PAUL KAIHLA December 11 1989


PAUL KAIHLA December 11 1989




David McCaskill strode confidently into a Toronto courtroom on Oct. 30. The federal Crown prosecutor was looking forward, as he recalled later, to presenting a strong case against the four defendants awaiting trial. The men were charged with trafficking and conspiracy to traffic 15 ounces of cocaine—estimated to be worth $85,000 on the street. After winning similar cases in the past, McCaskill had asked for prison sentences of up to five years. But it was not to be one of those cases. Ruling on a motion from the defence, Judge Stephen Borins dismissed all charges against the men on the grounds that they had been deprived of their right “to be tried within a reasonable time,” as guaranteed by the Charter of Rights and Freedoms. In fact, it had taken 3V2 years to bring the men to trial from the time of their arrest. The reason: delays caused by what Borins described in his decision as an “overburdened justice system.” With that ruling, the four men walked free, the beneficiaries of a national justice system dangerously overburdened by an explosion in drug cases.

In a display of public anger rare for a Crown attorney, McCaskill lashed out last week at a

shortage of courtrooms, prosecutors and judges. “I am disgusted that criminals could be walking the streets because of a lack of courtroom facilities,” McCaskill told Maclean’s. “The public has a right to know that they are getting screwed by the justice system.” Indeed, Borins’s dramatic ruling reflected a problem that has been raising alarm throughout the law enforcement community. Led by Ottawa’s 1987 national drug strategy, governments at all levels have given additional money to police forces in order to combat drugs. The police, in turn, have vastly increased the size of their drug squads—in several cases doubling the number of narcotics officers—and drug arrests have ballooned. But the same governments have not matched that influx of new defendants with additional courts or prosecutors. As a result, Crown prosecutors say that they have been forced to rely increasingly on plea bargaining: trading lesser charges in return for a guilty plea in order to get cases through the courts. For many of them, the alternative has been even less acceptable: running the risk of having cases thrown out of court due to delays.

The crisis in the courts is most acute in Toronto, where many prosecutors handle up to a dozen trials a day—twice the case load they had three years ago. But it is also a serious problem in Vancouver and Montreal. Said Van-

couver lawyer Howard Rubin: “The drug strategy is great public relations but it will have no effect whatsoever on the drug problem.”

Part of the problem is caused by a decision of the federal justice department not to expand its staff of Crown attorneys, the government’s prosecutors. Maclean’s has learned that, in January, Associate Deputy Justice Minister Douglas Rutherford told a meeting of prosecutors at the Toronto office that no new Crown attorneys would be hired. Instead, he said that the office could refer more prosecutions to private lawyers and legal firms retained by the federal government. While the number of department prosecutors across Canada has remained at roughly 120 since the Conservatives came to power in 1984, the number of private agents has increased to more than 1,000 from just over 500. But critics say that private lawyers are more costly than full-time Crown attorneys, less experienced in drug cases and often retained according to their political allegiance (page 17).

Under federal-provincial divisions of responsibility, it is up to Ottawa to provide prosecu-

tors for drug cases everywhere but in New Brunswick and Quebec—where provincial prosecutors handle most cases. As well, the federal justice minister is responsible for appointing—and paying—many of the judges who preside at drug trials. For their part, provinces provide the court buildings and staff. Critics say that a backlog has resulted because both levels of government have failed to provide enough resources. “We have governments throwing money at the drug problem,” said Crown attorney McCaskill, “but they’re throwing it where they can get the most

political mileage. You don’t get mileage by saying, ‘We’re building more courtrooms.’ ” For his part, Ontario Attorney General Ian Scott said that the province had taken measures to improve the efficiency of courts plagued by “significant backlogs” in the Toronto region. He added that Borins’s ruling arose “either because of a lack of judges and crowns, or a failure of the case assignment system in district court”—areas outside provincial responsibility. In Ottawa, Rutherford called the buildup “a dilemma.” Said Rutherford: “We're just as frustrated as anyone else about this.” Still, Borins’s ruling was a startling reminder of the gathering crisis. The four defendants were arrested in May, 1986, after undercover police purchased 15 ounces of cocaine from suspected traffickers. But after waiting five months for the police report, prosecutors were unable to get court time to begin a preliminary hearing until May, 1987. Even then, no courtroom was available for the time required, and

the hearing took six months to complete. In November, 1987, the men were committed to trial. But then the trial was postponed five times, either because no judge was free to hear the case or because no Crown attorney was available. By the time the men—who were free on bail—appeared for trial before Borins, 41 months had elapsed since their arrest.

