Proceedings of the Standing Senate Committee on
Legal and Constitutional Affairs
Issue 9, Evidence - May 7, 2014
OTTAWA, Wednesday, May 7, 2014
The Standing Senate Committee on Legal and Constitutional Affairs met this day, at 4:18 p.m., to examine the subject matter of those elements contained in Division 5 of Part 6 Bill C-31, An Act to implement certain provisions of the budget tabled in Parliament on February 11, 2014 and other measures.
Senator Bob Runciman (Chair) in the chair.
[English]
The Chair: The meeting will come to order.
Good afternoon, welcome colleagues, invited guests, members of the general public who are following today's proceedings of the Standing Senate Committee on Legal and Constitutional Affairs.
Today we begin our special study on the subject matter of the elements contained in Division 5 of Part 6 of Bill C-31, Economic Action Plan 2014, No. 1. This section of the budget implementation bill amends paragraphs 13(d) and 20(d) of the Judges Act.
For our first panel of witnesses this afternoon we would like to welcome, from Justice Canada, Laurie Wright, Assistant Deputy Minister, Public Law Sector; and Catherine McKinnon, Senior Counsel, Judicial Affairs, Courts and Tribunal Policy.
Welcome. Ms. Wright, I believe you have an opening statement.
Laurie Wright, Assistant Deputy Minister, Public Law Sector, Justice Canada: Yes. Thank you very much, honourable senators. I welcome the opportunity to speak to these amendments today.
[Translation]
These proposals amend the Judges Act to authorize four additional appointments to the Superior Court of Quebec and two additional appointments to the Alberta Court of Queen's Bench.
[English]
Responsibility for the provincial superior courts is shared between the federal and provincial governments. The province has authority under the Constitution over the administration and structure of its superior courts, and the federal government is responsible for appointment and compensation of the judges of these superior courts.
Consequently, when a jurisdiction decides to create a new position or office on its court, we require a corresponding amendment to the federal Judges Act which authorizes the appointment of a judge to the position by providing a source of authority for paying the judge's salary and benefits.
Quebec and Alberta have made the necessary amendments to their legislative schemes to create new positions in their superior trial courts. These amendments to Bill C-31 will provide the required authority at the federal level to support these additional appointments.
Quebec and Alberta each requested that additional judges be appointed to their superior trial courts, and that's to help the courts better manage their increased caseloads.
[Translation]
In the case of Quebec, these new judicial resources will particularly assist with increased case volumes and delays in the criminal courts, largely as a result of a number of mega-trials arising in that province.
[English]
In the case of Alberta, the additional judges will help address increased workloads on both the civil and the criminal court sides.
Those brief remarks essentially explain the nature of the amendments, and we would be happy to take any questions.
The Chair: Thank you very much. We will begin the questions with the deputy chair of the committee, Senator Baker.
Senator Baker: I wish to welcome the witnesses to the committee.
First, on the first page of the bill that we've been given it says that puisne judges of the Superior Court — that is, a judge who is not the chief judge or the boss — are to be paid $288,100 each. I thought that today they were being paid more than that. I thought it was $300,000 they were being paid. Am I right, or is this right?
Catherine McKinnon, Senior Counsel, Judicial Affairs, Courts and Tribunal Policy, Justice Canada: You are correct, senator. As of April 1, 2014, the salaries were increased to $300,800.
Senator Baker: In your opening remarks you said it's up to the province to decide whether they will create the new positions and that Quebec and Alberta had created these positions; that is, they would pay for the facilities and so on required by these judges. Therefore, the federal government is deciding to appoint these judges to fill these positions that Quebec and Alberta had made arrangements and amendments for, kind of giving the impression that if other provinces had so made those arrangements, the federal government would automatically fill those positions.
Is that correct, or is there a procedure that goes beyond that in that provinces may have requested many more judges but they have been refused by the federal government?
Ms. Wright: There is certainly a process whereby officials with the Department of Justice work quite closely with their provincial and territorial counterparts and also with the courts to gather up information that relates to workload pressures so that a business case can be made for the need for the judges on each court.
The amendments put forward for these positions were being done on the basis that there was a good business case in relation to rising workloads, particularly, as I mentioned in my remarks, in the case of Quebec. They have quite a large load of mega-trials on the criminal side and the possibility of some future ones coming as well. That's creating pressure on the civil side because judges have to be reallocated. It is also slowing down trials and creating opportunities for accused to seek stays of prosecutions based on the amount of time they have had to wait.
Senator Baker: For the accused to seek a stay of proceedings depending upon ``the amount of time they have to wait'' — and those were the exact words that you concluded with there — I presume you are referring to section 11(b) of the Charter, ``trial within a reasonable period of time.'' The Minister of Finance said in the budget speech that that was one of the primary reasons for these additional appointments.
When you say that a business case has to be made for new judges, is there a procedure whereby you examine the numbers of cases in the provinces and territories where persons accused of very serious crimes are being let go because they have not been tried within a reasonable period of time? One of the reasons for that is the institutional delay caused by lack of court facilities, or of judges, or of matters such as that. Is there a procedure?
Some of us around this table have been reading case law for 40 and 50 years. We've noticed recently a great number of cases where people accused of very serious crimes are just being allowed to go scot-free because of a judgment that's made that it's taking too long for the trial. There's not one senator around this table who agrees with allowing someone to go free when all the evidence is that that person is guilty of serious offences, and yet these people are let go in every province in Canada, not just Quebec and Alberta.
In that business case that you talk about for judges, is an analysis made somewhere of the cases, of the number of times people in the provinces and in the territories are being let go scot-free when they've committed serious crimes?
Ms. Wright: I think that's a separate question as to what the various serious consequences may be. They may be on the criminal side; they may also be on the civil side, for example, people having to wait, particularly in difficult cases of family disputes, to have very delicate issues around child custody or maintenance satisfied. Those are certainly the end consequences.
In terms of the process, it's looking at trends in filing of new cases and trends in the patterns of case flows. Trial delays would be factored into that, as would the proportion of judgments that have to be reserved and those kinds of things. The availability of judges is looked at. That is, how many annual sitting days would they have? Also trends in the case inventory are looked at. That is where you would be looking at not only how many cases came in but also how many cases are still in the system after a certain period of time. That may be due more to complexity of cases rather than volume of cases.
Catherine works more on a day-to-day basis than I do with the process, so I will invite her to add any additional comments.
The Chair: All the senators wish to ask questions. Perhaps she will have an opportunity later.
[Translation]
Senator Boisvenu: Good afternoon to you both. I do not have a lot of questions, but I do have one. How is the number of judges allotted per province calculated? If four more judges were allotted to Quebec and two in the west, it would no doubt be a matter of mathematical reasoning or of proportion. I would like you to explain to me how that calculation is done.
[English]
Ms. McKinnon: The way the process works — and this is an opportunity to describe it — the requesting jurisdiction will submit a proposal to the Minister of Justice for more judges, which is then forwarded to our unit for analysis. As Ms. Wright has explained, we will work with the court officials and provincial government officials to assist them in identifying the best available indicators of the needs of their court.
Each jurisdiction has different abilities in terms of the types of information they have available to them, depending on their data collection systems. They are very different in their geographical, democratic and social considerations, which can have an impact on the court's workload and access to the court.
We will also look at what sorts of court- or community-based services are available to help resolve these disputes.
At the end of the day, we don't have a fixed formula for determining judicial requirements. We don't compare jurisdictions, even when more than one proposal has come in at a single time.
[Translation]
Senator Boisvenu: Does that vary from province to province? Is the crime rate taken into consideration in determining the number of judges on the bench?
[English]
Ms. McKinnon: We would be looking at what the impact is on the court's workload. As Ms. Wright explained, are there increased caseloads over all the criminal law matters or, alternatively, is there increased complexity that is resulting in greater delays or increased inventories in the court?
[Translation]
Senator Boisvenu: We have a system in Canada called Juristat, in which police officers enter all criminal information. Does the Department of Justice Canada use that system to determine the allotment of judges, or do you use more data from the provinces or federal systems?
[English]
Ms. McKinnon: Juristat may be a source of information where, with the jurisdictions, we could see if there is relevant information that would support their business case. Essentially we are relying on the data that the courts and the provincial governments have available, because it is their data that they collect. We work with them to help identify what sorts of issues and analysis we need to determine how many judges the court needs, but at the end of the day it's for the jurisdiction to provide.
