Clayton Ruby Shifts the Focus of Delays on the Criminal Justice System

In today’s Globe and Mail, Clayton Ruby discusses our judicial system’s present problems with delay.  This is nothing new and recently we have seen a number of pronouncements, posturing, and even commissions on the issue. 

What is significant about this article is it raises the seemingly forgotten question: what happened to the right to a speedy trial?  The question is easily pushed aside as the typical approach by politicians is one of indifference towards the rights of accused individuals.  From a defence lawyer’s perspective, any recent initiatives towards cleaning up the justice system has little, if anything, to do with the protection of an accused’s right to a fair and speedy trial.  To the contrary, we see an erosion of rights that is sacrificed for expediency. 

Such erosion includes:

• Demands on defence counsel to make admissions, notwithstanding that these admissions are their client’s to make and not theirs;
• Pressure on counsel to reveal defences and strategies before trial thus providing prosecutors an incredible tactical advantage such as having police forces work to discredit them;
• Placing defence counsel in an impossible situation whereby they either reveal their defences (euphamised as “issues”) and give up the tactical advantage discussed, or be prevented by the Court from potentially arguing them at all at trial. 

This is just a small sample.  For a more in-depth review of what is now required, you can start by looking at the Superior Court of Justice Criminal Rules.  It is expected by many in the defence bar that the situation will only become worse as these fundamental issues are glossed over by more politically enticing issues such as victim’s rights, incarceration, and costs of the judicial system to “protect criminals”. 

As Ruby states,

“The right to a trial within a reasonable time is fundamental in Canada. It is protected in the Constitution. It is essential to the presumption of innocence. It should be inviolable - period. But it is not. Canadian appeal courts have simply failed us.”

As Ben Franklin once said, a society who sacrifices their liberty for some temporary security deserves neither.