Winnipeg Free Press - PRINT EDITION

Bakema decision too long in the making

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There are four essential parts to the proper functioning of the criminal justice system: investigating, prosecuting, defending and judging. For the public to have confidence in the system, we need to define the roles as to who does what and to have each player do their part when it's time.

In the case involving former East St. Paul police chief Harry Bakema, it would appear the judge didn't do his part. I say it would appear so because we don't know why it took 18 months for provincial court Judge Kelly Moar to deliver his judgment acquitting Bakema of extremely serious charges. Judging is done independently and this must always be the case so the outcome of cases is not affected by external factors. This is why we rarely hear about the judging process.

However, the value we place in judicial independence has to be measured against society's interest in avoiding undue delay in having cases decided. Some might ask how fresh the judge's recollection of the evidence can be when a decision comes so long after the trial is over. In a criminal trial, an accused person waiting on a judgment can face enormous hardship by being left in suspended animation. Victims may not get closure. Worse, if a judgment is appealed and a new trial ordered, the evidence may be lost as witnesses' memories fade.

These are some of the reasons why the Canadian Judicial Council issued a strong policy preference that judges decide their cases within six months of the trial completion. The governing Canadian body is not alone in establishing this modern threshold, and in fact the concept goes as far back in the mists of time to the Magna Carta and the basic notion of speedy justice. In his 1980 book A Book for Judges, John Owen Wilson wrote "Litigants expect, and rightly expect, that the judge will soon relieve them from the agony of uncertainty that prevails until judgment is delivered."

I don't think anyone can argue against this principle, and in fact the passage is cited with approval by the Canadian Judicial Council.

So, what should happen in Manitoba when a judge takes too long to decide a case?

One answer is to file a formal complaint with the judicial council, and that's happened in the past.

Another option might be to consider what's been done in Australia in response to similar problems. A lawyer who is waiting on a judgment can write to the chief justice and inquire about the delay. If the lawyer prefers to remain anonymous then she can ask the president of the law society to make the inquiry on her behalf.

There is also the possibility of providing in provincial law that judges issue their decisions within a specified period of time, as has been done in Quebec, but I'm not sure this would actually work to the public benefit. It would be rarely practical for a judge who has heard all the evidence in a case and assessed the witnesses but not decided it promptly to then turn over the file to another judge and expect the judgment would be sound or fair.

Maybe it's time for some plain old transparency in the system such that the chief justice should provide a report to the public whenever a judge of his court has taken more than six months to decide a case.

This need not be an airing of dirty laundry, because there may be legitimate but personal reasons for a delay, in which case the chief justice could be discreet but at least provide some assurance to the public.

There is a balance that has to be struck between judicial independence and the public's right to know the justice system is functioning as it should.

In theory, the Bakema prosecution was no different than the thousands of criminal cases that come before the courts on a daily basis. But in reality, it took on notorious proportions because of what happened and who was involved, all of which in and of itself could be seen to shake the public's faith in the justice system. Don't forget there was a full judicial inquiry into the original investigation of this case and the public was very engaged as the story unfolded. Bakema was a police chief charged with breach of trust, obstruction of justice and perjury. This was hardly a run-of-the mill case.

The delay, therefore, in getting the judgment and removing the uncertainty of this phase of the proceedings -- there may still be an appeal -- has only added to the problem of perception, and it needn't be so.

In the first instance, judges should work to get their cases decided promptly. If that isn't happening, then the chief judge should actively assure the public he is aware of the situation and taking steps to address it.

This does not compromise the independence of the judiciary and it can assist in promoting the public's confidence in the justice system.

David Asper is a Winnipeg lawyer and businessman.

Republished from the Winnipeg Free Press print edition November 2, 2013 A17

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