On Tuesday, I worked my final shift, for a while at least, at the pro bono legal hotline where I have volunteered throughout the last year. It’s one of those tasks that, while inconvenient at times, I came to really look forward to because of the opportunity it provided to help vulnerable people through difficult and stressful situations rarely afforded by billable work. As I listened to clients describe their various landlord-tenant issues, I heard myself repeating the same advice I had shelled out more times than can be counted over the past year: If there is a possibility of resolving this among yourselves I would strongly encourage that. But if you need you can make an application to the Landlord Tenant Board, just know the wait times for a hearing are still about 6-8 months. It’s advice that makes me cringe. Not because I am trying to deter people from making use of the legal system, I’m a true believer in relying on alternative dispute resolution mechanisms where possible, so much as because we have a system where resolving issues related to delinquent landlords and/or tenants can take the better part of a year, leaving people in stressful and often financially untenable situations for prolonged periods.
“The wheels of justice grind slowly, but exceedingly fine,” as the paraphrase of the third Century Greek philosopher Sextus goes. This statement, at least the “slowly” part, is as true today as it was in Sextus’ age. For as much as the legal community, including the Department of Justice and police force, believe in, and do their best to uphold, the right to an expedient trial, there remains a substantial difference in the definition of “expedient” employed by companies offering two-day shipping, and the legal community.
We would abhor a legal system that moved too quickly. Expedient action is, rightfully, limited by the absolute necessity to be exceedingly fine. Thorough investigations, opportunities for adequate defence, and avenues for appeal all take time. However, this does not mean that we do not, frequently, run into situations where the process becomes delayed by itself to the point where its outcome could have little to no effect. We have seen this in the past, such as when a sexual assault case the Crown in Canada was building against a professor at St. Francis Xavier University was stayed after taking more than three years of evidence gathering to come to trial in 2017. The effect of the stay was to grind the wheels of justice to halt so that the allegations could never be tested in a court and justice was not meted out for either party.
An example of this that we are currently witnessing play out are the charges that have been brought against United States Representative George Santos. Santos is currently indicted on 13-counts, which include money laundering, wire fraud, theft of public funds, and making materially false statements to the House of Representatives. The investigation in Santos began following a New York Times expose in December, 2022 revealing that parts of his backstory, including claims that his grandparents fled the persecution of Jews in Nazi occupied Europe, were questionable at best. This is in addition to the news that Brazilian law enforcement authorities are renewing a fraud investigation previously commenced in 2008.
Before Santos was formally indicted, the results of the investigation were heard by a grand jury who were responsible for deciding whether or not Santos would be charged. Santos was indicted on May 9, 2023, and plead not guilty. He will not reappear in Federal Court until June 30, 2023. This means, that by the time the Federal Court process begins, it will be seven months since authorities became aware of the suspected illegal activity.
There is a common misconception about the law that once a case reaches court, the long waiting times will be over. This is not accurate. It is very likely that before any trial can begin into the allegations against Santos, there will be several dates of back and forth around disclosure of evidence and other procedural issues, all of which are likely to be weeks if not months apart. If Santos elects to have a jury trial, the jury selection process will take a number of days. Once the trial begins, the hearing dates are likely to be scheduled more or less consecutively, but if found guilty, sentencing could follow several days to weeks after. We are still a very long way from the end of this legal process.
During this time, Santos is not required to step down from his position in the House of Representatives. Democrats attempted to have him removed from his committees, however this effort was blocked by Republicans. Despite being under investigation for allegations of election fraud that include misappropriating funds from electoral campaigns, Santos is not prevented from continuing his bid for re-election in 2024, something that his lawyers have confirmed he plans to continue working towards. While we do not want to run the risk of enacting punishment before an individual is found guilty, the pace of justice in this case is likely to result in a situation where Santos will have completed his term in office before a verdict is rendered on the charges against him.
British Prime Minister during the reign of Queen Victoria, William Ewart Gladstone, coined the maxim: “Justice delayed is justice denied.” The sentiment he put forward is that where a legal remedy is available to an injured party, but is not attainable in a reasonable period of time, it is the same as if it were not available. The pace of justice can be unbearably slow, so much so that at times, there is a true risk of denying justice to victims. If Santos is found guilty, though it will be a form of justice, it is likely to come so late that it is unlikely to have any substantive effect on those injured by his actions.
What causes legal processes to take so long?
Some of it is a necessity. Lawyers are taught to discourage and turn down frivolous cases. Further, lawyers are required to recommend non-court options, such as mediation and settlement, as possible. As previously mentioned, in order to ensure that processes are error-free, time has to be taken to conduct proper investigations. In a post-Covid world, triers of fact, particularly administrative tribunals such as the the Landlord Tenant Board, are dealing with a higher-than-normal volume of cases while continuing to wade through the backlog. Though the increase in options for remote attendance in many jurisdictions is helping to facilitate more cases being heard, it is not sufficient to overcome the extensive wait times. Some of it is also scheduling, and the complications of managing the time and working capacity of limited numbers of adjudicators. But sometimes, it is also just inefficiency.
The slow pace of justice is both a flaw and a feature of our legal system. It can be a tool to ensure that true justice is done, but can also create circumstances where justice is denied. We are always working towards ensuring that the balance tips in favour of the former. But there are absolutely occasions when it does not, and this is something that policy makers should be working to address.