Proceedings of the Standing Senate Committee on
Legal and Constitutional Affairs
Issue No. 5 - Evidence - March 23, 2016
OTTAWA, Wednesday, March 23, 2016
The Standing Senate Committee on Legal and Constitutional Affairs met this day at 4:18 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: Come to order, please. I'm going to suggest before we begin the meeting that we have a moment of silence to recognize the passing of our House of Commons colleague, Jim Hillyer, the member of Parliament from Alberta, and to offer our sympathies to his family and friends on their loss.
Honourable senators then stood in silent tribute.
The Chair: Thank you. Good afternoon and welcome, invited guests and members of the general public who are following the proceedings of the committee this afternoon.
Earlier this year, 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 ninth meeting on the study.
For our first hour, we have, by video conference from the Canadian Police Association, Tom Stamatakis, who is the president of that organization. Mr. Stamatakis, welcome again to the committee. We certainly appreciate your presence here and look forward to your opening statement.
Senator Joyal: Mr. Chair, before Mr. Stamatakis, I would like to seek the concurrence of the committee members. An editorial was published in the Le Devoir newspaper, Monday, March 21, which is essentially on the untenable delays in court justice in Quebec, which refers, of course, to the issue that we have now and that underlines some of the statistics that we have been studying around this table. So, with the concurrence of the members, I would like that to be appended to our minutes of today's meeting.
The Chair: Agreed?
Hon. Senators: Agreed.
The Chair: Sorry, Mr. Stamatakis. You can proceed with your opening statement.
Tom Stamatakis, President, Canadian Police Association: Thank you. Good afternoon, Mr. Chair and honourable senators. Thank you for the invitation to appear before you this afternoon as part of your study into the delays in Canada's criminal justice system. I'm appearing this afternoon on behalf of the 60,000 civilian and sworn front-line members of Canada's police services and members of the Canadian Police Association.
There is no question that the members I represent have a first-hand appreciation for the difficulties faced by the status quo in Canada's criminal justice system. Front-line police personnel are the only stakeholders that are implicated in both the pre-charge and the post-charge portions of an individual's interaction with the courts and, as such, have become increasingly frustrated with what often seems like unnecessary delays in the process. Those delays can have many significant costs, but I would like to highlight two in particular.
First, you wouldn't have to look hard to find a police officer in Canada who hasn't seen weeks, months and, in some cases, even years of work lost when charges are dismissed by a judge under section 11(b) of the Charter. Second, take a walk through almost any provincial court facility, and you'll be struck by the number of officers waiting their turn to testify in criminal matters only to see their appearance have to be rescheduled, whether on a motion from the Crown or from defense council who find themselves needing more time to prepare, among other reasons. This inefficiency places a significant burden on police budgets, having to not only account for the officer who may just be coming off a shift or heading out on one but also for the need to back-fill that position on a team if that officer would otherwise be on duty.
While the cost factor is significant, I should also mention that these delays can also often place a significant burden on the officers who are involved in these proceedings. Every delay allowed places more time between the incident being litigated and the testimony being provided by the police personnel. While our officers do extraordinary work in this country, they are human, and I ask you to imagine yourselves and how effective you might be at remembering precise details from an incident that happened in your life two or three years ago, particularly under cross-examination from tenacious defense counsel and after investigating numerous similar incidents over that same period of time.
While I could spend most of the next hour here highlighting challenges our officers face dealing with the court system, I would like to conclude by offering two areas this committee might want to consider examining to help alleviate some of the problems. First, modernizing rules of procedure to allow police personnel to provide written statements in certain trials rather than having to wait for their opportunity to testify in person would make a significant difference. While I understand this particular option might not be popular amongst defense counsel, some jurisdictions, such as the city of Winnipeg, are already experimenting with this policy, particularly with respect to traffic violations. Second, this committee might want to suggest within its report that judges be instructed to take more control within their own courtrooms. It may sound simple, but putting a bit more emphasis on forcing both the Crown and the defense council to properly justify their requests for delays might have a significant impact on reducing the wait times during the trial proceedings.
I will conclude my prepared remarks here because I would like to allow enough time for your questions this afternoon. I will say that court scheduling is one aspect of the problem this committee will have to consider. Disclosure requirements and the increasing complexity of criminal investigations, much of it driven by advancements in technology and, therefore, also complicating the trials to prosecute offenders, are all factors that I would be happy to speak about, in addition to any particular questions that you might have. Thank you again for the invitation to appear before you.
The Chair: Thank you very much. We'll begin those questions with the deputy chair, Senator Jaffer.
Senator Jaffer: Thank you very much for your presentation. I want to also take the opportunity to say that you always make yourself available to our committee, and we appreciate that.
I want to clarify your opening remarks when you talked about modernizing the rules, and the first rule you talked about, statements in certain trials. Can you give us an idea of what kind of trials you mean?
Mr. Stamatakis: Well, initially, I referred to the pilot or experiment in the city of Winnipeg. I don't see any reason why police officers can't provide their evidence, for example when dealing with minor traffic offenses, by way of affidavit and not have to appear in court. I can tell you that police officers across the country, just on traffic violations, are spending a tremendous amount of time in court unnecessarily, in my view. Then I think there would have to be a careful examination of whether or not we could do something similar in more serious cases where we're dealing with victims and other witnesses, to see what role the police played in a particular investigation, whether or not that evidence could be provided by way of affidavit as well.
Senator Jaffer: I'm sure you won't be surprised at my next question because you're a very seasoned person when it comes to the court systems. Defense counsel will say the right of cross-examination. What happens to that?
Mr. Stamatakis: Absolutely, no surprise. But I think that if what your committee is studying and what we are hearing from Canadians is that they are frustrated with delays in the criminal justice system, we need to find an appropriate balance between the right to cross-examine and the impact of unnecessary delays. I don't think there is any quarrel that those delays are having a significant impact in terms of cost and impact on victims and, arguably, even impact on accused, who then get into a situation where they are complaining that they haven't had the chance to be given a speedy trial or an opportunity to defend themselves.
Senator Jaffer: So, if I understand you correctly, when you talk about certain trials, mainly, at this time, you mean traffic violations. Is that correct? At this time?
Mr. Stamatakis: I gave that as an example. I think there are many examples, even when dealing with more serious offenses, where police officers could easily give their evidence by way of affidavit, particularly where the evidence that they are giving is not necessarily around firsthand observations but is perhaps even peripheral in some cases in terms of gathering the evidence to present it to the Crown so they could prosecute the case. There may be other witnesses that do need to appear, that have more direct evidence with respect to any offence that occurred. I think it can happen at all levels of court and in dealing with a number of different issues. Right now, we don't deal with them that way, and that, therefore, adds to the inefficiency.
Senator White: Thanks for appearing again, Tom. We appreciate it a lot.
The question I want to put to you is in relation to the manner in which British Columbia is handling impaired driving right now. For the most part, we have heard very positive reviews. We had some negative responses from Crown prosecutors actually, here from Nova Scotia a couple of weeks ago, but mostly it has been positive. I'm just wondering, from your perspective, sitting in B.C., whether or not you see the positive side of the administrative process that is being used to manage impaired driving.
Mr. Stamatakis: Absolutely. The positive impact of dealing with impaired driving within the context of the regulatory scheme that has been created in British Columbia has had a significant positive impact on the administrative piece, keeping police officers on the street, engaged in proactive enforcement activities, as opposed to sitting in courtrooms waiting to give evidence.
Particularly when it comes to impaired driving — I can tell you from my own personal experience investigating impaired drivers — that was some of the most difficult evidence you would ever give in a courtroom, not because the investigation itself was complicated but because of the approach the defense counsel would often take in terms of cross- examination and in an effort to try to get their client off from the charge.
Senator White: Thank you very much. Do you also see an opportunity for other offenses to be moved toward a similar category? Today, we have dual procedure offenses, but they have to do with summary or indictable offences. Is there a possibility for other offences to become dual, as in criminal or provincial statute, that would allow us to move some of them to a ticketing scheme as well?
Mr. Stamatakis: Yes, I think so. I think there are many opportunities to move in that direction. There probably needs to be a lot of discussion. You would have to consider certainly crimes that don't involve victims. Basically in a similar fashion, I think. When you get into victimization and the impact on citizens, I think we need to be careful about that.
There are lots of opportunities. The model in British Columbia has been well received by both the police community and the public generally.
Senator Baker: Wouldn't you agree, though, that impaired driving cases are perhaps the most complex and litigated cases in Canada? They are comparable to drug cases. They can go on and on with several Charter arguments as you go forward, with police officers having to be examined and cross-examined. With that caveat, that these are complex matters, when you have somebody who is up for a second time for impaired driving, it becomes a very important issue. You can't just allocate that to an inferior court.
However, the question I want to ask you about is McNeil disclosure, a new thing on the scene. It came in about five or six years ago, a decision of the Supreme Court of Canada. That McNeil disclosure covers all of the officers you represent so well; every one of their disciplinary hearings, anything that would reflect on their character must now be disclosed. It has caused, in a great many cases that we read the decisions on, delays in assembling this and then arguments between defence and Crown counsel as to whether McNeil disclosure is necessary, and then whether or not O'Connor disclosure is down the line if you can't get it by McNeil.
