Proceedings of the Standing Senate Committee on
Legal and Constitutional Affairs
Issue No. 6 - Evidence - April 13, 2016
OTTAWA, Wednesday, April 13, 2016
The Standing Senate Committee on Legal and Constitutional Affairs met this day at 4:28 p.m. to study matters pertaining to delays in Canada's criminal justice system.
Senator Bob Runciman (Chair) in the chair.
[English]
The Chair: Good afternoon and welcome colleagues, invited guests and members of the general public who are following today's proceedings of the Standing Senate Committee on Legal and Constitutional Affairs.
Members, 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 eleventh meeting on the study, and, for our first hour, we have with us the Honourable François Rolland, Retired Chief Justice of the Superior Court of Québec.
Sir, thank you very much for being here today. We certainly appreciate your appearance and look forward to your testimony. The floor is now yours.
The Honourable François Rolland, Retired Chief Justice of the Superior Court of Québec, as an individual: Thank you for inviting me to testify and to talk about the Quebec experience.
[Translation]
I will give a short presentation and then answer questions in the language of your choice. First, when it comes to criminal matters, the Quebec Superior Court functions differently than other superior courts in Canada. To give you some background, you may remember that in the 1940s, Duplessis, the Premier of Quebec at the time, managed to give greater jurisdiction over criminal matters to what was then known as the Court of Sessions of the Peace. As a result, the Quebec Superior Court deals almost exclusively with trials by jury, or the most serious offences, and appeals — appeals of municipal court decisions and decisions of the Court of Québec. The Court of Québec therefore has jurisdiction over 95 per cent to 97 per cent of criminal matters.
Obviously, given its extremely limited jurisdiction, over the years, the Quebec Superior Court has developed a speciality in criminal law. There are Quebec Superior Court judges that hear only criminal cases, who deal with nothing other than criminal law because a trial by jury resulting from the order of a retrial on appeal is very costly. Some judges have therefore been trained to deal exclusively in criminal matters and have worked in that area for many years.
I will now talk to you about the situation in the criminal division of the Quebec Superior Court and give you a brief summary of what is going on there. I called my former colleague who is responsible for the criminal division, the Honourable Marc David. As of right now, or in just a few days, it will no longer be possible to schedule any more trials by jury for 2017. The schedule is already full everywhere. There are still a few dates available in 2018 — yes, just a few — and there is already one trial scheduled for 2019. That is what is happening in the Montreal division of the Quebec Superior Court. The situation in Quebec City is similar, but a bit better.
I was appointed as Chief Justice of the Superior Court of Quebec in September 2004. At that time, a trial by jury before the Superior Court was usually scheduled so that it could be completed within one year, generally within seven, eight or nine months. Very long trials might take longer than a year, but usually a trial could be wrapped up in less than a year.
The Quebec Superior Court was not experiencing any real problems between 2004 and 2009. In 2009, we had nine full-time judges in the criminal division in Montreal, and trials were always scheduled so that they could be completed within a year, usually within eight, nine or 10 months. There were two full-time judges in the criminal division in Quebec City, and trials there were also set so that they could be completed within a year. There were no problems.
In the spring of 2009, the Director of Criminal and Penal Prosecutions, the DPCP, laid charges against 156 people in the SharQc case, which everyone has heard of. That's right. There were 156 people accused of committing 23 premeditated murders, living off the avails of crime, and gangsterism. The gangsterism crimes took place over 17 years — nearly 20 years — from 1992 to 2009, and the murders took place over nine years.
I gave two judges the assignment of managing the case, Justice Brunton and Justice Wagner, who is now with the Supreme Court. Justice Brunton alone managed over 200 preliminary motions. Imagine a case involving 156 people — 133 of whom were arrested and the rest of whom have vanished. Imagine also how many lawyers were involved and with whom we were attempting to determine how to proceed. It is impossible to have 133 defendants in a courtroom. That is not allowed. We had to divide the case management in two, between Justice Brunton and Justice Wagner, and then there were four trials.
I personally presided over most of the facilitation conferences in this case, through which we managed to avoid some people going to trial. Over 70 of the 107 accused who pleaded guilty did so as a result of facilitation conferences. People often say that the SharQc case was a failure, but 107 of the 133 people who were arrested pleaded guilty.
There were trials that failed for reasons that we do not know and I will not delve any further into that subject. However, it is also important to mention that, during that same period, in 2009, other mega cases were filed, including the Loquace case, in which more than 80 people were accused of tobacco smuggling and selling cocaine on Montreal's South Shore. There is also the case in which 46 people were accused of being involved in an extensive credit card fraud ring. Justice Éliane Perreault is currently presiding over one of the two trials in that case because the trial was divided in two for the first time in Quebec. There are 23 defendants in the courtroom with the defence lawyers and crown prosecutors. Try to imagine the logistics of all that. Modifications even had to be made to some courtrooms.
There is also the Diligence case in which a dozen people were accused of gangsterism, and the Honoré case, where a former mayor of Laval was accused of gangsterism along with 36 other people, for a total of 37 defendants. All of these cases are before the Quebec Superior Court in Montreal. There is the Raynald Desjardins case, which involves eight defendants; and right now, in Montreal, there is the Cinar or Weinberg case, which involves commercial fraud and is in its second year before a jury.
Those are the cases that the Montreal division of the Quebec Superior Court is dealing with, on top of its so-called regular cases. In 2010, I asked the justice minister and Premier of Quebec to provide judges with additional resources. Finally, in 2012, the Government of Quebec amended the Courts of Justice Act to create seven additional positions. As you know, the Judges Act also had to be amended and that was done in 2014. However, only four additional positions were created rather than the seven that were originally planned, and only two of those positions are in the criminal division. Judges were appointed to those positions and assumed office in June 2015.
