The examples below are based on actual incidents from around Toronto, but names and other information about individuals have been changed to preserve their identity.
Sheena, Farzaneh and a third classmate were walking in the crowded halls of their junior high, joking around with one another. Sheena and Farzaneh grabbed Kim’s scarf and threw it to one another. After Sheena threw it, she did not see what happened to the scarf, the bell rang, and the girls went into their classroom. Kim could not find her scarf. Upset, she reported it to a teacher. The police were called, and Sheena and Farzaneh were both charged with theft.
Sahir and James were Grade 9 high school friends. One day, for no clear reason, they removed one of the school’s fire extinguishers and sprayed it all over an empty portable classroom. The police were called and Sahir and James were both charged with possession of stolen property (the fire extinguisher) and with mischief.
Mira told the police that Katrina, a landed immigrant, a wife, and a mother of two children, aged 7 and 5, hit and broke her camera at a cultural event attended by hundreds of people. The damages were estimated at $500.00. Without conducting any further investigation, the police went to Katrina’s home, and violently arrested her in front of her two young children. Katrina was charged with mischief. After a year-and-a-half in the criminal justice system, tremendous hardship, and lasting psychological harm to Katrina’s children who became fearful of the police, the Crown Attorney withdrew her charges.
In a different time, in a different place, all of these interactions might have been dealt with reasonably, rationally, and by the community.
In the lost scarf scenario, the teachers, the principal or even Kim’s parents, might have sat down with Sheena and Farzaneh, found out if the incident was truly an accident or a case of excessive teasing. They might have talked to Sheena and Farzaneh’s parents, and enlisted everyone’s help in finding or replacing the scarf. They might have engaged in the kind of conversation that would have helped Sheena and Farzaneh see the impact of their actions, especially if they were bullying Kim. Kim would have felt heard and empowered, and Sheena and Farzaneh would have helped in the healing.
Sahir and James may have received a stern talk from the principal and their parents. Maybe they would have been grounded. Maybe they would have been suspended for a couple of days. They would have helped with the clean-up of the classroom and perhaps paid for any damages. They would have, in real terms, been responsible for their actions. And they would have continued their studies, without the stigma of a criminal charge.
In Katrina and Mira’s case, the police could have investigated the case further, instead of attacking and arresting Katrina in her home, in front of her children. They could have easily found out that another person claimed responsibility for bumping into the camera; and that it was an accident. They could have simply called in Katrina, who would have gone into the police station and told them her version of the events. There was no need to treat her so violently.
In all of the above scenarios, the community and the police had several options available to them to deal with each case comprehensively, responsibly, and in a way that would have satisfied everyone, without causing further harm. Instead, everyone abdicated their own responsibility and immediately opted to use a sledgehammer to kill an ant.
Everyone reached for their guns.
Sheena and Farzaneh, two young girls who had never been in trouble with the law before, were now viewed as “criminals.” They had to take time off school to appear in court several times. They were dragged through the criminal justice system. Police time, court time and legal aid, all limited resources, were wasted on the kind of thing that many view as normal, if undesirable teenage behaviour.
Sahir and James, neither of whom had a criminal record, also got their first taste of an expensive and at times disorganized criminal justice system. Rather than feel responsible for their actions, they felt the heavy hand of the law and the unfairness of a disproportionate response to their actions- actions which, again, at different times, would have been dismissed as “boys will be boys,” as letting off steam. Actions which did not harm any one individual. While we don’t have to excuse or dismiss negative behaviour by young men, there are surely other means of dealing with Sahir and James’s actions than criminalizing them and having their case occupy the criminal justice system for well over a year.
And yet, while every one of us, citizens and politicians, complain about the amount of time and money it takes to get issues resolved in courts, no one is willing to take the simplest, most rational, most sensible step:
To really reduce congestion in the courts, we’ve got to have less cases enter the system, in the first place.
Some cases just don’t belong in the criminal justice system.
There are more effective, more humane, and cheaper ways to deal with some problems.
But instead, we blame not having enough resources. Instead, we blame defence lawyers for standing up for their clients’ rights and ensuring that our legal system does not become abusive. Instead, we make laws that widen the net that traps people into the justice system. Instead, we make mandatory minimum sentences, which will result in more people opting for a trial, as opposed to pleading guilty, therefore clogging the system more. Instead, we take away money from those programs (such as restorative justice ones) designed to resolve conflicts in more meaningful ways that cost less, have greater positive impact, and are less punitive.
Think about it: if you want to reduce hospital and health costs and wait time resulting from smoking, would you hand out more cigarettes, make them easier for young people to obtain, build more hospitals, or would you invest in preventing smoking, in the first place?
If you want to reduce congestion on the roads, would you take away the bicycle lanes, make a rule that everyone has to drive to work, reduce public transit services, or would you make it easier for people to get to their destination without having to drive?
The most effective way to reduce any kind of traffic is to deal with the problem at the point of entry. Everyone of us, and in particular actors in the criminal justice system, need to take responsibility for this.
Parents and educators must demand that schools and the police make greater efforts to teach, preach and practice conflict resolution skills. Let’s not waste resources by calling the police for every lost or broken item. Let’s abandon our zero-tolerance policy toward any aberrant act. Let’s focus on meaningful options for conflict resolution.
Our police should also be trained to avoid laying charges, where the actions are minor and where other, more effective forms of conflict resolution exist and can be helpful. Any criminal lawyer can make a long list of cases where clients were charged with petty offences for actions that were hardly dangerous and that can be dealt with better in other ways. Any criminal lawyer can tell you of cases he or she had where, had the police conducted a fuller investigation, they may not have charged the client. Any criminal lawyer can make a list of cases where there was barely any reliable evidence against their client.
Once the police charge these people, the cases enter the criminal justice system and stay there–rotting, delaying justice, labeling, stigmatizing, and frustrating accused and victims alike.
Crown Attorneys generally do not have the time and sometimes lack the courage, at an early stage, to just pull out cases that don’t belong in the courts. Their policies and directions need to change, as well. That is a crucial step in reducing court congestion.
As a community, we need to be ready to deal with conflicts through mediation and other restorative justice means. As educators, we need to teach young people to understand the impact of their actions and be accountable. We need to help victims feel heard and empowered. We need to help accused persons feel connected and capable of making other choices.
We need to make everyone responsible for the solution, rather just hold the criminal justice system responsible for everyone’s failures.
We need to train our officers to solve conflicts more peacefully and collaboratively, to speak, engage, build trust and help find solutions. And we need to give Crown Attorneys the time, the direction, and the freedom to examine files early on, to determine if the case before them belongs in the criminal justice system, in the first place, and to determine if it should be resolved through alternative means.
It turns out that the best and easiest way to reduce court congestion is also the most sensible, the most ethical, and the most responsible option. We need the political will to implement it. And the political will will come only when voters demand it.