I would like to hear your comments. I'm glad you're before this committee today, because this is the first opportunity we've had to get somebody who understands McNeil disclosure and how it affects police officers. What do you think about this necessity for McNeil disclosure, and how could we recommend things so that it won't delay trials?
First of all, explain to us what you understand McNeil disclosure to be.
Mr. Stamatakis: That's a very good question. This is a good example of how we have added to the administrative burden or obligation related to the criminal justice system and the court process.
McNeil essentially is a decision from the Supreme Court that puts a positive obligation on police organizations, police personnel, to disclose findings related to discipline or convictions around different offences that arise from a disciplinary proceeding or hearing. That's a very simple explanation.
In my view, most police organizations, frankly, defence lawyers and Crown have taken what the Supreme Court decided much further than I believe the Supreme Court intended. The Supreme Court also said that the discipline had to be serious.
Senator Baker: Yes.
Mr. Stamatakis: It also had to be relevant to the matter before the court that somebody was trying to defend themselves against. Unfortunately what we see far too often is a tremendous amount of effort and administrative work being done by police organizations who have had to allocate resources, by the Crown who have had to allocate resources before you even get to trial, discussing what is serious and relevant and what should be disclosed to the Crown in the first instance. That is where the positive obligation lies.
Then there is that whole piece that you described, sir, around the discussion that that then occurs between the Crown and defence around whether or not the record should be disclosed to the defence. That's before you even get into litigating whatever the issue is before the court.
It's had a tremendous impact. What I can also say, which is really frustrating, and I think is going to add further to delays, is that we're now seeing defence counsel in relatively minor traffic court proceedings make essentially what are now being referred to as McNeil applications to get disclosure around a police officer's discipline record in a relatively minor traffic issue, and I don't know how you could ever make the argument that a police officer's discipline record is relevant when you're dealing with a traffic violation.
It's a very good point. This is something that I hope that you look at more carefully to try to clarify where the appropriate line should be drawn in terms of what is relevant and serious and should be disclosed, verses this broad approach that most police agencies, Crown and defence are taking where everything should be disclosed, which makes no sense.
[Translation]
Senator Dagenais: Thank you very much. I am very glad to see you again.
We are all finding the same thing: delays are growing mainly because of certain types of cases. Those cases involve mega trials, financial crimes, drinking and driving, as you mentioned, and so forth. To whom should we turn as the source for solutions? Governments? Judges? Or Crown attorneys? If we have to decide, who should be responsible for the problem?
[English]
Mr. Stamatakis: I alluded to it in my opening comments. We should be looking to judges in the first instance, in my opinion, to engage more actively and with more rigour in their courtrooms, particularly when requests are being made for adjournments and other delays. What is particularly frustrating, I know for my members, and I know for victims that I dealt with personally in my policing career and that I hear about from my members all the time, are these almost unending requests for adjournment by defence counsel related to some difficulty or another that an accused might be facing, with very little explanation, which then has an impact on the police officer and typically on a witness or a victim who has to take time off work or make arrangements for daycare to be at the hearing to give their evidence. I think there needs to be more balance in the system. That's a good first place to start.
I think there is a role for governments, both at the provincial and the federal levels, to give some good, strong direction and create some policy around the criminal justice process, the court process, to deal with some of these delay issues.
Disclosure is another huge area, Stinchcombe, and how that is being applied. We are assigning police officers. I can tell you in my home service in Vancouver, when they did the investigation after the riot related to the Vancouver Canucks and the playoff run they had a couple of years ago, we had multiple officers assigned for over a year, just dealing with disclosure. We were disclosing information about police officers that were not even involved; they had a very peripheral role. That's another area where I think governments could play a role and give some strong direction about what is appropriate and what is not.
[Translation]
Senator Dagenais: You mentioned the playoff riots in Vancouver. You can rest assured because, in Montreal, there won't be any playoff riots this year, unfortunately.
I'd like to come back to Crown attorneys, given that a number of them told the committee that they were dealing with heavier workloads associated with electronic evidence, now that police officers were allowed to submit such evidence in court. To your mind, is there a way to fix that problem on police's end? You mentioned the rulings that police have to respect. But, in terms of electronic evidence, is there a way to speed up the presentation of evidence process?
[English]
Mr. Stamatakis: Absolutely. I'm glad you raised that point. It's an important one. I empathize with Crown prosecutors. I believe they are struggling with resource and workload issues, but part of that can very easily be addressed.
One small example, on a topical issue, is a big debate occurring in this country and other countries around body- worn video, for instance. Video is now more commonly becoming part of a criminal investigation and the disclosure that goes over to the Crown to assist with the prosecution. We're producing video, and then we're having to produce transcripts of what's being said in the video, and on and on. There is an example of how we can use technology instead to disclose the evidence in a certain medium without having to replicate it over and over again.
The other area where there is a tremendous opportunity is to make sure we modernize the Crown's processes with the technology they have at their fingertips in order to do their work so that all of these agencies are using compatible systems. Then it is a simple case of moving files from one agency to another instead of going through these onerous processes where you have to put the evidence in a form that's usable by the Crown in a system they use, but which is not compatible with the system the police agency is using, for example. There are good opportunities around technology to streamline these processes.
Senator Joyal: I would like to apologize, Mr. Stamatakis, for having delayed your presentation with the tabling of an editorial that was published in a Montreal paper Monday. One of the reasons why I took the initiative of tabling it with the committee is that its conclusion is exactly at the same level as your second proposal today, that the committee ought to suggest that judges be instructed to take more control in their own courtrooms. I will translate for you the conclusion of the editorial in that Montreal paper from Monday. They said, "The examples should come first from the judges. It's up to them to take the management of their court with an iron fist . . .'' That is even stronger than your own words. They said, "There is a means to stop the industry of preliminary hearings among the other frivolous requests to delay procedures, and to fix limits to the time allocated to the case without impinging on the rights of the accused to a just and equitable trial.''
That's my free translation for you. I apologize to the translator, also, for not having relied on them for that.
It seems there is a perception that is pervasive for those involved directly with the system, like you, or observers like the editorialist of that Montreal paper, that the judges seem to be lenient in granting requests to postpone. Would you suggest that in fact there could be some criteria to frame the context in which a request to postpone would be admissible?
Mr. Stamatakis: Absolutely. I think you bring up an excellent point. A good starting point is to create criteria around what justifies a further delay. From my perspective it's not a perception; it's a reality. It certainly was my experience when I was a police officer, when I was operational, and it's feedback I get from police officers across this country. It's a question of introducing some balance, respecting the accused's right to a fair and speedy trial against all the other obligations that we all have in society, both to the victims with respect to cost and expense and all of those other factors.
I don't think it would be difficult to come up with some reasonable criteria both for getting the adjournment but also for how many adjournments it is appropriate for someone to have in one trial. There are cases where we are into three, four and five adjournments because of, often, pretty specious reasons for the request. I agree with you wholeheartedly, and I agree with the comments you translated from the newspaper article. I think they are fair comments.
Senator Joyal: I heard you say, "From my own experience; I lived it.'' Can you explain the cases to which you refer from your own experience?
Mr. Stamatakis: I'll give you two examples. First, my experience operationally was mostly as a police officer working in a patrol function, often dealing with cases of domestic violence, impaired driving, assaults and robberies. I can't tell you the number of times that I would go to court after working a night shift or on a day off only to be excused because the defence counsel applied for adjournment because they needed more time to prepare, needed more time to consult with the accused or the accused just didn't show up. There would never be a stay of proceedings or any conviction on the basis that the accused never showed up, but boy, if a police officer or a witness didn't show up, judges would deal with that with a different approach, in my experience, than they would when dealing with the accused. That happened often as an operational police officer.
It was really frustrating for me when I was reassigned from a general duties position to a one as a firearms and control tactics instructor with my home service in Vancouver. The location where we did our training was quite some distance from the downtown part of the city of Vancouver and where the courthouse was located. I was often pulled away from my training duties to drive about 45 minutes — it was a 20-mile commute — into court to give evidence on cases that I had been involved with when I was operational only to be told when I showed up that I was not required any longer, or the defence would suddenly be anxious to arrange some kind of plea agreement with the Crown with respect to their client. That is a huge waste of time and resources, disrupted the training I was trying to give to other police officers, not to mention the inconvenience and the impact on civilian witnesses and victims who were also leaving work or arranging child care, only to be excused. There is a long list of examples of that.
Senator Batters: Thanks very much for attending before our committee today. Dealing with this particular issue, and in response to Senator Jaffer's question, you were speaking about some peripheral testimony that police officers often have to give at trials. Could you give us some examples of what you were thinking about when you made that statement?
