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Proceedings of the Standing Senate Committee on
Legal and Constitutional Affairs

Issue No. 3 -  Evidence - February 24, 2016

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OTTAWA, Wednesday, February 24, 2016

The Standing Senate Committee on Legal and Constitutional Affairs met this day at 4:22 p.m. to study matters pertaining to delays in Canada's criminal justice system; and for the consideration of a draft budget.

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.

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 fifth meeting on the study.

Joining us today from the Government of Saskatchewan is Kevin Fenwick, Deputy Minister and Deputy Attorney General, Ministry of Justice. He is joining us via video conference from Winnipeg. From Ontario's Ministry of the Attorney General, we have Michael Waby, Executive Director, Criminal Justice Modernization; and Agata Falkowski, Project Advisor, Criminal Justice Modernization.

Thank you for joining us. We are looking forward to your presentations, which will be followed by questions from the senators.

Mr. Fenwick, I believe we are going to begin with you. The floor is yours.

Kevin Fenwick, Deputy Minister and Deputy Attorney General, Ministry of Justice, Government of Saskatchewan: Good afternoon. As you indicated, I'm Deputy Minister of Justice and the Deputy Attorney General. I'm honoured to speak to you today on behalf of my minister, Gordon Wyant. He has asked me to stand in for him today, I think because he knows that the particular topic of justice reform — and justice delay is certainly part of that — is a subject about which I'm passionate. So I appreciate the opportunity to speak to you today.

My apologies for not being able to attend today in Ottawa. I am actually in Winnipeg. I drove into Winnipeg earlier today because I'm attending the round table tomorrow on missing and murdered indigenous women and girls. So thank you for accommodating me.

From what I'm hearing about the weather down there, being here might be an advantage. I'm sure that Senators Plett and Batters would agree that what we're encountering in Saskatchewan and Manitoba is typical mid-winter Prairies weather: It's about minus 2 and calm, with no winds.

I welcome the opportunity to work together with national and other provincial colleagues in areas of shared responsibility for the administration of justice. The collaborative approach that we're trying to work on at the various federal-provincial-territorial tables, and as evidenced by the invitation from the Senate, can help us address a range of factors affecting criminal justice delays across the country.

I don't think the fact that delays are not a good thing needs much explanation. Certainly we can agree that delays in the criminal courts are costly and lead to suboptimal outcomes for the justice system. This not only includes those who are before the courts directly but applies to victims, and families of both victims and accused persons.

I'd like to start with a general comment that I recognize, as I expect we all do, that there is no single magic bullet and no single magic solution that will allow us to quickly and easily address delays within the justice system. It is a complex subject. But I want to add by way of background right at the start that it is my belief, and our belief in Saskatchewan, that it is as much about the culture of the justice system as it is about the structure and organization of the justice system that causes delays, and I would be happy to comment on that in a broader sense a bit later.

There's an old saying that culture eats structure for breakfast. I believe that is the case, so unless we are prepared to look at both structural and organizational changes, and changes in attitudes and culture within the justice system, efforts to address delay will be particularly difficult.

We have a very aggressive innovation agenda within Saskatchewan justice. Our mission with respect to our innovation agenda is fairly straightforward: We want a justice system that is understandable, affordable and timely. It is part of a number of projects about which we are passionate. A number of jurisdictions across the country are taking leadership roles with respect to those issues, and I think our province is one of them.

We have a citizen-centred focus with respect to our initiatives to create that timely, affordable and understandable justice system. We have approximately 20 different projects underway at the present time that cross the borders of criminal, civil and family justice. We are engaging stakeholders to review the way justice services are being delivered and how improvements can be made to ensure that there is equitable access to all of those services.

I want to touch in my remarks on four specific areas, and I'll do so very briefly: legal aid, the Saskatchewan Aboriginal Courtworker Program, therapeutic courts and community justice programs.

I'll start with legal aid. Legal aid plays a crucial role in providing accessible legal services in criminal and family matters. Our system in Saskatchewan is based on a clinic model, with staff lawyers and legal aid. Our studies tell us that economically disadvantaged individuals who are accused of criminal offences are among the most marginalized and most vulnerable members of the population, often suffering from other social issues such as low literacy, mental health issues and low education rates, as well as alcohol and drug addiction.

Since 2007-08, legal contributions from the federal government in Saskatchewan have been frozen at $4.2 million. Over that same time period, provincial contributions have risen from $14.4 million to $18.6 million, but that increase provincially has certainly not been enough to keep up with demand. As a result, we have seen a significant reduction in the number of lawyers providing legal aid.

The opportunity, though, that we have is that the legal aid funding agreement with the federal government and the provinces expires in March 2017, so we are now presented with an opportunity at federal-provincial-territorial tables to engage in discussions regarding potentially enhancing the funding currently provided.

I want to make it clear, though, certainly from our perspective in Saskatchewan, that this is not just a matter of holding out our hand for more money to do the same thing in the same ways. What we are interested in is meaningful discussions about how legal aid services are delivered to make sure that the provinces and Canada are getting the best bang for our buck and, most importantly, that the best services possible are being delivered for those who are entitled to legal aid.

The second thing I want to mention is Saskatchewan's Aboriginal Courtworker Program. This program assists Aboriginal adults and youth who are in conflict with the law. These court workers help ensure Aboriginal people who are alleged to have committed criminal offences receive fair and just treatment before the courts.

This program is very successful. We have services available at the present time in 83 per cent of court points in Saskatchewan. Without this Aboriginal Courtworker Program, there would be many more costly court processes and further delays in the system.

Despite the success of the program, again, the absence of federal funding does create questions for us about the continued viability of that program. Over the past decade, as is the case with legal aid, provincial funding has increased while federal funding has remained frozen.

The third comment I would make is with respect to the transition from traditional court models to alternative settings — the therapeutic courts or solution-focused courts that we hear about a lot.

I balk a little bit at the use of the term "alternative.'' I would be happy to comment on that later as well. I much prefer the term "appropriate court models'' as opposed to "alternative court models.'' When we use the word "alternative,'' there is a presumption that the normal way of doing things is the way we've always done it. I think the approach would be to say we will find the most appropriate model for those who are before the courts.

I have three words that I use over and over again in describing the success of our therapeutic courts in Saskatchewan. The three words pertain, in particular, to our Drug Treatment Court in Regina, and those three words are "five clean babies.'' Over the past couple of years, five clean babies have been born to mothers who are in the Drug Treatment Court program. While we'll never know for sure whether those children or some of those children might become clients of the criminal justice system down the road, or certainly a cost to the taxpayer, I can pretty much guarantee you that if they had been born addicted they would certainly be a significant cost to the taxpayer.

The fourth thing I want to mention is what we generally refer to as alternative measures programs, both in adult courts and youth extrajudicial sanctions. Again, I would editorialize by saying I much prefer the phrase "appropriate measures.'' We have fewer cases in court as a result of those referrals. That means more court capacity and less delay for the cases that should be there and that are required to be in front of the criminal courts. So we do believe there is room for expansion of appropriate or alternative measures.

The federal government can assist Saskatchewan in further reducing delays within the criminal court system by looking at funding issues for legal aid and for the therapeutic courts; and for providing support, financial and otherwise, for community justice programs; and can also assist by supporting practical and operational amendments to the Criminal Code and Youth Criminal Justice Act.

Again, I reiterate that this isn't a matter of throwing more dollars at the problem to do what we've always done before but being more creative in how we spend those dollars.

There are a number of other programs under way in Saskatchewan that I think affect the issues of delay. We are right now working closely with the Law Society of Saskatchewan to provide greater access to legal services with the use of legal technicians — "paralegals'' is the word that's more often used. The law society is pushing for an examination of this. We certainly look to our sister provinces for some models. Ontario has moved a fair ways in this direction already, so we're examining those options.

We have a partnership under way right now with Ontario in collaborating with respect to remand practices across our justice partners, with the intent of reducing needless and unnecessary time in remand, while still maintaining the principles of community safety and due process. Processes involved in remand court operations are also very complex, but we think that the work that's happened thus far shows great promise.

