Disclosure and Institutional Delays Revisited

A few months back, I posted a commentary on a case that came out earlier this year concerning institutional delay in the context of DVD disclosure. In drinking and driving cases like this one, the DVDs usually contain video footage automatically captured by police officers in the course of taking breathalyzer samples.

In the commentary portion of my post, I pointed out some encouraging comments from other judges about their own (and very different) views on the production of DVD disclosure. For example, I noted that Justices MacLean and Grossman both seemed to embrace the reality of technology in the 21st century – that burning DVDs of already-existing footage doesn’t tend to take 2 months.

It was refreshing, then, to see even more judges echo these concerns even more recently. The Toronto Star reported that 3 judges in the last few months have criticized the police and courts about all the delays caused by DVD disclosure. One judge even went so far as to call the delay a “systemic feature” of the Ontario courts. None of this is in any way definitive, but it’s at least good to see that more and more judges are picking up on these problems.

The article also highlighted 2 points that I wasn’t aware of before.

The first point was when the article quotes Jonathan Rosenthal in pointing out that the Morin case that sets out the guidelines for unreasonable delay (and that is still used by courts today) is now over 20 years old. Certainly technology has come a long way since then, so you’d think things would be getting faster and that we wouldn’t keep toeing the line of what is a reasonable delay.

The second was the (possibly empirically-problematic but still eye-opening) comparison between the Peel and Toronto courts in dealing with drinking and driving cases. Lawyers Frederick Fedorsen and Adam Little apparently presented some data collected over the course of their practice over the last 4 years and noted that the average drinking and driving case in the Peel Region sees defendants having their first appearances within 8 to 22 days, almost always with video disclosure already ready. The situation in Toronto can be much different, with several court appearances dedicated solely for the purpose of first requesting, then reminding, then eventually receiving video disclosure.

Still, it’s encouraging to see that it’s possible to steamline processes even just a little bit.

This blog post was written by Ricardo Golec.  Ricardo is a student-at-law working for Adam Goodman.

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