Mr. Stamatakis: In terms of the kind of evidence, if a robbery occurred at a bank and you had your primary investigators attend and gather the physical evidence at the physical location of the bank, but you had police officers in an outer containment assignment related to the robbery, they might come across a peripheral witness. I don't understand why, in that circumstance, that police officer has to be notified to attend and give that evidence in a trial. Why couldn't that police officer simply provide that evidence in a written affidavit saying, "I was standing in this outer perimeter position related to the bank robbery and a citizen came by and said they might have seen someone leaving the bank matching the description of the robber.'' Why can't that officer submit their limited amount of evidence by way of affidavit? Then it could be entered into the proceedings as part of the Crown's case. That is an example.
We spend a ton of time now, in policing, administratively having police officers photocopy their notebooks to confirm that they had no evidence to give in an investigation. When you have large investigations — perhaps a homicide or some other more serious event that requires a bigger police response, and you have multiple members involved — that takes up a lot of time, and it's just unnecessary, in my view. When we get to the point where we administratively have to chase down police officers just to confirm they have no evidence, it just adds to the administrative burden, and I think it's unnecessary.
Senator Batters: You have a lot of experience as a front-line police officer in B.C., where you are from; also, of course, as the long-time President of the Canadian Police Association, you have much experience hearing from your colleagues from across the country. Given that, could you provide us with the top two practical suggestions you would offer us that, in your view, would assist in this court delay problem? Maybe it's something you've seen in your own practice in B.C. or heard about from colleagues across the country.
Mr. Stamatakis: We've sort of alluded to them, I think. I referred to them in my opening remarks.
I really believe if one thing comes out of your work, it should be the ability for a police officer to provide their evidence by way of affidavit and not have to appear in certain appropriate circumstances. That would make a huge difference, from my perspective, from a policing perspective, and I think it would help with the delay issue in the criminal justice system.
The second piece, which again I commented on, is the adjournments, what appear often to be repeated adjournments, often for not very good reason. I can give you examples, but I'm sure you are probably aware of lots of them already.
Senator McIntyre: Thank you, Mr. Stamatakis, for your presentation.
I have two short questions, but before I ask them, I want to make an observation. In your opening statement you make two recommendations. Having practised law for a number of years, I agree with those recommendations, especially with the one dealing with trial judges delaying matters.
I think that not only should there be a follow-up on the part of the trial judges, but I think the chief judge in each jurisdiction, in each province, should follow up with the trial judges. That is very important, because a lot of them can't put their pants on. It's as simple as that. That's the way I would put it.
Senator White: Or skirts.
Senator McIntyre: Or skirts, yes. Thank you for those recommendations. I applaud them.
My first question has to do with screening charges, and my second question has to do with consultation with Crown attorneys.
In three provinces, including my home province of New Brunswick, Crown attorneys are involved in screening charges before they are laid. In the other provinces, the police lay the charges. What has been the experience of police officers with charge screening?
As far as consultation, in some provinces the police consult with Crown attorneys on such matters as obtaining proper search warrants. Do you think this type of consultation should continue?
Mr. Stamatakis: Coming from a province where the Crown lays the charge — given my policing experience in the province of British Columbia — I believe there needs to be a lot more interaction between the Crown and the police when it comes to files that are being forwarded for their consideration to charge, because that again would eliminate a lot of delay. I think it's the same in the three provinces that you referred to. I think there is a bit more collaboration in the other provinces where the police lay the charge, but in my view, there should be more.
What happens now is that I send the file over to the Crown, and as I'm investigating and want to consult with the Crown to find out if I'm satisfying all the elements of the offence or if there is some investigative step I should be looking at, they take a stand-back approach and are not willing to engage in that process because they feel they have to remain independent from the police investigation. The problem with that is that I send my investigation over to the Crown, they start going through it at that point, and then they identify issues with it. That means they have to come back to me and say, "You need to follow up in these areas,'' which again just adds to the delay.
I think if there were better collaboration, we would have a more efficient system. I think that's something that should continue.
Senator McIntyre: I agree. We have to separate the investigation and the prosecution of offences. Of course, they have to remain independent from each other. Thank you.
Mr. Stamatakis: Absolutely.
[Translation]
Senator Boisvenu: My question is this. In some provinces, charges are laid by police directly, whereas in others, the charges are laid by Crown attorneys. That's the case in Quebec. To your knowledge, does having police lay charges directly affect delays?
[English]
Mr. Stamatakis: It depends on who you talk to. If you talk to the Crown and the criminal justice branch in British Columbia, they will tell you that the quality of the charges that are laid are higher because of the process we have in British Columbia where the police forward the file and the Crown lays a charge.
On the other hand, if you talk to people in Ontario or provinces where the police lay the charges, they will say that because the police lay the charge, it gets into the system quicker and can be prosecuted in a more expedited way. You get different opinions depending on who you talk to.
In my view, the real issue is — I agree with Senator McIntyre's comments — that the Crown has to remain independent, but there's no reason why they can't play an advisory role in assisting the police to ensure that they've, like I said, provided the appropriate evidence to meet the elements of the offence and to assist with making sure they've taken all the appropriate investigative steps to assist with the prosecution. It should be a more collaborative effort.
The problem now is that it's not. It's not collaborative at all. We've had some success where individual police departments have reached out to the Crown and followed up and gotten good outcomes.
Back to Senator McIntyre's comments, in British Columbia, when we've approached the Chief Justice to get engaged and follow up where issues have been identified, they have actually been quite responsive and effective. We need to see more of that.
[Translation]
Senator Boisvenu: You raise an interesting issue. You're saying there can be a lack of collaboration between police and the Crown? Is that what you said?
[English]
Mr. Stamatakis: Yes, I think there can be. I think the Crown can play a greater role in addressing issues with investigations earlier in the process so that you don't have the police agency investigating whatever the offence is for an extended period of time — some of these investigations, as we've heard, are quite complex and can take a long time — and then forwarding the file to the Crown, only to have the Crown identify issues with the investigation after that.
Why can't there be collaboration as the investigation is unfolding so that any issues can be addressed during the investigation, and when the Crown gets the final package, it's ready to be prosecuted? That will aid with some of the delays, in my opinion.
The Chair: On the other side of that coin, in Ontario where the police are laying charges, which you just referenced, we had witnesses from Ontario's Ministry of the Attorney General appear before us, and in their view, they indicate one of the key drivers of the significant business before the courts is that police in Ontario are not exercising their discretion to release suspects on a promise to appear or recognizance. Do you have any reaction to that perspective?
Mr. Stamatakis: I think I was asked earlier what role governments can play, and I think that is an area where governments can play a role in terms of the policy piece.
In British Columbia, because it's where I am from, there has been some policy direction in that regard, and we are now in fact releasing more people on PTAs or by other means than we ever have before in an effort to deal with some of these delay issues. I'm sure you're familiar with the work done in British Columbia. They have engaged in some pretty exhaustive reviews of the criminal justice system in B.C.
A number of recommendations that came from those reviews are being implemented, including — I think it was Senator White who mentioned it — the impaired driving regulations. But we need to do more of that. So I believe we should be looking at more of those kinds of things, like releasing people as early as we can, of course balancing that against the whole public safety piece and making sure that there is not going to be a continuation of the offence or any risk to the public.
The Chair: Is this a subject you have discussed with your Ontario membership? Do you accept the position of the government that this is a problem, and, if it is indeed a problem, is there an explanation, perhaps, for the reluctance of officers to look at this as an option?
Mr. Stamatakis: To be honest with you, no, we haven't had recent discussions on this particular issue. Now that you've raised it, I'm going to follow up and get a sense from them: If there is a reluctance, why is it? Are there legitimate reasons why they don't want to? Alberta, I think, also has been more aggressive with pushing release on PTA and other means. Frankly, in British Columbia we haven't had any issues with it. It's still up to the officer to use their discretion to decide when it's appropriate to do that.
Senator Jaffer: I want to go on to something completely different — diversion. I understand that under the Youth Criminal Justice Act, police officers can divert young people, but the same powers don't exist for people who have been charged as adults. What is the Canadian Police Association's position? Would you recommend that there be — not exactly the same — more powers for the police to divert?
Mr. Stamatakis: Before I answer your question, let me say this: Police officers use their discretion every day to informally divert people from the criminal justice system. Frankly, if we didn't, the problem would be much more serious and acute. So the follow on to that is that, personally, I would support giving police officers even more formal discretion to divert in certain circumstances. Often, I know just from my personal experience, you use your experience and your knowledge when you're dealing with a citizen, particularly one who has obviously made a mistake or is not a chronic offender or is somebody who is a contributing person in our society. I would always want to err on the side of not dragging that person into the criminal justice system as opposed to doing so. I think there would be a lot of support for that.
Senator White: Just to explain further — correct me if I'm wrong on the McNeil decision, Tom — the reality is there is seldom a criminal conviction on the officer's part. It's more often a labour issue. In fact there is no "pardonability.'' An officer with two years of service gets in trouble and, at 22 years of service, is still being dragged through the system without any understanding of the case itself, just of the officer's actions from 20 years previous. They have no ability to actually have that removed from their file. Isn't that correct?