We have a pilot project under way in Saskatoon that is examining options to reduce the number of individuals held on short-term remand. As our submission I think indicates, one of the perplexing issues is that a significant majority of people who are on remand in Saskatchewan are there for a relatively short time, begging the question that if they're fit to be released four, five, six or ten days after they were remanded, why were they not fit to be released, with some kind of control, a little bit before that?

One of the interesting bits of data to come out of the work we've done in Saskatoon remand is that if the recommendations are put in place that the significant players in the system have developed, we think we can reduce by 18,000 annually the number of full body searches that would take place just in transfers between the Saskatoon Provincial Correctional Centre and Saskatoon Provincial Court — 18,000 fewer body searches.

We certainly are interested in improvements such as remote video courts, improved communication between the Crown, defence counsel and the courts and police. We think that we've achieved some reduced delays and improved efficiency of the courts already, but certainly much more can be done. We're currently working with the Canadian Centre for Justice Statistics on a re-contact study. By linking policing, courts and corrections, this initiative should allow us to better target programming that could decrease further demand on the justice system.

As I conclude, I would just say that Saskatchewan is committed to collaborating and serving, if appropriate, as a demonstration site for new initiatives that may lead to reduced delays in the court system.

I will add a comment or two again about the culture issue. We have developed a system within the criminal justice system, and within the civil justice system as well, where the accepted expectation, the accepted norm, is that it's all right for things to take months and months to get resolved. My challenge to lawyers working in the system is that if a client walked into their office and asked to have a will done or a real estate transaction done and the response was, "By all means, but come on back in six or eight months and we'll see what we can do,'' they would lose the clients in a hurry. Yet we have a different mindset when it comes to conflict matters, both civil and criminal litigation.

The other comment I would make is that I have two sons. They're adult sons now, but 20 years ago they were 8 and 11 years old. If they had done something wrong and my wife and I had decided that there needed to be some kind of corrective action for them, if anyone had told me that the best course of action would be to send them away and ask them to come back in eight months so we could determine what their punishment or corrective action should be, I think we would all say that would not be an effective model. Yet that's what we do in our criminal courts all the time. We take months and months to resolve these things rather than what every study I have ever seen suggests, which is that the closer corrective action is to the behaviour complained of, the greater the effect.

I'll close with that and will certainly be happy to engage in any discussion or answer any questions that the committee may have.

The Chair: Thank you.

Mr. Waby?

Michael Waby, Executive Director, Criminal Justice Modernization, Ministry of the Attorney General of Ontario: Mr. Chair, thank you. I would also like to give my thanks for the privilege of the invitation before this committee and for the honour of appearing on behalf of our Attorney General, Madeleine Meilleur.

I would like to try to be of most use to this committee by focusing upon the efforts that the Province of Ontario is taking and has more recently undertaken to combat problems of delay and difficulties with efficiency within our criminal justice system. I think the focus in Ontario over the last decade has been one of evolving a series of measures to try to tackle those delays and bring greater efficiency to our Ontario criminal court system.

I would like also to echo some of the comments of Mr. Fenwick. This committee thoroughly understands that the causes of delay in the criminal justice system may be complex on occasion, are often varied and are frequently interrelated.

This committee will also be only too well aware of the fact that there is a difference between avoidable and unnecessary delay in the progress of a criminal case, and the natural and necessary processing time that is required to appropriately move a criminal case throughout the system. It's obviously in terms of the avoidable and unnecessary delay that in Ontario we've sought to focus our efforts in trying to improve the situation there.

Finally, just as an opening remark, it will be unremarkable to you when I say that, notwithstanding the importance of efficiencies and modernizing our criminal justice system in Ontario, those laudable goals are subject very much to the fundamental principles of justice that we adhere to Canada, and also the overriding importance of public safety as a consideration.

That said, if I can rehearse some of the work that Ontario has historically taken and bring you more up to date, in approximately 2004-05, in an attempt to tackle an increasing concern about backlog in the criminal courts, an initiative called the Justice Delay Reduction Initiative, or JDRI, was implemented in Ontario. This was best categorized as a series of focused blitz courts which targeted those court locations where there was a significant backlog causing concern. Resources were targeted in those particular locations, and there was an attempt to try to put in place a structure to meaningfully tackle the issues of delay for whatever types of cases were causing the problems that were of concern at that particular regional location.

In the long term, it was felt that this was not the most coordinated and collaborative strategy and that a more integrative approach needed to be found to address some of the systemic issues that we seemed to be carrying in Ontario. There were significant concerns at the time about the increased number of appearances that an accused had to make to have his or her case resolved before the courts, and the overall amount of time it was taking for an individual to have his or her matter concluded.

To that end, in 2008 the province established the Justice on Target initiative a specifically-resourced program that, the first time this Ontario, began to introduce, I think it's fair to say, very real rigour to understanding the specifics and the causes of the problems that we experienced. For the first time, it introduced some attempt at meaningful targets, both in terms of the reduction of the amount of time it would take a case to move through the system and for the number of appearances an accused would make before his or her case was considered to be reasonably within bounds.

It was a system that sought very much, for the first time, to move away from what I think is something we very usually fall into in the criminal justice system, which is to rely on anecdotal evidence about how a particular section of the criminal justice system is performing, and to introduce the rigour of evidence-based analysis. To that end, statistics began to form a significant component of the Justice on Target initiative, and there was a considerable effort to provide resources to enable the measurement of how a case was being progressed through the system. Quarterly, there were dashboards that were circulated.

I think the Justice on Target initiative could best be described as a ground-up approach. It involved the establishment at each courthouse within the province, and obviously therefore within each region, of local leadership teams that were collaborative, had judicial representation, representation from the bar, from the court services, and from police. These committees met with some frequency to try to understand the local problems that they had and to devise local initiatives, whether those involved the use of technology, more streamlined processes to facilitate an accused moving through the pretrial stages, and initiatives to try to tackle trial collapse.

For a fairly significant period of time, because Justice on Target was wound down towards the end of last year, the initiative reversed what had been a troubling trend in an increase in both time to trial and the number of appearances. It also enabled us to start getting to grips with some of the concerns that we most particularly had.

The collaborative nature of the enterprise was very educational. It taught us that if there was going to be a single solution to a problem, it was essential that all the principal stakeholders and participants in the justice system needed to act together, since no one individual or group is able to control all the issues at play.

The ground-up approach certainly had its benefits. It allowed local concerns to be responded to and local problems to have local solutions created for them. I think legitimately one of the areas that it was felt the Justice on Target initiative could improve upon was the ability to export good ideas. Whilst local requirements had to be respected and local needs and local problems had to be taken very much into account, there was something to be said for the school of thought that said for some issues, a good idea is a good idea is a good idea, and that transferable best practices may benefit the entire province's courts rather than being confined to a particular location.

Notwithstanding the very good work that Justice on Target did in providing a very valuable foundation to start reversing the trends that we troublingly see, in September of last year, the Ministry of the Attorney General, in close collaboration with the Ontario Court of Justice, established the criminal justice modernization group. It is co-chaired by Ontario Court of Justice Chief Justice Lise Maisonneuve, and the Deputy Attorney General Patrick Monahan. That is a governance committee to which I report with some frequency, approximately every six weeks, and that committee has deputy ministers and ADAGs sitting on it from key stakeholders. The Ministry of Community Safety and Correctional Services, legal aid, the defence bar, the Ontario Association of Chiefs of Police, the Ministry of the Attorney General, and obviously the Ontario courts.

The ethos behind the new approach in place in Ontario is to provide a more top-down rather than ground-up structure. The essence of the structure we have in place revolves around initiatives being put forward to this government's committee and with strong judicial leadership in partnership with cross-ministerial leadership.

