Proceedings of the Standing Senate Committee on
Legal and Constitutional Affairs
Issue No. 2 - Evidence - February 17, 2016
OTTAWA, Wednesday, February 17, 2016
The Standing Senate Committee on Legal and Constitutional Affairs met this day at 4:16 p.m. to study matters pertaining to delays in Canada's criminal justice system.
Senator Bob Runciman (Chair) in the chair.
[English]
The Chair: Good afternoon. Welcome, colleagues, invited guests and members of the general public who are following today's proceedings of the Standing Senate Committee on Legal and Constitutional Affairs.
Members, last month the Senate authorized the committee to examine and report on matters pertaining to delays in Canada's criminal justice system and to review the roles of the Government of Canada and Parliament in addressing such delays. This is our third meeting on the study.
Joining us today from the Public Prosecution Service of Canada are Brian Saunders, who is the Director of Public Prosecutions, and George Dolhai, Deputy Director of Public Prosecutions.
Gentlemen, thank you for being here. We're looking forward to your presentation, which will be followed by questions from members of the committee.
Mr. Saunders, the floor is yours.
Brian Saunders, Director of Public Prosecutions, Public Prosecution Service of Canada: Thank you for the invitation.
We always welcome the opportunity to discuss matters related to prosecutions, especially on a subject so key to how Canadians view the criminal justice system.
As the chair indicated, with me is George Dolhai. Mr. Dolhai is in charge of the Drug, National Security and Northern Prosecutions Branch Policy of the Public Prosecution Service of Canada.
In my opening remarks, I will briefly describe our mandate and then move on to the question of timeliness. For the sake of convenience, I will refer to the Public Prosecution Service of Canada as the PPSC.
[Translation]
In French, it is SPPC.
[English]
The PPSC's mandate is set out in the Director of Public Prosecutions Act. It consists principally of initiating and conducting prosecutions within federal jurisdiction and of advising law enforcement agencies or investigative bodies on matters related to prosecutions.
It is important to emphasize that the PPSC, as a prosecution service, is an operational entity. It is not primarily our function or our place to provide advice on policy matters, per se. However, our direct experience in the criminal justice system does put us in a position to provide government and legislatures with advice on the challenges associated with prosecutions, and the likely practical impact of any proposed amendments to address those challenges.
[Translation]
As you know, the responsibility for prosecution is a shared one. In the provinces, most Criminal Code prosecutions are conducted by the local provincial prosecution service. However, the Code does give the PPSC jurisdiction to prosecute certain Code offences in the provinces.
[English]
That would be, most notably, terrorism, fraud, as well as criminal organization offences related to offences otherwise within the PPSC's jurisdiction.
In addition, throughout Canada, we prosecute all non-Criminal Code federal offences. Over 250 federal statutes contain offences that fall under the PPSC's jurisdiction, and the PPSC regularly prosecutes offences under approximately 40 of those statutes. The largest volume of work in this area relates to offences under the Controlled Drugs and Substances Act. We also regularly prosecute federal offences under legislation aimed at protecting the environment, natural resources, the economy — for example, tax and competition laws — safety and health.
[Translation]
In the Northern Territories, the PPSC has a much broader jurisdiction. We prosecute all Criminal Code offences, in addition to those under all other federal legislation.
[English]
Because a criminal investigation can lead to both federal and provincially prosecuted charges against the same accused, the PPSC has arrangements in place with provincial prosecution services to ensure the most efficient use of prosecutorial resources. These arrangements, which are referred to as major-minors, allow the prosecution service that is prosecuting an offence within its jurisdiction to also prosecute related, less serious offences against the same accused that fall under the jurisdiction of the other prosecution services.
On occasion, federal and provincial prosecutors work together on a prosecution. Where this occurs, it is a response to the particular needs of the case. Some complex prosecutions require two or more Crowns to deal with the work involved, and the PPSC and the concerned provincial prosecution service will sometimes agree to share their expertise where the charges involve both our mandates, such as drug offences combined with weapons offences, or where the charges are ones of concurrent jurisdiction such terrorism cases.
I'll now turn to the question of timeliness. Prosecutors are always aware of and concerned about timeliness in prosecutions. Prosecutors must respect the constitutional right of an accused to be tried within a reasonable time. For this reason, we work with others in the criminal justice system to ensure that cases are dealt with in a timely manner. Prosecutors must also ensure an accused is dealt with fairly. Both of these goals are reflected in the PPSC's mission statement, which calls on the PPSC to prosecute cases with diligence, while being fair, impartial and objective.
The PPSC has taken a number of measures to support timeliness in its prosecutions. These measures include providing the police with guidance in preparing disclosure and the Crown brief; requiring prosecutors to prepare prosecution plans in all highly complex files, setting out how they propose to use resources and deal with potential issues; and using the tools available under the Criminal Code for defining issues and expediting cases.
These measures have ensured that we have very few cases where charges are stayed by the courts under section 11(b) of the Canadian Charter of Rights and Freedoms for unreasonable delay. Of the approximately 90,000 cases that the PPSC prosecuted in 2014-15 and that were concluded, only 149 were stayed by the courts. Some of these would have been stayed for delay.
Quite apart from cases where delay reaches the point of being unreasonable within the meaning of section 11(b), timeliness is a concern in the criminal justice system. In many instances, the public's reasonable expectations of timeliness are not being met. This committee has already heard testimony describing the complexity of the problem and some of the initiatives, both federal and provincial, that have been taken, and are being taken, to address it. The prosecution community has been involved in these initiatives, and in 2007 the Federal-Provincial-Territorial Heads of Prosecutions Committee released a report on the management of mega-cases which contained recommendations that dealt with timeliness amongst other issues.