In 2009, there were nine full-time judges in the criminal division in Montreal, and today, there are 15. These judges were pulled out of the civil division to work in the criminal division so that court delays do not get any worse. The Quebec Superior Court was hailed as a model superior court in the 2000s in Askov and even Morin because of how quickly its cases were heard before a jury. We are a long way from that now.
I am pleased that this committee is interested in the matter of court cases and the number of mega cases, because we are going to talk about disclosure. Technology has its advantages, but it also complicates things. With regard to electronic legal disclosure, for example, in the SharQc case, lawyers were filing preliminary motions and confirmed that, if it took two minutes to open each electronic wiretap file and a person was working on doing so 24 hours a day, seven days a week, it would take that person seven years and two days to consult all of the evidence, and that is not even taking into consideration the upcoming trial. When it comes to the disclosure of evidence, there is some truth in the old adage that you can have too much of a good thing. When a huge quantity of evidence is disclosed, it opens the door to a large number of preliminary motions being filed. I am thinking here of Justice Brunton who received over 200 such motions. The disclosure of evidence is often incomplete and not specific enough in general, despite the authority given to judges. Amendments were made to the Criminal Code to provide for case management, which can save court time if case management judges are given more coercive powers than they were in the past. Otherwise, this will not cut down on the amount of evidence. The trial judge could take care of the case management.
You will have noticed that, in Quebec, we are more likely to file a direct indictment in large cases. This makes it possible to bypass the preliminary hearing. The preliminary hearing can be useful in certain cases. When there is no preliminary hearing, sometimes the case is not ready when the direct indictment is filed and then the Superior Court and the crown at the DPCP are left to clean up the mess.
In early 2010 and 2011, the Superior Court began doing a lot of facilitation in criminal cases, but this practice is still not being used enough. A case may not be entirely resolved through facilitation, but it allows the parties, the lawyers, to make admissions in order to remove barriers and reduce the amount of evidence.
What is also difficult about court delays is that direct indictment often leads to court proceedings. Senator Dagenais knows something about that. Over the years, a lot of investments have been made in police investigations. Experts have been hired and trained. Then more crown prosecutors were hired. However, it is a bottleneck situation. At the top, there is still the same number of judges and there are not enough courtrooms. Some courtrooms at the Montreal courthouse have been modified, but the courthouse itself has not been expanded. There is still the same amount of space. When two courtrooms are combined to make one large courtroom, a courtroom is lost.
There has been a huge rise in the number of mega cases involving 15 or more defendants. It has become common practice for us. The government appointed four new judges in 2015, two of whom were assigned to the criminal division.
With regard to solutions, we need to encourage better coordination between the bench and the DPCP, the crown and the bench, with regard to plans to lay charges. The bench needs to be notified more than one day in advance when charges are going to be laid so that it can plan. When we talk about a stay of proceedings, the clock starts ticking on the criminal statute of limitations as soon as charges are laid. If we wait to lay charges, the statute of limitations will not run out. No one can complain about delays when charges have not been laid. This would give the court time to prepare. There needs to be better communication between the DPCP and the bench. Better communication is also needed between police investigations and the DPCP.
We also need to set a maximum duration for trials. That is done for commercial trials. I rendered a decision on a very long commercial case in Quebec, the Castor Holdings case, which was upheld by the Court of Appeal. We could say "you have this amount of time for the trial. Do what you need to do, as long as it is reasonable.''
More use should be made of facilitation conferences. Some witnesses mentioned the role of the special clerks, who are called prothonotaries in Quebec and Ontario. We need to make use of them for routine decisions. For example, with regard to search warrants, sometimes sealed documents are seized. Under the existing legislation, only the judge can authorize the unsealing of each document. A court judge could spend three months looking at documents. Between you and me, it seems to me as though a prothonotary could do that job quite well. Prothonotaries have legal training. It would cost less for them to do it and we would not lose that judge.
A list of terrorist organizations was developed under the federal Anti-terrorism Act. It might be useful to create a similar initiative elsewhere, for example, a list of criminal organizations. When you need to prove that a biker gang is a criminal organization, it is not enough to say that they are Hells Angels. That is not legally recognized as common knowledge. You need to provide evidence that the Hells Angels is a criminal organization. To do that, you need witnesses and that wastes time. Given all that has happened with certain criminal organizations, it seems as though a simple order in council could be made to establish a list of criminal organizations. Those are simple tools that would help the courts get back to normal court delays for criminal cases.
I am sorry for taking so much time, but I wanted to explain the situation to you. Quebec has always been very proud of its results, but right now things are a mess. I can now answer any questions you may have.
[English]
The Chair: Thank you. We will begin questions with the deputy chair.
Senator Jaffer: Thank you for being here. I have a quick question of you. If I understood you correctly, you said that in 2017, there are no court dates available and, in 2018, a few, and one date has been set in 2019.
Do you know if any of these people are in custody?
Mr. Rolland: Generally, we try to obtain earlier dates for people in custody. For people who are not in custody, we will choose a later date. As an example, with the case of Operation SharQc — the Hells Angels — they have been in custody for some five or six years.
Senator Jaffer: But no trial.
Mr. Rolland: The trial started, but you have 200 motions to decide, so it took time.
Senator Jaffer: It is interesting that you have also spoken about some parts of the trial being done in more administrative ways. We have heard that from others, as well.