We have initiatives that are endorsed by this committee and various stakeholders in not just in a collaborative manner — because I think in Ontario we've been, like other colleagues in other provinces, very good at working collaboratively over the years — but also in a coordinated fashion. Whilst working collaboratively is a prerequisite, the better coordinated the efforts are, the more successful we will be. It does not need me to say to this committee that one of the perils that comes with any meaningful change, whether cultural or process change, is a silo approach where each entity performs their own work in their own group.

We have a range of initiatives that are going to focus around technological improvement, that centre around improving the progress of the matter through the criminal justice system from the very beginning at the bail stage to release from the division through the pretrial phase.

We have a substantial judicially led initiative at the moment which involves close collaboration with colleagues at legal aid where we've agreed with them on a funding structure to pay for appearances that aren't currently providing payment for counsel.

We have a more rigorous and enhanced judicial pretrial system in place that will mandate that all matters set down for trial have a pretrial and be brought back in advance of their trial date and subjected to the rigour of a second hearing before a judge. One of the benefits of working with the senior leaders that I have through this governance committee is having key decision makers who will be able to respond fairly flexibly, productively and collaboratively to the efforts of the governance committee.

We are completing the first phase of initiatives that we had set out to complete, and I anticipate that at our forthcoming meeting next week, we will start setting our minds towards trying to tackle initiatives with a focus on some of the matters that my colleague Mr. Fenwick has referred to. Whether it's technology that minimizes the need for an accused to have to get up at 5:30 in the morning to undergo a strip-search upon exit from a correctional facility, ride through the vagaries of traffic and weather to a particular courthouse and then repeat the process in reverse at the end of the day, all to stand up in a courthouse to say, "Your Honour, I would like to come back on Thursday,'' it does not seem the most productive use of anybody's time. The use of technology may ensure that we have more efficient appearances.

We are working closely on an initiative with our colleagues in the Ministry of Correctional Services that will facilitate a much more flexible ability for defence counsel and legal aid duty counsel to consult with clients in the correctional facilities, which will also reduce the need for them to be travelling to court.

So I hope that we have put in place now and are starting to seriously tackle some of the remaining issues we have and that we have learned over the last decade what we think is the most productive approach to go about it. It's a work-in-progress. We are justifiably proud of the progress we have made, but no one is resting on their laurels.

We're more than happy to answer any questions about of the specifics of the work we're doing.

The Chair: Thank you.

We will begin questions.

Senator Baker: Thank you to the witnesses, both Mr. Fenwick and Mr. Waby. You're both former litigators; Mr. Waby mostly with the Crown and Mr. Fenwick with the Crown, defence and family law. You've done the rounds and you do excellent jobs in your positions; I have to congratulate both of you. I have followed you along the way.

What you have outlined for us is interesting. However, this committee is sitting here looking at measures that possibly can be taken to cut down on trial delays. We understand the initiatives that you've outlined that have been in the works. But when I look at the facts in Ontario, R v. Boss was stayed, thrown out of court, on February 4, 2016; R v. Chen, February 4, 2016, thrown out; R. v. Nadesu, January 19, stayed, thrown out — three counts of fraud over $5,000; R. v. Hart, January 5, 2016, thrown out, stayed. This is all Ontario in the last few weeks. And you have cases like Chopra, thrown out, January 8.

Finally, in the last six weeks, S. v. E., January 8, thrown out — very serious — two sexual offences against a seven- year-old child, thrown out — stayed because of trial delay.

If I turn to the Saskatchewan Court of Appeal, just two months ago there was the classic case of R. v. Scott, sexual assault, sexual interference. It was thrown out by the Court of Appeal. They upheld the decision of the lower court and a section 11(b) argument of trial delay. The Saskatchewan Court of Appeal again, two months previous to that, R. v. Lee — thrown out. It was a case of child abduction.

I could go on and on. These are recent cases in the previous weeks and months in both of your provinces.

As former litigators, you have been through the process. Mr. Waby, you've litigated subsection 11(b). In fact you lost in a case called Spencer. You remember that; you were Crown.

You know the system. You know what's in place. You've outlined that, but what are the specific examples that we can grapple with to make suggestions to correct these grave injustices being done in our justice system?

Mr. Waby: I echo your concerns about any case that does not have the opportunity to be tried on its merits. That is a fundamental concern.

It is certainly why the Ministry of the Attorney General takes so seriously subsection 11(b) cases that are brought. Again, as this committee is well aware, a successful 11(b) application does not enable a trial to be dealt with upon its merit.

In Ontario, notwithstanding a general downward trend of cases overall — some 220,000 cases came into our system last year — one subsection 11(b) case is one too many. The examples you cited are definitely a source of concern, although I don't know the specific facts behind what may have led to each one being a subsection 11(b).

To your point, I think the initiatives we have in place and those we are looking to put in place have a real focus on ensuring that you have a quality of appearance. In an environment where there is a sense that cases are more complex, where there is more disclosure, where more videos are provided by police services, where more work of a technical nature needs to be accomplished through the medium of computers, this modern, technical work has to be done within acceptable time frames. Every effort has to be made to ensure victims of crime, witnesses and the accused have their cases dealt with on their merits and not resolved through the 11(b) mechanism.

Mr. Fenwick: I will go back to the comment I made previously that it seems to me there is not a single magic bullet. The question is excellent, and you've done your homework, not surprisingly.

If we go back to the start and look at what happens at all the various steps that an accused, Crown and defence go through in the criminal justice process, we can say, "Can we make this more efficient by 20 or 50 per cent?'' Then we move on to the next one. When all of those add up, it's significant.

I'll give an example. We now have a culture where there is almost an automatic adjournment with the first appearance in court. Most judges would tell you that they will grant the adjournment as a matter of course. Then, the second time they come, if there is an adjournment requested, it is probably as a matter of course as well, and we probably have to do that on the third matter of course.

There is some responsibility on the courts to ask tougher questions about why they aren't ready to proceed that day and why there is that request for adjournment. The answer to that question lies equally with Crown and defence.

As the Deputy Attorney General for Saskatchewan, part of my task is to make sure that our prosecutors are more proactive. I don't see any reason why a prosecutor has to wait for a letter of request for disclosure from defence counsel. Why are we not more proactive with respect to disclosure and anticipate the request is going to come, and then proactively provide it rather than react?

The concept of e-disclosure could be very helpful. My former role before this one was as the ombudsman for the Province of Saskatchewan. We had a system whereby if we had a complaint come to the ombudsman's office about the Workers' Compensation Board, in the old days we would send a letter and request the file from Workers' Compensation, and we would get back a stack of paper sometimes like this.

Workers comp in Saskatchewan is now completely digitized. If the ombudsman's office needs that file, we send them an email. They give us an access code. We log onto the computer and the entire file is there automatically. We can look at whether that a possibility for e-disclosure, as well. It becomes instantaneous in this electronic age.

We have a situation now in Saskatchewan where if an accused is declined legal aid, in many cases — I think most cases — they will appeal the decline-of-eligibility decision. There is an automatic adjournment, usually of several weeks, while that appeal is held. Why do we not have an iPad in the rural court location and one in the eligibility appeal officer's desk in Saskatoon, and we conduct that appeal there on the spot? They're not complicated; they're relatively straightforward.

So those are three examples at the front end where we could lop off a number of weeks.

The data tells us that we are averaging approximately eight court appearances per guilty plea in Saskatchewan. We're not talking about just provincial court. We have to ask ourselves: What has changed from the first court appearance until the eighth court appearance where it's now appropriate to enter a guilty plea?

Similarly, in the superior courts we have situations where a large number of matters are scheduled for trial and then the guilty plea happens on the day before or week before the matter has been scheduled for trial. Meanwhile we've tied up our courts.

We have to ask ourselves what barrier was in place, or what the reason was that the decision to enter a guilty plea did not happen on the first court appearance or the second court appearance, or at least the third or fourth, not the eighth or not two years later when the matter is set down for the Queen's Bench trial.

What has changed in the meantime? Let's get rid of those barriers that have prevented that decision from happening in the first place. I think if we do that, we will significantly reduce the number of matters before the court, thereby increasing the capacity of courts to deal with the matters that should go to trial at a much earlier date.