[Translation]
Senator Boisvenu: We know that 62 per cent of Quebec's police departments enter their criminal data in Juristat and that 38 per cent do not. Consequently, the province is penalized because only some of the crimes committed within its borders are entered in the federal system. Is my opinion accurate?
Ms. Wright: The crime rate may be less clear than the volume and complexity of cases before the courts. I do not think Quebec suffers any disadvantage because a percentage of data is not entered in Juristat.
Senator Joyal: Ms. McKinnon, how many judges was the Minister of Justice asked to appoint to the Superior Court of Quebec? Was it limited to four, or did the Government of Quebec request more judges? Is the same true of the Alberta Court of Appeal?
[English]
Ms. McKinnon: The Quebec government actually amended their legislation to create seven more positions for the Quebec Superior Court, and in Alberta they created four additional positions for their Court of Queen's Bench.
[Translation]
Senator Joyal: So that does not entirely fill the number of seats available as a result of Bill C-31, if I do a simple subtraction from the number in question?
[English]
Ms. McKinnon: The amendments in the bill today are intended to address the need substantiated with the available information at this time.
Senator Joyal: In other words, you are not giving way to the recommendation of the Quebec government that they requested seven judges, and you are proposing only four. Because on the basis of your answer, it has not been justified to your level of satisfaction that the seven of them should be allocated in Bill C-31, and it is the same reasoning for Alberta. Am I right or wrong?
Ms. Wright: The minister felt comfortable putting forward a case for the four judges in Quebec and the two in Alberta, based on the information that the two jurisdictions were able to provide to us, yes.
Senator Joyal: Let's stop circling around. The Minister of Justice has not come to the conclusion that there is proof enough that justifies the four judges in the case of Alberta and the seven judges in the case of Quebec. Am I right or wrong?
Ms. Wright: In the present, yes.
Senator Joyal: What criteria do you apply in the study of a request from a province, be it for the Court of Appeal, the Superior Court, to come to a conclusion that a new position is justified? What are those criteria?
Ms. McKinnon: When the proposals come to us, we look at how many judges are currently dealing with the existing workload; and then based on the availability of judges and the growing inventories or delays, that is evidence of a need for additional judges. We do our best to figure out how many additional judges would be needed to address the amount of work that the courts have to address.
Senator Joyal: In one way, you are responsible for the delay in the administration of justice by not taking at face value the request that has been put to the Department of Justice in relation to the number of judges that would be needed to face the backlog or the mega-trials or the fact that the complexity of cases that find their way up to the court deserve those judges.
Ms. Wright: The proposal made for the judges for Quebec and Alberta was based on a good-faith assessment of what the needs in the courts were and what resources would be needed in order to not have those consequences.
Senator Joyal: It satisfies partly what I expect from an answer, but I understand the limit you have to answer such a question.
My other question is in relation to the appointments of new judges. According to University of Ottawa Law Professor Ms. Cairns Way, only one non-White judge has been appointed in the last two years in 94 appointments. Should we reflect on the fact that the bench has what I call a ``White male traditional profile'' instead of being based on the diversity of the profession and the capacity there is among the Canadian bar generally, be it gender representation or non-traditional Canadians that find their way on the bench? Are you concerned about that?
Ms. Wright: Because representatives of the Attorney General appear before the courts, we do not support the minister on the judicial appointments process. It's the Commissioner for Federal Judicial Affairs who plays that role.
Senator Joyal: I understand that, but you cannot wash your hands of what the judges' bench looks like in Canada because someone has to be responsible for drawing the attention of the department to how the bench is generally composed in Canada. I am concerned about that because the Canadian population has diversified, and there is more equality in the profession; that is, women are better represented in the school bar. I did not check the last figures in terms of representation, but from what I was able to see when I gave lectures in the law faculty, I had before me a larger number of women than men. I don't think that's what I see from the law profession. The fact is that you are two women here in relation to this issue. I bet that you would be concerned with the representation of women on the bench. From the judges I have seen exercising their profession, I never contested a decision on the basis that women are less able than men to render justice in this country. Are you not concerned about that?
Ms. Wright: I'm sure you can understand that I wouldn't be able to share personal views on the matter. In my role, coming as a representative of the minister and the department, it's outside the scope of what I can speak to today.
Senator McIntyre: Thank you both for your presentations.
As I understand it, the reason for the amendment to the Judges Act is because of an increase in the number of complicated, high-profile criminal and civil cases and also an increase in population, particularly in the case of Alberta.
I also note that other provinces, such as Ontario and B.C, have also experienced population growth. Have those provinces and other provinces made a request for additional judges?
Ms. McKinnon: No, there are no other outstanding requests at this time.
Senator McIntyre: Speaking of complicated and high-profile cases, do you know if any consideration will be given to choosing judges with specialized expertise in certain areas of the law, such as criminal and civil law?
Ms. Wright: As I already said, the appointments process is outside of our scope of work. There are judicial advisory committees that are supported by the Commissioner for Federal Judicial Affairs that help to provide recommendations to the minister, but we are not involved in that selection process.
Senator McIntyre: I understand that funds have been set aside for the creation of those six new judicial positions. I don't know if this amount covers other costs, such as benefits and pensions. In addition to the funds allocated for the creation of the new positions, will new courtroom space and staff be needed to accommodate and work with these new judges?
Ms. McKinnon: Responsibility for the administrative costs related to these new provincial superior trial court judges lies with the provinces, so, if any additional courtrooms, facilities, staff, et cetera, are required, the provincial governments would be paying for that.
Senator McIntyre: Provincial funding would be involved?
Ms. McKinnon: Exactly.
Senator Jaffer: I had some of the same questions that were asked earlier, but I understand that no request was made from B.C. Is that correct? I know you can't comment on the appointments, but I just want to know numbers. I understand there were 94 new appointments and just one non-White appointment of judges. Is that correct?
Ms. Wright: I'm afraid we don't have that information with us today, so I wouldn't be able to comment.
Senator Jaffer: May I please ask that you provide that for us? Could you also please provide to the clerk how many of those appointments were women, and how many visible minority judges there are in Canada?
Ms. McKinnon: We can provide information that the Office of the Commissioner for Federal Judicial Affairs has regarding the number of women judges, but they don't collect information on the number of other communities, including visible minority communities.
Senator Jaffer: If you can provide the women, I would appreciate that.
In your presentation you were saying that the trials have become complicated. We have views on why trials have become complicated, but that's not in your domain. Do you know how many people have had their trials dismissed because of lack of judges?
Ms. Wright: No, we don't have those statistics.
Senator Jaffer: Do you have statistics of how many cases have been dismissed because of length of time it has taken for the cases to be heard?
Ms. Wright: No.
Senator Jaffer: But you made that statement that trials have become complicated and people's cases are being dismissed. On what did you base that?
Ms. Wright: It's not a set of statistics that we keep ourselves in the federal Department of Justice. The information would be based on the information that comes to us from the provinces. The numbers of cases that would be dismissed because of delay is not necessarily a piece of information that would be given. We simply understand that if there aren't enough resources, those are the kinds of consequences that can follow from that.
Senator Jaffer: But you have no numbers?
Ms. Wright: No.
Senator Plett: While you're getting this information that Senator Jaffer is asking for, I'm wondering if you could, along with that, if there are the statistics, also let us know how many women — since that is clearly one of her concerns, as it was Senator Joyal's — have been asked to serve on the bench and have declined for various reasons. I know that in Manitoba that has been the case with at least a few, and I am wondering whether it's that maybe some of them are not seeking the positions as opposed to always people not wanting to have minorities serving. I'm not quite as pessimistic about those things as some others are, so if there are those statistics or, indeed, ones for other minorities, maybe you could give us that as well.
Along with that, maybe you can answer this question, and maybe you cannot: Senator Joyal seemed quite concerned about the fact that Quebec had asked for seven judges and you are suggesting four and that Alberta had asked for four and you are suggesting two. I wonder whether it isn't fairly common, whether there are numbers out there and how often provinces, when they don't have to foot the bill, ask for more than what is feasible when someone else is paying the bill. If those numbers out there, maybe you could give us that. I don't think you would have that today, but if there is that, you might be able to give us those numbers as well.
