Why won't Ontario track the reasons why criminal charges are dropped or stayed?

Five years ago Ontario's auditor general recommended the province start tracking the reasons criminal charges are withdrawn by prosecutors or stayed by judges — to help reduce costs and ensure cases make it through the system efficiently amid backlogs.

But despite facing bigger backlogs from the pandemic and a rising number of stayed and withdrawn charges, Ontario's Ministry of the Attorney General has refused to track those reasons. 

The recommendations stem from a 2019 audit of the province's criminal court system, and were reiterated by Auditor General Shelley Spence this summer. 

"If you don't know, you can't manage," Spence told the province's standing committee on justice policy in August.

"We still encourage [the ministry] to capture the data in whatever way makes sense… so that they can actually do something with that analysis to fix the issue and speed up the cases. But what we're seeing is that it's not getting better."

Recent data on criminal charge outcomes in Ontario shows most cases have ended with charges being withdrawn, stayed, dismissed or discharged before a decision at trial since 2020. In 2022-23, the latest fiscal year for which data is available, 56 per cent ended that way — a 14 per cent increase since 2013-14 when guilty decisions still made up most outcomes.

In a statement, a spokesperson for the auditor general said the recommendations were intended to help speed up the progress of cases through the system and reduce the costs caused by delays when charges are withdrawn because there is no reasonable prospect of conviction.  

As for stayed cases, the reasons for those would help the ministry understand whether delays were due to prosecutor availability, disclosure of evidence, court scheduling or defence counsel. 

Last year the ministry told a provincial committee that the effort and cost associated with reviewing judge's written decisions, transcripts or audio recordings of proceedings to determine all the reasons for a stay of charges as recommended "would not provide value for money."

In terms of the reasons for withdrawing charges, the ministry told the auditor general that tracking them wouldn't benefit the administration of justice and would "risk impacting the judgment of prosecutors."

CBC Toronto asked the ministry how it intends to understand what parties and factors are having the greatest impact on criminal charges being withdrawn by prosecutors and stayed by judges if it does not have aggregate data on those decisions. 

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In a statement, a spokesperson said the ministry's internal tracking system allows prosecutors to record the specific reason for a stay and the reasons for withdrawals at the individual case level, which can then be reviewed by Crown managers. 

But the larger-scale tracking recommended by the auditor general "would risk impacting the ability of prosecutors to assess each and every case individually on its merits," said spokesperson Alexandra Wilkes. 

"To address the intent of the auditor's recommendation, the ministry continues to implement and explore initiatives that will reduce the number of cases that would likely result in a withdrawal and reduce the average number of days before a charge is withdrawn."

When asked about the issue at an unrelated news conference Monday, Premier Doug Ford responded with a frequent talking point, attributing delays in the system to repeat offenders being let out on bail.

"When there's no consequences to people, they won't learn," he said.

Earlier this year, the province said roughly 81 per cent of inmates in provincial jails are awaiting a bail hearing or trial. That was up slightly from 2021 and 2022, when the figure stood at nearly 79 per cent, according to a report by the Canadian Civil Liberties Association.

Meanwhile, data obtained by The Canadian Press via freedom of information laws showed the province's inmate population surged in 2023, with a vast majority of correctional institutions at well over capacity.

To manage the progress of criminal cases and avoid stays, the province's statement also explained how the ministry's internal systems track the number of months criminal cases are before the courts so that prosecutors know whether one is in jeopardy of hitting the Jordan time limits set by the Supreme Court of Canada.

But knowing the reasons for stays and withdrawals are just the tip of the iceberg, according to Shakir Rahim of the Canadian Civil Liberties Association. 

He says Ontario needs to do even more.  

"We are fortunate to be in a jurisdiction that has the resources to invest in these kinds of initiatives, and it simply has to be done," Rahim, the director of the association's criminal justice program, told CBC Toronto. 

"What we're missing here are people actually sitting down at a table together, having a clear objective — which is we need better data about the system — and co-operating to make it happen."

In its statement, the ministry reiterated the $29 million it invested this year to appoint a minimum of 25 new judges to the Ontario Court of Justice and hire 190 more Crown prosecutors, victim support and court staff to help prevent cases from being stayed for delay and keep up with "a growing number of complex cases."

The ministry also said it is working to have police officers use their discretion to refer people to diversion programs more often to prevent charges for minor offences from entering the justice system.