Policing fallout [Part 4 of Justice Denied series]

Police officers sit outside courtrooms in heavily backed-up Surrey Provincial Court awaiting their turn to be called.

If they’ve come for a trial that has already been adjourned multiple times, it could be their third or even fourth appearance in an attempt to testify in the case.

And if the institutional delay is ruled excessive, the case may be tossed out and the accused will walk free, rendering the officers’ time and effort null and void.

Critics say it all adds up to a colossal waste of taxpayers’ money.

And the hours police spend in court is just the tip of the iceberg.

By the time they set foot in court, officers have spent many hours investigating and interviewing witnesses. DNA tests or other forensic work and expenses may have been ordered.

After a suspect is collared, there is also a mountain of paperwork to be completed, notably the report to Crown counsel requesting charges.

What’s more, in recent years the duty to disclose evidence to the defence has become far more onerous and now consumes much more police time than in the past – particularly if there’s translation and transcription costs involved with non-English speaking witnesses.

“The costs are huge for us,” Delta Police Chief Jim Cessford said, recounting one case where disclosure and transcription costs alone devoured more than $250,000 over six months.

“To have the case denied because of unreasonable delay is really, really frustrating for everyone,” Cessford said. “That really sends a bad message to everyone.”

Cases are increasingly being tossed out over delays in Surrey and across B.C. because jammed courthouses can’t keep up.

More than 2,100 criminal cases have dragged on so long, they are at risk of being quashed.

The reason? A severe shortage of judges – as well as sheriffs and other court support staff – because of chronic provincial underfunding of the system.

Police officers realize what happens in the court system is out of their hands.

But investigations that go nowhere or die in the courts without justice being dispensed hurt officer morale, Cessford said.

Cases can be quashed by judges or stayed by prosecutors who anticipate a judicial stay because of delay. Crown sometimes bargains down to a lesser charge to secure a guilty plea.

Prosecutors are now increasingly triaging incoming charge requests from police because court congestion has forced them to raise the bar for charge approval.

As a result, lesser offences such as non-violent property crimes are less likely to make the cut, particularly if the evidence doesn’t provide a very strong likelihood of conviction.

The trend is also affecting policing decisions on the level of resources committed to an investigation – particularly for less-serious crimes that could be bogged down in court delays and ultimately quashed.

Delta’s Carol Berner was convicted of dangerous driving and impaired driving causing death in the crash that killed four-year-old Alexa Middelaer in Ladner on May 17, 2008.

Delta Police staged an elaborate and expensive months-long sting to get Berner to admit to an undercover officer she drank three glasses of wine before driving that day.

Cessford said his force would still put the same resources into a similar case today.

“On a much less-serious offence, we would be very, very careful about how far we would get into the investigation,” he said.

Even when charges aren’t at risk of being quashed, there are still dangers from delay.

Witnesses may forget details and weaker testimony – from civilians or police officers – can result in the accused walking away unpunished.

“Memories start to fade,” Cessford said. “They’re not as sharp as if the case had been brought forward much sooner. That can have an effect on the outcome.”

The police job of protecting and managing witnesses – tracking them as they move to new cities or provinces and getting them to come back to testify – also becomes more onerous as cases drag on.

“The witnesses lose interest and they tend to cut us out after a while,” Cessford said. “They lose confidence in the system. They think ‘this is not justice, this is not working’.”

* * *

Langley City Mayor Peter Fassbender fears too many suspected criminals aren’t even getting into court in the first place.

They’re being turned aside by prosecutors who can’t justify loading so-called minor cases into the already jammed system.

And he suspects police increasingly aren’t pursuing cases they know will never get to court.

“People are frustrated by that and the police are frustrated by it,” said Fassbender, who co-chairs the Lower Mainland District RCMP/Mayors’

Consultative Forum and sits on Metro Vancouver’s policing issues committee.

He said there are too many prolific offenders with numerous charges on their files who never seem to suffer consequences.

It all threatens to corrode public confidence

in the justice system among law-abiding citizens and weaken the deter

rent of penalties for the criminally inclined.

“There used to be a sense that if you do the crime, whatever level of that it might be, you’re going to suffer the consequences,” Fassbender said. “I think people are beginning to question that.”

Too many defendants and skilled defence lawyers know how to exploit delays, he said.

Local cities are intensely concerned about rising policing costs.

Surrey alone pays $97 million a year for RCMP operating costs, a third of the city’s budget.

Surrey RCMP officers spent nearly 9,200 hours in court last year. Since experienced officers make $37 an hour and about half of court time is overtime at double pay, the cost of court time approaches $500,000 a year.

Fassbender said court delays are driving those costs up.

If officers appear in court on their regular work shifts, that’s time they aren’t available to actually police the community, forcing detachments to backfill with other staff.

And if officers are in court on their days off, overtime must be paid.

Either way, Fassbender said, delays in court translate into more taxpayer dollars being spent and sometimes fewer boots on the ground to patrol communities.