I'm wondering whether, in order to speed up the judicial system across the country, other measures are being taken as well as appointing more judges, such as possibly appointing more Crown attorneys. Is there any necessity for that, or do you believe that simply appointing more judges will lighten the work and make sure that we don't have backlogs? Again, speaking of Manitoba — and you are saying that no other provinces have asked for more judges — I know that there are certainly backlogs in Manitoba, as well, with a lot of issues. If they're not asking for more judges, maybe the backlog there is because they don't have Crown attorneys. Do you have any comment on that?
Ms. Wright: Certainly each province, having constitutional responsibility for the administration of justice, would take its own measures in terms of looking at efficiencies of court processes and what other resourcing they needed, whether it was Crown prosecutors or building more courtrooms to hold more hearings. Those would be very different across the country, depending on the jurisdiction.
Senator Plett: I'm not sure that that answers my question. Maybe it does. I mean, in Quebec and Alberta, we are saying that giving them six more judges will satisfy their problems. What is going to satisfy the problems of Manitoba? Building more courtrooms? Is that what you're suggesting?
Ms. Wright: I'm suggesting that every jurisdiction would look at its own needs and come to a decision as to how it was going to address problems such as backlogs in the courts.
Senator Batters: Thank you very much for appearing before us today. With respect to Senator Joyal's last line of questioning, I'm pleased to see women in such senior roles within the federal Department of Justice as the two of you are today.
Prior to my appointment to the Senate I was the justice minister's chief of staff in Saskatchewan, so I'm familiar with issue of court delays. It is an issue that we contended with in Saskatchewan, as many provinces do across the country.
To viewers — and maybe some on this committee are not aware of this — we are dealing here with federally appointed judges in superior courts in the provinces and not dealing with provincially appointed judges that are paid for by the provinces. Where provinces might have lengthy trial delays, perhaps part of that issue needs to be addressed by their particular provincial governments and the number of provincially appointed judges they have in the provincial courts. In Saskatchewan, those are typically the courts that deal with criminal cases at first instance, and in many cases they may only stay proceedings in those provincial courts.
In addition to that, could you address some other ways that provinces and justice departments across the country are trying to address trial delays other than appointing more judges?
Ms. McKinnon: I think the issue of access to justice and improving people's access to the courts and to other dispute resolution processes is a key question right now among judges, government officials, lawyers and other professionals who work within the justice system. There has been a focus on the support service side and on alternative dispute resolution process mechanisms that will allow litigants and families going through disputes to resolve problems more quickly and more effectively without ever having to appear in court, for example, on things like mediation services and counselling services.
There has been also some use of judges in judicial dispute resolution in some jurisdictions and work to connect organizations so that the legal side of the issues are also being connected with, for example, health sectors or housing. There is identification of the fact that there are clusters of issues that lead to people connecting with or intervening with the justice system. Among other things, the courts and legal professionals have recently been involved in a national action committee on access to justice which has resulted in a number of reports and recommendations that various organizations are looking at.
Many initiatives are under way that involve responses other than appointing more judges. That is one of the things we look at when jurisdictions submit proposals. Often they will provide a description of how they are trying to address the needs of their population without simply relying on additional judges.
Senator Batters: Perhaps you said this in your opening statement. If so, I missed it, and I just want to draw attention to it and have it on the record. How much was allocated in Budget 2014 for this particular measure?
Ms. McKinnon: The budget allocated $4.4 million over two years. It's approximately $3.29 million ongoing as an annual cost for the six judges.
Senator Batters: Thank you.
[Translation]
Senator Dagenais: Thank you very much, ladies. I would like to look at the financial component with you. We know that judges are paid salaries, but not just salaries; they are also granted social benefits.
Are the costs the same in all the provinces, or do they vary from province to province?
[English]
Ms. McKinnon: The cost of the federally appointed judges is the same for all jurisdictions. They receive the same salary and benefits. The administrative costs may vary, depending on what is provided by the provincial government.
[Translation]
Senator Dagenais: We know that, if we add judges, we will inevitably have to hire more bailiffs, clerks and court reporters, which will obviously increase costs.
Who has to pay the cost of office employees? Is it the provinces or the federal government? If the provinces have to pay those costs, were they consulted and did they agree to do so?
[English]
Ms. McKinnon: Yes, it is the provincial government that will pay those clerical costs. By passing their legislation, creating the new positions and indicating this to the federal government, the provinces have shown their support for the additional appointments. We would always only move forward in consultation with and with the agreement of a provincial government in these circumstances.
[Translation]
Senator Dagenais: So am I to understand that the federal government pays judges' salaries and social benefits and that the cost of judges' office employees is borne by the province?
[English]
Ms. McKinnon: That's correct.
Senator McInnis: My questions have been asked, but I want to offer this comment and then ask a question.
It's been nine years since I left the practice of law. I recall that on civil matters you could get before the court normally within a year to a year and a half. I was speaking with one of my partners recently and he told me on a civil matter it would be anywhere from three to four years. The justice system moves slowly.
When you're picking up these statistics, could you identify what backlog there actually is? If I could get it for the provinces — that is, if you have that available — it would be very helpful.
Ms. Wright: In terms of backlog, you're talking about an average time to get to trial?
Senator McInnis: Yes.
Ms. Wright: We will see what we can get.
The Chair: You talked about when a province makes an application and you mentioned that in Quebec it was seven, I think. They make that application and then provide you with a business case to justify the need for seven new judges. You then review that business case. There must be a template that is used by the provinces when they make this kind of submission. I'm curious: Does the business case include an analysis of the reasons for delay such as unproductive adjournments for court adjournments because a judge does not want to make a sentencing decision, or whatever it might be? Does that kind of analysis occur?
You then talked about feedback, and Senator Batters talked about improving the situation. Is that the kind of feedback you would provide the provinces? For example, we are seeing unnecessary adjournments; the judges themselves are not managing their courts as well as they should be — that sort of thing. Is that part of this process as well?
Ms. McKinnon: We don't actually have a template as such because, as I mentioned at the beginning, each jurisdiction is different in terms of the types of data they have available and the unique considerations, regional considerations and demographic considerations that may come into account.
There are basic questions that we usually ask, as Ms. Wright explained at the beginning, that ask for the trends in case volumes and the trends in delays. We would seek those types of information.
We are not working in the court system ourselves, so it's not our area of expertise to explain to the provincial courts or to the officials how they might best operate their systems. They know it best. However, they do provide information to us about the types of initiatives that they are working on to improve access to their courts.
The Chair: You don't do that kind of an in-depth assessment. How do you conclude four versus seven? I'm surprised you don't have a template.
Senator Baker: An observation first. I know it probably does not factor in, and that is the number of cases thrown out of court without determinations because it took an unreasonable period of time either to be brought to trial or to complete a trial. It would be fairly easy to do that analysis, simply by somebody looking at Westlaw, Carswell or Quicklaw at the end of every month and looking at every province — that's what some of us do in our spare time — and find out just how many each week have their cases thrown out and why and whether or not there's a need to standardize certain procedures. It probably can't be done because appeal courts have their own destiny in the provinces.
My question relating to your job is this: We have talked about the judges, and we're to assume that all of these pages here on salaries are not correct, and that we should add 10 or 15 per cent to their salaries in that every single judge in a superior court is making at least $300,000 a year right now, and the chief judges are making in excess of that, probably $330,000, and the Supreme Court of Canada has gone up to $380,000, something like that. Could you verify that?
Ms. McKinnon: I don't have the exact figures for all the judges you mentioned, but we can certainly verify the precise amounts for you.
Senator Baker: You do admit that what's in this legislation is incorrect, if we're just looking at the salaries of the judges, that it's much more than what's here?
Ms. McKinnon: That's correct, because section 25 of the Judges Act provides for the yearly indexing of the salaries. The amounts in the individual salaries provisions are not updated each time.
Senator Baker: The retirement age of the judge, you don't pay much attention to that because judges don't really have to retire if they have supernumerary status in the province. Have you done an analysis of the superior court judges who are working beyond the age of normal retirement and relieving some of the pressure in those provinces?
Ms. McKinnon: The judges are required to retire at age 75. Analysis can be done in each jurisdiction of the average age of retirement. I believe typically it's around age 71, but I can't give a definitive answer.
Senator Baker: But if you retire at that age, you can still come back and you can still receive the same salary, if your position is needed in the court. I presume that you continue to pay if the person is in the supernumerary category.
