The Goodness of a Criminal Process

My process for poaching eggs is very simple. I boil a pot of water. I gently break an egg into a small ramekin. I lower the egg from the ramekin into the pot. I start a 3 minute and 14 second timer and I take the egg out when the timer goes off. It’s not just simple in terms of the order of operations, the flow-chart for this process would be a straight line. It’s also simple in terms of objectives and constraints.

Simple processes, like mine for poaching eggs, have few contraints, a limited number of actors, and simple objectives. In the case of my eggs, it’s just me, a dollar-store timer, a small container, and a pot; with the objective of making eggs where the white is cooked and the yolk is runny. The dimensions of a successful egg-poaching process are pretty easy to draw on a chart. The process for bringing criminal cases to completion, in comparison, are massively more complex. There are dozens of actors working under both elastic and inelastic constraints with objectives that exist in tension with one another. It’s these objectives that are the focus of this post.

In the criminal law process, there is obviously a balance being struck between competing objectives. The Charter requires timeliness and fairness from this process. The desire for fairness has led to an explosion in complexity in this process, both in terms of scheduling as well as for individual cases. This complexity lies in tension with the administrations’ need to be efficient with their limited resources. Justice Moldaver sees this growth of complexity in the process and the challenge of finding the correct balance as an existential threat:

Some trials are so long that one wonders whether the process will not collapse under its own weight. I think our greatest challenge over the next several years will be to cope with complexity and prolixity in legal proceedings. We must find ways to retain a fair process but in the context of a process that can achieve practical results in a reasonable time and at reasonable expense. If ways to do this cannot be found, I fear that our legal system will become simply irrelevant for most purposes.¹

For the last couple of years, the COVID-19 pandemic has put incredible pressure on the pre-trial adjudicative process. COVID cancelled in-person hearings for weeks and saw the rapid move to virtual appearances and near-daily changes to scheduling practices. The responses differed, at least in some details, between provinces and even differed between courthouses within the same province. Manitoba opted to remain in-person with rolling shutdowns while Ontario moved a great many of their appearance online in the early stages of the pandemic. These differences probably lined up with local needs and politics. The conversation has focussed on how to scrape and recover from that massive upheaval. What remains unclear and will have to be discussed is how we to tell whether a particular process is “good” or whether a change during the pandemic made the process “better”.
What constitutes a “good” process and how that “goodness” is described, is a poorly understood problem in Canadian criminal law.

The obvious three dimensions

The rules of court for a number of provinces identify these objectives as the core purpose of their rules of procedure. Manitoba, Ontario, and Alberta use virtually the same language in their superior courts for identifying this tension:

Manitoba:

1.03 (1) These rules are intended to provide for the just determination of every proceeding and must be construed to secure simplicity in procedure, fairness in administration and the elimination of unjustifiable expense and delay.²

Ontario:

1.04 (1) These rules are intended to provide for the just determination of every criminal proceeding, and shall be liberally construed to secure simplicity in procedure, fairness in administration and the elimination of unjustifiable expense and delay.³

Alberta:

3 (1) These Rules are intended to facilitate the just disposition of criminal proceedings in Alberta, and must be construed in a liberal and practical manner to secure the fair and expeditious resolution of the proceedings in which they are applied.⁴

These rules name the three obvious dimensions of a good pre-trial adjudicative process: timeliness, fairness and efficiency. The conversation for the last couple of years, maybe even couple of decades, has been focused on timeliness without much recognition of how much more complex the process has become and how that complexity has impacted other the other objectives. I will write more extensively on each dimension in this journal, but it is worth briefly defining each briefly and describing the consequences of their failure.

Timeliness

A lot of academic and judicial focus these days is on timeliness in response to the COVID-19 pandemic. So I won’t dig too deeply except to mention two things. First, there are cases involving serious charges being stayed by judges just about daily, whether or not they were impacted by the pandemic delays. Additionally, it’s unknown, at least outside the halls of the Crown offices, how many are stayed before they can reach a judge when the prosecution sees the writing on the wall about the likely outcome of the delays.