“It all drains on the human and financial resources the more they have to be in court.”

He wants “creative solutions” pursued – even night court sittings if that’s what it takes.

But he also said the province must hire more judges to help reduce the case backlog.

“I happen to think it’s worth it,” Fassbender said. “We need to give the police and the judiciary the tools to deal with some of this stuff.”

* * *

Criminologist Darryl Plecas of the University of the Fraser Valley says there’s not enough judges, prosecutors or courthouses to deal with the caseload.

He traces the rise in congestion to government’s decision nine years ago to close two dozen courthouses across B.C.

“Whose brainchild was that?” Plecas asked. “You in effect narrowed that funnel such that no matter what police do, the capacity of the court system is only so much. Only an idiot would think that was sustainable.”

Attrition resulting in fewer sitting judges and reduced court time came despite a growing population, more police officers being hired, and a greatly increased complexity of cases.

For example, an impaired driving trial that once took a couple of hours can now take three days. Some police officers do nothing but handle disclosure requirements.

And court delay means a longer, more challenging job of protecting witnesses in serious crimes, Plecas said.

“The delays are just devastating in so many ways,” he said. “We’re saying at the end of the day to a victim, ‘Your case is not being dealt with because we don’t have a system which is capable of doing this’.”

Some relief could be on the way.

New administrative penalties instead of charges for impaired driving may mean much fewer drunk drivers clogging the courts, Plecas said.

That might – over time – help reduce the court case backlog, which Plecas believes is the main reason behind the reform that some observers have criticized as a de facto decriminalization of impaired driving.

“What they’ve in effect done is dump those cases,” he said.

Not everyone is convinced the shift to roadside impaired driving penalties is in itself a silver bullet that will relieve pressure on the system.

Samiran Lakshman, president of the B.C. Crown Counsel Association, said early evidence suggests police who are freed up from the hours spent on impaired driving investigations, the accompanying paperwork, and court time, are getting back on the street faster and pursuing other cases to bring to court.

“They’re going and finding other criminals,” Lakshman said. “They’re policing the community in ways they weren’t able to when they were spending time on time-consuming impaired driving files.

“It’s great for the community. But it does nothing to relieve the pressure of how many of these files are coming into the system.”

jnagel@surreyleader.com Twitter: @jeffnagel

BY THE NUMBERS

27-per-cent increase in number of police officers in B.C. from 2001 to 2011 (7,279 to 9,261).
13-per-cent decrease in number of provincial court judges over same period (145 to 128).
73 police officers now working for every judge, up from 50 in 2000.

FACES OF DELAY: TORIE AND JESSICA

North Vancouver’s Jessica Van Ruyven and her best friend Torie Gerard from Whitehorse had just graduated from university and were working at lodges near Campbell River in the summer of 2007 when in an instant, their lives were changed forever.

The two young women were driving down the Island Highway with dreams of a trip to Europe.

Then a drunk driver slammed into them head-on.

An airbag saved Van Ruyven from serious injury.

But Gerard’s head went through the windshield. She initially wasn’t expected to live.

Three-and-a-half years later, after multiple surgeries on her left eye, Gerard still requires a walker to move around, suffers from psychological and emotional trauma, and has a permanent brain injury.

“She will never, ever be normal,” said Andy Van Ruyven, Jessica’s father. “She’s got a life of handicap and challenges that are not her own fault. And no one will be responsible or pay anything for that.”

He thought the crash was an open-and-shut case and justice would be swift.

He was wrong.

It took nearly a year for charges to be laid against the Campbell River driver in the oncoming pick-up truck.

Transfers at the Campbell River RCMP detachment bounced the file from officer to officer. For some time, no one knew who was handling it, adding to the delays.

Police were also slow to disclose documents to defence – as required – and the accused’s lawyer succeeded in adjourning the first trial date.

Around the same time, one of two judges in Campbell River retired and wasn’t replaced, worsening the backlog in the congested courthouse there.

The trial was pushed back to December 2010.

But in June of last year – nearly three years after the crash – the defence applied for a judicial stay of proceedings.

Provincial Court Judge Brian Saunderson ruled the case had dragged too long and the accused man’s right to be tried within a reasonable time had been violated.

It was the second time the same accused had been charged with impaired driving but had the case thrown out.

It’s still incomprehensible to Van Ruyven.

“When people like that can walk from the scene and from the process without facing charges it throws the whole system into disrepute,” he said.

Van Ruyven believes B.C. is on a “slippery slope” to an impotent justice system where criminals don’t worry about the empty threat of penalties and victims “go into vigilante mode and take things into their own hands.”

His question: How serious does a case have to be to get priority in the courts and ensure it will be heard?

“If my daughter or her friend were killed would that have put any more urgency to it?” he asked.

“Who is making those decisions to say, ‘This is one we can’t let go? And these other ones where there’s just maiming or dismemberment or handicap short of death – those we don’t have time or the energy to prosecute.’

“There’s absolutely no fairness in that.”