Ms. McKinnon: Yes, there is the option to elect to be a supernumerary judge, and you do not actually retire at that point; you remain a judge receiving a full salary.
Senator Baker: Forever?
Ms. McKinnon: Until age 75. That is once you have reached the rule for eligibility for retirement with a full annuity, which is having at least 15 years of service and your age adds up to 80. There are some other permutations.
Senator Baker: Same salary, $300,000?
Ms. McKinnon: You receive the full salary, correct.
Senator Baker: Those are called puisne judges; right?
Ms. McKinnon: Those are the supernumerary judges.
Senator Baker: They are in the puisne status?
Ms. McKinnon: Yes.
Senator Joyal: Could you table today the number of requests for additional judges you have received for each province, for instance, Newfoundland and Labrador, or my colleague Senator Plett from Manitoba, or Saskatchewan or B.C, my colleague Senator Jaffer? Could you give us how many additional judges each province has requested from you?
Ms. Wright: Going back how far in time? We don't have requests from any other provinces at this time.
Senator Joyal: For the last two or three years you have no additional requests from any other province?
Senator Baker: For additional positions.
Ms. McKinnon: No.
Senator Joyal: From any other province.
Ms. McKinnon: We can undertake to confirm that with you.
Senator Joyal: I would like to know that. I think it is fair information for us to have.
My other question is in relation to a question by Senator Dagenais. What are the incidental costs for a new judge in a superior court or appeal court, like the one in Alberta?
In other words, I follow up on Senator Plett because the federal government would foot the bill for the judge; but there are all the incidental costs — the secretary, the research staff, the clerk, the additional courtroom and the parking and everything related to that, because the administration of justice doesn't come only with paying the salary of the judge.
What is the average incidental cost of a judge's position that the provinces assume?
Ms. Wright: That's not information that we track, simply because it's a matter of provincial decision making.
Senator Joyal: I'll phrase my question differently. When a province requests a new position like seven judges — let's take Quebec — they certainly have an idea of how much those seven judges will cost because they will have to increase their justice budget by the number according to how much it costs.
It seems to be an important factor when a province requests a judge, because they have figured out all the incidental costs they will have to assume if they request that position and get it from the federal government.
It's not something that, for you, is prima facie proof that the province comes to a serious conclusion when they request a position?
Ms. Wright: As my colleague said, we would never be imposing the creation of new positions of judges on a province —
Senator Joyal: No, of course not.
Ms. Wright: — who had not come to a decision themselves that in terms of the associated administrative costs they could bear that within their budget. It would be fair to say that every request that comes in from a province is treated as a serious request. As I said before, all good faith and due consideration is given to the information that we're able to work with in order to support creating new positions.
Senator McInnis: Senator Baker dealt with the matter of supernumerary, and he dealt with it very well. I'm not sure if he asked how many judges have gone supernumerary. It's important because these judges are used for specialized cases, but it's partially retirement. I'd like to know how many have done that, because it would have an effect on the budget.
Ms. Wright: With respect to the two jurisdictions that we're talking about, in Alberta I believe the current number is 18 supernumerary judges on the Court of Queen's Bench, and on the Superior Court of Quebec I think there are 49.
Senator Joyal: On the overall number of?
Ms. McKinnon: There are 144.
Senator McInnis: We don't have that privilege as senators, do we?
Senator McIntyre: Bill C-31 is amending the Judges Act. As I understand, it is not necessary to amend the Judges Act every time a Federal Court judge is appointed. However, the federal legislation must be amended when there is an increase in the number of judges to be appointed on provincial courts. Is this correct?
Ms. Wright: If there was to be an increase in the number of judges, the Judges Act would need to be amended in order to provide a statutory source of authority for the funds to flow for the compensation for the judge.
If there are pre-existing spaces that are open, to which an appointment is to be made, for which there was already a statutory source of funds, then you're correct that no amendment needs to be made. It's only when the province is asking to increase, overall, the number of judges.
Senator McIntyre: Increase in numbers.
Ms. Wright: Yes.
Senator Joyal: I would like to come back to the point raised by Senator Runciman, who followed up on the one that I raised myself, which is the criteria that you apply. Senator Runciman has used the word ``template,'' but my phraseology is the same. What are the criteria that you apply to evaluate a request from a province whereby that province will have to assume costs with a new judge? I mentioned incidental costs, and in my opinion incidental costs are probably higher than the salary of the judge in question.
When a province requests a judge, a province has made a serious evaluation because it has budgetary implications, and they are the ones responsible for the administration of justice. As Senator Baker and other senators have mentioned, if a case is set aside on the basis that it is an abuse of the length of time before a citizen receives a fair trial or has access to court, at face value, I would give a lot of credibility to the request of that province. What are, again, the criteria that you apply to refuse, set aside or cut by half, in the case of Alberta and Quebec, the number of justices that they requested? What are those criteria? Could you clearly state them? You are the one who analyzes those requests, so you should know. You should have certainly said, as my colleague Senator Baker said, ``There are so many delays or cases that have been set aside or there are too many supernumerary judges; they should work.'' Then, another check. Then, you could check and say, ``They have not put into place enough arbitration procedures to hasten the civil law cases.'' Another check. I could list a lot of criteria to evaluate a request, and I'm not the one who does that on a daily basis. Could you tell us what those criteria are? I think we want to listen to them to make sure that it is a fair analysis.
Ms. Wright: The criteria would relate to things such as volume of cases. How many cases are going in and how many are going out? They compare in-coming cases against the inventory — so the cases not getting out of the system — to see if we're seeing an increase there. It would be looking at, for example, the number of sitting days required in order to process certain kinds of cases, so that's all on the pressure on the system.
On the supply side, the things that would be looked at would be issues such as the capacity of the supernumerary judges in the system. How many sitting days per judge are feasible, and what numbers of hours are judges sitting in the case?
It will vary a lot from jurisdiction to jurisdiction, based on what information they actually track in their systems that they can then provide to us because that's not standardized across the country.
Senator Joyal: I can understand that, but you have certainly standardized the information you would be seeking to come to a conclusion because any province could request to you, at any point in time, an additional number of judges. It seems to me that if you want to be respectful of the process, you would have those criteria quite well defined. Sometimes, maybe, a province doesn't provide you with enough information on the basis of the criteria that you have, and I bet that, in all fairness, in that context, you will contact the province and say that you need additional information in relation to this aspect or that aspect or that the province doesn't meet, for instance, the threshold of the amount of supernumerary judges that are not working enough. So there is a dialogue between you and the provincial justice department to come to some fair conclusion accepted on both sides. It seems to me to be the logical system, unless I misread what's going on.
Ms. Wright: We certainly have a very cooperative working relationship, both with officials in provincial governments responsible for courts administration and the officials in the courts who are collecting this kind of data. I think it's a very positive working arrangement on both sides. It certainly is a process of back and forth in terms of being able to get the information, and we do the best we can with what we can agree on.
The Chair: We've exhausted our time. We appreciate your appearance here today and your contribution to our deliberations.
For our second panel today I would like to introduce, from the Canadian Bar Association, Fred Headon, President; and Tamra Thomson, Director, Legislation and Law Reform.
Ms. Thomson, you're leading off, I understand, so please proceed.
Tamra Thomson, Director, Legislation and Law Reform, Canadian Bar Association: In fact, Mr. Headon will be making the statement this afternoon.
Fred Headon, President, Canadian Bar Association: Thank you for inviting us to participate in these deliberations.
It is nice to have had a chance to chat with some of you who are familiar with our work. I am delighted to be with you today in my capacity as president of the Canadian Bar Association and to be assisted, as the chair just mentioned, by Tamra Thomson, our director of legislation and law reform.
As you may know, the Canadian Bar Association is a professional association, a volunteer association made up of approximately 37,000 members across this country. Our mandate includes upholding the rule of law and seeking improvements to the administration of justice. It is from this perspective that we speak to you today in support of the proposed amendments to the Judges Act that are contained in Bill C-31. These amendments, as you are well aware, seek to increase the number of judges in the superior courts of Alberta and Quebec.
I prepared a few remarks to give you some context into why we support this bill, and I look forward to questions after.
