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COVID-19 adds indefinite waiting period to delays in justice system | Jordana Goldlist

Thursday, May 28, 2020 @ 2:29 PM | By Jordana Goldlist

Last Updated: Thursday, May 28, 2020 @ 3:10 PM


Jordana Goldlist %>
Jordana Goldlist
Currently there exists no avenue to challenge the Crown’s evidence and argue that a person charged with a criminal offence is “not guilty.” For that, the courts are closed.

How convenient for the Ministry of the Attorney General and the Public Prosecution Service of Canada — the government bodies who are ordinarily tasked with proving their cases beyond a reasonable doubt. 

Currently, those charged with a criminal offence are being forced to wait indefinitely to exercise their right to a trial. There is no constitutional right to a guilty plea and yet that is the only way to end a criminal charge at this time. The net result is coercion.

People charged with a criminal offence are being coerced into pleading guilty as a means to get out of jail or end restrictive bail conditions or put an end to their case, some of which were in the system for years before COVID-19 upended the world. Every day, Crown attorneys are offering “deals,” reduced sentences or no jail at all “in light of the current situation,” they say. Judges are encouraging guilty pleas because they, like us lawyers, appreciate the backlog that is increasing every day.  

Police have not stopped arresting people because people have not stopped committing crimes. Which means that every day new cases are entering the system.

Except every trial in Ontario has been suspended from March 16 until July 6, at least.

To put the backlog into perspective, according to the Ontario Courts of Justice (OCJ) website, 8,353 criminal cases were tried in 2019, 8,399 were tried in 2018 and 9,209 in 2017.

This averages out to 8,653 trials every year or 166 trials per week. With trials suspended for 16 weeks (at least), there are approximately 2,662 trials that need to be rescheduled. Or resolved, by way of guilty plea or a withdrawal of the charges. And that’s just in the Ontario Courts of Justice. Similar statistics were not listed on the Superior Court of Justice website but the landing page of the site tells visitors that “the Superior Court of Justice is one of the busiest trial courts in the world.” And the given that the Superior Court only tries the most serious of cases (murder, drug trafficking and human trafficking, for example), one can only surmise what their backlog looks like since these cases are less likely to resolve.  

In an effort to ease the backlog, every prosecutor has been asked to review every one of their cases to assess “reasonable prospect of conviction.” If they have serious doubts about the strength of their case, they are staying the charges. You can imagine how that makes the complainants (a.k.a. victims) and witnesses think and feel about the justice in this system.

Especially when there seemed to be a reasonable prospect of conviction when the case was initially scheduled to go to trial. If there is a reasonable prospect of conviction, then the accused is being offered a sentence well below what was on the table before COVID-19. If they have been waiting the pandemic out from the inside of a jail cell, any lawyer worth their fee is asking for 3:1 for presentence custody; that is, credit of three days for every day spent incarcerated. Thus, the total time served decreases in proportion to the credit received and the offender is released sooner.

This of course makes the offender happier and the police and/or victims and their families unhappy. Except now that the offender has pleaded guilty, he or she has a criminal conviction on their record; or perhaps another conviction on what is already a lengthy record. Either way, the conviction will prove to be an impediment in their life. Whether it prevents them from seeking gainful employment, volunteering their time, securing housing or travelling when the world opens up again, I assure you that a criminal conviction is never an asset. For those who make regular appearances before the criminal courts, this conviction means that “next time” they will spend longer in jail. No matter how you spin it, a finding of guilt is always a loss for the person accused of a crime.  

The United States has more people incarcerated than any other country in the entire world. That is, it has the largest prison population in the world and the highest per-capita incarceration rate; making “the land of the free” seem like a punchline to a bad joke.

The method used by the U.S. to achieve this stunning feat is none other than the guilty plea. According to the National Association of Criminal Defense Lawyers (NACDL) and the Innocence Project, criminal charges in America are resolved by way of a guilty plea in 97 per cent of all cases at both the state and federal levels.

According to an article published by NACDL, the reason for this astonishing figure is actually quite simple. It’s called the “trial penalty”: The trial penalty refers to the substantial difference between the sentence offered in a plea offer prior to trial versus the sentence a defendant receives after trial. This penalty is now so severe and pervasive that it has virtually eliminated the constitutional right to a trial. To avoid the penalty, accused persons must surrender many other fundamental rights which are essential to a fair justice system. 

As a result of this coercion, innocent people are pleading guilty to crimes they did not commit.

According to the Innocence Project (the American version), of the 349 DNA-exoneration cases in the U.S., 11 per cent were guilty pleas. That’s almost 40 people who pleaded guilty but were later exonerated by DNA evidence.

There are similar black marks in Canadian jurisprudence, including one man who served a prison sentence for a crime committed by Paul Bernardo. He pleaded guilty to avoid the risk of an increased jail sentence. Imagine how many people are pleading guilty right now to avoid waiting for trials when there are no trial dates in sight? When there is no other way to get out of jail?

When there is no other option to escape house arrest or a curfew or the expense of an ankle monitor (at $600/month). This means, in addition to risking a longer sentence, people are forced to wait for trials they cannot even schedule. So now the trial penalty is back by the indefinite waiting period. 

Last week I ran a bail hearing for a client charged with a serious violent offence. During the hearing, the justice of the peace screamed at me for suggesting that accused persons are currently waiting indefinitely for their cases to be heard and we therefore ought not to keep them in custody when a reasonable plan of release is proposed. He can scream at me all he wants but he cannot tell my client when his not-yet-scheduled trial might be held. And neither can I.

Indefinite doesn’t mean forever; it means unspecified. But for anyone waiting in line for their slice of justice, I would bet good money it feels like forever.

This is the second part of a two-part series. Part one: This is the second part of a two-part series. Part one: COVID-19 brings American-style injustice to Canada | Jordana Goldlist.

Jordana Goldlist is the principal of JHG Criminal Law, a boutique firm in downtown Toronto focused on defending people charged with murder, firearms offences and crimes related to the commercial drug trade. From teenage street kid to TEDx speaker, Jordana aims to disrupt the status quo and help marginalized youth and young adults realize their own potential. You can reach her at jgoldlist@jhgcriminallaw.com.

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