The other part that we have heard is around preliminary inquiries. I would be interested to have your point of view. I believe, from what I have heard, that there is a mixed opinion as to whether we should have preliminary inquiries, and I would be interested to hear from you.
Mr. Rolland: In some types of accusations or trials, preliminary inquiries are useful and important. If you don't have a preliminary inquiry, it means that the accusation must be focused and the file must be prepared. If you file zillions of documents — it's like we have to redo the job. Yes, they are useful, but we have to be careful not to go on with a preliminary inquiry for two or three years, because we double the time.
Senator Jaffer: Justice Rolland, I was interested when you spoke about maximum days of trial. I was a trial lawyer. In civil cases, I can see that, but I would be very troubled in a criminal case where you deny people their liberty. How do you envision that?
Mr. Rolland: Honestly, I do not have the answer. Maybe some depositions could be taken out of court. These depositions could be done before the parties, before a deputy judge. There must be some way to shorten the days for witnesses to testify.
[Translation]
Senator Dagenais: Thank you for your presentation, Justice Rolland. I think you have given a very good overview of the situation in Quebec, and I can testify to that that since my colleagues from Sûreté du Québec and I witnessed it first-hand.
You mentioned the SharQc trial, in which I believe that about 31 of the accused parties were acquitted.
M. Rolland: If I may, 31 people were released from the outset because, in all likelihood, they would not have gone to trial until 2019 or 2021.
Senator Dagenais: You are right to correct me on that. Were more resources needed? You spoke about it and it has already been two years since those events occurred. Have you been heard by government? Are more resources from the political apparatus needed for the situation to improve? We need to talk about resources, but how hard did judges try to make things move faster and to get the political apparatus to listen to them? It is always a little bit of a touchy subject, but of course more resources are needed. What could we do to help achieve that? You are appearing before our committee. What do you suggest could be done from a legislative perspective that would help in terms of procedure?
Mr. Rolland: Thank you for your question. It is always a sensitive issue because of the budgets. In terms of resources, I contacted the provincial justice minister at the time, Mr. Fournier, as well as Premier Jean Charest, in 2010, to ask for additional resources. In fact, we asked for 12 more judges. In fall 2010, what helped me get some of those judges was that the Prime Minister's Office called my office to get a judge appointed to preside over the construction industry inquiry. I had appointed Justice Charbonneau knowing that deprived me of a judge. I could no longer call on Justice Brunton and Justice Wagner. The Minister of Justice's Office then agreed to amend the law and authorize seven additional resources. Later, in spring 2012, I contacted the Minister of Justice to inform him that we had secured seven more positions as a result of the amendments to the Courts of Justice Act. There were calls to fill these positions, but the Judges Act had to be amended, which wasn't done until 2014, unfortunately. Of the seven positions, four were created and subsequently filled in June 2015.
In addition, we asked for more courtrooms. We did get a few courtrooms, but it was not enough. We have to change the way we do things. Some think that the problems will be solved by appointing more judges and building new courthouses. No. We have to change the way we work. I do not place blame on the Canadian Charter of Rights and Freedoms. As you know, the Charter has complicated things a bit over the years, and I'm telling you that with all due respect. Murder trials are very simple. About 10 or 15 years ago, a murder trial took three weeks. Today, the same trial will take six to eight weeks.
Senator Dagenais: To conclude, what does a reasonable delay mean to you, nowadays, in light of the kinds of trials that are conducted, the events and the resources? I realize that we can't go back to 10 years ago, but what is a reasonable delay, in your view?
Mr. Rolland: The mega-trials going on today should be heard within 15 to 18 months, whether the people involved are in remand or not. Trials should come to completion more quickly. For example, the Weinberg business fraud trial is on its second year before a jury, which has been meeting for two years.
[English]
Senator Baker: Congratulations, judge, on the great job you've done. You're the first person who has suggested to our committee, in a strong way, the use of prothonotaries to perform functions that judges presently have and are tied up with, pretrial issues perhaps, unsealing of warrants — a great complex procedure that you have outlined to us. Would you suggest, on the unsealing sections, that it is a terrible waste of time that you wouldn't have the police and the Crown get together and unseal the necessary warrants and black line them, vet them, in advance of the trial? I think that's what you're suggesting. You're also suggesting that the police get together with the Crown and provide some structure to the courts so that they are prepared.
So you'd suggest the prothonotary, which we already have in section I think it is 12 or 22 of the Federal Courts Act —
Mr. Rolland: We have the same thing in the Superior Court of Quebec in civil and commercial matters.
Senator Baker: You do. If that were implemented throughout Canada, free judges, they wouldn't also be conflicted out in trials because, if the judge issues a warrant, the judge can't then sit as a trial judge. We have all these problems.
Let me ask you this: Would it be, in your estimation, adequate, and how would we do it, to shorten the period of time as far as this complex area of disclosure is concerned? I am not concerned about the preliminary inquiry because that is limited in that, if there is any evidence that, if believed, would lead to a trial conviction, that is it. That is the requirement, a very low bar.
Is it possible to limit the amount of disclosure that is required, say, before plea, to just the officer's notes — Senator Dagenais knows what I am talking about — the continuation report or the Crown attorney's case report and the main warrant, if there was a warrant used, to be unsealed and vetted prior to trial and lay it down somewhere, either in the Criminal Code or in the laws of court that that is all you are going to get and all you should get before plea and proceeding with the trial?