In considering delay, it is important to keep in mind that all cases have certain basic elements that require time. In R. v. Morin, a 1992 decision of the Supreme Court of Canada, the court examined section 11(b) and identified these elements as including the retention of counsel, bail hearings, the complexity of the case, disclosure, preliminary inquiries, the time required for defence counsel and Crown counsel to review the case and the fact that they have other cases. The Supreme Court recognized that these elements, which it termed the "inherent time requirements'' of a case, are influenced by local practices and conditions.
It is also important to keep in mind that delay times vary from province to province and within a province, from judicial district to judicial district. They may also vary within a judicial district from the provincial court to the superior court and within the courts, depending on the type of case. This suggests that what is causing delay similarly varies.
All criminal justice participants must do their share so the system is timely, while respecting the rights and interests of all those affected by crime. At the PPSC, we expect our prosecutors to apply themselves diligently to complete the steps for which they are responsible and to be conscious that delays may affect public confidence in the administration of justice.
That concludes my opening remarks. Mr. Dolhai and I would be pleased to answer your questions.
The Chair: Thank you very much.
Senator Plett: I have two questions. I'm kind of assuming that we could ask the same questions to most of our witnesses on this particular file. I read an article today about a suspected child abuser who could avoid trial due to delays in the Quebec judicial system. The man was accused of sexually abusing a seven-year-old girl in January of 2014, and his trial is still pending. The father was quoted as saying, "The lawyers of the accused have been benefiting from the delays for over one year. The trial hasn't even begun and already our daughter has forgotten details of the assault.''
The parents have also said that the trauma resulting from the sexual abuse is compounded by the anxiety caused by an ill-adapted justice system.
This is obviously very serious. How often are very serious, violent or sexual abuse cases delayed excessively where the judge will order a stay of proceedings?
Mr. Saunders: We wouldn't have any figures for that in the provinces, because we don't prosecute those types of cases in the provinces. We prosecute those types of cases in the three northern territories. We don't have statistics showing the precise delays between charge and the disposition of a case in all cases in the North, but we did canvass our regional offices before coming here today and we learned that in the territories the delays aren't that great. Indeed, in the Nunavut territory we learned that the time in the case of murder prosecutions has dropped by about 50 per cent over the last three or four years. So that's our experience. I can't speak to the experience of the provinces in dealing with that type of case.
Senator Plett: Fair enough. I'm sure I'll have an opportunity to ask somebody that question again. My next question — and I hope you'll be able to give me a bit of an answer on this one — is we've heard so often, and even here, the father saying that the defence lawyers are benefiting. How often are defence lawyers the cause of delays? How often do they use that as their argument? Namely, if we delay this long enough it might get thrown out because of excessive delays?
Mr. Saunders: I think that question was put to Mr. LeSage when he was here and his answer was the appropriate and right one. We're dealing with a system that's fairly complex, that has lots of decision points along the way and caused by elements he identified in his report that he wrote with now Justice Code. There are a lot of decision points that people can use to challenge the decision taken by the Crown and, as a result, these types of procedures can delay. That is not to say that it's illegitimate what the defence are doing. They have an obligation to defend their client to the best of their ability, and it can raise an issue. For example, they can seek greater disclosure and challenge steps taken by the Crown. As Mr. LeSage concluded in his statement to you, it's not the lawyers who are to blame. We have a system that's fairly complex, which allows these types of actions to be taken and, as he pointed out, there are legitimate things that can be taken.
Senator Plett: Can I ask one more question on that? If it's the system — and you're saying there are many factors influencing delays — what, in your opinion, would the federal government be able to do to rectify the system?
Mr. Saunders: This has been looked at by a number of committees; a number of reports have been written on it. As I suggested in my opening, there's no one solution to the problem. There are a couple of fairly recent reports that have looked at it as well. I don't know if they have been brought to your attention, but there is one out of British Columbia, written in 2012 by Mr. Cooper, looking at the B.C. criminal justice system. There's one more recently, in 2013 from Alberta, called: Injecting a Sense of Urgency in the criminal justice system. A lot of the measures they're looking at aren't legislative ones, but they're looking at ways of improving the process. Administrative steps that can be taken by the Crown and the courts to improve the process, or even the administration of the courts, so things can move through in a more timely fashion.
Senator Baker: We might mention, however, that any intentional delay caused by the defence, or even an unintentional delay caused by the defence, is counted against the defence in arriving at a decision as to whether or not to apply 11(b).
Mr. Saunders: That's right.
Senator Baker: The remark is often made that defence counsel is intentionally delaying something. If they intentionally delay, it doesn't prove anything. It doesn't provide anything to the court. I'm sure you'd agree with that.
You mentioned that all non-Criminal Code offences are carried out by your service. I've been reading case law for 40 years and I was surprised to see the other day that it's the absolute jurisdiction of the provincial court to adjudicate paragraph 4(4)(a) of the Controlled Drugs and Substances Act. I didn't know this before a couple of days ago, and in the Controlled Drugs and Substances Act, paragraph 5(3)(a)(i), that is 553 of the Criminal Code, absolute jurisdiction of the provincial court. Just a small correction.
Here's my question to you, Mr. Saunders and Mr. Dolhai: I've investigated both of you as far as your litigation is concerned. I've investigated you thoroughly. Primarily I looked at every case that's been reported by both of you. Mr. Saunders goes back a little further than Mr. Dolhai. I stopped at case number 50 for Mr. Dolhai and concluded that he had never been before a prothonotary because mainly his cases were criminal, although years ago you did do civil.