[Translation]

Senator Dagenais: I want to thank our guests. Obviously, we are all very aware of the delays. When I was a police officer and would go submit a complaint to the Crown prosecutor, there would be piles on his desk. There was sometimes a single Crown prosecutor for 10 or 12 defence attorneys. Of course, that is the problem with Crown prosecutors.

When we consider the situation objectively, we see that meetings have been held with federal and provincial justice departments. I believe that a steering committee on efficiency was created at some point, and it was made up of judges, prosecutors and police officers. There was a national joint committee made up of senior representatives, as well as a symposium on reform.

A significant number of meetings have been held with many people to discuss delays. So what is missing to obtain effective results? Do you have anything other than meetings to suggest as part of our reporting? We see that many meetings have been organized to find solutions, but no solution has been found so far.

The possibility of using technology when there is a shortage of Crown prosecutors has been mentioned. Is there also a shortage of hearing facilities? I would like to hear your thoughts on that.

[English]

Mr. Waby: Well, senator, I think everybody would always like more resources. I think, though, that we live in a world where there is a recognition that there has to be thoughtful and productive use of the resources we have. We certainly have to make the most of what we have, and if we get extra, that's tremendous.

I think there is a fairly good understanding of what many of the key problems are in the criminal justice system.

With the greatest of respect, I'm not altogether sure that I would agree with you that no progress has been made. I think some progress has been made. Ontario is not alone in this, but from an Ontario perspective there has been meaningful progress in reducing delay. Eighty-two per cent of our cases are dealt with within eight months. We have a 95 per cent clearance rate of the total volume of cases, and that's based just upon last year.

That said, each case and each appearance needs to be meaningful. Police officers need timely access to Crown attorneys and defence counsel need timely access to Crown attorneys. The decisions that Crowns make need to be timely. They need to be in possession of the disclosure from police officers. To echo one of Mr. Fenwick's comments, appearances before judicial officers need to have some rigour to them, and not for us to have a default setting of each request for an adjournment is just acknowledged unquestionably and on we go.

I think it is a healthy sign that even where we are making progress, we recognize that more can be done. To allude to a comment I made earlier on, we aren't resting on our laurels. Ninety-five per cent is I think a pretty healthy clearance rate for Ontario. We want that and we are striving to have that be higher.

Back to the 11(b) comment from Senator Baker, we don't want any 11(b) cases adversely adjudged in Ontario simply because a case has taken too long.

Technology has a meaningful role to play. I don't think there is a one-size-fits-all solution, and the letter "e'' being put before a word doesn't automatically mean that the solution is going to be vastly better. But I certainly think, from an Ontario perspective, we recognize that technology could be put to better and more productive use and that we would see substantial benefits from that.

[Translation]

Senator Dagenais: Mr. Fenwick, do you have any comments to share?

[English]

Mr. Fenwick: At the risk of sounding like I'm just going through a grocery list of small things, there are a couple of things I would like to add.

I do believe that the major part of our problem is the overall capacity of the system. While one answer would be to significantly increase the number of prosecutors and the number of legal aid lawyers, who are by far the most common defence counsel in our province, that presumes we are doing things correctly now, and I don't think that's an accurate presumption.

In addition to the kinds of things I talked about before, I think we can reduce the overall number of cases in the system in other ways as well. I will give you an example.

I'm a believer in appropriate measures. I'm a believer in diversion, sending cases out for relatively low-risk offenders in relatively minor situations. But right now in Saskatchewan, 90 per cent of the cases that are diverted to alternative measures are post-charge. I believe, however, that when you were working as a police officer, you probably knew at the time of your interaction with the accused whether this particular accused was a candidate for alternative measures.

My question would be: If you think you are going to recommend alternative measures, why do we lay the charge in almost every case? We could significantly reduce the number of cases before the courts if we were to divert pre-charge, and yet we do very little of that in our province. I can't speak for others, but I believe that the ratio is similar.

We have provisions right now that require pre-charge screening by an agent of the Attorney General, by a prosecutor. We may need to look at that. There are good reasons to have it, but it certainly adds delay to the process when a police officer can't make the decision that this should be a pre-charge diversion. So that's another example of something we can look at.

I also want to say that we have the habit — and this is perhaps back to the culture argument again — that if a matter is going to be adjourned for six months before there's a guilty plea, we'll probably adjourn it four or five times for a month or six weeks at a time.

There are often very good reasons why something should not be dealt with for several months down the road. So let's put that on the table and adjourn it once. If it's a matter of someone getting their affairs in order, if it's a matter of someone having to change their circumstances and it's going to take three, four, five or six months to do that, let's adjourn it once, reducing, therefore, the number of cases before the system.

I have said to our prosecutors in Saskatchewan that by the time I finish my term as the Deputy Attorney General, whenever that might be, if there was one change I could do to make their lives easier, it would be so that I never have to see them again literally pushing a shopping cart full of files down the sidewalk to the courthouse, most of which are simply matters that are going to be processed by way of adjournment. Even though those individual adjournments might only take two minutes in court and might only take 10 or 15 minutes outside of court, those are a lot of files that add up and take time.

Those are the kinds of things that we can do. Many small bites result in a pretty big mouthful and a pretty big chomp out of the time to trial.

Senator Joyal: I will take you, Mr. Fenwick, to the point where you just left off, especially the images that you described of pushing a cart full of files.

I wonder if we are really up-to-date in terms of technology use in relation to the administration of justice, especially in relation to criminal cases. I have the impression that we are really at the infancy of the use of it. I have not heard so far from all the witnesses that we have had the privilege and benefit of hearing that any of them have really described to us a way to approach the use of technology that is comparable to what we know in other areas of administration or public activities. Both of you, as my colleague Senator Baker mentioned, have been law practitioners for a while. I'm sure you use a computer as contemporary people do, but I feel the administration of justice has not gone through its revolution in terms of adapting to the use of technology. Am I overstating it, or is there a basis of reason for what I say to you?

Mr. Waby: I don't think you unfairly categorize the fact that in many respects the criminal courts aren't necessarily where we want them to be. We have people daily walking into our criminal courts with technology in their pockets — personal phones and potentially tablets — that enables them to do a wide variety of things. It is an understandable frustration for them when they arrive at the criminal courts and find a system that isn't as technologically competent as what they can do at home.

I think it is fair to say there is recognition that a lot more needs to be done. From an Ontario perspective this approach is categorized in a raft of measures we have undertaken or are undertaking. The traditional paper-based model in certain regions has now been replaced by electronic disclosure. The police services provide their disclosure in a more timely and comprehensive fashion electronically, which is a vast improvement, when it works, than the paper- based system.

We are working towards an e-intake project that will deliver the Informations electronically to the courthouse rather than the traditional medium of paper and will reduce the five people to enter the same form of data and allow one individual to do it.

With colleagues in the Corrections ministry, we are about to start, I hope, in the spring, a pilot technology that will give defence counsel the ability to communicate with their client from his or her laptop or desktop tablet.

I can't speak for other provinces, but certainly in Ontario there is an acute awareness that a great deal of in-person appearances that occur in court have as a principal part of their purpose the ability for counsel to communicate with their client. No solution can be done in isolation, one that doesn't allow counsel the opportunity to remotely speak to their client. You can put in place all the technology you want, but if counsel still needs to speak to their client, they still need to speak to their client. I'm quite happy that we will be pushing forward technology that will give counsel that flexibility so they won't have to bring clients in, nor will they have to go out to the jail.

There are, through the court services division in Ontario, a number of technological initiatives to try and bring us into the 21st century. It is not, inevitably, work that will happen overnight, but there is a very great enthusiasm to bring appropriate technology into place as quickly as possible to address precisely the issues that you categorized. The sooner that happens, the sooner we'll realize greater efficiencies, and I think the sooner we will feel that we are best serving the people that use our criminal courts.