Mr. Rolland: Thank you for your question. Let me put it this way: If, when they file the accusation, the evidence is related to specific accusations and is focused and limited, instead of making 25 accusations, for three murders or 25 murders, the end result is the same. You may say it was part of additional murders. If you limit the evidence when you file the accusation and the Crown, the prosecutor sits with the police force that made the inquiry to determine what would be the necessary and useful evidence, that would shorten the trials. It would be easier for a judge to say, on motions, "That is it; it is there.''
Senator Baker: So you find 10 charges. Half of them could be what we call "Kienappled'' out by the Kienapple principle or res judicata or whatever. You are suggesting that the police and the Crown get together and deal with it on the main charges instead of wasting time before the court and dragging things out. Is that what you are saying?
Mr. Rolland: With some precision, yes, that is what I am saying, that there could be a way to reduce the number of accusations, and a judge should have the power to limit the number of accusations in some instances. The judge should have the power to say, "That person is dead; we have the certificate. You don't have to make evidence unless you want to know how that person was killed.'' But, to show that the person is dead, you have the certificate. Why make the evidence for three days? It is obvious.
[Translation]
Senator Boisvenu: Welcome to our committee. We are delighted to have you here.
Along with Justice Côté and Justice Fournier, you recently denounced in the media a disastrous situation that causes numerous problems for victims of crime. While offenders are awaiting trial, the victims of crime are waiting for their cases to be settled. I'm thinking, for example, of sexual offences. If we compare Quebec and Ontario, we see a twofold difference. Is Quebec the poster child for organized crime, street gangs and everything that I call "organized business criminals''? Is Quebec different from other Canadian provinces in that regard?
Mr. Rolland: I'm treading on delicate ground here, but in Quebec, a decision was made to wage war on biker gangs. Substantial efforts were made to address the situation, especially with the Charbonneau Commission. The province tackled these problems without additional resources, certainly no more than elsewhere in Canada. There are no mega- trials in other Canadian provinces. In Quebec, these are jury trials. Fortunately, trials go relatively well from day to day. Short trials take place within a reasonable amount of time.
Yes, things get out of hand in some cases. What we see in court is always the worst cases. Many of those charged plead guilty. If we had all charges proceed to trial, we would not be able do the job. There are situations where, indeed, things get out of hand, but I wouldn't say that any one category is particularly disadvantaged. You talked about sexual assault cases, and we try to give them priority. They are set on a priority basis.
Senator Boisvenu: In Quebec, the withdrawal rate for complaints by sexual assault victims is nearly 50 per cent.
Mr. Rolland: I don't know whether that rate is higher than the rate in other provinces. There are currently two cases before the Supreme Court — one from Ontario and one from British Columbia — concerning stays of proceedings because of delays. I couldn't tell you whether the situation is worse in Quebec, in terms of withdrawals.
Senator Boisvenu: I am also very worried about revolving doors in courthouses. A report on recidivism was recently published in Quebec, and one of its findings was that 70 per cent of those aged 18-24 return to the courthouse. On average, 55 per cent of these people go back before our courts and into federal penitentiaries. The reimprisonment rate is over 70 per cent. Wouldn't this require some serious soul-searching? If we want to decrease delays, we also have to reduce the rate of return of these offenders before the courts, since 20 per cent of offenders take up 70 per cent of the time in courthouses.
Mr. Rolland: I hear what you are saying, but I do not think I have the expertise to answer, except to say that there is certainly food for thought. Are we allocating enough resources to try to help these people? Have we doing everything we should do? I can't answer that part of the question, but, yes, we have to look into it.
To answer your question about delays, I would say that they are bad for the accused and extremely bad for the victims, for Canadian society and for the credibility of our justice system, which is valued.
As we speak here today, our system is one of the most privileged in the world, insofar as we have been able to maintain the delays we had before. However, things are beginning to deteriorate. I said it myself, in the papers, a few weeks or a few months ago: if we don't do anything, we are going to hit a wall, and once that happens, we can't get back up. Something has to be done.
Senator Joyal: Welcome, Mr. Rolland. We are certainly very grateful that you accepted the committee's invitation because, as you know, it is still almost impossible to get a sitting judge to provide testimony. We have the advantage of having with us an experienced witness who can provide special insight into the trial management process.
There was a decision that caused quite a stir after you made your statements, specifically Justice Cournoyer's decision in Kyling imposing a strict deadline on the parties. The specific context of that case has to be properly understood, but what appeared to be new was the realization that judges have the power to set a calendar.
Mr. Rolland: A management calendar, absolutely.
Senator Joyal: Trial management, yes. On the basis of — I was going to say that incident — that decision, wouldn't it be appropriate for judges, and particularly for chief justices, to review, with colleagues in the bench, how trials are managed? Shouldn't judges be part of the solution, in terms of their acceptance of delays, which are often perceived as being too easily accepted? In other words, judges also have some responsibility to ensure the efficiency of proceedings.
Mr. Rolland: That is a very good question, Senator Joyal. I will give you a little background on how the court works. The court is organized into different chambers: the criminal chamber, the civil chamber, the commercial chamber, the administrative chamber and the family chamber. There is also a coordinating judge responsible for each chamber. For example, the criminal chamber meets every Wednesday to discuss management techniques, namely how far we will go.
Incidentally, I am very pleased with the recent appointment of Senator Sinclair, and I congratulate you. You will find him very useful.
There is a principle that cannot be violated, and that concerns the independence of judges. No two people work at the same speed or in the same way. We can establish parameters, but no more than that. People have their own pace. We try to establish management techniques, and the chief justices, the coordinating judges, you are right, meet with the judges to determine, for example, which ones prefer the management side. Some are better than others at management, and others are better at trials. The chief justice's role is to determine who will be the best manager, but we cannot go further than that.