But, Mr. Saunders, you have been before a great variety of courts under different rules, and one of them is the Federal Court, using prothonotaries. You were in the Chrétien case, you were in the Sierra case and several decisions were made by prothonotaries, not by the judge, decisions normally made by judges and tie up their time, pretrial arguments and various things. You've had experience with it.
Is it a good idea to consider the use of prothonotaries to free up judges and the conflict that arises when a judge issues a warrant and the judge can't try the case? You might have 50 warrants in Mr. Dolhai's cases of the Controlled Drugs and Substances Act in one case. That means there are 50 judges, if they're all different judges, that can't try the case.
To overcome these delays, would it be a good idea for us to examine the application of the prothonotary in the Federal Court system?
Mr. Saunders: There are a few things you have to know about the prothonotaries in the Federal Court system. As you point out, they're used under the Federal Court rules to decide motions arising under the rules, not under the Federal Courts Act. There's one limitation that of course you would have to remove, and that is they cannot deal with any motion that can affect the liberty of the subject. In the criminal world we deal with liberty of the subject. If you use that comparison directly, it wouldn't lead to much in the way of advantage for the criminal justice system.
The other point you have to keep in mind is that prothonotaries in the Federal Court, their decisions can be appealed without leave directly to a Federal Court judge. Typically in the criminal world you don't appeal interlocutory matters, but if you create the position of prothonotary you have to keep in mind whether you're going to create a right of appeal to a superior court judge, in effect to oversee what the prothonotary is doing. If you do that, you open up another avenue of delay of the proceedings.
Senator Baker: I have one final question to clarify the point. You give the impression that we may not be able to use the idea of prothonotaries. I strongly disagree with you because in certain provinces you can have justices of the peace who issue warrants. In other provinces they're not allowed to issue warrants.
Take Newfoundland, where I'm from, for example. There's no such thing. Various provinces have arrived at different things to free up judges, to free up conflict, to free up the waste of time on disclosure, for example, and things like that, everything prior to trial.
Why wouldn't the prothonotary idea, at section 12 of the Federal Courts Act, be supplanted in the criminal justice system to provide for the very service that justices of the peace perform in certain provinces in Canada today?
Mr. Saunders: Senator, I wasn't questioning the wisdom of the proposal. I was pointing out that if such proposal were to be adopted you would have to keep in mind the limitations that currently exist in the Federal Court scheme and decide whether or not those limitations would apply in the criminal area.
Senator Baker: What about the wisdom —
The Chair: Sorry. Senator McIntyre.
Senator McIntyre: Thank you, gentlemen, for being here today.
I draw your attention to the Stinchcombe decision. As you know, in this case the Supreme Court held that the Crown has a legal duty to disclose all relevant information to the defence. In that decision the court speaks of the fruits of the investigation. In other words, the fruits of the investigation which are in its possession are not the property of the Crown for use in securing a conviction but the property of the public in order to render justice.
Do you think the Stinchcombe decision is being applied properly? Even if it is, does its disclosure obligation impose too great a burden on the prosecution? I would like you to address the impact that this case has had on the length of trials.
George Dolhai, Deputy Director of Public Prosecutions, Public Prosecution Service of Canada: Senator, that is an interesting question because a number of years ago we had a situation where we were asked to provide a speaker to another jurisdiction in South Africa on our experience around disclosure.
The position developed and looked at illustrated that, with respect to many of the ordinary cases, the sort of disclosure required by Stinchcombe was being given. Where the challenge comes in with Stinchcombe is with respect to the complication of investigations that can be very lengthy, can have a lot of tentacles, if you will, and a lot of accused and a lot of evidence, especially in an age where you have wiretap evidence and now we have all of the other types of evidence and elements to it like metadata. That's where the challenge has arisen to a greater extent.
In the ordinary, run-of-the-mill case we're still talking generally about, in a street transaction, the notes of the officers involved, there may be a challenge to a search, or if there's a search warrant. The disclosable material is relatively discrete. In the larger cases, that's where there's a complication. That's where a lot of effort has been put in by prosecution services and by Parliament in trying to address mechanisms that will allow for those cases to be dealt with more efficiently.
Mr. Saunders mentioned the Federal-Provincial-Territorial Heads of Prosecutions Committee recommendations. The Fair and Efficient Criminal Trials Act was brought in as well and introduced certain measures like management of cases by a trial judge, and that includes disclosure.
Prosecution services across the country have spent a lot of time with police on the big cases developing materials. We call it a "report to Crown counsel manual.'' When I say "we,'' it was something we developed in British Columbia with the provincial Attorney General to be a guide to the police on the larger cases and how to put them together.
I have to say, I think there's been a lot of success in that area. It's not foolproof, but I think the road map, and what the disclosure obligations are, is much clearer. I think we've had a fair amount of success in the management of those cases.
For example, we require our Crowns on high-complexity cases to prepare a prosecution plan. We want to know what is the theory of the case, what's your evidence, how does disclosure stand, what issues are there that are causing you concern or that may cause the case to be difficult to try? That's considered by either the chief federal prosecutor in the region or, in more complex cases or a case with a novel issue, by a national committee of our most senior prosecutors who look at it and say: How can we make this more triable? One way is to split up the accused into different groups, if you will.
Another way is to consider something like a direct indictment. There are various tools, but I think with respect to the more complex cases overall the system has functioned in a way that's better in terms of getting it to the court. There are issues with respect to scheduling and things like that, that are causing difficulties.