Mr. Stamatakis: You're correct in that most of the findings or the discipline records are related to the various police acts that exist in the different provinces across the country to deal with public complaints against the police.
A few of them do have expungement provisions, but many do not. You're absolutely right. There are circumstances where an officer could be found to have committed a default in year three of their career and then have 20 years of exemplary service, but that record would still need to be disclosed 20 years later, even though, I would argue, that was never the Supreme Court's intention, because I don't know how you could make the argument that an incident that occurred in year three of a person's career is still relevant in year 23.
Senator White: We heard Crowns complain about the time they get a case, as an example, from the police. Would you support the Crown having access to your police records management system, specifically to the files — so need access only — so that they could actually review the files rather than wait for disclosure from the police?
Mr. Stamatakis: Yes, I think I would support that. You'd have to create the right context for it. I believe some provinces have common systems where that can happen, so I think, again, it's another example of let's be proactive and get the Crown engaged early on so that we can avoid the delays after the fact. So I think I would support that.
Senator White: Thanks again for being here.
Senator Baker: Just so we're clear on the McNeil disclosure, as you point out, right now, if a charge is laid in a complex case, to every officer involved in that case a request is made by the Crown for all of the records of that officer as they may relate to McNeil disclosure. So you may have 40 officers, and the records of 40 officers forwarded to the Crown for the Crown's discretion to say either, "This is applicable,'' or "This is not.'' What your suggestion is, as I take it, is, yes, we respect McNeil disclosures — the Supreme Court of Canada said — but only for the officers who will be called to give evidence in that trial. Is that what you're saying?
In other words, it's not necessary to go through this entire procedure, hold up a trial and examine the records of 40 police officers who may, as you point out, not even be involved in the case. Yet we see it in case after case after case, where they are waiting on the records of maybe 20 or 40 officers. Only those who are directly involved in the case, who would be called to give evidence — that's your point, isn't it?
Mr. Stamatakis: That's exactly my point. I would go even further and say that the records should only be disclosed if it's serious and relevant, because if I was convicted of an offence — I don't know what example to use —
Senator Baker: Or a complaint.
Mr. Stamatakis: An offence that's not relevant to the matter that is before the court and involves an accused, then why is that even an issue? It shouldn't be an issue. By the way, the Crown doesn't request. The Supreme Court created a positive obligation for the police organization to disclose.
Senator Batters: From what we have heard from many witnesses and just looking at the stats, Statistics Canada brought us some stats that show the case-elapsed time by type of offence for the 2013-14 year. In that year, there were almost 39,000 impaired driving charges. The median number of days to trial was 141. With that sort of massive number of charges, multiplied by the average number of days, to me, this just seems like a massive problem, the clogging up of the system on court delays. I'm just wondering, from your experience, would you agree with me that impaired driving is a major factor contributing to court delays in Canada? Am I missing something in that assessment?
Mr. Stamatakis: I agree 100 per cent. I think it was Senator Baker that referred to it; it's become so complex. It's not necessarily complex because of the actual event or the evidence. It's become complex because of the way impaired driving cases are being litigated — the approach defense counsel often take, where it's not about what happened, it's about the process. That's what adds days to the life of the trial.
Senator Batters: Right. Many years ago an impaired driving case used to take two or three hours for those types of trials. Now, it can often be three or four days.
Senator Baker: Or years.
Senator Batters: But three or four days of actual trial time is what I'm speaking about. So, yes, adding that sort of time to that number of cases, that's obviously a huge clog in the system.
Senator McIntyre: Do police officers make full use of their statutory release powers, like, for example, summons appearance, notices, undertaking recognizance and so on?
Mr. Stamatakis: In my experience they do, more so now than perhaps historically.
Senator McIntyre: On minor matters, of course.
Mr. Stamatakis: Yes, they do. First of all it becomes a resource issue. There are also capacity issues in terms of being able to lodge people in facilities that are suitable.
My experience is that if police officers can release, they do. Unless there is a public safety element or a concern around continuation of offence, we release when we can.
Senator Joyal: Mr. Stamatakis, what were the factors that led the B.C. government to launch that study of the delay and come forward with recommendations that seem to have produced a real, positive impact on the system in B.C.? Was it police pressure, public pressure or judges' pressure? Where did the conclusion that the government has to do something about it come from?
Mr. Stamatakis: I think there were a number of factors. There was a lot of pressure from the public and the police around lengthy delays and the impact on resources. There was also a significant concern around the increasing costs of the criminal justice system and how unmanageable that was becoming. There were a variety drivers.
As a result of that, based on a lot of stakeholder consultations, a lot of consultations throughout the province where the government met with citizens and other stakeholder groups, they received feedback. The name of the fellow escapes me, but an individual was appointed to conduct the reviews and come up with these recommendations.
I think we still have a long way to go. There have been some positive changes, though. The main one in British Columbia is this new regulatory regime around impaired driving and how effective that has been.
The Chair: Thank you, Mr. Stamatakis, on behalf of the committee. You always make a helpful contribution to our proceedings. It's much appreciated by all of us.
Honourable senators, on our second panel we welcome, as an individual, Raymond Wyant, former Chief Judge of the Provincial Court of Manitoba, who is appearing by video conference; and from the British Columbia Civil Liberties Association, Josh Paterson, Executive Director.
Welcome, gentlemen. We appreciate your appearance here and your contribution to our deliberations. We will begin, Judge Wyant, with your opening statement, please. The floor is yours, sir.
Raymond Wyant, Former Chief Judge of the Provincial Court of Manitoba, as an individual: Thank you, Mr. Chairman. First of all, it's a great honour and privilege to be here, so thank you to the committee for the invitation. As a sitting judge I'll be careful not to comment on policy or political matters, and I'll try to tread carefully. I do want to say that I think the investigation is exceptionally important. There are many potential changes that can be investigated that might affect the delay and backlog of the criminal courts. I will say at the outset I do not believe that all of this will be solved by legislative changes. If you look at the system now, case processing times are up, remand numbers are up, and our times to trial are up. All of these continue to build on each other and contribute to clogging and backlog.
The longer it takes to process a case, of course, the more the clearance rate lags behind, and the arrival of new cases simply compounds the problem. Although we call it the criminal justice system, it really isn't a system at all; it's an organization, essentially, of fiercely independent players who are adversarial, generally speaking. There is no chief executive officer and no organizational chart that you can look at to build responsibility into the system. It's generally a system built by lawyers for lawyers.
Although we don't like to think of the consumers of our system as customers, they are customers. We are in a service industry. Generally speaking, as we built the system, we instituted many barriers to access that efficiency for the system. First and foremost, I would say that changing the way we do business and changing the culture of how we do business is probably the most important thing. Ten years ago it was unheard of for the various players in the system to sit down together and talk cooperatively about how we might effect change in the system. I'm pleased to say that through organizations such as the Justice Efficiencies Committee and the National Symposium on Criminal Justice Reform, we now bring together, on both national and local levels, judges, police officers, Crown attorneys and government officials to talk about how we might implement change in the system.
It's hit-and-miss. Some jurisdictions are more progressive than others. We still find, ultimately, that we have difficulties in changing the culture and getting people to the table to talk about cooperative solutions.
Tied in with that is that we really haven't had a discussion in this country about what the goals and objectives of a properly run system should be. Without goals we can't measure our performance. If you look at the system generally, we haven't articulated why we're in business and what we want to measure, and although certain parts of the system may internally measure things, we don't measure our performances as a whole. That leads, generally speaking, to where we have problems, with a cry for more money from various participants, but I've never been a believer that we simply need to throw money at the system.
I know you're looking at various specific areas like preliminary hearings and Criminal Code reform. I want to propose in the short time I have, at least in my opening statement, three things for you to consider. A couple of them might be considered a little radical and out-of-the-box thinking, but I think that's the type of thing that the committee and others ought to be thinking about now in terms of how we might fundamentally change the system.
If I might draw a quick analogy to the health care system, when someone attends an emergency ward at a hospital, they are triaged based on the seriousness of the ailment that they have come in to complain about. We don't treat someone with a cough the same way we treat someone with chest pains, for example. We triage according to how we diagnose the importance, and we put in place resources, obviously, for those patients who are in more dire need of them. We don't use an MRI to determine what caused a hang nail.
In the criminal justice system, to a large extent, we don't do that. What happens is that we throw the whole weight of the system, with the same measure, at virtually every type of case that comes in. We put the same type of energy into prosecuting a shoplifting as we do a robbery, and oftentimes we process them on a first in, first out basis: Whenever the offence occurred, that's the matter that may get treated first before other cases. Therefore, we don't necessarily spend our resources on those cases that we should prioritize more.
One study in Ontario showed that 25 per cent of the cases in one jurisdiction in Ontario resulted in a conditional absolute discharge or a suspended sentence — so, either no criminal record or some form of probation — and yet those cases took up to 18 months to process, with an average of perhaps 11 remands per case, at a tremendous cost to the system and clogging up the ability to do other cases.