Senator Joyal: My preoccupation is to trying to approach this rationally, as you said, in the contemporary 21st century. You know how programmers work: They dissect the various operations, try to establish the link, and then revise the context and the connection. I won't describe to you how it works. You know it probably better than me.

Do you have a plan to establish a pilot project through which, for instance, in the judicial district, you would try to experience how the technology could be brought in so that you would have conclusive results following that experience so that you could share it in the system? If we expect that the whole system is going to change overnight because the new generation will come in and they are very flexible with the use of technology, I don't think it's going to happen that way, but I could be mistaken.

Is it fair to say that is a way to approach an improvement of the system?

Mr. Waby: I think you're certainly right, senator. It is fair to consider it that way. I think the approach that generally has been adopted in Ontario is to look at specific problems and try and view a technological solution for them. There isn't, to Mr. Fenwick's comment earlier, a single technical solution that would solve the problems, but, for example, in the last 12 months we have introduced technology to facilitate video bail hearings in a number of regions in Ontario. The geography of northern Ontario obviously means that there are enormous benefits there. Similarly, in the Toronto region, the volume alone brings significant benefits through being able to deal with more individuals in a more efficient manner.

We have looked at how our bail process is going and tried to apply a technological lens to that. The approach we have generally adopted is to take a phase-by-phase, appearance-by-appearance, issue-by-issue approach and then subject that to the rigour of "How can this be made better? How can we use a technological solution that will improve this and is also integrated with the other work we're doing?''

I hope that is a productive approach, and we have found through the work we have done over the last little while that the early signs are encouraging.

Senator McIntyre: Thank you both for your presentations. My question is a follow-up to Senator Joyal's question regarding bringing in new technology to address the issue of court delays in our criminal justice system.

Last week the Canadian Bar Association appeared before this committee. The association recommended, as I recall, modernizing routine intake appearances by creating an online system where the accused or counsel could appear electronically, unless there is a dispute that requires judicial oversight.

What are your views on these suggestions? If you are in favour of it, what role could the federal government play in helping establish such a system?

Mr. Waby: Senator, I think it has merit as a concept. There are always challenges with technology inasmuch as one cannot have one-size-fits-all. For some accused persons before the court, I think there would be very real challenges and potential difficulties by mandating that they had to only appear through the medium of technology. Certainly as part of the technology initiatives we're exploring, that's something we would be open to considering. The more we're able to have meaningful appearances that don't require in-court appearances, generally speaking that is a better thing.

In the same way that accused persons with mental health issues may not be the best, in all cases, to appear via video for a variety of reasons, the only cautionary note I would make is that the principle behind the thing has significant merit, but I wouldn't want it to form the only basis upon which one could make those appearances.

Mr. Fenwick: I would agree. I would add that we have made more progress, I think, in that area on the civil side of the courts.

British Columbia has just introduced a very interesting online dispute resolution mechanism that we're looking at in Saskatchewan. I think we have been more reluctant to look at those kinds of initial options in the criminal system because of concern about the Charter and the rights of the accused.

Specifically in answer to your question, I don't know what the "ask'' would be to the federal government in terms of allowing that to happen, but we would certainly be interested in examining it as a concept, as Mr. Waby has said. I think it certainly merits consideration.

Senator McIntyre: Obviously we can't generalize. I understand the situation where a person would suffer from mental health issues, for example, and a psychiatric evaluation would be needed and followed by a verdict of unfit to stand trial or not criminally responsible on account of a mental disorder. I understand such a situation.

Senator Batters: Thank you, all of you, for being here.

Mr. Fenwick, it's nice to see a fellow Saskatchewanian. Thank you for appearing before our committee today. I have a couple of questions for you.

When I worked for the Minister of Justice as his chief of staff a few years ago, I recall hearing about a shadow court initiative that was up and coming in Saskatoon. I'm wondering if you can tell us about that particular initiative.

Mr. Fenwick: We have it, and not just in Saskatoon. In Saskatoon, specifically, we recognized that a large number of matters were falling through. As a result, even though we had crowded court dockets, we ended up with empty courtrooms. We developed a system whereby we were a little bit like the airlines, I suppose. We tended to overbook, but we rarely ever had to turn anyone away.

So we would have five court parties scheduled for four courtrooms, and in the unusual circumstance where all five matters would be proceeding, we would find a way for that to happen. But rather than having one or two courtrooms sit empty, we found that we were increasing our capacity by 20 per cent, for example.

The other example of where we've been doing more recently is in some of our northern court points. We have been sending shadow prosecution and legal aid parties up. The challenge we face is that you spend much of the day in adjournment because the Crown is talking to its witnesses and legal aid is talking to its client. So instead of one prosecutor and one legal aid lawyer being in one of our northern points, we have two prosecutors and two legal aid lawyers there. While one pair is talking to the client and the witnesses, the other is in court and vice versa. It's the same concept. While the first reaction might be "you're doubling up,'' we have actually found that it has reduced the amount of court time rather than added to it.

Senator Batters: I wanted to make that clear to people because it's not something we've heard about here before. It is actually for trials that are set, just because so many trials end up falling through at the last minute, either with a plea bargain and or a guilty plea.

When I raised that issue with some criminal defence lawyers from Ontario, it was a brand-new concept to them. Obviously, it's an innovative Saskatchewan approach, and I'm glad to hear it's working well.

My second question is in regards to Statistics Canada. They testified before our committee near the beginning of the study. Saskatchewan, we found out, was one of the very few provinces — I think Quebec and Manitoba were also in this category — where they only provide provincial court data to Statistics Canada, not superior court data. I saw a brief reference to that. I don't think you said it in your oral statement, but I see it in your written one. You wrote:

While Saskatchewan does not have provincial information for Queen's Bench courts on the lengths from first appearance to final decision, due to the complexity of these cases, they generally take longer. Fewer than 10 per cent of cases are heard by Queen's Bench in Saskatchewan.

I wonder if you could explain that, because we had that question when Statistics Canada was in front of us, and they don't know. Why are only the provincial court statistics from Saskatchewan included and not the superior court numbers?

Mr. Fenwick: Unfortunately, the short answer is that we have not been gathering that data in the superior courts, but that's changing. I'm very pleased to say that this fall we are going online with our new court data collection system called the Integrated Justice Management System, replacing a 30-year-old IT system in our provincial courts. We've rolled two thirds of it out now. It combines corrections, policing and the courts. The last third is courts. This fall it goes into provincial court, and we hope the next step will be in the Court of Queen's Bench.

I hope that within a year or two the answer to the question will be that we now have that data, but so far we just have not had the capacity with our IT system to collect it.

Senator Batters: Thank you. I appreciate your help with this important study.

Senator White: Thanks to everyone for being here.

The last few witnesses we've had have talked about where we should be expending energy. My background is policing, and I'm trying to figure out why we have expended energy on some areas.

In Ontario in 2009, we identified through research that 25 per cent of all cases ended in a conditional discharge, absolute discharge or suspended sentence, and yet they averaged nine appearances to get there. It is not dissimilar to Saskatchewan, and I appreciate your comments.

The reality is that we are putting cases in the courts that don't need to be there. We have no proportionality. An impaired driver, a shoplifter or an attempted murderer is hit with the same hammer every time.

Some of our discussions have surrounded this question: Should there be similar offences in provinces that allow the police — like British Columbia does with impaired driving — to decide whether they would go through diversion, police discretion or a ticketing scheme? Take for example the laying of a shoplifting charge under provincial statute in Saskatchewan instead of pushing it into the criminal court system and, nine appearances later, ending up with a suspended sentence or conditional discharge?

Speaking of Saskatchewan, have you looked at alternatives to building a bigger system to deal with these cases of which at least 25 per cent shouldn't be in the system in the first place?

Mr. Fenwick: We had not gone a long way done that road yet, although the comments I made previously about pre- charge diversion are exactly about that. Many of those would be cases that might result in an absolute discharge, so that is the first step.

We are looking very closely at what British Columbia has done with impaired driving. We have not yet had discussions about whether we should create an administrative tribunal to deal with minor criminal offences. I would not want to proffer an opinion with respect to the constitutionality of that.

