Setting the record straight on early case resolution
By Jason Chance
Traditionally, many criminal matters go to trial only to be resolved at the last minute. This is often an unnecessary inconvenience for police, experts, victims and members of the public who are called as witnesses, not to mention an inefficient use of court time.
Seeing witnesses waiting around courtrooms all day, giving up their time and often their salaries, only to find out that they don't have to testify was one of the driving factors behind early case resolution (ECR) in Lethbridge, said Provincial Court Assistant Chief Judge J.A. Wood.
"We recognized that there was a high collapse rate at trial," Judge Wood said. "The parties would arrive at court and change their position. At first, we felt there was not a whole lot we could do about it."
Then, a pilot project in that city showed that ECR could help resolve many cases in an appropriate manner well before trial, and in the process, save hundreds of days of court time and spare thousands of witnesses from going to court.
"In 1996, we were setting about 4,200 trials a year and running 760," Judge Wood said. "This year, we will set 1,800 trials and hear about 265. We've changed the mindset of everybody and the way they approach their professional responsibilities."
In 2001, Alberta Justice expanded early case resolution to several offices across the province and added seven screening prosecutors to review criminal cases to determine whether they can be resolved in whole or part without having to go to trial.
After reviewing the case, the screening prosecutor may recommend that the matter be discussed by Crown and defence counsel during ECR meetings which are held after a first appearance, but before a trial date is set. If they are able to resolve the matter appropriately, the Crown will make an offer to defence counsel outlining the proposed resolution.
Judge Wood said the key to the success of ECR is that there is something for everyone to gain - the public, the Crown, accused persons and their defence counsel, and police. It allows the court to better manage its time and to expand other initiatives like judicial dispute resolution and mini-trials.
Effective March 1, 2002, a practice note developed by a cross-sector committee led by Judge Wood will formally recognize ECR in Alberta's provincial courts. Also represented on the committee were other members of the judiciary, Crown prosecutors and representatives from the defence bar, police and Legal Aid.
Under the committee's practice note, the judiciary will provide the Crown and defence counsel with up to six weeks to meet for pre-trial negotiations before a trial date is set.
While there may be a longer period of time between first appearance and the actual booking of a trial date, because many cases will now be resolved before trial, over time, it is expected to improve court lead times.
"The problem has been that neither the Crown nor the defence necessarily had the time to assess their cases until close to the trial," Judge Wood said. "Through ECR, we try to get them to assess their case before a trial is booked, instead of a week before the trial date. We asked ourselves, 'what would happen if we get people to talk on the front end?'"
Providing the Crown and defence with this additional time is key to the success of ECR, said Robin Dann, Q.C. - Chief Crown Prosecutor in Lethbridge - and part of Judge Wood's ECR committee.
"I expect that a significant number of matters will be resolved when the Crown and defence have sufficient time to familiarize themselves with the files and have opportunities for meaningful discussions before deciding whether it is necessary to set a trial date," Dann said.
Dann said there are three important points to remember when considering ECR. "ECR respects the independence of the judiciary, the duties of the defence bar and the rights of the accused to make a full answer and defence, and the ability of the Crown to fully represent the public interest and prosecute fairly and effectively those charged with criminal offences."
ECR is about finding responsible and appropriate resolutions to cases, Dann said. "The Crown is always guided by the strength of the case, relevant case law with respect to the admissibility of evidence, and sentencing guidelines. Sometimes this can only be achieved through a trial, but often that is neither necessary, nor desirable."
In some cases, ECR may not lead to a resolution of the matter, but the discussions can focus on the issues that will be litigated at trial, Dann said. "The Crown and defence may agree that certain witnesses don't need to be called because the evidence they will present is not in dispute."
And that's a good thing, said Judge Wood. "Through ECR we can better utilize our time and offer better services to the public." Plus, he added: "There are a lot fewer people sitting around the courtroom wasting their time."
