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). Few other dangerous systems would tolerate the number of the serious breakdowns that the criminal justice system does. Commonly, those that are less familiar with the state of the criminal courts imagine that it’s the less serious cases that are falling through the cracks. But the reality is that every type of case - from minor breaches of the peace to serious indictable offences - is at risk of not completing successfully. The follow-up question inevitably starts with the question: “why?”. Unfortunately, I think that most of the time the answer starts with: “we don’t know.” The reality is that our criminal justice system is not very good at reflecting on what brought a particular case to the point of failure beyond attributing blame and issuing that final decision. The first half of this post describes in detail a case of attempted murder that failed as a result of not being tried in time and infringing on the accused’s right to timely justice. The second half digs a bit deeper into that case’s court record to explain what lessons about timeliness in the criminal court process might have been lost.

The Case

In January of 2023 an attempted murder charge was stayed in Toronto¹. A man was shot 5 times. He spent six months in the hospital. He survived. Another man spent nearly 3 years in jail. No trial will ever be held. No systemic changes, large or small, have been made. No lessons were learned.

I obtained the court record for the delay application. This included the transcripts for all of the routine court appearances and much communication between defence counsel and the crown. The sequence of events could be summarized as follows:

Between these dates, there were 39 routine court appearances, often lasting less than 5 minutes. There were at least 40 emails between the crown and defence that were included in the court record. Two trial dates were cancelled. After nearly three years of delay, where the accused person was in custody, the judge stayed the charges for delay.

If you looked to the reported decision to answer “why”, the judge sums up the allocation of blame as follows:

For example, although the phone extraction was complete by May 2021, the police did not 
provide it to Crown counsel so that it could be disclosed for another six months.  
Similarly, no steps were taken to unseal the ITO for the phone until February 2022, 
and it was not disclosed until three months later.  These are but two instances of 
the unjustified disclosure delays in this case.

Why was the case delayed? Disclosure delays by the Crown and the police. To allocate blame and decide the Jordan issue, this is a totally reasonable summary. To understand why such a dangerous system failed to deliver any justice, it is superficial.

Root Cause Analyses

In systems outside of criminal justice, these sorts of failures result in a search for the root cause rather than the attribution of blame. This process can be called any number of different things. Aviation has “safety management systems”². For workplace deaths the coroner’s office has “public inquests”³. In tech they have “root cause analyses” or RCAs. The common goal of these processes is that they look toward the root cause of the problem rather than apportioning blame. The objective is to fix the underlying problem. A common example, that will be familiar to anyone who has sat through an engineering ethics class, is the investigation of the Challenger disaster. After the shuttle catastrophically failed, resulting in the death of all of the astronauts on board, a presidential commission was struck to provide a report on what went wrong. Aspects of that report went far beyond the failure of the o-ring that led to the explosion and dug into the culture that prioritized the launch schedule over the safety concerns⁴. It highlighted failures in communication and safety independence. The recommendations were impactful and actionable. Lessons were learned.

This distinction between blame and problem-solving is missing in the criminal process. Most of the parties understandably lose interest in following up on why things broke down after the decision is rendered. Performing a true RCA on the limited court record is probably impossible. Instead, I will highlight the questions that were, quite reasonably, missed in the judge’s decision.

Why did this case fail?

This case failed because it took too long to go to a trial. Jordan sets the limit at 913 days in superior courts. This case would have taken 1209 days had it completed as scheduled.

Why was the trial scheduled so far after the offence?

The trial that was relevant for the Jordan deadline was the third scheduled trial date. The first trial date would have made it comfortably at 631 days but was cancelled at the last moment. The second trial would have happened 881 days after the charges. This was scheduled 6 months in advance. This, according to the remand transcripts, was the soonest possible trial.

Why was the first trial cancelled?

This is where we distinguish between someone looking to identify the root of a problem and a judge looking to apportion blame. The first trial date was December 6, 2021. On November 26, 2021 the police provided the Crown with evidence that they’d had since May. The Crown, in an email to defence, said: “I appreciate that the timing of this disclosure is unfortunate to say the very least. Certainly the crown would have liked to have this well before now.”

This is where relying on the court’s decision falls short. Why was a single person, the officer in charge, singly responsible for shuttling the disclosure to the Crown? Were there safeties that failed? What were they and why did they fail? What process existed within the police service to prevent this obvious breakdown?

None of these questions have answers in the court record or in the decision. But talk to any counsel, in any court in the country and this story will be familiar.

Why was the second trial cancelled?

At first blush, the second trial was cancelled because the accused re-elected to have a trial by judge and jury. That initial impression, which the Crown relied on in their submissions on the Charter application, misses some major changes to the nature of the trial. In between setting the second trial date and that second trial, the Crown dropped an application for bringing evidence of prior discreditable conduct. They disclosed the contents of a forensic examination of a cell phone and eventually the associated warrant. They added an expert witness on gang terminology and communications. The length and nature of the expected trial expanded dramatically.

While the decision sensibly puts the blame at the feet of the Crown. Why were there so many changes to the Crown strategy? Was this a case of the motivating impact of the court house steps? Even the court record falls short in answering or even finding questions to ask about the internal decision making of the Crown in this case.

Closing thoughts

Some would argue that the court’s final decision is the wrong place for this sort of root cause analysis introspection, and I agree. However, there needs to be an alternative. These sorts of failures of timeliness continue to plague the criminal justice system. This case highlights two features of these failures. First, it is not only the trivial cases that fall through the cracks - even serious cases are breaking down. Second, while our ideas of finality require the judge to focus on concluding the individual case with their decision, the follow-up should not end there. Every time the system breaks down and we fail to learn from it we have failed twice.