The answer to your question is no, we haven't gone down that road.

Senator White: I have a second question, unless Mr. Waby wants to respond, as well.

Mr. Waby: Senator, I think the principle of ensuring that we only have individuals entering the court system, whether youths or adults, is a sound one. Tools to enable police services to exercise appropriate discretion to keep out the mainstream court system individuals who don't need to be there is only a sensible and prudent course.

With your former experience, I'm sure you will know only too well that the eventual outcome at trial and the sentence that is imposed may be indicative of a variety of factors, and that many of those factors may not always be available or known until the day of trial.

However, the figures you speak to really reinforce the notion that every appearance has to be meaningful. If something can be done in five appearances, it doesn't need to be done in nine.

Senator White: I have a second question around remand. I know it is a concern in Ontario. We have a centre here in Ottawa. Probably two thirds of the people in the facility on Innis Road are there for remand, which means no conditioning, no programming and no assistance in many cases for drug treatment or mental health care.

I understand Nova Scotia this week approved an electronic monitoring system that will be used for remand, so there will be a middle ground between no remand and remand where people could actually have electronic monitoring.

Has either of your provinces looked at the electronic monitoring of people as an interim step to being held without bail?

Mr. Fenwick: That's part of the discussion, I think, with the work that we're doing on remand. To me, that's an absolutely perfect example of how we could better respond to short-term remands.

If my colleague, the Deputy Minister of Justice on the corrections and policing side, Dale McPhee, were here, he would quote the numbers more accurately than I can. I think our remand numbers are lower than Ontario's. I think Ontario is two thirds and we're about half.

Of more concern is that more than half of our remands are 13 days or less, and about half of those are six days or less. So the question is: If you're safe to be released on average three or four days after you were arrested, what has changed from day one? I think that's a perfect example of where electronic monitoring might be a very good answer.

With a few mechanisms like that, it would appear that we could reduce our remand numbers significantly, perhaps by 25 per cent. That's absolutely worth looking at.

Are we talking about it? Yes, we are. That's part of the partnership we're working on right now with Ontario. We're working on those kinds of solutions.

Mr. Waby: Specifically, senator, I have a meeting in about two weeks' time on this issue. It was recently raised as something to be explored. We're very interested in exploring the potential for it. I don't think its potential is lost on anybody in this committee.

Your question from a "meeting schedule'' perspective for me is timely because it was raised last week for the first time. I have a first meeting next week to see where it might lead.

As Mr. Fenwick says, we're also working on a variety of other initiatives, including with our colleagues in Saskatchewan on the joint remand initiative, which I'm confident will lead to benefits as well.

[Translation]

Senator Boisvenu: Thank you, Mr. Waby and Ms. Falkowski. I apologize for being late. I had to leave the room earlier.

I would like to steer you in another direction and consider the system in a more upstream manner. There is much more focus on operating in a downstream manner. The justice system is sort of like a dog chasing its own tail. Resources are added, delays increase, and so on.

I compared the recidivism rate by region and court delays. One table contains court delays, and the other contains recidivism rates. The two correspond. When we look at the recidivism rate in a province like Quebec, where the rate is 50 per cent, we see that delays are longest there. But when we look at other provinces with a lower rate of recidivism, court delays are shorter.

I feel that we are operating like a car dealership. We put more money into repairing vehicles than into selling them. We are constantly working downstream, rather than upstream. For example, the average number of provincial prison stays per person is eight. Is there no link between recidivism and the clogging up of our courts?

Moreover, is there no link between our rehabilitation programs' non- performance and court delays? If we managed to reduce the recidivism rate by 50 per cent, would court delays become shorter, as accused persons would no longer be going through the system's revolving doors?

[English]

Mr. Waby: Senator, I think any sane and sober person would endorse the notion that prevention is better than a cure. I would think it's got to be acknowledged that it is much better to use all the resources at our disposal to prevent any individual entering into the criminal justice system for a first or subsequent occasion. Any work that was productively able to be done on preventing those who have previously offended from reoffending and re-entering the system I would heartily endorse and could only be a good thing.

[Translation]

Senator Boisvenu: Should we not give thought to both the clogging up of our courts and the performance of our system in terms of reintegrating offenders into society?

The recidivism rate among young people aged 18 to 30 is 70 per cent. Their comings and goings are sustaining the system. Victims are the ones suffering. They did not choose to get involved in the criminal system, but criminals did. So if we are carrying out a study only on resources or computer systems, without giving upstream consideration to the performance of our prison systems, don't you think that we will be back where we started in 10 years' time?

[English]

Mr. Waby: I think we have to critically examine all the services we provide. I know from the Ontario perspective that two new correctional facilities have opened comparatively recently, Toronto South Detention Centre and the South West Detention Centre in Windsor. The correctional model upon which they are based places a premium upon programming, education and training. It is specifically tailored for the remand population so that where some offenders may need and require benefits of longer-term programming through a probation order or through a prison sentence, the remand programming at these two facilities is designed to be tailored more to the needs of a short-term remand inmate.

I think one of the reasons that we are so concerned in Ontario to make sure that only those who need to physically appear in a courtroom actually do that is that aside from the financial benefits and logistical, staffing and scheduling benefits, there are perceived, I think legitimately, to be very human benefits to an individual not being removed from programming that may benefit them and prevent them from entering precisely the path you articulated.

There is an increasing recognition across the justice sector of the importance of what you have articulated. I know there is a lot of interest in the new correctional structure that has been put in place with the benefits it's hoped will stem from that. But I think any study and research into that could only be welcome.

The Chair: I was listening to the questions about technology raised by Senator Joyal. I guess I'm somewhat of a pessimist. I remember talking about this issue 25 years ago when I was a member of the Government of Ontario. There was a program called Integrated Justice that we spent millions of dollars on, and it hit a wall somewhere.

I raise my eyebrows a little, Mr. Waby, when you say the first time electronic monitoring was raised with your ministry was a couple of weeks ago. I know we were talking about this 12 or 13 years ago in the Solicitor General ministry.

I think Mr. Fenwick wanted to have some input on the technology issue when I cut him off earlier.

Mr. Fenwick: That's fine. Go ahead.

The Chair: Mr. Waby, responding to Senator Baker citing those examples with section 11(b) rulings, do you have a case-specific analysis when an 11(b) ruling is made? You said you weren't familiar with the specifics.

Mr. Waby: I'm not familiar with the particular cases cited by Senator Baker, the judgments and what underpinned the judgments. I take it from Senator Baker's eloquent use of them that they resulted in cases being dismissed for unreasonable delay.

That being the case, I don't think I could do better than to restate the comments I made previously about the concerns the ministry has of any case.

The Chair: Do you undertake an analysis of why that section 11(b) ruling was brought down?

Mr. Waby: My understanding is that the ministry does some collection of decisions as it relates to section 11(b), not least of all because they're such a source of concern. I believe there is a reporting requirement in place for Crown attorneys that they have to notify their managers in the event that there is a case they have had that was dismissed for 11(b).

The Chair: Is there any way that you can share that information?

Mr. Waby: I would certainly be happy to look into that, Mr. Chair. I'm confident that it is data that we have. I don't have any with me today, but I know this is ongoing work on the part of the committee and I'm happy to take that request back to the ministry.

The Chair: We had representatives from the Canadian Bar Association here last week, specifically Mr. Ian Carter who made a proposal. He said it would be a game changer. He's talking about nothing of consequence happening in a court where a decision has to be made. He suggests it's all done outside the court, even though we have folks showing up not ready to proceed and asking for another adjournment.

He cited an Ottawa courtroom that is used five days a week for routine appearances and, to quote him, "nothing of consequence happens.'' He was suggesting that we look at moving to a system closer to the civil system. He suggested the appearances that are occurring for the most part in Ottawa are completely unnecessary. He also said this is an area that can be fixed in the federal jurisdiction by minor changes to the Criminal Code. Unfortunately, he didn't tell us what they were, but I'd like to hear if either of you have a reaction to that recommendation.

