Good afternoon, Madam Chair, vice-chairs and honourable members.
Criminal cases are more complex and consume greater court resources than ever before. We all know that lengthy court delays can violate an accused person's constitutionally protected right to a trial in a reasonable amount of time and lead to charges being stayed. Ongoing and repeated delays in the court system caused by the COVID-19 pandemic can also diminish the public's confidence in the criminal justice system, which is fundamental to its operation.
The answer isn't to give up and to ignore constitutionally protected rights, as advocated by Mr. McCarthy in the last panel. The Criminal Lawyers' Association believes that the answer to COVID-related backlogs in the court system is to enact policy changes that will ensure the system has both the time and resources to focus on the most serious cases and those that just simply can't be solved without a trial.
In our time here, we'll focus on three suggestions that will help remove cases that are clogging up the court system but shouldn't be. Number one is to remove barriers to resolving cases without a trial. Number two is to divert administration of justice offences out of the court system. Number three is to decriminalize drug possession offences.
The decision about whether or not an accused person should proceed to trial can be heavily influenced by the sentencing consequences of a particular crime. A person is far less likely to plead guilty if there are consequences that impact their immigration, their employment or will simply incarcerate them for a long period of time. These significant consequences act as barriers to solving cases without trials. One of these barriers is mandatory minimum sentences. I don't just mean mandatory minimum jail sentences, but mandatory minimum consequences that flow from certain criminal convictions.
Drinking and driving convictions, for example, require the sentencing judge to impose the mandatory criminal record in every single case, even for a first offender who's barely over the legal drinking limit. These otherwise resolvable cases are clogging up the courts. It's no coincidence that drinking and driving offences are one of the most litigated categories of cases and one of the offences that frequently breaches the delay ceiling set by the Supreme Court in the Jordan decision. Eliminating mandatory sentences would drastically reduce the number of cases that go to trial, which would, in turn, ensure timely justice for other cases in the system.
Another barrier to resolving cases is the five- to 10-year waiting period a person with a criminal conviction must endure to have their criminal record cleared through the record suspension process. The proposed changes in Bill C-22, introduced by this government, address some of these barriers, including the elimination of some mandatory minimum sentences, but fails to address other ones like the drinking and driving mandatory convictions. Bill C-22 also fails to address the barriers to obtaining record suspensions, including the prohibitive costs and lengthy wait times.
Another way we can reduce backlogs in the court system is to divert administration of justice offences from the system all together. These offences, including failing to appear in court and failing to comply with a court order, account for more than one in five cases right now in our justice system. Following Senate recommendations in 2017, the government changed the Criminal Code to include a process whereby the police or the prosecutors could now opt to not charge somebody and opt not to prosecute them for one of these offences. Instead, they can refer them to a judicial referral hearing where a judge would potentially tweak the bail release plan or decide to reincarcerate the person. This regime avoids piling on criminal charges, which come with their own requirements for disclosure, meeting with the prosecutor, guilty pleas, trials and sentencings.
Unfortunately, these diversion tools simply aren't being utilized by the crowns or the police who must initiate the referral hearing process. This new regime designed to reduce some 175,000 cases in our system is lying dormant. The solution here is simple: Remove those barriers that prevent either a judge from referring a case or place discretion completely in the hands of the police and the crowns.
A similar concern exists with the increased discretion afforded to prosecuting low-level drug offences. Bill C-22 goes some way toward decriminalizing these offences by encouraging prosecutors to divert some drug cases out of the system in favour of drug treatment programs. Placing discretion to divert these charges entirely in the hands of prosecutors and the police creates obvious problems. For example, will they use this discretion?
We're also concerned about whether this discretion will be applied equitably. We know that discrimination and bias run rampant through the justice system, adversely impacting indigenous and black defendants far more than any other race. If we accept that drug addiction is a public health issue, not a criminal law issue, we shouldn't be prosecuting these cases at all.
In conclusion, removing barriers to guilty plea resolutions and diverting drugs and access to justice offences from the justice system would free up precious court time and resources that could be redeployed to other cases in danger of being tossed for unreasonable delay following the COVID-19 pandemic, and ensure timely justice for victims and accused persons.
Thank you.