With respect to the structuring of the case, I think the message all prosecution services are sending to their prosecutors, and through them to the police they work with is, keep it focused, keep it as simple as possible, don't overload it and try to imagine, if it's a judge alone or a jury trial, how you would consider the evidence. Is it being presented in a way and has the prosecution been structured in a way that a jury can sit there and actually absorb what that evidence is?
Senator Fraser: Mr. Saunders, you piqued my curiosity with one of the things you said. I think I've got this right. You said that in Yukon trial times for murder, I think it was, have gone down 50 per cent?
Mr. Saunders: Nunavut.
Senator Fraser: Nunavut. How? What happened? What did they do to achieve this result? There might be some lessons there that we could all learn.
Mr. Dolhai: We've noted it not just with respect to murders, first and secondary, but also manslaughter.
Part of it, again, is the manner in which we approach the cases, our relationship with the police. When I started prosecuting 23 or 24 years ago, there were large parts of Crown organizations across the country, and police as well, who had been very resistant to sitting down and working out how to present the case. It's much better that way.
The other aspect is there have been certain institutional changes. There's a unified court in Nunavut. They still have the equivalent of a preliminary inquiry that's available, but they don't have separate judges who do that, so they have one trial court, essentially, that does both functions.
The other is, of course, things like trying to address issues with witnesses, helping them to come forward, helping them to understand the process. We have Crown witness coordinators who help the witnesses, including victims, to understand the process and to help them walk through it. At the end of the day our job, and the Crown witness coordinator's job, is to get the evidence before the judge or the jury as efficiently as possible, but that's an element that, again, has changed a lot with the Canadian Victims Bill of Rights. We've added more Crown witness coordinators as well.
In Nunavut, all of our Crown witness coordinators can speak Inuktitut, and that is a significant improvement.
Senator Fraser: We get to make recommendations when we finally do a report on this, and we actually get to make recommendations about changes in the law, if we think such changes are appropriate.
A quick question to both of you: If you were sitting in this seat and you could make one change, what would you recommend?
Mr. Dolhai: That's difficult.
Mr. Saunders: Yes. We're always reluctant to make recommendations of changes to legislation because we think it is our role to tell you what the impact of changes would be. Otherwise, because we're a player in the system, we're accused of advocating a change that would help us.
Senator Fraser: But there are big chunks of the law that don't go to the fundamental philosophy or political orientation. The law sets out forms and all kinds of fascinating things that affect your work very directly.
Mr. Saunders: There were a number of recommendations made by the FPT Heads of Prosecutions Committee in its report of 2007. It was in response to what you've heard already, the criminal efficiencies projects being launched by DMs. Some of those recommendations found their way into the LeSage report. There were about 31 recommendations. They were to deal with mega trials, but a few of them touched on timeliness. A few of them were adopted. The idea of alternate jurors was adopted in the Fair and Efficient Criminal Trials Act.
One that wasn't adopted dealt with the codification of admissibility standards for electronic disclosure. That's an interesting area. If you look at the reports, you'll see there is a big debate among certain prosecution services as to whether there should be preliminary inquiries.
I mentioned the 2013 report from the Alberta Attorney General's office called Injecting a Sense of Urgency. The recommendation that Alberta has made is to eliminate preliminary inquiries for all but murder cases. They give a rationale in that report, which I recommend that you read, as to why. You heard from Mr. Piragoff that there was no consensus amongst provinces as to whether or not that measure should be adopted. That in effect shows the complexity of the problem in that what may be a problem in some jurisdictions is not a problem in others.
[Translation]
Senator Dagenais: I was listening to you, Mr. Saunders, and you seem to be saying that the rules set by the Supreme Court account for some of the delays. Do you think judges could refuse some postponements, and thus help accelerate the processing of cases?
Mr. Saunders: I am not the one who said that.
Senator Dagenais: If it was not you, I apologize.
Mr. Saunders: In their report, Mr. Code and Mr. Lesage highlighted three factors that have caused trials to lengthen. One of them was that the Evidence Act, established by the Supreme Court, is more complex than it used to be. When I started practising, we had what was referred to as bright lines. From the outset, we knew what was and was not admissible as evidence. Nowadays, we have to consider all the circumstances to determine whether the court will accept certain elements as evidence. That aspect encourages lawyers to argue that the evidence must be accepted or not.
Senator Dagenais: You are not the one who said it, but our courts are often clogged up because of the numerous requests for postponement, for a number of reasons we will not list here. Don't you think that judges should be tougher and refuse some of the postponement requests in order to accelerate cases? I understand that judges are always master of their own courtroom.
Mr. Saunders: You are correct; judges can refuse certain postponement requests by the Crown of the defence. The reports I mentioned said that one of the reasons for the delays is the fact that little is accomplished during some hearings. For example, there may be a postponement to get legal aid, or for other reasons. Often, the problem is not only in the fact that a postponement is requested, but also in the fact that legal aid is not very quick in making their decision. So there are some interrelated factors that must be taken into consideration.
Senator Dagenais: I understand the role of defence lawyers. However, you will agree with me that, with so many postponements requested, trials often end up failing when unreasonable delay is invoked.
Mr. Saunders: As your colleague, Senator Baker, pointed out, when the defence requests a postponement, the time that passes under that request cannot be considered to establish an unreasonable delay request.
Mr. Dolhai: If I may clarify something, about eight or nine years ago, Judge Moldaver, when he was in the Court of Appeal for Ontario, put forward some arguments on the dynamic of trial courts. He pointed out that the dynamic was very complex. Certain issues can be seen as arising from that dynamic. However, If I remember correctly, he said that the trial judge had a very difficult task.