At the cornerstone of our submission is what we believe to be an important principle: A functioning court system is a cornerstone of our democracy. We need an adequate number of judges to ensure a functioning system and access to justice unfettered by undue delay. The appointment of judges to the superior courts is a constitutional responsibility, as the previous witnesses explained, of this government, our federal government.
[Translation]
I assume you received our letter on the provisions we are discussing today in light of the facts and of the CBA's commitment to a functional judicial system and proper access to justice. Last year, we concluded that the demands of Alberta and Quebec were reasonable and urgent, and we urged the government to take action. We were pleased to see the changes set out in the budget. Those changes will increase the number of judges assigned to the superior courts from 140 to 144 in Quebec and from 55 to 57 in Alberta, which is consistent with the convincing analysis presented by the provincial governments seeking additional judges to guarantee the sound administration of justice.
[English]
The Alberta government made a business case in 2008 for four additional judges; Quebec has made a case for seven additional judges. While the increases in Bill C-31 fall short of these requests, the CBA believes they are a step in the right direction.
Alberta has the lowest number of superior court judges per capita in the country, and this despite the remarkable population growth that province has experienced, which has effectively outstripped the capacity of their judges to serve the needs of judicial dispute resolution. The last increase to the number of judges in Alberta was by one judge, in 1996. If we are talking about 55 judges, that is approximately a 2 per cent increase. Since 1996, however, the population of Alberta has increased by some 36 per cent. The cases in the Court of Queen's Bench of Alberta have dramatically increased, and the number of self-represented litigants has also dramatically increased in Alberta, as elsewhere, requiring substantially more time and court resources.
[Translation]
In 2012, Quebec's National Assembly amended the Courts of Justice Act to create additional positions on the Superior Court bench. Those new positions are essential in guaranteeing the sound administration of justice. When the requirements imposed on judges to assist in resolving disputes exceed their capacity, delays are considerably extended, particularly in the courts in the criminal system.
Last year, the Alberta Court of Queen's Bench informed the Minister of Justice of that province that it would be forced to reduce or cancel certain services in 2014 and to perform only the basic duties in accordance with a minimum standard as a result of the inadequate number of judges for that court.
[English]
Unreasonable delay, as you discussed in your earlier session this afternoon, infringes the Charter right to be tried in a reasonable time. While the outcome may look the same, at least when the trial actually happens, a delayed decision tends to degrade the quality of justice. The party's position or personal safety can be compromised, and the damage from that can be irreparable. Unsolved legal problems often result in escalating difficulties in the litigant's life at significant individual and social cost. Inadequate access to justice as a result of an inadequate number of judges imposes heavy costs not just on the individual but on society as a whole.
Last year the CBA issued a comprehensive report on equal justice in Canada. Along with wide-ranging targets to facilitate everyday justice and reinvent the delivery of legal services, the report made the case to transform formal justice. Justice remains very much a cherished public good. Courts and impartial judges are essential to our public justice system and to democracy itself.
[Translation]
The Canadian judicial system has been deprived of the resources it needs to guarantee that disputes are settled without excessive delay. The following figures clearly illustrate my remarks: the government's overall health expenditures are approximately 40 times greater than those incurred in respect of justice; and federal and provincial spending on health and education are generally stable or slightly rising these days, whereas justice spending has not changed and is even declining over the years.
[English]
The CBA believes the courts should be re-centred within the court system and resourced to provide tailored public dispute resolution services with effective triage and referral processes. We hope all governments and stakeholders, including the CBA, will work in partnership in reaching this goal. For these reasons we, encourage this committee to support the proposed amendments to the Judges Act contained in Bill C-31.
With those comments, Mr. Chair, I would be pleased to answer any questions the committee may have.
Senator Baker: Thank you to the witnesses, and thank you for your very excellent presentation, as always, from the Canadian Bar Association.
I suppose my major concern — and, I'm sure, that of most of the senators around the table — is, as the Minister of Finance pointed out in introducing these sections in the budget speech, that measures be taken to prevent somebody from just being released from custody simply because the trial has taken too long, or it's taken too long to arrive at the point of the beginning of a trial.
As you say, that originates from 11(b) of the Charter. The case law involves a familiar case to you called Askov, an Askov application. The Supreme Court of Canada laid down the procedures and the timelines in a case called Morin. It was specifically spelled out in that case that it should take eight to ten months in a provincial court from plea to when it gets to trial, and then another seven or eight months in superior court, and so on. There's a formula worked out that every single superior court in this nation and every appeal court has passed judgment on, and that's what they use as a standard formula. The judge is required to look at institutional delay, whether the defence caused the delay, the Crown cause the delay or the police caused the delay. However, more often than not in recent readings, it's institutional and systemic delays for which the case against a person against whom all the evidence is there for an indictable offence, including sexual assault cases, drug cases, assault cases causing disfigurement, and so on, is just thrown out.
You're suggesting that beyond this requirement for additional judges, there can be other things we can do in Canada to prevent such delays from taking place. Could you particularize that as to what you had in your mind and what the Canadian Bar Association stands for? I understand you put out a very big public document recently outlining this.
Mr. Headon: Indeed we did. We can share copies of that report with this committee. It comes in two forms: a very thick, lengthy one that you pointed to, and a summary form that is a little more manageable. I commend them both to you because we have spent a fair bit of time thinking about this issue and looking for ways to propose practical solutions that will help speed up the delivery of justice by the courts in our country.
We believe profoundly that courts need to be at the centre of the dispute of what are essentially legal disputes. If, however, the courts are not able to provide a resolution to the dispute, in that sense there may be two important points: One, they need to be able to provide a holistic solution. We heard from people who said to us, when we were out consulting on this, ``But I came to the court and it just didn't solve the whole problem.'' They are perplexed; their lives have not substantially changed. We need to work with other stakeholders in their lives to help provide the support and resolution they need.
We also need to respond to the ever-increasing pace of society. Everything in people's lives is picking up the pace. Even the guidelines you mentioned in your question in terms of proceedings in a criminal case probably sound fairly long to most of our citizens these days. They can appreciate that there is an element of what we do when we are talking about courts and justice that is human, unpredictable and hard to pin down. At the same time, they are asking themselves, ``Why can't we find ways to make the delivery of justice more efficient and realized more quickly?''
The extreme cases you pointed to are troubling for all of us when in a criminal context that may result in the trial going completely unheard. It's a principle of our criminal justice system that people should not have to wait too long, and there are reasons for that. It is a balancing, but it still leaves a very troubling situation for all concerned.
In Reaching Equal Justice Report: An Invitation to Envision and Act, ``re-centring'' is the term we have used: a re- centring of the courts within society. We want to think about ways to help the judicial system deliver its services that better resonate with the expectations of Canadians.
Examples could include conceiving that there may be multiple ways for the case to work through the courts. Today everything seems to go through one funnel, following the same procedure either on the civil side or the criminal side.
Senator Baker: Rules of court.
Mr. Headon: What if we allowed for more diversity in there? What if we allowed for the nature of the dispute to influence how it gets handled by the courts? Of course recognizing and protecting those fundamental safeguards, but allowing for there to be different paths to justice that are tailored to the kind of needs and expectations of the people in front of them.
We could enhance the role of case management, getting the parties to engage more fully before the hearing around what matters could be resolved in advance, engaging in further efforts of judicial mediation by bringing into the discussion a judge who brings weight to that discussion, and having them engage with the parties more fully to see if there aren't things we could resolve by agreement, without having to put evidence and argument and objections that bring a burden to the court.
There could be further specialization of the courts and simplification of the proceedings themselves, and greater room for others in their lives, which is a comment I made a moment ago. Is there perhaps a greater role for the health system, particularly the mental health system, in all of this? We know legal problems do not arise in a vacuum; they arise because of other things going on in people's lives. If we do not address them, those problems get worse. We know on the legal side that when they get worse, that tends to have a consequential effect on other parts of one's life. You can imagine if someone is owed money, it gets to the point they lose their house, and now we have a homeless situation to deal with. These things can cascade. Let's work with others and bring them in to provide a more holistic solution.
Senator McIntyre: In the two-page memo dated May 5, and in your oral presentation, you refer to the CBA's recent equal justice report, an extensive study of access to justice in Canada. The memo goes on to say that you look forward to working with all stakeholders in the justice system.