Senator Joyal: Exactly. However, there is still what is known as best practices, in private sector jargon.
Mr. Rolland: And we do that.
Senator Joyal: How can the example set by Justice Cournoyer in the case I mentioned earlier be used as a model for other judges? Couldn't we present that case as an example showing that we can set deadlines to better serve justice? Fundamentally, that is the objective, isn't it?
Mr. Rolland: If I may, in the case of Justice Cournoyer it was a bit simpler because it wasn't the first trial. There was an appeal and a new trial was ordered. There was quite a bit of repetition. In my case, in Castor, the first trial lasted seven years. When I ordered the second trial, I allotted two years: one year for the Crown and one year for the defence. The parties knew what steps they had taken in the first trial. I just asked them to select what was important. It was much easier. When it is a retrial, we set a deadline and rely on the good faith of the lawyers.
Senator Joyal: The other thing that comes to mind is the revision of the Code of Civil Procedure. The focus of civil proceedings has shifted from the trial to conciliation. We get the impression that when it comes to criminal proceedings, there is nothing better than a trial to get to the bottom of things. Should there not be a revision of the philosophy by which the criminal procedure was designed? Should we not ask ourselves whether in today's context we might not review and facilitate a procedure that would be — not expeditious because that gives the impression we are botching things up — but more efficient in terms of the decisions to be made?
Mr. Rolland: You are absolutely right and in that sense, the new Code of Civil Procedure has been in effect since January 1. The first title is called, "Le recours au mode privé de prévention et de règlement des différends'' or, the use of private preventive methods and dispute settlement. It's a new approach. It's not a code of legal procedure, but a code of settlement, a dispute settlement protocol.
Last year, I worked with the DCPP to try to form a committee to help Crown prosecutors (DCPP) and defence attorneys to speak with one another. However — and it's like this in every province — relations between defence attorneys and Crown attorneys are strained. There is mistrust. I saw that as a judge and later as a chief justice. I meet these lawyers, and there is a sense of mistrust. People do not seem to trust one another the way they do in civil proceedings. Perhaps it's because a person's freedom is at stake? Probably. There may be other reasons.
I saw that. I have a commercial law background. I practised law for more than 20 years and specialized in commercial litigation. I never dealt with criminal lawyers before arriving in court. I had the opportunity to meet highly skilled lawyers, but I noticed there was some mistrust. Indeed, trials could be simplified through facilitation and management.
Senator Fraser: Welcome, Mr. Rolland. Thank you very much for being here. I want to come back to the issue of administration. You are probably right to say — everyone knows it — that some are better administrators than others. Even still, there is a lot learn. Administrating is quite the task. Are there any training programs available for administrators?
Mr. Rolland: In Quebec, judges receive regular court training. We receive training every week and the National Judicial Institute offers training in case management and managing complex criminal trials. I think we get appropriate training.
Senator Fraser: Is it mandatory?
Mr. Rolland: It is mandatory when new judges enter court. They have to take this training. As chief justice, I asked new judges in their first three years to take three mandatory training courses in management, settlement or facilitation conference —even if they didn't want to because some judges do not want to do facilitation conference and I respect that — and judgment writing. Those are the three mandatory training courses.
[English]
The Chair: When the Ontario officials were here a few weeks ago, they talked about having a program a few years ago where they would focus. They called them problem courts. They would send in a team or however they addressed it. In terms of the timelines for dealing with criminal cases, they were about less than half of what it is in Quebec.
I'm just wondering if you do something comparable in Quebec.
Mr. Rolland: Yes, we do.
Senator Joyal: Do you focus on these problem areas and do your best to address them?
Mr. Rolland: Yes, we do something similar in Quebec. I keep saying that casting is very important for chief justices. We have to find the right judge for the right files. For some types of lengthy trials, some judges are not comfortable with that, and they would be perfectly comfortable with shorter trials that are even more complex.
So, yes, we do that; we do have a team to help colleagues to improve.
Senator Batters: Thank you for being here. It's extremely valuable experience for us to have you here, because you were the Chief Justice of Quebec Superior Court for 11 years, so you have considerable experience in managing the court's administrative aspects, including some of these mega-trials we've heard about.
La Presse in Quebec wrote a number of articles in 2015 and 2016, and you were quoted in some of them as saying the following:
To make improvements, we need to change how we do things, and it goes beyond just building courthouses and courtrooms and appointing more judges.
Further they had you quoted as saying that "adjournments do not always happen for good reasons.'' Though, to be fair, you weren't prepared to say that's happening in the majority of cases.
So regarding adjournments, in your opinion, what explains the fact that parties often request adjournments, to what extent are some of them ill-founded and are those reasons often accepted by judges? If so, why? And what do you think the best way to run a trial would be so that adjournments don't delay the proceedings unduly?
Mr. Rolland: I'm going to make the distinction between the Quebec provincial court and the Superior Court. In Superior Court, when we start a jury trial, we finish a trial. There's no such thing as an adjournment. If it goes on for two years, it means that it went on for two years, four or five days a week for two years non-stop.
In Quebec court, the way the schedule is done, sometimes the trial time has been misjudged. And, finally, they were given three days to do their trial, and after two and a half days, they realized that they need four more days. And the judge's schedule is such that they won't be able to continue before three months for one day and four months after.
But in Superior Court, that does not happen. There's no such thing as an adjournment, unless counsel or a member of a jury falls sick.