For example, if a lawyer wants to submit a request to a judge, how much time does the judge have to respond to the request and move on to the trial stage? We know that the court is concerned by the fact that, should it render a bad decision, there may be an appeal or a new trial four, five or even six years later.
[English]
That makes things very difficult for the judicial system, the public, the witnesses and the victims. It is very difficult for the judge, who may have needed more time. The period of time can be longer, but we ultimately get a sentencing that can be appealed.
[English]
Senator Joyal: I will stay on that issue, because I read recently that there was a decision in the Quebec Superior Court by Justice Guy Cournoyer, a decision given in English of 50 pages. Listen to that, Senator Baker.
The judge decided that he would impose a calendar on the hearings of all preliminary meetings that the defence wants to raise because it had been too long and they were postponed for X, Y, Z reasons. The justice decided that, according to the new amendments in the code, he now has the power to impose a calendar and fix a date which is, in my opinion, revolutionary. The judge has to decide if, in so doing, he will jeopardize the means of the defence.
That's why his decision, I would say, is so elaborately explained in 50 pages. He decided that this will be the calendar and these are going to be the dates. Like it or not, that's the way it's going to go. Of course there were a lot of delays before that, but I think this is a power that the judge has to have because the judge has to protect what we call the credibility of the administration of justice. You can't bring justice into disrepute. It's an offence. The judge has an inherent responsibility to make sure that the system remains credible. If the system is to remain credible, he is one of the agents in that context. So the judge at some point in time has to say "this is enough.''
I think that we certainly have to consider how justices will be vested with powers to be able to fix a reasonable calendar. It has to be explained. That's why he explained it, but in my opinion it was revolutionary. It was the first time in court history that a judge took that initiative and claimed that he has the power under the code. He has to cover himself too, because of course that could be challenged in court, but it seems to me that this is one of the major ways to address the delays that are, especially in Quebec, horrendous. Quebec is the worst province in Canada with respect to delays. The authority in Quebec's justice system has to address it one way or the other.
I think this is a point that should be more understood and more used and probably more clearly defined to avoid, as I say, too many challenges of such decisions, but at least to make sure that we instill a self-regulating capacity in the system.
Mr. Saunders: I think it's very useful that Justice Cournoyer has gone to the length of writing a comprehensive decision on that. We have instances in other cases where judges have established calendars for defence counsel and the Crown to respond to motions. I'm not blaming anyone here. The system, when it wants to be, doesn't have to be complacent about letting people take their time about doing things.
That has worked well in the cases we've been involved in. As Mr. Dolhai pointed out in answer to the previous question, the great concern of the trial judge in setting these calendars is he has to be mindful of the right of the accused to make full answer in defence, and on the other hand he has to be mindful of the interests of society in seeing that crimes are dealt with and offences are adjudicated on the merits. There are these two forces at play, and giving a reasoned decision as to why you're doing it is a tremendous first step.
Senator Joyal: His 50-page decision, as I said, was written in English even though the justice is French-speaking. I think this decision needs to be looked into carefully, the principle upon which it is based, how those principles are enshrined in the code and if there is a need to review the powers that judges could be vested with in order to establish, as I say, the balance of the rights of the accused, public interest and, as I say, the credibility of the system. At the end of it, this is what it is.
My colleagues Senator Dagenais and Senator Boisvenu know it. When the SharQc mega trial collapsed, you cannot imagine the kind of impact it had for any citizens that were aware of it. There's no doubt that justices must have the power to determine the calendar. If parties have so many preliminary meetings, they should be listed already and there should be time frames. I'm not a justice; I won't tell you how to do it. But definitely there's a way, in my opinion, to approach and revamp the system in relation to the power of judges.
The Chair: Sorry, maybe we'll have an opportunity later.
Senator Batters: Thank you very much for coming today. I think it would be fair to say — you referred to this briefly in your opening statement — but drug charges would be sizable, maybe the largest part of your particular portfolio?
Mr. Saunders: Yes.
Senator Batters: I'm just looking at the numbers from Statistics Canada, who appeared in front of our committee last week. Dealing with drug possession, for 2013-14 there were almost 15,000 cases that year and the median number of days for disposition was 87. Other drug offences were listed as just over 10,000 cases that year, and 254 days were the median number of days for those types of charges.
On that latter category I just mentioned, I'm wondering if there are particular areas that you're looking at right now to be able to decrease the number of days or if there are recent steps you've taken to address court delay issues on that.
Mr. Saunders: By median number of days, I assume you mean the number of days from the laying of the charge to the disposition of the case?
Senator Batters: Yes.
Senator Fraser: They referred to from first appearance.
Senator Batters: Okay. It doesn't say that right on this particular page so I can't remember their exact definition of it, but I would say Senator Fraser always has —
Mr. Saunders: I'm not familiar with those figures you just cited.
In any event, before turning to Mr. Dolhai to answer, the first thing is to remember that every case has what the Supreme Court of Canada calls inherent time requirements. There are a certain number of days that are required for the retention of counsel, counsel to review the case, bail, those steps. They vary from province to province and they vary within courts, so you have to keep that in mind. You can't have a perfect system if you want to charge a person today and throw them in court tomorrow. That wouldn't be a fair system, so these steps take some time. That would not account for 214 days, but a few months, at least, of that time at least even on a simple of case.
Senator Batters: The last category was 254.
Mr. Saunders: In terms of the steps we're taking to ensure that the cases are dealt with in a timely manner, I mentioned a few in the opening. We work with police and try to ensure that disclosure is done in an efficient matter. Disclosure is often a stumbling block, not normally in the smaller cases, as Mr. Dolhai explained; it's usually in the larger cases. If you include some larger cases in that, yes, disclosure could be a problem. We have spent considerable effort trying to get disclosure.