Does the definition of ``stakeholders'' include the chief judge of a superior court? I hope it does, and I'll tell you why. In my view and experience as a 35-year solicitor in the courtrooms of New Brunswick, I found that the chief judge of the Superior Court plays a crucial role. He acts as a pillar in this huge judicial architecture.
He plays an important role in setting the judicial agenda for each jurisdiction and in doing follow-ups, which I find is very important, with the presiding judges in order to ensure that judges assigned to hear cases conduct hearings in a speedy and timely fashion; otherwise, failure to do so will result in a significant amount of delays in setting matters down for trial, a backlog, and in cases not being heard in a timely fashion.
What are your views on that?
Mr. Headon: We would be delighted to work with the chief justices. We believe they are central in all of this. We have been encouraged by the appointment of Justice Cromwell by the Supreme Court to lead the inquiry that he did similarly looking at equal access to justice. We worked closely with his committee, and we look forward to continuing to work with the chief justices, the lawyers who appear before the courts, the court administrators. I agree with your remarks about the perspective the chief justices will have on the proceedings, the understanding of how those unfold, and also the leadership they can bring to potential solutions we might be talking about.
In terms of perspective, I would underline one point I found to be very compelling when I read the report. I didn't serve on this committee; I had the pleasure of presenting it to folks as we moved around the country. But the committee spoke of the importance of using targets and data and being able to measure our progress against those targets. I bring that back to the chief justices because they are the ones who would have, in their courthouses, the data we need.
Today we don't necessarily compile all that data. It is the view of the CBA that we do a poor job of collecting data about the court and legal systems generally; and it is one thing we underline as a necessity as we move forward in helping solve the challenges of equal justice in this country — that we have at our fingertips data that we can explain where the problems lie in terms that those whom you may work with in a setting such as this, for example, who are not lawyers, can understand.
It's very important that we use the kind of language used in business, government and society to convey what it is that we're trying to address. The chief justices will be central to our ability to do that.
Senator McIntyre: If a case is not moving ahead rapidly, you can't call a judge and tell him what to do, but the chief judge can intervene and instruct his judge to move along. Unfortunately, I find in some provinces there is a lack in that respect.
Senator Jaffer: If I can continue with what Senator McIntyre was saying, the chief justice has an administrative role to see how courts are functioning, who the judges are that will join them. That's part of their role, is it not?
Mr. Headon: Yes.
Senator Jaffer: You were speaking about a functioning court system, which for me means meeting resources for the judges to do their work, including courthouses.
The work of judges has become very complicated these days, and that's probably why we need more judges. So many people are self-represented, and the Canadian Bar Association has done a lot of work on access to justice. Can you address the issue that part of the problem is the self-representation and the problems that exist for Canadians with self-representation?
Mr. Headon: It would be my pleasure. It is a very serious problem. It is one that is of concern to us all because it has consequences for the functioning of the courts, most certainly. It has consequences in the form of delay. Often, a self- represented litigant will not know the rules of court. They may not know how to find their way through the courtroom. They may not be familiar with the rules of evidence that will be applied by the court.
It's been the experience of many of us. I've certainly in my career seen this, and I think it's quite proper that, when faced with a self-represented litigant, the decision maker, who could be a judge or administrative tribunals, will take time and care to make sure that that individual has an opportunity to understand what is going on and present their case as best they can. We want to be fair in the proceedings. However, that takes time. In some cases, that can take a lot of time, and that's when it starts to become a real problem for the courts in that it slows down the flow of the work and can lead to the kinds of backlogs that underlie the provisions of Bill C-31 that we're looking at today.
It also has another consequence, though, which is that, for the lawyers involved, when there are lawyers involved for at least one party and a self-represented litigant elsewhere in the proceeding, it's an extra burden on the parties. It's an extra cost to the other party to have to show up repeatedly, for example, if the hearing takes a longer time. It can slow down the resolution for that party as well. There are a number of consequences that flow from this. We have heard, through our various branches across the country, astounding numbers in terms of the percentage of litigants appearing before the courts in this country not represented by counsel. Often people tend, I think quite unfairly, to paint lawyers with a brush that suggests that we are the cause of much of that delay. In fact, what we are seeing from the rise in the number of self-represented litigants in this country, lawyers know the rules and are able to help move things along. If you had greater opportunity for the chief justices, for example, to assign case management and help to move the case along, we might do more in that vein. In fact, things tend to take longer when the lawyers are not involved because of that lack of knowledge that tends to clog things up.
Senator Jaffer: Senator McIntyre was talking about specialized judges. My real concern is with family court, where there are difficult situations with custody and self-representation, and there is very inadequate legal aid. With the way the criminal legislation is going, the first chance is given to a person who has criminal charges against them, so there is very little left for family law. Where are the resources left for families who are trying to resolve their issues? That's a big concern. How is the Canadian Bar Association looking at addressing or looking at these issues? The reason I ask you all of these questions is that it is a given that you are accepting what the minister has proposed, so we now have an opportunity to hear from you, as president, as to how you are addressing the issues around family law.
Mr. Headon: Family law is a particular challenge and one that I think may serve as a nice example for the point I was trying to make earlier about the need for a holistic solution. When a family breaks down like that, as we all well know, there are many consequences. They are of a very different nature quite often. The Canadian Bar Association has, within our members, a number who are involved in collaborative family law efforts as one way to help address those issues. We have also been very supportive of calls in various provinces for a unified court system to deal with that. In Nova Scotia, among others, when I was there this year and had the pleasure of meeting with members of the bar and the judiciary, that was a message we heard loud and clear at the national level. It is one that our branch is very supportive of, as are we.
Legal aid, however, is a matter that is acute, certainly, in the family law domain but also one that is of concern much more generally. We are of the view that it has been underfunded for some time. Most of the resources, as we also notice, tend to find their way to the criminal cases, which, of course, are very serious and deserving, but more is required because we are not in a position yet where the needs of those who cannot afford legal representation are being met.
[Translation]
Senator Boisvenu: Thank you very much for your presentation, madam, sir. I am relatively pessimistic that these judicial appointments can resolve the issues regarding delays. I am thinking, for example, of the health system, in which we have invested billions and where delays in urgent cases have never been as long. There is something wrong in the justice system that has filled it with red tape. In any case, I am thinking of the victims. I saw the delays involved in hearing a sexual assault case in Quebec, the five-year delays between the filing of a complaint and the trial, the four- year delays in impaired driving cases and the three-year delays in murder cases.
When you look at the reasons for delays, it is the defence that requests continuances in the majority of cases. I know of one case involving a woman who was raped, and the defence requested a continuance 39 times — 39 times! I say to myself, yes, criminals are well protected by the Charter of Rights and Freedoms, and delays often favour them. Delays favour them in two ways: in many cases, detention time pending pre-sentence reports counts for twice or three times actual time served; we have seen it. In many cases, unreasonable delays result in decisions whereby people are released, as in the case of Judge Brunton, who released 31 Hells Angels members charged with murder.
I would like you to explain to me how the addition of four judges in Quebec will help victims so that they can have trials within a reasonable time?
Criminals are released because they cannot be tried in a reasonable time, but no one looks at what is reasonable for victims. How can anyone say that will solve certain problems when there is an obvious lack of discipline in the criminal system, if you compare the situation with that of the civil courts, where there is more discipline in managing delays? In the criminal system, it is as though increasing delays is part of the game.
Mr. Headon: With regard to the specific question as to what two or four more judges can do, I think that each additional judge is a step in the right direction. This is not enough, I agree, but the workload of these judges — sitting judges in Quebec and Alberta — clearly exceeds the capacity of judges already sitting on the superior court benches of those two provinces. More judges are needed to lighten the load. This is a step in the right direction, and it has to be noted at the outset that this is how we perceive the situation.
We would have preferred to have the four or seven judges requested by the provinces appointed. However, we think we have to support the measures proposed by the government to appoint at least the two or four judges who are proposed. This is not enough. I believe we could do more with regard to the number of judges. However, perhaps we can learn a lesson from the medical system and explore what we could do to change the way the courts operate so that they are more efficient, so that hearings are held within a shorter period of time and so that we can have the feeling that justice has been rendered more efficiently.
Senator Boisvenu: For example, should we not make judicial appointments subject to criteria that would be set for the defence and the Crown — but often for the defence — regarding what is a reasonable number of continuances?
