Show Cause Hearings as Mini-Trials? An Examination of Court Delay in the Context of an Ontario Bail Court

Abstract

In Canada, the incarcerated population on remand (awaiting a bail hearing or awaiting a trial) is increasing. At the same time, the number of accused persons beginning the criminal process in Ontario bail court rose steadily between 2011 and 2019 (with less comparable data during the COVID period). As well, the Supreme Court of Canada has identified that significant court delay is occurring in Canada, in contravention of certain protected rights and freedoms under the Charter regarding bail. While much research has illustrated that court delay continues to be a persistent problem in Canada, there is virtually no research examining how the specific bail process of show cause hearings may be contributing to it. Adopting a quantitative research methods approach, supplemented by qualitative methods, this study looks at the prevalence of court delay and the potential emergence of "mini-trials" within 25 show cause hearings, from an Ottawa bail court in 2017 and 2018. Analyses suggest that unnecessary and unreasonable delay in show cause hearings occurs frequently, indicating that the emergence of some disconcerting distortion in this bail process may be occurring. These findings are considered not only within the backdrop of the bail/remand crisis in Ontario specifically but also within the broader context of risk averse behaviour in today's society and as a result, in the Canadian criminal justice system.