We've also spent time assisting the police, where they request, and giving advice during the course of investigation that could help ensure that the case is one where the evidence has been gathered in a way that respects the Charter and meets the law and rules of evidence that can help lead to fewer challenges to the evidence being produced later on.
Those are two steps we take on a regular basis to ensure cases do move through the system on a fairly expeditious basis.
Mr. Dolhai: I would add that the numbers, in terms of how long it's before the courts, are always in some ways difficult to interpret because it depends what's happening during that period of time. I recall when I was a prosecutor in Toronto many years ago that if you looked at the figures in some of the intake courts, some are coming back maybe four or five times in the space of a couple of months.
In some of those instances, unfortunately, part of it was this concern with respect to the steps that you have to have in any event which is, for example, retaining counsel. Again, unfortunately, sometimes what it came down to is the only way you could get the person to focus was to have them come and appear and contact counsel to make those arrangements. Not ideal, but again it's just an illustration of how sometimes it's a bit difficult on the numbers.
As Mr. Saunders said, we stress to our Crowns that the case has to be assessed up front. What we don't want to have happen is have a case go through the system, whether it's for 80 or 250 days, and at that point someone looking at it says, "You don't have a reasonable prospect of conviction here.'' That's not a good result for us. We've invested a lot of time on that side and reviewing search warrants, et cetera, to make sure that occurs at that time.
We also have alternative measures and diversion as a possibility. But, again, we take the decisions Parliament has made in terms of structuring the offences, et cetera, including decisions with the availability of things like conditional discharge, absolute discharges, and thereby indicating that that's something that can happen at the end of a prosecution. We can't and don't take the position that because there may be a conditional discharge at the end we're not going to prosecute at all. That's really not our call. That is a parliamentary call.
Senator Jaffer: Thank you very much. I'll ask both my questions at the same time. I was interested when you were talking about coordinators. One of the things I've always wanted was victim advocates, people who would work with victims. Have you looked at having victims' advocates? I think that would help explain the process. It may hasten it a bit.
One thing we've not heard about, and something that I hear about more and more from Chief Justices, and from others, is that there are more and more unrepresented people. For you, that task becomes much bigger and the responsibility on your shoulders is bigger. How does that relate to the delay of trials?
Mr. Saunders: I'll deal first with the trial witness coordinators. Our starting point as a prosecution service is we don't represent the victim. We're not their counsel. The Crown witness coordinator is there to assist witnesses and help them understand the process. We will direct them to social services where any are available with the territorial governments, but it would go beyond the role of a prosecutor to end up being the advocate for the victim.
That said, there are certain obligations that have been imposed on us under the Canadian Victims Bill of Rights and we use our Crown witness coordinators to help meet those obligations.
On the unrepresented accused, that's a more prevalent thing on the civil side that you see in family law. Speaking with friends who are judges, that's a problem in that area. In the criminal world, where your liberty is at stake, legal aid is usually available. In cases where it's not available, you sometimes see accused making application for what are called Rowbothom orders. These are orders where the court will direct the Attorney General to pay for the cost of state- funded counsel. I don't think we see that many cases where an accused is unrepresented.
Mr. Dolhai: I think that's fair. We see cases where it takes a while for them to get representation, but that oftentimes is just a dynamic in terms of them making the arrangements, et cetera. When we have cases where they are unrepresented, as Mr. Saunders said, Rowbothom applications are brought. As things stand, the Department of Justice will pay for those applications, if so ordered by the court. We don't get involved after that, because we shouldn't be looking at the bills that the defence is putting forward.
The other thing is that courts have as well resorted to amicus curiae to advise and assist the court. There is a difficult dynamic there, though, if an amicus is really assisting the court but also is expected to advocate to some extent for the accused. That can be very problematic because wearing those two hats can be very difficult.
Senator White: Thank you very much. Just one clarification, if I may. Statistics Canada, when they were here, talked about date of beginning and date of end case. There might have only been two appearances, to be fair, but I don't know if their stats were clear. We did ask for an update, though.
I have a question around the larger cases, though: Have you given or been asked for any advice in relation to things like coercive powers, which we see in some countries — the Australian Crime Commission, for example — that certainly seem to be having a greater impact on those big organized crime cases? The Australian Crime Commission has coercive powers. They can force people to give evidence against themselves and others within a criminal organization. As to whether or not that would assist us, it certainly seems we spend an inordinate amount of time investigating and prosecuting cases to get to an end: sometimes, as you know, four, five, six years.
Mr. Saunders: You're aware the compelled question does exist in certain areas in criminal law, but not many.
Senator White: Not very many, certainly not the powers that other countries have.
Mr. Saunders: Anti-terrorism provisions have it; there are some under the Competition Act and Income Tax Act as well. It's not used that often, even in the three I've just mentioned. I think there may be a reluctance on the part of investigators to use it, a concern that the judges —
Senator White: Could lose it?
Mr. Saunders: The judges might feel you're getting too close to an accused. We don't want to call the accused to testify, because you couldn't compel them to testify against themselves.
Senator White: Under coercive legislation, in other countries they can have the accused give evidence against themselves.
Mr. Dolhai: I think in those instances, then, it's removed from the evidentiary basket the Crown can have later. That doesn't mean it can't be used. As Mr. Saunders said in the terrorism context, we have it. We've had only one ordered in the context of Air India, which was found to be constitutional, but ultimately the order was not implemented. That is one of the dynamics that comes up, which is trying to identify how, even in that context, the power would be used so that you don't have a situation where the individual who is the main concern about doing the crime somehow gets a use or a derivative-use pass. We don't have very much experience with that right now.