Mr. Fenwick: I'd love to weigh in on that.

I don't know what the specific changes to the code would be either, but I think it is certainly something that merits consideration, not just for the efficiency of the courts. Some of the saddest letters that I read that come across my desk are from family members of victims. I can think of two still on my desk now — one complaining about 18 court appearances and one complaining about 22 before something ended up being resolved. In both of those cases, the accused ended up pleading guilty.

I think if we had a mechanism such as you're describing or as Mr. Carter was describing, where routine matters could be dealt with without a court appearance, video or otherwise, one of the things that would lend us to is an electronic docket so that family members or victims could actually log in and say, "Gee, I don't have to go to court today because this matter is just going to be adjourned.''

So I think there is benefit that we should not overlook for families and victims, as well as for the court system. I absolutely think that is something that merits further examination.

This might be my comment in response to your invitation before. It has been suggested to me — I don't necessarily endorse this — that the best thing we can do with respect to introducing IT in the court system is to bring in a high school class and have them look at it, the young people who deal with technology every day. Have them sit down and watch for two or three days and tell us how we could use technology. We might get some very good answers.

We can be accused of many things as lawyers and as the justice system, but being too hasty in accepting change is not one of the criticisms of which we are guilty.

The Chair: We have roughly 15 minutes for a second round, and we have other business to deal with this evening as well.

Senator Baker: I will try to be brief.

Mr. Fenwick, you made a suggestion to us that the system of disclosure could be hurried along, that things are just held up, and that proactive disclosure would assist matters. What I was thinking about when you said this was in your typical criminal case, a defence attorney applies to unseal warrants, sworn Informations to Obtain. A court never turns you down if you want the sworn information to obtain on a wiretap, for example, or any other matter relevant to the trial; yet, the provision in the code is that you must make an application to the court and there is adjudication by the court. It's always done. You're saying, why not do that in advance, black line it, vet it and have it ready to give to the defence.

That would be very helpful, Mr. Fenwick. It's an excellent suggestion. We would have to amend one section of the Criminal Code.

What about pretrial matters, even bail matters, as you have mentioned, that don't go to the innocence or guilt of the accused but can be settled by somebody who is not seized with the case, not by the trial judge?

In the Criminal Code, a justice is defined as a justice of the peace or a provincial court judge. So a justice of the peace, a justice, is empowered to do a lot of things under the Criminal Code. Most provinces are not permitted to do so. They can't issue warrants out East, but I understand there is a system in Ontario whereby a justice of the peace can issue a warrant.

The Federal Court system has a procedure called prothonotaries, as they're called, who take the place of judges in all pretrial matters. Disclosure applications and so on can be argued without tying up a judge. These are experienced attorneys, barristers.

Do you have any thoughts on that as to freeing our courts and judges? Would it eliminate a system of conflict, say, in judges doing pretrial arguments versus actually doing the trial? What would you think if we suggested a system whereby to free our judges we would have a system similar to the Federal Court of prothonotaries to deal with pretrial matters?

Mr. Fenwick: My answer to that would be very quick and off the cuff because it's not something with which I am very familiar. I can't think of strong objections to it.

I would add one piece, though. I would go further than saying that this is a pretrial management conference. On the civil side in Saskatchewan, one of the things we're encouraging is greater use of the rules of court on the civil side that provide for a post-pleadings conference as opposed to a pretrial conference.

My suggestion is this: Should we look at something similar in the criminal matters? Whether it happens to be a judge or another official, let's not wait until it's pretrial but do it post-pleadings and get as much resolved as we can at the earliest possible stage. I think they're related.

Mr. Waby: Senator, I would say, as succinctly as I can, in terms of Ontario, we want to make sure, as I'm sure do all the provinces, that the work that judicial officers do is meaningful and that they aren't doing work they don't need to do. That returns to the themes we discussed in part about making sure we don't have unnecessary appearances in the courtroom and unnecessary appearances, period.

I think for all the benefits we see in Ontario for justices of the peace being able to engage in a fairly wide variety of pretrial, non-guilt determining processes, that in many respects works quite well for us.

Again, off the cuff because I'm not familiar with the system you've mentioned, I have a reservation, a small voice in the back of my head, that puts up a flag for me simply because I think there are a number of appearances that benefit from judicial intervention because it is judicial intervention. The presence of a judge involving himself or herself in a particular decision can fix individuals' minds more than might be the case in administrative appearances.

Senator White: I want to speak quickly to the police perspective here because often we have a discussion around the police bringing these cases to the courts. I spoke to chiefs today, in fact. The truth is the vast majority of police in this country would take on the responsibility of diverting pre-charge diversion, in particular, much more than post-charge diversion in order to put the right people in the courts, and I think the system allows it to.

I think the fear is that the police are going to push back. I saw senior police leaders at justice reform meetings in 2009, 2010 and 2011 in this country all say the same thing: Let us have the power to try to find a system that puts the right people in the courts, and I think you will get their support.

We heard last week where somebody said the solution was more judges, more Crowns, more defence and more courts, and I can tell you right now that is absolutely not the solution to deal with this issue. In fact, it couldn't be more wrong, from my perspective, to build more of a system to put the wrong people in court for nine appearances at a time. Do you agree?

Mr. Waby: The short answer, senator, would be yes, putting more people into the system who don't need to be in the system is not desirable from anybody's perspective.

Senator Joyal: Mr. Waby, considering your background, having trained in the mother country, as we used to say in another century, is there anything we could learn from best practices in your experience of criminal law in another country?

Mr. Waby: I know that we do spend quite some time examining other jurisdictions to see how we can learn from them. I think there is a difference between respecting the cultures and the legal systems in place in a particular jurisdiction that may be unique to that particular jurisdiction, and taking from that what is a good idea and is transferable.

Electronic tagging, which has been referred to, in terms of facilitating a bail release may be new to me in my current role. And to the Chair's comment earlier, I'm sure it's not new to him nor the Ministry of the Attorney General, but that is of interest and is a fairly well-established practice in the United Kingdom.

The Charter brings a dimension in Canada that renders some potentially very sound ideas difficult to implement. Quite often what seems to be a good idea on paper in another jurisdiction just may not necessarily be capable of being implemented. The challenge then becomes to make sure we can try to take the best of other systems and implement them on our own. In the same way we can teach other jurisdictions, we recognize that we're capable of learning from them as well.

Senator Joyal: Thank you.

Senator McIntyre: When the federal government amends the Criminal Code or enacts new legislation on criminal matters, it normally prepares manuals or tools that are distributed to the provinces. How useful are those tools and manuals? Are there other resources or forms of support from the federal government that are helpful to the provinces?

Mr. Fenwick: Yes, they are useful and are not prepared in isolation. Most of them are prepared as a result of collaboration between senior officials of the provinces and the territories with the federal government. There is some give and take and advice given by the provinces in terms of what would be useful. "Yes'' is the answer to that question.

Are there other resources? There are other types of information that are disseminated largely from the joint work at the officials' level that are helpful as well. Certainly, the strategic planning arms of most of our governments who work at the officials' level can then provide papers to our prosecutions division, for example, as a result of those conversations, and that's helpful as well.

The Chair: I think that wraps it up. I want to thank all of you for giving us your time, but more importantly, thank you for your informative and helpful contributions to our hearings. It's much appreciated.

Senators, you all have a proposed budget before you. This was dealt with at length by steering. What is being proposed is two one-day trips on Fridays — April 15 and April 22 — and then a three- to four-day trip to Vancouver, Calgary, and Saskatoon on May 2 and 4, while the Senate is in session. Both whips have asked us to carry out the travel during that sitting week, so we're not going to have a problem in that respect.

Senator Plett has again raised the issue of the need for a Calgary visit, so I should open that for discussion. Senator Boisvenu talked about two days in Montreal.

Senator Boisvenu, we felt that we would look at an extended sitting in Montreal, with longer hours, to try to ensure anyone you or Senator Dagenais feels should have an opportunity to appear will have that opportunity.