Another study in 2007 showed that 63 per cent of the cases in eight of the 10 jurisdictions in this country did not result in a custodial sentence. We're talking about relatively minor offenses, such as common assault, theft, fraud and breach of administration orders, like breach of probation and breach of recognizance, and yet we throw the full weight of the system at those with equal measure to more serious matters.
All of those cases, and perhaps rightfully so, come with the same Charter rights and the same rights of disclosure, but maybe we need to start thinking about how, given our limited resources and given the focus we want to put on cases, we should prioritize and how we should effectively use our resources.
One of the suggestions I will float to you is rather novel and perhaps rather radical, and that's to look at the development of an alternative plea in this country. We presently have pleas of either guilt or not guilty, but arising from old English law, some jurisdictions in the United States have a no-contest plea. I'm not suggesting we adopt a no- contest plea or even look at it in the same way the Americans do, but we could think about using a third plea in order to have someone admit responsibility in certain types of low-level cases so that they don't necessarily tie up our system. For example, someone on a first-time theft could enter a no-contest plea rather than a guilty plea, avoid a criminal conviction and simply have it noted, and away they go. They don't necessarily fight a case that they might ordinarily do, because criminal record is not in play. We could also use that type of plea to deal with other, more minor offenses, for, perhaps, those who are vulnerable or chronic offenders, and those who are often before the courts because of addiction or mental health issues. They could perhaps have a situation where you could enter an alternative plea, and simply have it noted, or enter an alternative plea and perhaps have certain conditions that they have to fulfil.
Many of those cases could then be dealt with very early in the system without necessarily tying up valuable court time and prosecuting them to the full extent of the law. We could tailor them, depending on the scheme that we have, to the types of offenders and types of offenses based on an agreed public policy that we want to deal with.
Another thing we could do is look at the expansion of section 810 of the Criminal Code, which is the peace bond section. We could look at that to deal with low-level offenses or offenders who are homeless and have addiction issues and steal booze in order to feed their addictions, or who may not know where they are going to sleep on any particular evening and steal food for sustenance. Maybe we don't need to throw the full weight of the system at them, but rather use other types of orders under the Criminal Code that might get them assistance and yet keep them out from under the full weight of the law.
Those are some examples of how we might develop an alternative plea. The idea is to talk in this country about how we might prioritize the use of our resources, look at who we're in business for, who we want to concentrate our limited resources on, and try to get low-level and chronic offenders and vulnerable people dealt with in another way. It has been said there are three types of offenders we see in court: the mad, the bad and the sad. It seems to me that we definitely, from a societal point of view, want to most assuredly look after public safety. We certainly want to ensure that we deal with the bad people, but perhaps the mad and the sad are people we can deal with in alternative ways, particularly when their offenses do not threaten public safety.
Another idea that I want you to consider, if you will, is the development of a single criminal trial court in this country. Many years ago we moved to a unified family court, and although that hasn't reached fruition in all jurisdictions in this country, the idea was that we could achieve efficiencies and expertise by having a bench of judges who were qualified to deal with family law matters. We could eliminate duplicative proceedings and resolve matters faster.
One idea may be that a single trial court made up of subject-matter experts, criminal-law experts, could more effectively deal with matters and may mean that we will potentially need fewer judges and remove barriers to justice. We have many duplicative procedures.
When you go from one court to another it enhances the number of remands, and it seems to me that that's one thing that we could also consider to streamline the system, make matters move efficiently and save resources.
Another potential area of study, I would think, is the expanded use of technology. Many years ago I went to the island of St. Pierre and Miquelon, just off of Newfoundland, and I noted that in that jurisdiction, and this is several years ago now, they were using very sophisticated closed-circuit television to conduct trials in France, in Paris and in many of the former French colonies around the world so that judges in that jurisdiction would hear trials where the witnesses were thousands of miles away in another jurisdiction.
We haven't gotten to that in this country, although we have some limited use of technology in our criminal courts where evidence isn't being taken, such as perhaps on some bail applications, but we generally shun the use of technology as a method to enhance the effective use of court time, reduce the inconvenience on witnesses for travel and things of that nature, particularly when their evidence may be less controversial.
The Chair: Judge Wyant, I hate to interrupt a sitting judge, but we have limited time. I'm sure your comments are inspiring a number of questions and we hope to get to them. I apologize, but we are going to have to move on to Mr. Paterson.
Mr. Wyant: I apologize for being lengthy.
Josh Paterson, Executive Director, British Columbia Civil Liberties Association: Thank you, honourable senators, for the invitation to come today and talk to you about this important issue.
I would remark at the outset to the chair that 25 years ago I was a page at Queen's Park bringing stuff to you. To Senator Baker, 20 years ago I was a page at the House of Commons bringing stuff to you. It's nice to be here in a different setting so many years later.
The issues of fairness in the criminal justice system and policing are ones that have preoccupied the BCCLA for more than half a century. In 1963 we put out a report on criminal legal aid, and in the intervening time we've written many reports, we've intervened in many cases at the Supreme Court and other levels of court, and we've done a lot of advocacy with government on the issue of fairness and criminal trials.
I will focus today on a few aspects of the delay problem on which we have done work recently. I will first turn to the issue of mandatory minimums. I know this committee is well familiar with the trend of the last number of years toward the increased use of mandatory minimums in the Criminal Code.
The BCCLA undertook comprehensive research, and just over a year ago we published a report called More Than We Can Afford: The Costs of Mandatory Minimum Sentencing.
While there has always been a certain class of offences with mandatory minimums in Canada, what we have found — and it is obviously a fact — is that there has been a proliferation of mandatory minimums, spreading to different kinds of offences than they were before, and other kinds of restrictions like restrictions on the availability of alternatives to incarceration, such as conditional sentences of imprisonment.
This trend has cut against a lot of research about deterrent effects. Also, from our perspective, it is set against the principle of proportionality. Proportionality in sentencing is well known to this committee as the key and at the heart of what judges are meant to do in terms of sentencing, so that sentences are neither too harsh nor too lenient — both things about which our association is concerned.
We echo the submission of the Canadian Bar Association that the proliferation of these mandatory minimums and the taking away or making less available of other kinds of dispositions, like conditional sentences, has added to the delay by reducing flexibility in the system. It's pretty simple: If there is no possibility of a reduced sentence when one makes a guilty plea, people will be less likely to plead guilty and will take their chances at trial. It's a pretty obvious knock-on effect, which I will not belabour.
Certainly we urge the committee to consider a recommendation that some of these things be revisited as Parliament looks at what to do with the Criminal Code.
I will turn now to legal aid. I know by reading Hansard that this has been canvassed already, but we feel we need to hit upon this. In B.C., in 1995 dollars, there is 40 per cent less legal aid funding available today than there was in 1995, with a larger population. Yes, crime rates have declined, but, as you have heard, criminal trials have become more complicated for a bunch of different reasons that I need not get into here.
This has meant that the eligibility restrictions have been tightened up. You can't get legal aid as an individual in B.C. if you make more than $18,000 a year. People making twice and three times that amount will be hard-pressed to fund a proper criminal defence, never mind civil matters. Self-represented accused have become a real problem, not only in B.C. but across Canada.
Just recently the Chief Justice of B.C., and there have been other government-issued reports as well, has identified this as an issue and as one that ties up the time of Crown, court administrators and so forth.
In an excellent paper by Professor Jennifer Bond at the University of Ottawa, which I commend to you, called The Cost of Canada's Legal Aid Crisis, she directly addresses the failure to provide counsel within a reasonable time frame that is occasioned by the lack of availability of sufficient legal aid for a whole host of reasons. The rates are either too low or capped, so it's difficult for many criminal lawyers who are not exactly filling up their bank accounts by doing this work. They simply can't afford to take it on.
There are frustrated members of the bar in Ontario and B.C. who have launched bar strikes or almost job action in terms of legal aid because it's so difficult for them to do the work. There are also administrative delays, which are less talked about. When there is less money for legal aid, there is less money for the legal aid system to administer it and get assistance to people in a timely way.
Professor Bond points out that the Charter requires the provision of state counsel for at least some criminal accused, those who would not otherwise have representation if it wasn't provided by the state, and that it's necessary to provide a fair trial. In those circumstances the failure to do that is no different really than the failure to provide adequate Crown counsel, to adequately staff the courts and to appoint an adequate number of judges. It is the failure to furnish something required to be furnished by the state in order for the system to function.
The last thing that I want to touch on, which I can come back to, is that we have heard multiple times — and again from Mr. Stamatakis — about B.C.'s innovations in using the administrative system, particularly in relation to motor vehicles.
The BCCLA is all for the use of alternative systems, things like what His Honour was referencing, studying these things to see if different ways can be found to do things fairly. We do have concerns, however, and the committee ought to be cautioned about the provinces just making laws that walk and talk and smell like criminal laws but are actually regulatory and administrative and having degrees of procedural fairness that are more akin to administrative proceedings, when the penalties look more like those in criminal proceedings.