Senator White: I think, Mr. Saunders, you were involved in the discussion we had a number of years ago around what cases were bogging down our system — I think in Montreal, or at a meeting in Toronto with the chiefs of police. The vast majority of cases that concern the police across Canada actually had to do with very minor cases that seem to take up a lot of time. We've had some discussions with some other witnesses around whether or not we should have cases that can be managed provincially or through the Criminal Code — in other words, have the ability to use a ticketing offence provincially for trespass by night or shoplifting cases.
Mr. Saunders: I noticed you asked that question of previous witnesses. Mr. Piragoff pointed out that the federal Contraventions Act has not been used for criminal offences. Even for non-criminal offences that are in federal regulatory legislation, there's a limitation within the Contraventions Act because it says it can only be used for summary conviction offences. If it's a regulatory offence that's hybrid or prosecuted by indictment, you can't use it for that purpose.
Clearly, if you can use a ticketing scheme that takes that particular offence out of the criminal system, and that offence or infraction can be dealt with quicker than it would be within the criminal system. You have the example, I believe, that's been given to you already about what happened in British Columbia, where the impaired driving cases were clogging up the courts and they introduced the highway traffic act within provincial jurisdiction. That's the other concern that was pointed out. You have to make sure that the provincial offences within the jurisdiction don't offend the federal law, which is federal jurisdiction. They took a great number of impaired driving cases out of the system because, where they once took half a day they were taking three or four days, and they found they were just clogging up the system.
Senator White: Your opinion on that, if I may?
Mr. Saunders: It's worthy of an examination, certainly.
The Chair: When Senator Joyal was talking about the 50-page Cournoyer decision he also references Great Britain with a six-month mandate, if you will, cutting off criminal trials after six months. Obviously there are rules surrounding that, but it is something the committee might want to take a look at.
Mr. Saunders, I want to ask you about the Toronto 18 trial, and you signed the document cancelling the preliminary inquiry and went to direct indictment. I'm curious about your general opinion with respect to preliminary inquiries, given the disclosure requirements are now so rigorous. Do you have a general view in terms of the value of preliminary inquiries?
Mr. Saunders: As I mentioned earlier, there is no consensus amongst the provinces, or even amongst prosecutors, as to preliminary inquiries. As you point out, the Stinchcombe obligation means they're no longer a necessity. Some prosecutors think they're useful in some circumstances to test a witness but, that said, you have a very good report by Alberta, where they recommend that they be eliminated except for murder and maybe attempted murder. They point out that because of Stinchcombe they're no longer required.
The other thing they point out is that a preliminary used to be that the judge would assess whether there was sufficient evidence to send the matter on to trial. The standard is whether there's any evidence upon which a properly instructed jury could convict. The standard used by prosecution services now is a reasonable prospect of conviction based on the evidence, which is a higher standard. Prosecutors, if they are properly doing their job, point out that the preliminary is not really required.
Mr. Dolhai: You mentioned direct indictments, senator. From the time we were created until today, we've had 106 direct indictments signed by Mr. Saunders as DPP, relating to 206 accused, roughly, in 38 investigations. We don't shy away from using them, and we have a policy with respect to them, but the policy that is in our Deskbook that deals with it sets out the areas to look at in terms of considerations.
With the Stinchcombe obligations, a preliminary inquiry is required, and Mr. Saunders indicated that one could say they're not a necessity. There are other instances in the past where Parliament has chosen to consider whether Stinchcombe has changed things, and one of the ones I'm familiar with is in the wiretap area, it used to be that to get wiretap evidence admitted you had to show it was legally obtained and met the standard for issuing it. That could take one to two weeks of preliminary inquiry time while you called the person who said they went up the ladder and attached the prongs to the telephone, all old technology.
In that instance, Parliament decided, in light of Stinchcombe and those disclosure obligations, they were no longer necessary and it eliminated that. The issues we face on the wiretap are the Charter issues, not whether the person went up the pole and connected to the right line.
Mr. Saunders: Last point about preliminaries. Parliament passed amendments a few years ago to preliminary inquiries, and section 540(7), which provides for paper inquiries, has proven to be quite a useful tool, in many cases, to shorten the life of preliminary inquiries. Our prosecutors report great success in using it for that purpose.
The Chair: I also read about retention and recruitment for public prosecution services. Is that continuing to be a bit of a headache for you?
Mr. Saunders: No.
The Chair: One of the chaps sitting in the row behind you was quoted at the time talking about the salary discrepancies with some of the provincial jurisdictions.
Mr. Saunders: That was an issue, yes. A few years ago the government tried to bring the federal prosecutors up to parity with the average provincial prosecutors.
Senator Baker: On the preliminary inquiry the standard, as I recall it, is if there is any evidence which, if believed. You left out the words "which, if believed,'' which really lowers the bar.
It's not the preliminary inquiry, as such. If we recommended doing away with the preliminary inquiry, how do we then answer to defence counsel who say the main purpose, as far as they're concerned, is to learn the facts that may ground constitutional arguments?
That is the main purpose. That's why you do a preliminary inquiry, is to find out if there are any Charter violations, and you get to cross-examine the affiants.
How would we be able to explain? Yes, it's that low standard. It's really not necessary, any evidence which, if believed — of course, there's some evidence "which, if believed'' — but that necessity of defence counsel to be able to cross-examine on Charter arguments is vital in some cases.
