When is a case of delay simply an exception and when does it suggest something systemic and more troubling? In the history of debates over delay, extreme cases have often met with the observation they are rare. After all, most of us engaged daily in the system believe that our justice system strives towards timely justice.
One can easily find examples of extreme cases in Canada and elsewhere. The recent decision by the Quebec Court of Appeal in a class-action against defendant tobacco companies expresses a traditional outrage.
In contrast to extreme delays, which tend to notoriety within the profession and occasionally in the broader world, systemic delays have historically been difficult to measure and compile, although recent efforts strive to improve the available information. For example, Statistics Canada identified 33,617 family cases in 2017 that had been in the courts for over 48 months. There is no accepted standard of 48 months for family cases, but anyone can relate to being embroiled in family litigation for four years or longer.
Extreme cases of delay and general system delays represent very different problems that are frequently confused with each other. This confusion extends to goals for improvement. Solutions to extreme delays won’t necessarily improve over-all timeliness – after all, extraordinary delays are typically the result of atypical causes. Measures to eliminate extreme cases may shield or disguise systemic delays, which affect many more parties. Indeed, since measures to address extreme cases are frequently focused and temporary, they may have the unintended effect of discouraging systemic reforms. Success at reducing extraordinary delays might also create an inaccurate sense of having solved the problem, when only the most visible delays are in fact dealt with. If the measure of timeliness is the absence of extreme delay, then we will never consistently or successfully pursue systemic timeliness.
Despite the temptation to capitalize on unacceptable examples of extreme delays, we need to do more than react to rarities.
Extracting proposals for systemic improvements from individual cases also risks misdirection. In a system where multiple independent actors can contribute to delay, accountability for delay in a particular case can be hard to pin down. As well, once exceptional cases reach resolution, the immediate parties have little incentive to contribute to enduring solutions.
The Effect of Jordan on System Performance
The lack of focus on systemic issues is reinforced by legal culture, which exhibits a general indifference to system performance. The incremental approach of the common law puts a premium on learning from the reasoning in the specific case. No one systematically gathers—and rarely does anyone report on—the impact of forensic outcomes on the participants. The medical practice of ‘rounds’ is largely absent from the legal system, and what data does exist is rarely shared publicly. Improving the systemic performance of the legal system will require broad measures that will necessitate changes to the culture of the legal profession.
This background demonstrates the revolutionary nature of the Supreme Court of Canada’s epochal decision in R. v. Jordan, 2016 SCC 27, [2016] 1 S.C.R. 631. The Majority explicitly based its decision on the systemic failure of previous measures of compliance with the accused’s constitutional right to trial within a reasonable time. From the filing of charges to the commencement of trial, the new standard applies a universal measure of 18 months for the Provincial Court and 30 months for the Supreme Court. The Court’s decision requires compliance against a systematic and measured standard. That standard builds on the goal of changing the legal culture of delay. In contrast, the dissenting judgment would have continued the traditional approach of focusing on individual cases.
Time will tell whether this revolution will prove successful. Despite the general recognition of the damage done by extreme delay, no consensus has emerged about how timeliness should be balanced against other values such as fair procedure and avoiding legal or factual error. Whether the Jordan standard in criminal cases encourages or impairs timeliness in civil justice is yet to be seen.
Future posts will debate the effectiveness of the various responses in making timely justice an enduring reality. Culture change is always painful, and frequently unsuccessful. A business guru once observed: “Culture eats strategy for breakfast.” We will have to see if that is true for our justice system.