On the roadside prohibition, we're talking about significant fines and having your licence taken away. The Supreme Court said that it was not trenching on provincial power to do that, but they found that B.C.'s initial stab at this violated the Charter unreasonably. When you failed the breathalyzer test and there was no procedural fairness around it and you couldn't immediately appeal it and all these procedural problems, it was unreasonable search and seizure under the Charter. B.C. has had to make some changes.
So I say, exercise caution. If you make a recommendation around that, I urge you to give some thought to also recommending that the procedural fairness around those things be looked at. Administrative quickness is an important value, but Charter rights are rights.
I will leave you with that, subject to any questions.
The Chair: Thank you very much. We will begin with the deputy chair, Senator Jaffer.
Senator Jaffer: I will start with you, Mr. Paterson. I have been left very uncomfortable with the previous witness — whom you described as your friend, from B.C., from the Canadian Police Association — with regard to cross- examination. He talked about modernizing rules of procedure to allow police personnel to provide written statements in certain trials.
To be fair, when I asked him, he was talking about peripheral things, not the nub of the case. But the example he gave me, I would have had a lot of cross-examination questions. For example, if someone had come to say that this was the person, identified the person, and put that in an affidavit, he thought that would be enough. I'm just summarizing what he said.
My concern around cross-examination and having affidavits in criminal matters, have you thought of that? What are your thoughts on that?
Mr. Paterson: Well, as might not surprise members of this committee, a civil liberties organization would be bound to be automatically quite concerned about suggestions that cross-examination should become more limited, that the ability to cross-examine state witnesses should become more limited for defendants in criminal proceedings. That is not to say that we would automatically say there was no matter on which that would be entertained. It's something that's well known in the civil procedure world, or the civil trial world, that you do a lot of things based on affidavits; and if you want to cross-examine someone, then you pull them in.
I'm not in a position today to make up BCCLA's policy on this for my board of directors; that's their job to do. Suffice it to say that we would have grave concerns about a proposition that cross-examination of state witnesses should be limited, even on peripheral questions. Perhaps — and this is me speaking as an individual, just musing in response to your question, senator — there might be some room to start there on some of these — as you've said and as Mr. Stamatakis has said — peripheral matters, but there would have to be a way for a defendant to get behind the affidavits and cross-examine if necessary.
Senator Jaffer: Judge, thank you very much for being here. I found what you had to say very interesting and certainly we will be thinking about what you have said.
One thing that interested me was "the mad, bad and the sad.'' I want to make sure I heard you correctly. You are saying triage should be used for bad; the mad and sad should be dealt with elsewhere? Did I get that correct?
Mr. Wyant: Yes, senator, depending on the nature of the offence, of course, because it is not just the offender; it is the offence they are alleged to have committed. If the offence is particularly serious, then you can't just excuse it perhaps because they may be sad or have mental health issues, unless the mental health issues are such that it amounts to defence.
Generally speaking, what we see in our courts is that a lot of people come from backgrounds of deprivation, who suffer from addiction issues, homelessness, literacy issues, peripheral mental health issues, and those issues bring them into conflict with the law. Essentially, many of the offences are relatively minor in nature and related to the problems they suffer, and it seems oftentimes that we throw the full weight of the law at people who could be much better dealt with in a therapeutic and holistic fashion, with the intervention of society and various agencies of government — health, mental health, et cetera — instead of necessarily just processing them in the criminal law and at the end of the day putting them on some order 18 months after the commission of the offence, and then hoping they are going to get better, when what will probably happen is that they will breach the order because of the issues they face. It seems to me we can be much more creative in helping those individuals, enhancing public safety, and moving on to devote significant resources to those cases and those individuals we ought to be more concentrated on.
Senator McIntyre: Thank you both for your presentation. Judge Wyant, I'm in agreement with what you had to say. There are minor matters that need not go through the full criminal procedure. Some offences could be treated as administrative or contravention matters. Thank you for your presentation.
Mr. Paterson, a few years ago your association published a report. As a matter of fact, you published quite a few reports, but I'm referring to a report which was published a few years ago entitled Justice Denied. I have a copy of that report with me.
In that report, your association lists what is working in the system, what is not working and what should be done. The focus of our study is delays in the criminal justice system. Keeping that report in mind, what are the key points causing delays in our criminal justice system? Is it a mixture of what is not working and what should be done to avoid delays?
Mr. Paterson: I think there is certainly a mixture, as you've heard. Neither my knowledge, nor the BCCLA's knowledge, is compendious as to what the various causes are in different parts of the country. Certainly we have looked at the justice system in B.C. in great depth and produced that report.
One of the best features of B.C.'s criminal justice system that I think would be worthwhile considering — and I know you've heard something about this already — is that in B.C., and of course in New Brunswick and Quebec, it is the Crown that makes charging decisions. With great respect to former police officers in the room, we think it really makes a lot of sense, that decision being made by Crowns.
In B.C. they have a pretty rigid test. The test is substantial likelihood of conviction and in the public interest. It's not "or''; it's "and.'' You have to have both. That's what the Crown has to decide every single time out.
What we see in B.C. — and it is documented in our report — is that there are actually higher conviction rates, suggesting a better use of court time. Not to say that getting convictions is what the court is there to do. Obviously, they are there to test the truth and justice of the matter. We see that that seems to have some effect, so we think that's a favourable thing, for sure.
Another thing we talk about in the report is the impact of mental health and mental illness on the justice system. At the time we wrote that report, the Vancouver police estimated that about 31 per cent of their calls involved people in poor mental health. Twenty-nine per cent of inmates in provincial jails in B.C. were considered mentally disordered, and recent statistics from the Correctional Investigator of Canada confirmed that the issues are the same in the federal correctional system for federal prisoners.
We recommended in that report — and we would continue to recommend — that investments need to be made in community mental health outside the criminal justice system; and then within the criminal justice system, there should be continued and increased investment in alternatives and things such as what His Honour was talking about, whether it's an increase of mental health workers, diversion programs and more services.
One of the things we have heard in the communities is that even where, in theory, those diversion programs are available, in practice the resources are insufficient to treat or to see or to counsel the numbers of people who need it. So we need to be taking a very hard look at the way in which we, as a society, are supporting those kinds of services.
Senator McIntyre: On the issue of people suffering with mental health issues, obviously there are a lot of people that fall into another system, which is the system of being unfit to stand trial; or fit to stand trial, not criminally responsible on account of mental disorder; and then they fall under a review board of their own province.
Mr. Paterson: Yes, that's right.
Senator Baker: Thank you to the witnesses for your testimony, especially to you, judge, because you are a sitting justice and we appreciate your testimony, your thinking outside the box, your three major suggestions to us. We are going to consider these very carefully.
I have to say, before I ask my question, that I've admired your judgments over the years, those that have been reported. You're a very complete writer. You're an excellent writer, and you've adjudicated justice as we all would like to see it adjudicated.
You were also a defence counsel, Crown counsel, chief judge. You also advised a foreign nation on how to set up the judicial system recently. So you've been around. You've done it all. Here is my question to you, which I think is apart from what you've said: When we look at different provinces in Canada, we see different ways in which a judge's time and court time, institutional time, is saved. Here in Ontario, we have justices of the peace not just issuing warrants but sitting in a bail court. You don't see that in the province where I'm from; a judge's time is taken to do that. When you look at the Federal Court system, they have prothonotaries, who relieve the court, the judge, of valuable time that the judge doesn't have. In a section 11(b) argument, the main cause is institutional delay and Crown delay, meaning the police and the Crown.
Do you have any suggestions for us to make in this report, whereby all provinces may make use of means that are presently in use in some jurisdictions but not others to save judges' and court time by the use of other persons who will be making adjudications that in some provinces are restricted to judges?
Mr. Wyant: First of all, thank you for the comments, senator. Yes, I do, and I'm going to, with a great deal of pride, point to my home province of Manitoba. We instituted some significant reforms, in the middle of the around 2003, beginning in 2003, called the Domestic Violence Front End Project. What we looked at and what we found in studying our cases was that there was an inordinate delay in the processing of domestic violence cases. It took upwards of 15 to 18 months to get a trial date. People were often on remand for six or nine months. There were a dozen or 15 remands during that time, and we felt that we needed to look at how the system was dealing with it. Part of it was that we saw judges going into court, sitting for four or five hours and doing absolutely nothing meaningful, and we were paying them a lot of money to essentially rubber-stamp requests for remands and adjournments.
So what we did, very briefly, was set up an administrative procedure whereby we said to the police and the lawyers, "We understand that you have a job to do, to investigate and to do your lawyering before the matter is ready to come to court, but we don't need to have you come to court every time and waste a judge's time and court clerk's time and all the money involved in that to simply adjourn, adjourn, adjourn, adjourn. We are going to give you a certain amount of time to do that, depending on the nature of the case and the complexity of the case. Go do that stuff. You don't have to come back to court. But here's the time frame, and you're going to have to come back and be ready to go. It freed up a whole bunch of courts that were simply remand courts that we could use for trial courts. With the infusion of no resources whatsoever but in a very collaborative effort, we were able to reduce the trial delay from 18 months to six months in the processing of a domestic violence case. We eliminated unnecessary remand courts, and we freed up judges' time to do what we call meaningful acts: sentences, bail applications, motions, trials, preliminary inquiries. We did that without the infusion of resources. That's why we won a couple of both Canadian and international awards. I have to say that it wasn't rocket science, from my perspective. It was really a dedication of all of the people in the system coming together, recognizing there was a problem and recognizing there was a public interest in dealing with matters more efficiently. We later expanded that to other matters.