What is wrong with providing a timeline for disclosure by the Crown? What's wrong with saying to the Crown that you must provide all of the disclosure prior to trial, in a certain number of days, which is not the case today? When disclosure comes out during the trial, it delays the trial. What if we put in a timeline for disclosure requirements by the Crown that it must be made prior to the trial?
Mr. Saunders: Disclosure almost invariably is made before the trial.
Senator Baker: Nothing wrong with putting it in.
Mr. Saunders: We do disclosure before. We attempt to get disclosure out as quickly as possible, as Mr. Dolhai pointed out earlier. The problem doesn't arise in the vast majority of cases, but in the more complex cases.
Senator Baker: That's why I'm asking the question.
Second question, preliminary inquiry.
Mr. Saunders: What do I say to defence counsel?
Senator Baker: Yes.
Mr. Saunders: That's why I didn't take a position on this, senator. I said there are arguments on both sides. Prosecutors haven't reached the consensus on whether we should continue with preliminary inquiries. From what you've said, I'm certain that defence counsel, there might be a few who don't think it necessary but most would favour the continuation of the preliminary inquiry.
Senator Batters: Thanks very much to Senator Fraser for bringing up that Nunavut example earlier, because I'm wondering if there are any lessons from that you think we may be able to apply to more remote locations in Canada, like northern Saskatchewan, northern Manitoba and northern Ontario. Could you briefly comment on that?
You mentioned that in Nunavut, because of their unified court, you said that for the preliminary inquiry there's one court that does both functions. How does that work? Does that mean there is a separate preliminary inquiry done prior to trial by the same judge that would be hearing the trial eventually? Maybe you could clear that up.
Mr. Saunders: We share best practices with the provinces. I mentioned that there is a Federal-Provincial-Territorial Heads of Prosecutions Committee. We meet twice a year, and we use those meetings to discuss ways of improving the criminal justice system, discuss common problems we have. It's a very collegial, operationally focused meeting.
If we have something that's working well in the North, we will share that with them. If they have something that's working well, they will share that with us. We have that vehicle.
Senator Batters: Is there anything from that that you could share with this committee on the issue of court delays?
Mr. Saunders: The types of things that have been discussed in the past have been administrative things: better administration systems for the organizing work. For example, file ownership was a big issue a few years ago. What that meant is it used to be that Crown would go to court, every case in that court that day would be his or hers. The next day it would be a different Crown but the same cases. Then some provinces started introducing file ownership, and they discussed the benefits of that. That means a case is assigned to a particular lawyer, and that lawyer keeps that case and there isn't a churn. There isn't a relearning of the file, so it's a more efficient use of time.
Senator Batters: More like a private lawyer practising, which is how I used to practise.
Mr. Saunders: That's an example of the things that get discussed at the heads of prosecution.
Mr. Dolhai: It is a different judge who does the preliminary and the trial.
Senator Batters: But the same level of court?
Mr. Dolhai: Yes, it's same level in Nunavut. That's not the case in NWT and the Yukon. They have proper division: a territorial court and a superior court.
Senator Batters: What's the saving portion?
Mr. Dolhai: I mentioned it as something that's different about Nunavut. In this area, sometimes it's hard to put your finger on exactly how much you're getting out of that sort of thing. But drawing on a different sort of circumstance, I have seen in other instances where you have something dealt with by a judge who is not going to be the trial judge, or you're not going to have to be before very often in relation to anything, versus you're in front of someone, like the Nunavut court, where you see them one day doing the preliminary, if there's a preliminary, you'll see them on another day as your trial judge on something else. It is a small bar, everyone knows each other, and the judges are a small group with fly-ins.
There's a dynamic that I would say develops in a certain sense because you're going to see the same people at the same time. There was mention of the United Kingdom and some of the things they have done. I know in speaking to Crowns over there, when we've compared notes, they said one of the interesting things is that sometimes, because in their superior courts they will have either in-house or they'll hire someone out, sometimes the person there will be on one side or the other side the next day and they will be in front of the same judges. The scope for unnecessary exploration of things, the dynamic is just different.
Having said that, I do want to say that Justice Code wrote a very good article with respect to defence counsel and their duties as officers of the court and I think, as Mr. Saunders has said, we certainly don't approach it on the basis that they are not as serious about getting it on as we are. In fact, they are. They're officers of the court, and I can tell you that people on the whole are trying to find solutions.
Senator Batters: Thank you. As are we.
The Chair: A counterpoint with respect to some of these smaller court jurisdictions where the Crown, the judges and the local bar can be pretty friendly, and on some occasions too friendly. That can result in some negatives, if you will.
Gentlemen, thank you all very much. I appreciate your appearance here today and your testimony. It will be very helpful to the committee in their deliberations.
Members, I'm going to suspend briefly.
(The committee suspended.)
We're going to move in camera for the second part of this discussion, but for now you have a budget item before you dealing with requests primarily for the purchase of copies of the Criminal Code for members of the committee. Do we have any questions or comments around this?
Senator Jaffer: I move acceptance of this budget.
The Chair: Does anyone else have any concerns? This is a routine matter for the committee. All in favour?
Hon. Senators: Agreed.
The Chair: Can I have a motion to move in camera?
Senator Baker: I will be seeking at a future meeting to discuss allowing each member of the committee access to either Westlaw, Carswell or Quicklaw and for the committee to pay the necessary fee, which would enable us to track each case according to the legislation. It's just an idea. I'll bring it up at some future meeting, but probably the steering committee could discuss it at some point.
The Chair: We'll take it up at the next meeting of steering. Can you provide information on that?
Senator Baker: Yes.
The Chair: Senator Baker has moved that we go in camera.
(The committee continued in camera.)