Senator Batters: Given your vast experience in this area, though, generally, do you have anything to offer us about the types of adjournments we're seeing in the lower courts?
Mr. Rolland: The way I have managed the Superior Court — and it was like that before I arrived — with some less important trials we could give an adjournment, but normally when a trial starts, you finish your trial because an adjournment is costly. Counsel have to prepare the trial again, if it's two months before they continue for two days. If they go on after that — two months after — they have to re-prepare. It's very costly.
The most effective way to have a trial is to have it non-stop; if it's five days, it's five days, and if it takes another week, you do it the week after. So it's rearranging the schedule.
But it's easier to say than to do.
Senator Batters: I'm really glad that you brought up that Quebec biker case about the 156 bikers who were involved in that particular case.
Dealing with those kinds of huge trials, I'm wondering if you have any recommendations for improving how those types of large and complex trials are managed and ensuring that unreasonable delays do not lead to a stay of proceedings, because that would be the worst case scenario obviously in a case like this.
Mr. Rolland: Thank you. I said it a bit earlier: When the Crown is filing the accusation, the evidence must be attached. We can't say that we're going to make 156 accused with 175 accusations, of 22 first-degree murderers and gangsters, and, besides that, here's the evidence. It just can't work like that.
It's easier to say than to do, but you have to be able to focus, to limit the number of accusations and to file the evidence that goes with the accusation. So then you're going to limit the motions, because obviously the defence — if you file all that evidence, it's great. It's an open bar: They're going to file motions and motions. In this case, that's what they did.
[Translation]
Senator McIntyre: Thank you for agreeing to testify before us today, Justice Rolland. You were not only a justice at the Quebec Superior Court, but you were also chief justice. You are therefore well positioned to guide us in our work.
In response to one of Senator Joyal's questions you briefly described what judges could do during a trial to move a case along efficiently. I would like you to elaborate on that.
My second question is the following: do all judges have the legal authority to move a case through quickly? Do they all have the necessary legal tools for that?
Mr. Rolland: Thank you for your question. I will begin by answering your second question. The answer is simple: no, we do not all have the tools. At trial we cannot independently eliminate evidence, determine what evidence will be used, or prevent such and such evidence from being presented, as judges currently can do in civil law.
With the changes that were made to the Code of Civil Procedure in January, a trial judge cannot limit the evidence. The trial judge can only ensure that the readiness stage of the jury trail is done diligently. He or she cannot tell the lawyers to come back in six months and do this or that, and then come back in eight months. People want a tight schedule for managing the file, but once the trial has started, the judge, no matter how strict, cannot obstruct evidence because that would lead to an automatic appeal, not right away, but after the verdict, and then there would be a new trial. There is nothing in the Criminal Code at this time to decide where to cut off the evidence.
Senator McIntyre: What tools should be made available? It is hard to answer that question.
Mr. Rolland: It is an extremely complex issue. The Charter gives a person the right to full answer and defence. The legislator could have easily added a provision in the Criminal Code authorizing a judge to exercise all of his or her powers to limit the evidence. I think I have said enough about that. You know what would happen.
Senator McIntyre: There is not just the Charter, but also the reform of evidence law by the Supreme Court of Canada, and the addition of many new, complex statutory provisions to the Criminal Code.
Mr. Rolland: Yes.
Senator McIntyre: Mr. Chair, do I have time to ask another question?
[English]
The Chair: Yes. Go ahead.
[Translation]
Senator McIntyre: Is there any mistrust between Crown prosecutors and defence lawyers? How has this relationship deteriorated? What is the impact of that?
Mr. Rolland: I will talk about the situation in Quebec. Elsewhere it is hearsay and rumours. In Quebec, the change in generation is creating a unique situation. The older Crown prosecutors are retiring and the younger Crown prosecutors are overburdened with work.
Most defence lawyers have vast experience and the Crown attorneys mistrust them. I experienced that when I took part in facilitation conferences. I cannot reveal the content, but the tension was palpable. Often a chief justice would be called in to try to calm things down.
Lawyers working on civil and commercial cases, non-criminal cases, tend to have a better rapport.
[English]
Senator White: Thank you very much for being here this afternoon.
I was in policing for 32 years, and preliminary inquiries, when I first started in policing, were really about disclosure. After Stinchcombe, of course, that became less of a point, but preliminaries did not. It seemed like we were doing preliminaries twice, once with the disclosure and 10 bankers' boxes, and then we would go through a preliminary inquiry, going through the 10 bankers' boxes to go to a trial and go through 10 bankers' boxes.
Yet, the same arguments take place at both the preliminary inquiry and at trial. Most often, the judge makes the same decision.
Are we at a point now where disclosure is where it is and not going to change, where we take the preliminary inquiry and the trial and say, "Look, if it weren't for disclosure, preliminary inquiries would be important, but, realistically, they are not,'' or at least take away the ability to make the same arguments twice in the same trial in front of the same judge?
Mr. Rolland: Thank you for your question. That is for the legislators to decide what they would do with the system, but, for defence attorneys that are in favour of the preliminary inquiries, that helps their client to make a decision before going to trial. Very often, we don't see that because they don't get to trial. In some complex cases, yes, they will get to trial in any event. That's why we have the preferred indictment. In some cases, they don't do it, but, in many cases, it stops after the preliminary inquiry.
The Chair: Sir, thank you, once again, for consenting to appear and allowing committee members, through their questions, to access your vast experience. It's very much appreciated.
Mr. Rolland: Thank you very much for having invited me.
