The Final Report on Early Case Consideration of the Steering Committee on Justice Efficiencies and Access to the Justice System

E. Case Flow Management

Recommendation Twenty-Two: Maximizing First Appearances

The Steering Committee recommends that the first non-bail related court appearance of the accused take place no later than four weeks from the date of arrest.

  • For specialized cases such as domestic violence cases, cases involving young persons, or child abuse, the first appearance date should be earlier than four weeks from the arrest (provided that disclosure can be prepared to accommodate a shortened time frame).

  • If reasonably possible, the following events ought to occur at an the first non-bail related appearance of the accused in court:

    • Full disclosure and the Crown screening form made available;

    • Accused advised of the Crown's position on early resolution;

    • Accused provided opportunity to speak to duty counsel regarding the Crown's position on early resolution;

    • Legal aid available on site to receive applications from eligible accused who have yet to apply for legal aid;

    • Legal aid application completed (where an accused wishes legal aid and has not yet applied);

    • Accused advised in court by the presiding judge of the steps that the court expects the accused to have completed prior to the next court appearance as well as other steps required before a trial date or preliminary hearing date can be set; and

    • Unless there are special circumstances dictating otherwise, any applicable Crown election should be made.

A number of commentators observed that four weeks is a difficult deadline to meet given the work that needs to be done. A concern was also expressed that many accused do not have the cognitive capacity to assimilate all the information contemplated by the recommendation and respond in an appropriate fashion. The recommended earlier deadline for specialized cases was the subject of some adverse comment because of a fear that “ scarce justice system resources will be diverted to domestic violence cases to the detriment of other cases of equal societal interest ”. One commentator also expressed concern about “ dancing on the line – endangering an accused's Charter right to a fair and full trial by finding efficiencies for the state at a significant cost to my clients. ”

In Quebec City and Montreal, the first court appearance of the accused usually occurs 12 weeks after arrest and release. This timeframe is inherent in the charge approval system, which requires a review of the case, any supplementary review and the preparation of disclosure. The 12-week timeframe suits all parties and provides for a thorough investigation and analysis before proceeding with a court appearance.

Recommendation Twenty-Three: Full Disclosure to the Accused

The Steering Committee recommends that in the absence of exceptional circumstances full disclosure should be provided routinely to the accused in person, or to counsel appearing with the accused, on the first appearance, in the case of those accused out of custody, and within 7 – 14 days of arrest, for those accused persons in custody.

  • No formal request by an accused or by his or her counsel should be a prerequisite for initial disclosure to be given.

  • The Crown brief should be finalized by the police no later than three weeks from the date of arrest and provided to the Crown one week prior to the first appearance (to allow for Crown screening).

  • To protect the privacy or safety interests of victims, witnesses, or confidential informants, the defence copy of disclosure should be “ vetted ” by removing any personal identifiers of victims, witnesses or confidential informants.

In the words of one commentator, “ this recommendation speaks to the single, largest, impediment to the timely resolution of cases ”. While many commentators agreed with the sentiment behind this comment, a number of important issues remain to be settled in this area. Who does what when it comes to disclosure? When are things to be done? Who pays for what as between the police and the prosecution service? Other problems identified during the consultation process include: the difficulties associated with late arrest; complex files; heavy volume locations; and the severe strain that constitutionally mandated disclosure requirements are placing on already thin resources. The police community is of the view that all affected parties should study the various issues surrounding disclosure so principled and practical solutions can be fashioned. Disclosure is a critical part of effective case flow management. Resolving outstanding disclosure issues requires comprehensive consultation because it affects so many justice system participants. However, it is of crucial importance that this consultation takes place immediately so necessary solutions can be developed and implemented expeditiously.

Recommendation Twenty-Four: Maximizing second and third Appearances

The Steering Committee recommends the following guidelines with respect to the second and third appearances of the accused:

  • It is expected that counsel will have been retained by the second appearance;

  • A further adjournment of the case may be necessary to allow for a Crown-defence case conference, and to resolve any further disclosure issues;

  • The reason for any adjournment should be clearly noted on the record or on the information, and any s.11 (b) Charter issues arising from the adjournment should be canvassed prior to fixing a return date;

  • On the third court appearance an accused should be prepared to set a trial or preliminary hearing date, or to set a date for a judicial pre-trial (provided full disclosure has been given);

  • At the third appearance of an accused it is expected that a Crown-defence case conference will have been conducted, and any further disclosure issues fully canvassed, although it may be that the actual provision of the further disclosure has not occurred where a report and the results of any scientific testing are not yet available; and

  • In cases where the accused has an election and the option of requesting a preliminary hearing, the accused should be put to his or her election. This will allow the court to be in a position to ascertain whether a preliminary hearing will be necessary. Dates for the filing of any statements or agreements that are required in respect of the preliminary hearing, pursuant to sections 536.3 or 536.5 of the Criminal Code, should be fixed by the Court on this appearance, except where a further judicial pre-trial is necessary.

While there was broad agreement during the consultations that cases should be advanced along these timelines, consensus broke down on the question of whether it is feasible to enforce this recommendation because of the number of variable that come into play, including the increase in the number unrepresented accused coming before the courts. One commentator observed that the issue of access to justice is squarely implicated by this recommendation. Another suggested that what occurs on second or third appearance will in all probability be dictated by the nature of the case. Judicial discretion will determine how the matter will proceed and there is little to be gained by attempting to set out the practice and procedure after the first appearance.