I will open this up for discussion.

Senator Fraser: I'm a little bit confused. You said two one-day trips, on April 15 and 22. Would those both be to Montreal?

The Chair: One to Montreal and one to Toronto, sorry.

Senator Fraser: One to Toronto, okay.

Senator Joyal: They are Fridays?

Senator Fraser: Those would be Fridays.

I cannot participate in any travel while the Senate is sitting. My other duties prevent that.

For the Montreal budget, you can remove one of those hotel rooms. I would rather sleep in my own bed than in a hotel room, and Senator Boisvenu says the same.

Senator Joyal: The same for me.

Senator Dagenais: Same for me.

Jessica Richardson, Clerk of the Committee: So remove four. We can certainly do that. It's standard to just budget for all 12, but that's an easy change to make and adjust the numbers accordingly.

The Chair: Senator Fraser, anything else on this?

Senator Fraser: I don't think so, no.

The Chair: Senator Joyal?

Senator Joyal: The same for taxis; certainly not for me. Whatever the transport is, I will already be there, so I don't need to have that.

The Chair: Does anyone share Senator Plett's concern about the need for Calgary? I did share it initially, because we had an indication that we were going to have Alberta representatives appear before us. That is now, at best, up in the air.

Senator Fraser: What kind of people are going to be at these hearings? I'm not looking for names.

The Chair: That's a good question. I'll turn that over to our clerk.

Ms. Richardson: Senator Jaffer and Senator Batters had a lot of ideas about hearing the perspective of locals who they thought we wouldn't be able to get to Ottawa. They also wanted to do fact-finding on the ground and meet with people. They felt we could not accomplish this by having people come to Ottawa.

The Chair: They were suggesting field trips in the morning and then have sit-down meetings in the afternoon.

Senator Baker: Field trips?

The Chair: Going to specialized courts and that sort of thing. That hasn't been fleshed out yet, Senator Baker.

Senator Joyal: May I share with you in a genuine manner —

Senator Baker: Is this being televised?

Ms. Richardson: It is public but not televised. Budgets must be adopted in public.

Senator Joyal: I am not opposed to the idea of fact-finding, but I want to know what we are exploring. Who are the target groups we would want to hear from? We don't want to arrive in Montreal and say, "We are at this place. Can you come and give us what you think?'' It has to be helpful to our study.

I would understand that groups or services have been identified that could be helpful to us. I have proposed the former Chief Justice of the Superior Court who has retired last June. He was Chief Justice for 12 years. When he left, he made public statements in relation to delays. He is certainly, in my opinion, somebody with a real insight as to how the system works and what is "broken.'' We have seen it in the statistics.

That person would feel free to speak because he is no longer a judge, and he would certainly accept the invitation to testify. But we don't need to go to Montreal for that. He mentioned that he would be ready to come here. It's much less expensive to pay the trip here than for 10 of us to travel there. That is just an example.

The Chair: I agree. We don't want to do some sort of seat-of-the-pants operation. As you recall, the discussion around the table last week when the issue —

Senator Joyal: I apologize. I wasn't here.

The Chair: The issue of travel was discussed. I think I was perhaps the only reluctant participant. Clearly, we have to have the benefit of making these trips laid out for us. I think a lot of work has to be done in the next week or so to flesh this out and get it back to the members so that we can get your responses.

In the interim, if you have suggestions of specific locales for these visits, get them to the clerk as soon as possible, so we can put some meat on the bones.

Senator Baker: It is frustrating when you bring up the subject of prothonotaries, for example. You really need to know someone who knows how that system works. If you bring up the system of unsealing warrants as a waste of time, you need someone experienced in that particular area.

There are three associations. The Canadian Bar Association represents Crown, defence, judges and so on. We have the Canadian Association of Crown Counsel. We've heard from them before, chair. We have the Canadian Defence Lawyers. I'm talking about the large, national organization.

Even with the Canadian Bar Association, they have chairs in every single provincial location. They have a criminal chair. They have a criminal group that responds directly right up through.

I would like to have members from the Canadian Association of Crown Counsel and the Canadian Bar Association appear before this committee who know specifically what we're talking about when we bring up something about what happens in a trial. They have firsthand knowledge of it. Only those people who are practising would know about some of those things, as well as the police. The police in Canada, in seven provinces, we know, lay the charges. Then the Crown has a shot at it. We should really be hearing from the police firsthand.

The rules are different in each province, too. This is my problem. We have rules of court that we're talking about here. In some cases these rules of court are holding things up, and they're different in practically every province.

If we could have the front-line people, the representatives of the police officers, the Crown and the defence belonging to those organizations — because they have them identified, in each major location — it would really be of assistance.

Senator Joyal: While Senator Baker was making his intervention, I was thinking about something else. We could certainly hear from the former Chief Justice of the Court of Appeal on this very issue, Michel Robert. I happen to sit on a foundation, and one of the things we are revisiting is the clogs in the justice halls in Montreal. He is the chair of the foundation, and he has a very thorough experience in the practice of the system and the clogs of the system. If we invited him, he will come here. He is retired now and is counsel in a law firm. I'm sure he will make himself available for that.

If we invite former Chief Justice François Rolland and Chief Justice Robert, we'll have very good input into how those responsibilities in the day-to-day administration of justice. They are available. They would make themselves available to come here.

The Chair: I would suspect they would prefer to appear in the Senate precinct rather than a hotel in Montreal.

Senator Joyal: Yes. It's televised and the press could pick it up if they wanted to.

Senator White: How much did Senator Runciman pay you to come today?

Senator Joyal: I swear to say all the truth. We have not spoken at all on this.

The Chair: What we're going to try to do is pull this together. That doesn't mean we can't pull back if it doesn't merit travel, the kind of responses we're getting and comments from the members around the table. We'll make that assessment in a few weeks.

Senator White: Video conference.

The Chair: Absolutely.

Senator Baker: Absolutely, I agree with that.

The Chair: I should mention the generosity of Senator White, who suggested including a trip to Halifax. He has agreed that we could deal with that through video conference.

Senator Baker: And Newfoundland, video conference.

Senator Fraser: I'm skeptical of the need for travel, but if there are things that we actually we could learn from visiting a court or hearing from people other than the lawyers who use the courts, there are courts in this city. I remember in the past we chartered a bus for one day. We could charter a bus again.

The Chair: We heard about one being plugged every day in Routine Proceedings.

I'm not sure, as a member of this committee, what you are suggesting. You're not enthused about travel.

Senator Fraser: That's just right. I'm not saying don't do it, but I'm not enthused about it. I'm not absolutely convinced that it's necessary. I will await with interest the results of your work, but I draw to our attention that there are resources in this town.

The Chair: My standard is value for money.

Senator Joyal: I'll come back on the same issue in other provinces and whether the library or the clerk could identify the other provinces. We heard from Justice LeSage from Ontario. If we hear from Justice Rolland and Justice Robert in Quebec, we would have the same availability of justices who are retired and who have exercised the ultimate responsibility of being Chief Justice in their own province. I would certainly be very keen to know what happens in Saskatchewan, Nova Scotia or B.C. if there are people who happen to have retired recently, like in Quebec, so everything is fresh. That could certainly be helpful to this committee all around.

Ms. Richardson: Based on what I'm hearing, we can delay this decision to the next sitting week in March. But based on the dates chosen and agreed to by steering, we could not delay it past then. It would help the analysts to hear senators' suggestions and develop a plan for each city, and then maybe it would be a more informed decision by the committee.

It will make it a little more difficult for me as a clerk to do the planning, but if they're just one-day trips, I think I could still effectively plan because the work plan might be developed by then. Once the budget is adopted in late March, we could hit the ground running.

I would suggest, from what I'm hearing tonight, is that it might help the committee make a more informed decision if we were to table it for now and come back with a potential work plan that you could consider alongside the budget.

The Chair: Agreed?

Hon. Senators: Agreed.

The Chair: Thank you all.

(The committee adjourned.)