The Chair: For our second hour, we have with us Carl Baar, Professor Emeritus of Political Science, Brock University; Anthony Doob, Professor, Centre of Criminology, University of Toronto; Cheryl Webster, Associate Professor, Department of Criminology, University of Ottawa.
Witnesses, welcome. We're looking forward to your presentations, with questions to follow. I gather, Mr. Baar, you're going to lead off.
Carl Baar, Professor Emeritus of Political Science, Brock University, as an individual: Thank you, Mr. Chair and members of the committee and guests. What I want to argue is that we've known how to reduce criminal case delay for 40 years but we have little to show for it.
Successes have occurred virtually everywhere the effort has been made but too often they have not been built upon, expanded or sustained.
The key to effective backlog and delay reduction in the criminal courts is the involvement and leadership of the judiciary in implementing principles of caseflow management.
When the judiciary plays a more active role in the governance of the courts, in managing the flow of cases from initiation to disposition in these courts and in leading delay reduction efforts, impressive gains result in promoting fairness and justice and enhancing public security and in reducing public and private costs.
I've seen these results in Toronto, Montreal and other centres large and small within Canada and in such diverse places as Karachi, Pakistan; the Republic of Singapore; Addis Ababa, Ethiopia; and even Detroit, Michigan.
In all of them, case-flow management processes have been designed and implemented following well-established principles enunciated in the U.S. as early as 1973 and in Canada as early as 1981, and they have been refined on a regular basis ever since.
However, since the implementation of delay reduction programs and strategies is a provincial responsibility in Canada, the federal government's role is more limited. But it can provide encouragement through legislation, judicial selection processes and administrative practices. The Senate can play a key role, as it does here today through your standing committee, creating a renewed sense of urgency and the confidence that changes can be achieved.
There was a new book published last year in England that documents the important reforms made in the U.K. over the past decade under both Labour and Conservative governments. Three practices stand out as worthy of emulation. First, as illustrated by Justice Rolland's testimony, select committees in the House of Commons and the House of Lords over a nine-year period from 2003 to 2012 took oral evidence from 124 serving judges. That number increases to 281 with the inclusion of international judges, retired judges and magistrates. This suggests how much Canadian judges could be encouraged by our Parliament to take an active role in promoting reform.
Second, the administration of the courts in England and Wales, and in Scotland and Ireland, is now handled as a partnership between the judiciary and the government, following a few years of turbulent conflict between them. Ironically, the basis for this approach was the partnership model discussed in a 2006 report of the Canadian Judicial Council. Yet here, in province after province, executive departments are loath to share power and judiciaries often hesitate to take on expanded responsibility.
The third point from the U.K. experience focuses on their Judicial Appointments Commission that screens candidates for judgeships at all levels of the judiciary, from the High Court to the magistracy. Government then makes appointments from a very small short list that the JAC recommends. The quality of appointments has thus been strengthened well within a Westminster framework.
I will note two additional steps that will enhance the effectiveness of judicial leadership in implementing case-flow management principles and reducing criminal court delay.
First, modify selection and tenure of chief justices and other judges with administrative responsibilities at both provincial and courthouse levels.
There should be more collegial involvement in the selection of chief and administrative judges, perhaps even election by their peers.
Chief and administrative judges should retain their constitutionally guaranteed security of tenure as sitting judges but serve limited terms in their administrative positions. This is consistent with Ontario Justice Thomas Zuber's recommendation of a "law dean model'' in his inquiry in the late 1980s.
These recommendations would ensure more support for the reform initiatives that would follow and more energy among those designated to implement the changes. Ireland's court service shows what has worked; Manitoba in the 1990s, for example, showed what did not.
Second, improve court structure to promote joint problem-solving.
For many years, there have been debates about criminal court structure that focus on whether we should have a one- or two-level trial court. Even the book got that title that all of us had contributed to.
This deadlock has meant that efforts to reduce delay can and have produced dysfunctional results, including the abuse of the system of elections and reelections. Even a formal unification of criminal trial courts would not necessarily produce a coherent unified system to manage the flow of cases.
As I wrote originally for a federal-provincial-territorial deputy ministers' meeting in 2000, a different approach would be to leave the two court levels intact but manage the criminal caseload of the two courts as a single enterprise. The model could be the "English Crown Court'' but expanded beyond indictable offences to include summary offences as well. In fact, before California unified its superior and municipal courts in the 1990s, some counties coordinated criminal work across the two levels, and monitored cases from initiation to disposition, from beginning to end, not in two segments as the Askov case did in Canada — and as we still do today, judging from the front page of the Metro newspaper available at your bus stop. They talk about a case that took three years but they only focus on the two years from the end of the preliminary hearing rather than the 11 months prior to acquittal. It's clear that the accused who committed suicide was probably bogged down by the full length not simply by one half of it on other side.
Treating the criminal case load as a whole would help define an effective role for the preliminary inquiry. In fact, reanalysis of some of the original Askov data showed that preliminary hearings were waived in half the cases that proceeded to section 96 courts in Ontario, yet the time to committal was the same. Ironically, the time to disposition in the section 96 courts was shorter when the preliminary hearing had been waived — some counterintuitive findings.
I will stop there and proceed with any of these points in response to questions.
Anthony Doob, Professor, Centre of Criminology, University of Toronto, as an individual: Thank you very much. I'm pleased that you're looking into these issues because obviously they are very important and I think they have to be looked at very carefully.
I will be presenting some outlines of issues, and Professor Cheryl Webster will be going into more detail on two issues, one of which came up earlier today — the preliminary inquiry — and the second is the bail remand issue.
