Although there is a constitutional right to a speedy trial in Canada, its enforcement is an empty promise. For the last quarter century, police and prosecution budget increases sent more and more criminal cases into the court system. Population growth turned sleepy courthouses into over-crowded inefficient schvitzes. The justice system began bulging at the seams. Government responded with a shrug, making the business decision to spend money elsewhere. The result was not enough courts, judges or resources to handle all the cases. You would think this is where the speedy trial right would help to control the government. But you would be wrong.
Prosecutors responded to egregious delays by begging judges not to enforce the right. They offered numbing, aliteral interpretations of the constitution. Some, perhaps inspired by giddy Enron-era accountants, urged judges to classify and reclassify delay until it was unrecognizable as a rights-based event. Surprisingly, more than a few judges went along. Instead of telling government to spend the money, they declined to enforce the speedy trial right.
Why don’t the courts defend the speedy trial right more ardently? The problem was created 20 years ago when the Supreme Court said that if the defendant’s speedy trial right is violated he gets a stay of proceedings. Yup. A total free ride. As is well known, there is no free ride and no one likes free riders. The prospect of giving some customers a free ride paralyzed many ticket masters, forcing some to insist that three years was really just a short ride.
This makes the speedy trial right like the Planet Pluto. When Pluto was demoted from planet status to simple membership in the Kuiper Belt, many lame explanations were offered for the downgrade. The speedy trial right is facing demotion – from constitutional guarantee to fuzzy promise. Like Pluto, it sorely needs a defender.
Frank spoke on this topic at the LSUC’s annual Six Minute Criminal Lawyer event on Saturday April 20, 2013. The materials, including Frank and Megan Savard’s paper, is available here.