Second, there is such a thing as a process being too fast which leads to unfairness. Prof. Kohler-Hausmann describes her experience in the misemeanour courts of a borough in New York where the timelines for completion are so tight as to be abusive and result in unfairness through some questionable decisions to over-charge offenses in order to extend the timeline or to “manage” the people with open criminal cases until they “30.30 out” of the system, meaning the clock runs out on a case they had no intention of prosecuting.⁵

Fairness

Fairness lies in tension with the timeliness and efficiency. A good process ensures the accused right to a fair trial, but the process itself can itself be unfair.

Since at least the 1970s, US scholars have looked at at how the criminal justice process is used to punish. Malcolm Feeley’s aptly named The Process is The Punishment looked at a single criminal court in Conneticut where the consequences of the criminal process would eclipse anything that would have resulted from a conviction for the same charge. Things like missed workdays and job loss, child-care, and legal fees were significantly more impactful than anything courts would impose on conviction.

Those observations have been repeated as recently as 2018. Prof Natapoff found the same phenomenon across jurisidiction in the southern US but also found there was a socio-economic and racial component to that unfairness.⁶

Often, when I bring up fairness as an dimension worth consideration in assessing the criminal justice process, the first question is inevitably: “how are you going to measure (or quantify) fairness in your project?” The answer to this, of course, is that I can’t. What I will do, and what I think is required, is recognizing that efficiency and timeliness lie in tension with fairness and be explicit about the tradeoffs when they happen.

Efficiency

Efficiency in the criminal justice process is about eliminating waste, whether that is shrinking periods of idle time or stopping someone from having to do something that doesn’t help move the process forward. Assessing efficiency is probably the hardest dimension for people outside the data-folks at the courthouse to get a handle on. You can see some evidence of efficiency-lags when looking at reported s. 11(b) Charter cases, where months of time and sometimes dozens of appearances happen with no notable progress in that process. For a particularly cogent example see this case from 2017 with dozens of appearances where nothing happened: R. v. Teskouras, 2017, ONSC 7112.

The obvious consequences of the inefficiency of the criminal justice process are borne by that case and that accused person. The less obvious consequence of inefficiency is that these cases consume more than their due of the scarse resources available for the rest of the cases in the courthouse. It can be unintuitive to think of processes when they run in parallel especially if they run asynchronously but share resources. There are a whole schools of research in computer science about managing and optimizing asycnhronous processes.

That said, a focus on efficiency as part of a “good” criminal justice process can only get you so far, because the other side of the efficiency coin is a need for resources; and there is little doubt that the criminal courts’ resources are stretched very thin. Justice Pugsley in R. v. Seibezzi, 2022 ONCJ 457 makes a compelling plea for resources:

The Covid backlog has descended on the Ontario Court of Justice across the province like an avalanche, and the result of that huge backlog is only now starting to be seen. Yesterday, I was presiding as per diem judge in a Brampton court, on a five day trial from a 2020 allegation which was scheduled for February 2024.
Brampton OCJ currently is short six judges. I invite counsel to do the math.

The rest of the decision is excellent and candid, and well worth the 15 minutes it takes to read.

The complicated fourth

In my view, an unappreciated dimension of a “good” criminal justice process is resiliency. Resiliency is rooted in the idea that the criminal justice system is a dangerous one with far-reaching consequences for failure. But while it is dangerous, it is also a human system. And those humans are fallable and under a great deal of pressure. To prevent failures like those described above in relation to timeliness, fairness, and efficiency, the process needs to be resilient to individual missteps.

Spinning this back around to my approach to poaching eggs. If I knew that my timer failed 20% of the time it means that I would ruin one breakfast a week. I would certainly build a bit of resiliency into my egg-poaching process. I would learn to watch my boiling pot instead of relying on my questionable egg timer or I’d invest into my breakfast and buy a second timer. The approach to the adjudicative process thus far has largely been to heap complexity onto the clerks, lawyers, and judges and continuing to focus on timeliness, fairness, and efficiency while ignoring the need to balance that complexity with a resilient process. There are ample examples of cases that have been stayed⁷, usually for failing to be dealt with in a timely manner, as a result of a single human being missing a single email or fax or a single organization failing to respond to a single request. One of the goals of The Project is to collect enough data to understand the consequences of this lack of resiliency and to look for ways to make the process less fragile.