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As Ontario’s under-resourced courts struggle with the impact of delays, Osgoode Hall Law School Professor Palma Paciocco hopes a recent $51,000, three-year Social Sciences & Humanities Research Council (SSHRC) Insight Grant will help her uncover insights that could improve the justice system’s efficiency and fairness – especially when it comes to the use of often time-consuming expert evidence.
Her current research project, titled "The Gatekeeper and The Timekeeper: Regulating Expert Evidence and Trial Delay in Criminal Courts," will focus on the competing demands for efficiency and the need to carefully assess expert evidence in the court system. In several high-profile cases in the past, reliance on faulty expert evidence resulted in wrongful convictions, but the process for screening out such evidence can be time-consuming.
“It continues to be a huge issue that looms in the background of all cases,” said Paciocco. “And we do, from time to time, hear of cases where very serious charges are stayed because of delay.”
The Charter of Rights and Freedoms enshrines the right to a timely trial – and the Supreme Court of Canada’s landmark R. v. Jordan ruling in 2016 imposed a presumptive limit of either 18 or 30 months between the time charges are laid and when a trial is concluded, depending on the court.
But issues like legal-aid cuts, limited court resources and the rising number of self-represented litigants have contributed to court delays. And the impact of the COVID-19 pandemic only exacerbated the problem.
While most criminal cases do not involve expert evidence, Paciocco said, it is more likely to arise in trials involving particularly serious charges, where it can play an important role in the fact-finding process.
“The process for assessing expert evidence is very time consuming but very important to ensuring accurate outcomes,” she explained. “At the same time, judges are aware of the need to ensure that the trial is moving along efficiently. Sometimes those goals can be in tension, and judges need more support figuring out how to navigate that tension on a case-by-case basis.”
Paciocco said she chose to focus on expert evidence and trial delay because of the very high stakes for serious criminal cases and because the interaction of these two legal issues can result in especially pronounced tensions between the needs for efficiency and accuracy in the court system.
As part of her research, she plans to delve deeply into theoretical literature on these competing justice goals, which also relates directly to plea bargaining – another research interest of hers. She will also look at case law from across the country to see how judges have balanced the need for expert evidence with the desire to avoid undue delays. Finally, she will review best practices recommended by commissions of inquiry and other bodies to see how well best practices designed to promote sound expert evidence align with best practices for avoiding or minimizing trial delay.
Paciocco said she plans to translate her research findings into scholarly articles, including a practice-oriented article for judges and lawyers and a slide deck that could be used for continuing professional education.
“I’m hoping the project will contribute to ongoing conversations about improving the efficiency of our courts and ensuring that expert evidence is being carefully assessed,” she said.