Last week I saw there was an impaired driving case in which the hearing had been postponed 19 times and the repeat offender had reoffended some 20 times. That is why I say I am relatively pessimistic that 4 judges will be added to the 144. I am afraid we are wasting these appointments in a system that must be reworked, that must be reviewed to make the administration of justice efficient.
Mr. Headon: I think that codes of procedure, which are the legal basis on which continuances are requested, are a matter that concerns several governments. This is an issue that will require a broader reform than the one we are discussing today, but it is a reform that should be considered.
I am not familiar with the specific cases you cited. However, I can imagine that they may involve resource issues. If, for example, the Crown does not have the resources to do its part to disclose evidence, that may delay the trial, and the defence has a right to have access to the evidence. There could be many reasons for that, but I am not in a position to discuss all the specific cases you cite. We agree we need a system that does a better job of meeting the expectations of the victims, the accused and society at large.
Senator Joyal: Welcome, Ms. Thomson and Mr. Headon.
I must tell you candidly that I am a bit surprised at your reaction to the decision by the Department of Justice to cut the demands of Quebec and Alberta in two.
Like you, I believed that, if the chief judge of a province concludes that, having regard to the day-to-day management for which he is responsible, he requires a certain number of additional judges, a very large amount of evidence will be required to reach the finding that his conclusion is incorrect. As Senator Boisvenu said, delays also hurt victims, who want to have done with the matter, to turn the page and to move on to something else. That is part of the normal process of psychological healing that a person who deals with the justice system and who is not a justice professional must be able to count on.
I think your comment is both positive and negative in a way. You are saying, ``Thank you very much; this is very good; we will take it and move on to the next thing.'' I believe, on the contrary, that there are enormous questions about the system that must be answered. When you look at the number of people who represent themselves, I can tell you — and I am going to talk about the rope in the house of the hanging victim — that one of the reasons for that is that lawyers' fees are exorbitant. I can tell you that, for people who do not qualify for legal aid because they earn a certain level of income, not everyone can afford to carry on a legal proceeding.
I am emerging from a Supreme Court proceeding for which I personally paid the costs, and I wondered how an average individual could afford to appear before the Supreme Court if he did not have an above-average income. That should not be the case. In those circumstances, people decide to represent themselves if they want to follow through with the process.
I also think that lawyers have to search their conscience. Pardon me for telling you — I am a lawyer myself; I am a member of the bar — but that is part of the system, and you must not be afraid to say it.
However, getting back to the basic problem before us, let us consider the example of a judge on a superior court, such as that of Quebec, which is facing mega-trials following organized crime investigations and will probably have to conduct multiple trials once the Charbonneau Commission has completed its hearings, which should end this year.
Those trials, which will be closely followed by professional lawyers paid very large salaries, will very likely monopolize resources, thus, in the meantime, crowding out cases that are perhaps less urgent or that attract less media coverage.
So there is this question in the present system. I would be inclined to give the benefit of the doubt to requests from Quebec's Minister of Justice, who essentially bases his conclusions on the reports he receives from the chief justices of Quebec's superior courts, before you tell them, ``We will take that and call you back in a few years to ask you for more.''
I am talking to you here as a lawyer. I feel uncomfortable with the situation that we are facing and that you seem to accept as though it were business as usual.
Mr. Headon: If that is how this has been perceived, I thank you for the opportunity to clarify the matter. We are obviously thankful for the two and four judges. That is a step in the right direction, but it is only a step. Other steps must follow, in the Canadian Bar Association's view.
We also do not know what criteria the department used to conclude that two and four judges were enough.
However, our members' representatives debated the question at a meeting of our council. Our council is the body of delegates that adopts the official position of the Canadian Bar Association. The resolution in which we requested that the federal government appoint the four and seven judges requested by the provinces was clear. That is our official position. However, faced with a bill that offers us two and four judges, we will accept them, but that is definitely not enough. We are not moving on to something else; we will monitor the file closely. We think the government should take seriously the analysis by the chief justices and the provinces of Alberta and Quebec.
I also think there are other things we could do. We talked about some solutions in response to the question your colleague Senator Baker asked, and subsequently with others as well, but the part of your question concerning lawyers' responsibility for the problem of the costs associated with the legal system is a question we are also considering.
We are currently conducting two top-priority projects simultaneously. The first concerns access to justice, which I just spoke about, but the questions that arise in relation to access to justice involve several parties, including lawyers. However, as president, I am quite pleased to be able to say that lawyers are considering these questions on their own.
The second top-priority project concerns the future of the legal profession in Canada. We are asking lawyers to think about their clients' expectations. We have conducted research on what clients expect. No one in the room today will be surprised to learn that clients would like to pay less for legal services.
Through recommendations that we will submit when we present our response at the Canadian Bar Association's annual conference in August, we are encouraging our members to think about solutions that can both lower the cost of legal services in Canada and respond more effectively to expectations regarding the form those services should take.
For instance, we have heard clients say that they want to play a more active role. These are part of a very broad process of reflection. Perhaps I can tell you about that later because we have now exceeded our allotted speaking time today, but I can assure you that our members are aware of the role that costs play and that the association will be helping them find ways to lower them.
[English]
The Chair: I am sorry, but that took up a big chunk of time. Speaking about time, Senator Dagenais is next.
[Translation]
Senator Dagenais: Thank you, Ms. Thomson and Mr. Headon.
I would like to go back to the criteria for appointing judges to the Superior Court, and I will submit to you a few on which I would like to hear your comments.
I think that, when a judge is appointed to the Superior Court, the demographic composition and diversity of the society in which that judge lives should be taken into account. That should be one of the criteria. I also think that race, gender, language and even age should be considered.
I sat on the judicial appointments committee for three years. When you appoint a judge in a region of Quebec, for example, you have to consider the fact that he or she may have to judge anglophones and francophones and must therefore be bilingual.
I would like you to talk about the criteria I just cited and to inform us of any others that you, as president of the Canadian Bar Association, would have to add to the list.
Mr. Headon: The Canadian Bar Association's position on this matter is that the demographic profile of judges in Canada should be the subject of a more comprehensive process of reflection in society.
We have already been concerned for some time about the lack of diversity on the bench across the country, for the reasons you expressed — the ability to communicate in both languages, for example — but also to reassure the public that all perspectives are being heard and understood. This is an important gesture on our part, the aim of which is to inspire our fellow citizens' trust in the judicial system.
For example, to help with the situation, we have asked that more data be available for the purpose of conducting these analyses. You heard the answers of the witnesses who preceded me today, who said we have too little data on judges currently being appointed. We propose to follow the example of British Columbia, which now requests and gathers all kinds of data on people at the stage where they apply to become judges and on judges actually appointed.
At that point, we would be in a better position to know whether we have progressed or regressed, as the case may be, so that we can determine at what points the system is being prevented from appointing a number of judges that reflects the diversity of the general population.
[English]
Senator McInnis: You alluded to the unified family court in Nova Scotia, and I suggest that when you are next talking to LouAnn Chiasson that you tell her to step up her game — she will know what I mean — because it's an unfair situation.
The provinces in the court system are the ones that commence and pretty much control the request for judges. You mentioned that health and education increased 40 per cent. With justice versus health and education, I can tell you, from a public and practical and political point of view, health and education win out. They normally take, in Nova Scotia as an example, upwards of 70 to 75 per cent of the global budget.
There has to be a better sales job. There must be more public awareness of the import of our justice system. It's not there. It will be a real challenge to get it there. My suggestion or request is — and perhaps you do this on a regular basis; certainly the local bar societies do because there's normally a meeting of the justices and the bar society and the Minister of Justice. More pressure has to be brought to bear on the provincial justices in order to bring some kind of rectification to this.
They are fighting an uphill battle, budgets are limited, but it is important we hear today about the backlog; and it will never change unless people become more aware of the dilemma we are confronted with on a daily basis in our court system. You can comment, but that's just my opinion.
Mr. Headon: Thank you very much, senator. You may be encouraged by some of the work we have done in that regard. We have noticed as well that the kinds of terms we might have used in the past to suggest why the state needs to properly fund justice don't quite resonate.
I have been long with some of the answers, but when you look at some of those grand old courthouses, you can imagine, this is what we used to do with public funds. You think now of the state of some of our courthouses, and it is appalling, and we are not investing in technology like we should to speed things along.
