase of the system after a person is charged is the pre-disclosure phase. This is the period of time before the accused has enough information to understand the charges or make any well-founded decisions. There is limited productive discussion that can happen between the accused and the Crown towards resolving the charges at this point.

How long this phase is, is determined by some functions along the lines of:

In the last 40 years, the amount of disclosure has exploded in response to the Charter and digital evidence. With the increased use of body-worn cameras there is no sign of that trend reversing. This disclosure is typically reviewed by humans for redaction and the protectiong of informants and the involvement of the police in this phase means that any breakdown in the largely opaque police disclosure machinery halts the entire progress of the file dead in the first phase.

In this first phase, the size of the judiciary has very little influence on the duration. There are certainly some nudges that judges can make toward trying to expedite matters, but those interventions, in my experience, are pretty rare. The Calgary courthouse starts asking questions after about 6 weeks but in both Ottawa and Calgary I have seen this phase last for months. The “how long it takes to review” stage is also dependent on workload. Disclosure clerks are often juggling hundreds of files for a busy courthouse and the time spent on one file carries into the others. The bottle neck here is not the judges. It’s the administrative staff and their supports.

Phase 2 - Post-disclosure

This is the phase where the accused has the information they need to make decisions. For example, in this phase they have the information needed to decide whether or not to plead guilty and in which court to elect to have their trial. Disclosure may not be fully complete and the Crown has an ongoing obligation.

Drawing the line between this phase and the first phase is the source of much consternation in Jordan-related decisions. Figuring out when the accused had enough information to move forward and when they are preventing the case from moving forward has spilled much judicial ink. Ignoring bad faith efforts to extend this period, which I think we do at our own peril, the function for the duration of this phase looks something along the lines of:

“Cadence latency” is the slack time where progress tends to be slowed because the parties are waiting for the next opportunity to schedule things. For instance with an appearance cadence of two weeks, if the next step is a JPT and the CPT happens on day 1 then there are 13 days of slack-time where little progress is made. Likewise, if counsel communication is sent at 10:30 pm the night before a hearing it extends the period by the full cadence latency because during the next morning’s appearance most folks will not be ready to move forward. The Crown in Ottawa quite cleverly used to quip that “I will get the night Crown on top of that!” There is no night Crown.

If you blow up the above function, the impact a larger judiciary has is that the scheduling lead time is defined as some function of:

number of JPTs needed per day / number of judges that hear JPTs

Note though, that unless the scheduling lead time for JPTs is consuming a larger proportion of the case management time, it’s not, then the size of the judiciary will not help here either.

Phase 3 - Trial Lead Time

The third phase is the lead time between when the trial is ready to be scheduled and the first available slot for a trial of that length. This phase often consume the majority of the pre-trial period. It can be abstracted as some function of:

This is where the size of the judiciary can have a big impact. The number of staffable courtrooms is related to the number of judges in the region. They are not, however, the only staff required. Matching the ivnestment into judges with clerks, reporters, interpretation, and technology is the only way to get the full impact of that investment.

There are, however, some non-obvious problems with scaling this way in-practice. First, trials that are scheduled don’t always run. In fact, less than half do. For 2024 in Ontario less than 36% of trials that made it to the front door of the court house had a trial² that day. These non-trials still take a useable slot. As I mentioned in a previous post, to address this, courthouses overbook courtrooms. Bringing down the collapse rate improves the same part of the function as increasing the number of staffable courtrooms. The second problem is that optimal job scheduling with a continual stream of jobs is a hard problem. Finding the next best slot for a case might interfere later with scheduling a longer or more critical case. The inefficiencies in scheduling are compounded the longer that period is. The lead time in Ontario is hovering around 300 days and for some regions even longer. One drug trafficking case in Hamilton just made it to the Court of Appeal after seeing 14 months of trial lead time for a 5-day trial³.

Expanding the judiciary certainly will help with trial lead time but there are other levers that will need to be adjusted as well.

Phase 4 - Trial Time

While not a large contributor to the total time, most trials are measured in days while the other three phases are measured in weeks or months, the length of the trial has a massive impact on the trial lead time. If the trial requires 2 weeks of uninterrupted time then that needs to be slotted into a busy and increasingly fragmented schedule. It also also ties up the same judge reducing the pool for other tasks. The length of the trial could be described as some function of:

It’s worth noting that over the past couple decades that trial have gotten longer and more complex. Justice Moldaver has publicly complained since he retired from the Supreme court (and probably before) of the “complexity and prolixity” of criminal trials ⁴.

If you halve the length of a trial, you have, essentially, doubled the number of cases that judge can hear in terms of case-hearing time. Halving the length of all trials would, with some intense squinting, effectively double the number of judges⁵.

Conclusion

There is no question that leaving judicial vacancies empty is bad for the criminal justice system and that more judges will probably improve matters. But scaling the number of judges only really impacts the lead time for trials. There are other, equally important ways that lead time could be improved that should be done along-side. Reducing trial prolixity, simplifying the scheduling problem and fragementation, and improving the predictablity of the courtroom by reducing the trial collapse rates would also have an impact on this phase and help bring the delay in the system under control.