What you see from that is the development of a more collaborative way of doing things. Alberta has now gone to that model, as have British Columbia and other jurisdictions. We certainly changed the culture, where people started to take the responsibility for the running of the system. Judges particularly, because they are really looked at as the leaders of the system, were taking the lead in making these administrative changes in the court.
I think certainly that's one thing that can be done on both local levels and provincial levels. It requires a significant change in attitude and culture. Many other provinces and jurisdictions are very litigious. Lawyers don't get along necessarily. I think that everyone has to come to the table, and judges need to be leaders in order to change that culture because we spend public money. We have a public trust to process cases, as Mr. Paterson said, according to the rule of law, and to give fair trials, but I think that often we deny justice by making matters so prolonged in court that many of them simply fall apart. So, yes, I think that there are things that we can do that do not require legislative changes but require all of us to roll up our sleeves.
[Translation]
Senator Dagenais: My question is for Judge Wyant.
I'd like you to talk to us about expert witnesses. I can tell you from experience that, when a party brings in an expert witness to testify, he or she will say what that party wants the court to hear because it hired the witness with that in mind. Otherwise, it would not call the witness to testify. And, in some cases, expert witnesses play a major role, resulting in longer delays.
What's your view on the use of expert witnesses? Do you have any suggestions on how to improve the system while respecting the accused's rights? I've gotten the sense that expert witnesses have undermined the credibility of the justice system — and we've seen that happen in certain trials in Quebec.
[English]
Mr. Wyant: Certainly, you often see the battle of expert witnesses — you are absolutely right, senator — where you have one side saying, "This is our expert, or these are our two experts,'' and the other side bringing another expert. People have talked about perhaps resolving the issues of competing experts differently by making them much more independent than they are now. Right now, they belong to the side that calls them.
Certainly, I think it's an issue, although you must recognize — and we all do recognize — that people must have the ability to have full answer and defence. But one of the other issues that I've found in court is that we often don't pay good attention to the qualifications of the people who come forward as experts. We're lawyers. We're not necessarily forensic scientists or doctors or have expertise in splitting the atom. Often, what we see is that someone will come in with a resumé of many, many pages, purporting to be an expert in a certain area. Quite frankly, it's very difficult to argue with the notion that they must be an expert because they are proffered as one. We often don't see counsel properly examining and cross-examining to ensure that the person is an expert in the area in which they are being engaged to give expert evidence. Often, what happens is that we have people giving expert evidence when they are not necessarily experts in a particular area and not focused in their expertise, and that can often confuse the issues and result in decisions that are not necessarily correct. Certainly, I think it's a responsibility for all of us to be much more vigilant in the qualifications of experts and to ensure that we pinpoint their area of expertise.
[Translation]
Senator Dagenais: Mr. Paterson, we are here to discuss delays in the criminal justice system, which hurt victims as much as they do accused. In criminal courtrooms, a lot of emphasis is placed on the rights of the individual, which come into play in many cases. To what extent does that dimension give rise to the court delays we are currently seeing? When the issue of an individual's rights is raised in a case, can it lead to delays? And, if so, to what extent?
[English]
Mr. Paterson: Clearly, a case that involves the making of Charter arguments is going to take longer than another case that doesn't really raise any Charter issues and is simply getting to the basic questions of innocence or guilt.
To the extent that accused and their counsel are raising, properly, Charter issues in relation to prosecution, we wouldn't characterize that as a delay because that's justice. That's the criminal justice system.
There may be ways in which those procedures can be expedited or changed, and that will vary from province to province and the various practices in the different courts. I would be hesitant to say that defending people's rights within the system is the cause of delay. The delay of what? The result is what it is based on an assessment of whether people's rights have been violated, and so forth, so it's simply doing the work.
Now, we know that there have certainly been concerns expressed in the past by even judges at conferences. I know this has been in evidence and so forth. Mr. Justice Lesage and others were talking about this, a little bit, as to whether or not frivolous applications are being raised. I can't comment empirically on the extent to which that is happening. I have no doubt that there may be some lawyers out there who perhaps run a bit of a flyer of an argument that may not have that much merit. They may do so quite legitimately, and there are others, without casting aspersions, who may do so in a more misguided way.
As a rule, we would be very cautious about making it more difficult for defendants to raise those kinds of arguments because of some concern about administrative speed.
Senator Joyal: Justice Wyant, I'm grateful that you accepted our invitation to appear as a witness for this study, especially because you're a chief justice.
We have heard a recurring comment from various sources, witnesses and even from public opinion. Before you appeared here, I was reading an editorial that was published in the Montreal paper Monday. We heard from the representative of the police association, Mr. Stamatakis, and I will read a sentence of his brief because it is, in a nutshell, the general preoccupation that many people who deal with the justice system have about the conduct of judges and their responsibility to manage trials. He said, "The committee may want to suggest within its report that judges be instructed to take more control within their own courtrooms.''
The perception is that it suffices for a lawyer to come forward in front of a judge and say, "I request a postponement because I haven't had time to look into the case,'' or "I was called into another court for another case.'' You know the panoply of arguments that might be presented to any judge to request a postponement of a case. My point is that you're a chief justice: What is your attitude? How do you evaluate that recommendation that, in fact, justices should much more disciplined in establishing the time frame and maintaining it and, to a point, imposing it after a time on the parties, if they feel that there is an abuse there?
In other words, people expect better management of court cases by the judges. How do you react to that?
Mr. Wyant: I'll speak personally because I'll probably tread a little bit past where I ought to go. I agree generally with that statement. I think it's fair to say that over the course of many years judges have, in some cases, not controlled the court proceedings as effectively as they should. I agree with the general comment, and I'm certainly not casting aspersions on any particular judge. I think holding counsel's feet to the fire in appropriate cases, having them respect timelines, making sure that when they make an argument, for example, for an adjournment that it's a legitimate argument and that it's not just given, "Okay, you can have the adjournment'' — looking at the issues much more critically is a responsibility of a judge.
I once commented that over the course of years it seems that judges have become a kinder, gentler lot — certainly kinder and gentler than many I appeared in front of as a young lawyer. Respecting of course that the rights of individuals must be protected, I would say, generally speaking, that judges do need to ensure that they control the proceedings in the courtroom, that counsel respect the rules of the court, that the rules are clear, and that they are enforced in a transparent way. I think judges, generally speaking as a profession, could do a lot better in terms of managing how things go in court.
Senator Joyal: Mr. Paterson, you have referred to mandatory minimum sentences that have been added to the Criminal Code in the last few years, but I will try to put the question in broader terms.
Would you agree that as we have been adding amendments to the Criminal Code in recent years — and I don't give a specific number of years to name any government — it has been the procedure of Parliament to add layers and layers to the Criminal Code? Do you think the fact that we now have a very complex book of criminal law might have an impact on the fact that we are now facing delays all over the system? And as a corollary, is it not time to review the Criminal Code and to simplify it?
Mr. Paterson: Thank you for your question, senator. In terms of the first part of your question, it certainly would be my speculation because, again, I haven't personally done the research to see whether the great forest of all the different enactments over the years is itself a factor as distinct from, say, what I talked about with mandatory minimums. I can only imagine that the growing and growing of that forest over time in response to particular issues that come up in public life has made for a confusing melee. We would certainly urge Parliament and this committee to recommend that there be a comprehensive review of the Criminal Code, the likes of which we haven't seen, I don't think, since the 1960s. Maybe they did some in the 1980s. I was a kid then, so forgive me for not knowing the precise dates. But yes, I think it's well overdue because there are just so many things that don't necessarily hang together. And how could they? With great respect to legislators, it's difficult over time to have a full view of such a large statute when you're just zeroing in on different little pieces. We think that a comprehensive review would be much in order. I understand that the Commons Committee on Justice and Human Rights has something like that in their work plan.
Senator White: Thank you very much. Thanks to both of you for being here. It's great to see you, Justice Wyant. My question refers to addictions and mental health. I think you touched on the number of offenders you see before you, and that you have seen, probably, in your courts before you were a judge, that have addictions, mental health or a concurrent disorder.
Some of the Nordic models have looked at early intervention, like you discussed earlier, being an option to the offender to attend treatment versus attending a court process and finding themselves possibly subjected to incarceration. In fact in Ottawa, we have had over 800 teenagers go to drug treatment in the city in the past six years; almost all of them were involved in criminal activity prior to, and almost none of them have been since. Would you support, as well, an option for offenders, in particular where addictions accessibility is the issue versus criminality, or "the bad,'' as you would say?