The solution is going to be to take the input of all the stakeholders. One of the things I have asked our members to do when they're meeting with the likes of you, members of Parliament, members of the provincial assemblies and officials, is to embrace the language those people use, communicate this to them, bring to them data that we've collected — for example, studies that have shown in the Western world that for every $1 spent on the legal system, we save $6 elsewhere in the public finances because of the effect of all these things, and that we change the conversation, which is what the equal justice report is about, to help find a way to catch up to the funding we think is appropriate.
Just to conclude, my reference was that it was 40 times, which takes us to the figure you were using; 40 times the money is spent on those as on the justice portfolios.
Senator Batters: Thank you very much for coming here today. I wanted to address a couple of points in reference to a couple of questions that my colleague Senator Joyal asked.
First of all, I wanted you to clarify that these requests that were received from these two provinces, they don't come from the chief justices of the courts but from the provincial departments of justice; correct?
Mr. Headon: That's my understanding, yes.
Senator Batters: The criminal cases we're talking about here, and those that may potentially be dismissed because of trial delay, these are criminal cases with these federally appointed judges that we're talking about that are going to superior courts in the province, not the lower courts, which deal with the vast majority of criminal cases that come forward in provinces; correct?
Mr. Headon: I believe the delays are happening in both courts.
Senator Batters: Definitely they are, but these judges that we are dealing with here as part of the Government of Canada's efforts to support this solution are just dealing with those superior courts of the provinces, and we don't have anything to do with the provincially supported courts, which deal with the vast majority of criminal cases; correct?
Mr. Headon: That is correct, yes.
Senator Batters: Dealing with trial delay in the criminal courts, because of the vast report you just did, which I haven't had an opportunity to look at, but I'll be happy to do that, could you describe for us some ways that are already being used to address trial delays, other than appointing more judges?
I'm sure you heard about a number of different case management innovations in various provinces that they're using. Could you describe a few of those?
Mr. Headon: Case management is the one that perhaps has been around the longest. We are seeing more attempts at mediation. We are seeing attempts at judges getting involved in that and not just professional mediators. Both of them have skill sets that are helpful, but we have seen a rise in the number of judges who will do that.
I was intrigued that Chief Justice Rolland of the Quebec Superior Court pointed out that it has not reduced the number of cases that go to trial; so there is something about bringing in the judges, and they are being asked to do this, but it is not having the desired effect.
We are optimistic that technology could assist with this. If parties were able to exchange things online with the court more readily, if things were able to be presented more quickly through technology, those are paths worth exploring as a way to find an efficient, cost-effective way to speed things up in addition to more judges.
Senator Batters: I know in Saskatchewan they use video conferencing for remote points in northern Saskatchewan as a way to help out with costs and timeliness.
[Translation]
Senator Rivest: I would like to speak further to the questions asked by Senators Joyal and Boisvenu on the subject of delays. I suppose the Canadian Bar Association is interested in the issue in a way that goes beyond the specific responsibility of lawyers. The fact remains that a lot of factors cause delays and stem from the very administration of justice and other stakeholders.
Since this is essentially the responsibility of the provinces, I imagine that the pace and concerns vary from province to province. Are your provincial sections taking action on this matter in the field? That would be my first question.
My second question concerns the selection of judges. They are appointed by the ministers or the government, the bar and various associations. There are selection committees in Quebec. You know that we have a system and that there was a problem with one action but that there are a lot of other factors. Is the bar generally satisfied with the framework or services that are provided to ministers preparing to make appointments so that, first, they can appoint a sufficient number of judges to meet needs and, second, they can appoint the right people?
Mr. Headon: With your permission, I will start with your second question. There is indeed a process, and we often sit on those committees. As in any process, there are ways to make improvements. For example, we recently proposed that there be greater diversity on the committees that examine the issue of diversity in judicial appointments. There may also be greater diversity among the people who assess applications.
I think there may be other ways to increase diversity on the bench. As to your first question concerning delays. . .
Senator Rivest: You could also make suggestions for appointing judges to the Supreme Court.
Mr. Headon: Perhaps we could talk about that another time. Many of our members in the field are involved in the issue of delays. We have legal sections examining civil and criminal cases at several levels. The association has representatives who sit on various committees with the judges to discuss problems experienced on both sides and to find solutions so that the system operates more efficiently. In some instances, they are prepared to test pilot projects and so on.
Our members are involved and have a very practical perspective on issues pertaining to delays in the field.
[English]
The Chair: Three senators have indicated that they would like to ask an additional question. We have a few minutes left. I would encourage them to have brief questions and comparable responses, and we will try to get them all in.
Senator Baker: Very briefly, on a point raised by Senator Batters that these delays are primarily caused in provincial courts, when somebody's charged with an indictable offence, they have a choice: provincial court, Superior Court judge alone or Superior Court judge with a jury. All appeals from the provincial court are handled by the Superior Court, and all appeals from there are handled by the Court of Appeal. Sometimes, you can go directly to the Supreme Court of Canada. If you look at the case law — and I know I have with regard to Saskatchewan in the past six months — the Court of Appeal of Saskatchewan has approved two cases in which charges have been thrown out for very serious indictable offences, so I don't think we can say that it would be primarily the fault of the provincial court level. I don't know if you want to comment on that. I guess you would agree that, in civil law, where you have a great deal of experience in labour law, if you appear before a civil court with a cause, if you don't win, you have to pay costs.
Mr. Headon: That tends to be the rule, senator; however, we have seen some reforms recently that are changing even that and eliminating the costs.
Senator Jaffer: I understand your membership is 37,000, and it has changed substantially. You have a larger number of women and people from diverse communities. What are you doing to make the bench more diverse? It is certainly not as diverse as your membership is.
Mr. Headon: We have done a number of things within the association to increase the level of diversity, and it remains a priority that my board will be looking at again in our meeting in June. We have also created a number of toolkits, as we call them, to help law firms increase the level of diversity within the firm, which, I think, will then produce —
Senator Jaffer: No, I'm talking about within the judges.
Mr. Headon: It will produce a pool of candidates that are qualified, experienced and ready to take on the role of judges, building toward that point in the process. We have also over the years called, on a number of occasions, for greater diversity within the bench, called for it publicly to raise the profile of the issue. As I mentioned a moment ago, asking for greater diversity on the judicial advisory committee is also hoping to bring that perspective to the table and supplement it with data about the process. The experience in your province of British Columbia, at the provincial court level, appears to have produced some helpful results in producing a pool of candidates that is more diverse and seeing them through to the bench.
Senator Joyal: On the same issue, at your annual council in Saskatoon on August 17 and 18, 2003, you adopted a resolution that called for the following: Make appointments to judicial advisory committees that reflect the diverse nature of the Canadian population; direct the commissioner for federal judicial affairs to publish annual statistics on the number of women and men, as well as the number of candidates identifying as Aboriginal, ethnic, visible minorities and other equality seeking groups; and then make judicial appointments that reflect the diverse nature of the Canadian population.
If you want to be true to your membership and the diverse nature that now makes up the bar, what additional steps will you take in the forthcoming months of your chairmanship? Maybe you were at that meeting in Saskatoon. What additional initiatives do you contemplate taking in the forthcoming months or year under your chairmanship to make sure that the objective that you seem to share will be really implemented?
Mr. Headon: Realized in relation to the judiciary?
Senator Joyal: Yes.
Mr. Headon: It absolutely remains a priority for the association. I have been pleased to take media requests to discuss this, and we have discussed this in the media to try to bring attention to it. With those resolutions like the one you mentioned — and I was present for the debate and glad to support it when it came to the vote — we always draw that to the attention not only of our members but also, at least, the ministers of justice across the country. In this case, we will certainly be using that to justify discussions with others who are involved in the process. This is very dear to our membership, very much in the front of their minds. They won't let me drop it even if I wanted to, which I certainly do not.
The Chair: Thank you very much, witnesses — a very helpful and interesting contribution to our deliberations. We much appreciate your being here today.
Members, we will adjourn until tomorrow when we're going to be dealing with Bill C-394, gang recruitment. We will be hearing from the sponsor of the bill, and we will move on to Bill C-444, impersonating a police officer. We dealt with that some time ago, and we will be dealing with clause-by-clause consideration tomorrow. We have some matters of committee business that we will also hope to have the opportunity to discuss. Thank you, all. Meeting adjourned.
(The committee adjourned.)