In Toronto, severe courtroom delays worsened when the cocaine derivative known as “crack” hit the streets in late 1987. Since then, the number of crack and cocaine seizures in the city has almost tripled to 6,148 a year. And that

trend is likely to accelerate as a result of the Toronto police department’s having almost doubled the size of its drug squad to about 200 officers this year. But, at the same time, the federal justice department has added only two new Crown attorneys to its Toronto office since 1985, bringing the total to 29. And in the past four years, only one new provincial court has been added to the two in Toronto previously designated for drug cases.

The shortfall is particularly apparent at the cramped provincial court in Toronto’s Old City Hall, where all drug suspects arrested in a metropolitan area of three million people appear for bail hearings. Last August, that court handled 4,500 suspects, up from 1,500 a month in 1986. Said William Corbett, a federal justice ministry official: “It’s a zoo.” Still, Ontario’s Scott says that most defendants can get a trial within four months. He added, “The provincial courts in Toronto are working fine.”

In Vancouver, the number of people charged

with cocaine offences during the past four years has increased by a startling 266 per cent to 1,303 a year in 1988. But in the same period, the federal justice department’s Vancouver office—which is staffed by 22 prosecutors— has hired only one new Crown attorney. Said one prosecutor at the city’s provincial courthouse last week: “The courts are triplebooked.” That problem is likely to worsen with the Vancouver police department’s announcement last month that it plans to increase its 13member drug squad by seven officers.

Prosecutors are also straining to deal with increasing arrests in Montreal, where the police department has doubled the size of its drug squad to 54 officers since 1987. In the same time, no new courts have been opened. Meanwhile, there is an increase in drug cases in cities such as Halifax and Calgary, but courts are not yet overwhelmed.

Meanwhile, even some defence lawyers have joined prosecutors and police in complaining that the situation in some cities is playing into the hands of drug traffickers. In particular, they say, plea bargaining is being extended to increasingly serious crimes. According to Paul Copeland, a Toronto defence lawyer with 23 years of experience, defendants arrested with one pound of hashish and charged with possession for the purpose of trafficking frequently agree to plead guilty to the less serious charge of possession—receiving a fine instead of a prison term. The same practice, said Douglas Bethune, an undercover Toronto police officer

involved in drug investigations, is now being applied to cocaine trafficking charges.

In one instance late last month, a 21-year-old construction worker charged with possession of a small amount of cocaine for trafficking—an offence that normally carries a jail sentence— pleaded guilty to the lesser charge of possession after negotiations between his lawyer and prosecutors. The defendant, who had a previous conviction for assault, was fined $300. Said one police officer in attendance: “If there weren’t so many cases in court that day, the prosecutor probably would have taken it to trial on the more serious charge.” Acknowledged one Crown attorney:

“There is more pressure to take softer sentences in plea bargains than there would be if we had the luxury of a courtroom to take a case to trial.”

Toronto’s chief federal prosecutor, Graham Reynolds, denied last week that Crown attorneys are trading reduced charges for guilty pleas. Declared Reynolds: “I have heard nothing from the police about the problem.” But, for his part, Copeland said, “There is no question that the backlog is a real treat from a defence point of view. I use it to bargain.”

The unintended effect may be that the drug problem will worsen as traffickers conclude

that they face declining penalties. Said McCaskill: “If you charge people, bring them to court, and the court cannot deal with them, then the arrest process is meaningless.” Added Sgt. Paul Guillemin, a Toronto plainclothes officer: “There is no deterrent value when the sentences they are getting are a joke.”

That seemed to be the conclusion of one young cocaine seller in Toronto last week. On a chilly, windswept evening in front of a desolate high-rise apartment building in a northwestern suburb, four black youths sprang forward as a car pulled to a stop. The youths, wearing hooded jerseys and leather jackets, jostled each other as they thrust their hands bearing rocks of crack wrapped in plastic through the car’s open window. “How much you want?” they shouted at the driver. When one said he was charging $150 for a quarter gram, another shouted, “A hundred”—and got a customer. Asked if he was afraid of being arrested, one of the youths replied, “Hey, if they do me, I’ll be back here tomorrow night doin’ the same thing.” For that trafficker, there was clearly no deterrent in the widely heralded crackdowns against drugs.