Mr. Wyant: In terms of an option to not bring them into the criminal justice system, where that's appropriate, absolutely, senator. Where we can get people into therapy and into wrap-around services so that we can minimize the risk that they pose to themselves or to the community, we are much better off. The criminal justice system essentially will put a Band-Aid on a cancer for many of these people and months down the line put them on some order that is not meaningful to the help that they need, and in an imminent and urgent way.
The City of Ottawa has been very proactive with their Assertive Community Treatment Teams and having mental health workers work with the police service in intervening. Those are the types of things that can reduce crime, reduce recidivism and keep people where they ought to be in appropriate cases. The Saskatchewan hub model has also been very effective in identifying people for treatment before they even hit the system. It doesn't mean we keep everyone out of the system, but we can certainly reduce the numbers. So, absolutely, those are the types of programs we ought to be looking at.
Senator White: Do you know what the wait list is in Manitoba right now to get into residential drug treatment?
Mr. Wyant: No, I'm not sure of the wait. However, we do have one organization that provides residential drug treatment for those who are charged and who wish to apply for judicial interim release. It's a long, multi-week wait to get into that treatment program, if you're accepted by the program and if the court ratifies it. The number of beds available for that type of program is very small in my province and probably elsewhere.
Over the course of my career, I have seen the death and dearth of community alternatives to incarceration. Particularly in judicial interim release applications, the resources aren't available or funded properly for community organizations to provide alternatives to people. That's certainly something that we ought to be looking at, again, to keep people out of jail where appropriate.
Senator White: It's six months in Ontario, Mr. Chair, just for interest.
Senator Fraser: Thank you both for very interesting presentations. Judge Wyant, I was fascinated when listening to your description of how culture change has been achieved in at least big chunks, it sounds like, of the Manitoba system.
There is one thing I am a bit perplexed about. When people become judges, or even more so chief judges, what training is there? What training would they normally undergo, not in the law, but in administration, management and in how to handle these problems?
Mr. Wyant: There is no formal training, senator. It's something that is important for us to look at. Essentially what happens when people are appointed to be chiefs, appointed hopefully for their expertise in and their knowledge of the law, there is nothing that says they have to have any experience in management, any ability to deal in human resources or even to look at a balance sheet.
I was fortunate enough to take some education in public-sector management, so I knew and at least had some formal education in that regard. But we really don't require anything.
There is no formal, regularized, mandatory training for someone once they become a chief. The National Judicial Institute offers some courses. Chiefs often get together every two or three years to talk about issues facing chiefs. But, frankly, we don't require any specific training, nor do we offer any training that is specific in nature, unless the person wishes to take it.
You're heading a large organization — an organization that has a lot of money, a lot public funds. You're administering a lot of public funds. You have got significant human resource issues — even more significant because you're dealing with judges who will remind you every day of the week that they are independent when you're trying to deal with them. If you don't have the ability or the training, or the ability to get training, often it causes a great deal of difficulty, so I think having that is important.
I know in the provincial courts that having a term limit on chief judges — although from a personal point of view, it may not make me very happy — but I think it's a good thing, because it allows someone to come in, set an agenda, set goals and objectives, and meet them with a timeline. Renewal in an organization is always important at the top, no matter how good you might be or how popular you might with the troops. It's always good to have a change of direction.
But certainly it's a real issue. It's a pig and a poke: Sometimes you'll get someone who turns out to be a great administrator, and sometimes people may not have the interest or the ability to administer.
Senator Batters: Judge Wyant, I noticed that when Senator Baker was listing all your great qualities — correct me if I'm wrong, but I believe that you're originally from Saskatchewan, is that correct?
Mr. Wyant: From Saskatchewan. Still have family there.
Senator Batters: Absolutely, yes. Your brother Gordon Wyant is Saskatchewan's Minister of Justice. Senator Plett made the comment that he decided better place was Manitoba, but clearly that's incorrect.
Thank you both for being here today.
Judge Wyant, please tell us: We're looking at all of these different jurisdictions across the country. You indicated there are certain jurisdictions you find to be more progressive on how they've dealt with court delays. Could you point us to a couple of jurisdictions across the country that have innovative programs that would be worthwhile for to us investigate a little bit further as we conduct our study?
Mr. Wyant: Actually, I think the Province of Saskatchewan is probably the most progressive, and I don't say that because —
Some Hon. Senators: Oh, oh.
Senator White: Come on.
Mr. Wyant: Some tremendous things are going on in Saskatchewan. Dale McPhee, who used to be the police chief in Prince Albert and who is now with the provincial government, and others are leading some tremendous change. I have the privilege to be part of an expert advisory committee that was put together by Saskatchewan Justice. They bring people from all over North America to advise on cutting-edge things — built from the hub and the core models in Saskatchewan.
There are great things going on in each jurisdiction, but Saskatchewan leads the way, from my perspective.
One of the problems we have in this country, too, is that we don't have a great network to share success and best practices. Many things can go on at a local or provincial level, and other jurisdictions don't find out about them, because we don't share those best practices. We have to do a better job of communicating in an organized way what is happening in certain provinces. Things are happening in Saskatchewan that other jurisdictions are listening to and, hopefully, will adopt.
Senator Batters: I would go on, but I can't end on a better note than that, so thanks very much.
The Chair: On behalf of the committee, I want to thank both of you gentlemen for appearing here today and contributing to our deliberations on this important subject. Judge Wyant, I want to add a special thank you. You're the first sitting judge who has been willing to appear. I'm quite confident you didn't get yourself into trouble today.
Senator Joyal: He is on the book.
The Chair: Hopefully your appearance will provide an incentive for others to follow your lead, sir.
Thank you both for being here. Very much appreciated.
Mr. Wyant: Thank you very much. Thank you, senators.
The Chair: Senators, we have one final item to deal with: the committee budget.
I think you all have the budget it in front of you. I require a motion before we can move to discussion or debate. Moved by Senator Jaffer that we adopt the budget as presented.
Senator Plett: Before we adopt —
The Chair: It is open for debate. Go ahead.
Senator Plett: Item number 5 on the first page — maybe it's item number 5 on every page — has considerable amounts of money for taxis, and then we're always chartering a bus on the same day. I'm wondering whether we could explain that. They are high taxi costs here: $200 for each senator and each staffer for taxis. Then in each city we're chartering a bus.
Jessica Richardson, Clerk of the Committee: It's to and from the airports to their home. Also, if they are flying on different flights, it is perhaps to get from the airport to the hotel.
It's a pretty standard figure that we use for all committee travel.
Senator Plett: If that's the standard figure, then that's what it is. I have no problem.
My only comment is if I charge $50 to go from my home to the airport, then Finance says they googled it and it's only $28 and only pay me $28. I'm assuming Finance will google these and make sure we pay the right amount of money.
Ms. Richardson: It's only with receipts. We have to have receipts.
Senator Jaffer: Finance has actually approved it.
Senator Plett: Pardon me?
Senator Jaffer: Finance has approved this budget.
The Chair: Subject to this committee's approval.
Senator Jaffer: Yes.
Senator Fraser: As you know, I view with a jaundiced eye this whole plan.
The Chair: Do we ever know that.
Senator Fraser: Les absents ont toujours tort, and I wasn't here when the decision was made.
However, you will recall that I said when the committee is in Montreal I will not need hotel accommodation, and so did several others. I see that's been accounted for.
I do not see why you're giving me a per diem. I do not see why you're giving me $200 to go to and from the airport. Or I guess you're not. But why am I getting a per diem?
Ms. Richardson: Senator, we removed what you told to us remove. It's just an oversight. The money won't be spent. It won't be claimed. It will be clawed back. I apologize. We have done so many different versions of this budget, and we didn't catch that.
Senator Joyal: Put me in the same box as Senator Fraser because I don't need accommodation in Montreal, nor a per diem or transportation.
Ms. Richardson: In Montreal we reduced the number for hotels and taxis by four, as previously requested by the Montreal-based senators on the committee, to not include them in the figures. We took your request and excluded you from those two amounts.
[Translation]
Senator Dagenais: I'd like to bring something to your attention. I live in Blainville, on the North Shore of Montreal. Because of the traffic in Montreal, it takes me longer to get from Blainville to Montreal than it does to Ottawa, so I can be late for morning meetings. Perhaps I should find a place to stay downtown. Is it too late?
[English]
Ms. Richardson: No, I'm sure we will have sufficient funds. Once a budget is approved within the activity, a clerk can move the funds however is needed by the committee. I'm sure we'll have plenty of funds if that's needed.
[Translation]
Senator Dagenais: Just so you know, Montreal has the country's third worst traffic problem.
Senator Boisvenu: It also happens to be the city with the longest court delays.
[English]
The Chair: Any further discussion on the motion?
It is moved by Senator Jaffer that we adopt the budget as tabled. All in favour? Agreed, with one abstention.
That concludes our business for the evening. Thank you, ladies and gentlemen.
(The committee adjourned.)