Legal Research

Crime & Punishment in 2011

By Edward Prutschi

January was all about lists. Every blog, publication, and column uses this season to either reflect on the year that was or look ahead to the year that will be ? and I want in on the prognosticating party. Thus I give to you, fair SLAW reader, my picks and predictions for the top five trends to watch in Canadian criminal justice in 2011. To build the anticipation, I have listed my picks in reverse order. No cheating by scrolling straight to the bottom of the page.

5. Increased emphasis on case management.

For a number of years, governments have been toying with ways to streamline the criminal process. The increasing complexity of massive multi-layered police investigations and constitutional issues have conspired to create trials that frequently run for weeks or even months at a time at great cost to all parties in the criminal justice system. The introduction of criminal discoveries and the rare use of preferred indictments have done little to short-circuit gargantuan preliminary inquiries which ? as their name implies ? are just the appetizer to even more bloated trials.

2011 will see increasing emphasis on changes in local practice directions with heightened reliance on Justice on Target (in Ontario) encouraging speedier disclosure and fewer wasted set-date appearances. The impact of recent regulatory amendments in Ontario regarding ignition interlock devices for many impaired driving cases will also see a marked reduction in the number of these time-consuming trials.

4. The return and growth of ?project-based? policing.

Running directly counter to the objective of streamlined trials is my next prediction ? project-based policing. This refers to large-scale multi-party investigations in which multiple police forces will cooperate with a team of dedicated crown attorneys throughout lengthy wiretap / surveillance investigations in an effort to make sweeping arrests targeting gangs and organized crime.

Although the projects have a tendency to snare a host of innocent people and petty criminals in their net, their effectiveness in the broader ?war on crime? is difficult to deny. The initial chaos in bail court caused by these projects pays dividends down the line as the vast majority of cases have resulted in most minor players being cut out entirely with mid and high-level suspects entering guilty pleas. The eventual trials have involved relatively small numbers of accused facing only the most serious charges.

Even judging solely by the resources pouring into the Guns & Gang task forces on both the policing and crown sides, it?s a safe bet that we will see a host of high-profile targeted sweeps in 2011.

3. Legal Aid in crisis ? again.

Just when you thought it was safe to accept a Legal Aid certificate, they go barrelling towards crisis yet again. For anyone who foolishly thought that Ontario?s Legal Aid woes were over after a highly touted agreement between the government and the Criminal Lawyers? Association (CLA), think again. Anecdotal reports from many prospective applicants indicate that legal aid eligibility ain?t what it used to be and Legal Aid?s stuttering re-introduction of block fees for many simple cases is reminiscent of a return to the system that bankrupted the plan years ago in the first place.

A motivated and activist CLA is not likely to wait for the plan to tear apart at the seams this time around. Expect another showdown by summer 2011 if steps aren?t taken to address the looming issues now.

2. More mandatory minimum sentences.

You don?t need a crystal ball to see this one coming. Although the effectiveness of mandatory minimum sentences (MMS) in deterring crime is questionable, one thing that isn?t up for debate is how MMS?s play to the public. Nothing says ?get tough on crime? quite like slapping a juicy minimum jail sentence onto the offence of the day. Recent years have already seen MMS?s tacked onto impaired driving, child pornography, and gun crimes. Look for these to be increased even further with new causes-de-jour getting the MMS treatment by late 2011.

1. Random blood alcohol testing

With the number of trial balloons floated in the media on this topic, I?m honestly surprised we didn?t see it in 2010. The landscape for persons charged with impaired driving related offences has darkened considerably in recent years and those storm clouds aren?t clearing anytime soon. By the end of 2011 all of us will get a taste of what it feels like to be branded a criminal as police gain the power to stop anyone, anytime, anywhere without cause and require them to undergo a roadside screening for alcohol. Happy New Year indeed!

Will Prutschi?s prognostications pay-off with precise predications? Stay tuned ? it?s bound to be an interesting year.

Full post as published by Slaw.ca on February 07, 2011 (boomark / email).