More generally, I want to point out to you that it is possible, as Professor Baar has pointed out, to find out what's going on in these circumstances. The data that you saw from Statistics Canada is really the tip of the iceberg of what's possible; it is possible to go into much more detail and in the past, Professor Webster and I have done so.
I wanted to start with what I found to be very stark data from Ontario, and these are public data. They're from the Ontario Court of Justice website, although they are not presented exactly this way. If you go back four or five years to 2011-12, there were about 255,000 cases being disposed of in that year, so think of 255. By 2015, that figure had been reduced to 205,000, a reduction of almost 50,000 cases — 50,000 fewer cases. The number of trials during this same period had been reduced from almost 13,000 to less than 10,000, so we have fewer trials and fewer cases.
The punch line, unfortunately, is that these cases with fewer trials are taking more court appearances. One of the things that Professor Webster and I have looked at over the years when we've looked at the problems of court delay is that the time that a case takes to get through the process and the number of appearances that a case uses are not necessarily two sides of the same coin. They are, in fact, quite often different coins.
So what we have in Ontario in the provincial courts is a situation where cases are taking more time and have more appearances, but there are fewer of them. It's not a resource problem.
We looked in more detail at this, thinking that maybe there were particular kinds of cases that were creating this problem. Unfortunately, that's not true. If you look at cases against persons, property cases, administration of justice cases — whatever you want to look at — things seem to be getting worse. If you look at high-volume, ordinary cases, they are taking more appearances than they did just a few years ago.
One of the things that I think you might want to think about is the idea that, in the ordinary courts, the idea that we're going to solve this problem with more resources is optimistic, naive and almost certainly wrong. What we have is a problem of the operation of the courts, very similar to what Professor Baar has just said.
The other thing about the findings that I have just presented to you is that there's huge variability. What I mean by "huge variability'' is huge variability in comparable courts. Again, this is consistent with what Professor Baar has told you. If you look at two medium-sized courts in the Toronto area, one of them uses on average 5.9 appearances to dispose of cases; another one not very far away uses 7.8. If you look at two relatively small courts here in Eastern Ontario, one uses 4.3 appearances on average to dispose of cases; the other uses 6.3.
I didn't have to look very hard to find these kinds of examples. They seem to reflect the culture of individual courts — the culture that things either will get through on their own or, perhaps, that they're managed more actively.
The other thing that I wanted to emphasize is that court appearances and time are really different things. We're hampered to some extent by the fact that we have not in recent years had the opportunity yet to look at the court delay issue. But a few years ago, when Professor Webster and I did that, we found two jurisdictions — and it doesn't matter what they are — but one of them was Ontario and the other was Alberta.
In Ontario, 46 per cent of the cases needed eight or more appearances to be disposed of. In Alberta at that time — this would be the early 2000s — about 11 per cent of the cases needed that much time in provincial court. It is a dramatic difference.
Professor Webster then said, "Let's try to find comparable cases. Let's see if this is really a backlog problem'' — that they don't have enough resources in our own province. So we found comparable cases, and I will give an example. We found cases that were indictable offences that were taking five to seven appearances to be disposed of that did not have trials, prelims or any warrants issued. They were kind of ordinary medium-level cases.
We took those cases that were taking a medium number of appearances and to see whether it's a real backlog problem. All of a sudden, Ontario looked almost as good as Alberta did. In other words, what Ontario was doing with a case that could get through in seven appearances was the same as Alberta. The problem is that there were very few of them; Ontario was adding unnecessary appearances to the processing of those cases, and therefore they were both taking a long time. From a financial perspective, they were taking many more appearances.
If you look at almost anything across this country, one of the perhaps encouraging — and perhaps discouraging, depending on one's mood, I suppose — things that one sees is the variability across provinces and, within provinces, across court jurisdictions.
My suggestion is that we take the problems seriously. I'm nervous about simple solutions. Cheryl will talk more about these, but I think that the idea that we're going to solve the big problems in our provincial courts simply with more resources is not going to be the case.
I will turn it over to Professor Webster to talk about two other issues.
Cheryl Webster, Associate Professor, Department of Criminology, University of Ottawa: Before arriving at this committee, Professor Doob and I flipped a coin to see who would go first, and I must say I was disappointed, because I was going to be at the end. But it actually turned out to be valuable for me. This is the first time that Professor Doob has ever referred to me as "Professor Webster'' in my life.
Court efficiency issues can also be considered in relation to individual criminal procedures. I've chosen the preliminary inquiry as an example, as some have suggested it as a source of court delay. Simply keep in mind that Professor Doob and I examined this question some time ago, and things have undoubtedly changed since then.
Having said that, even then we found that this criminal procedure accounted for a very small portion of the courts' business. It was used very rarely, and its use was decreasing over time. Furthermore, most preliminary inquiries used few court appearances.
While there was also substantial variability in the use of the preliminary inquiry across jurisdictions, this variability didn't appear to be highly correlated with either time or the number of appearances that a case took to be processed in provincial court.
From a pure efficiency perspective, the additional time and appearances associated with the preliminary inquiry may have been balanced to some degree by potential savings elsewhere in the criminal process. Specifically, it appeared that this criminal procedure continued to play a role in weeding out weak cases. Certainly, in some jurisdictions, non-trivial numbers of cases with preliminary inquiries resulted in at least some charges being dismissed.
Further, in almost all jurisdictions that we looked at, the majority of cases with a preliminary inquiry were ultimately resolved in provincial court, avoiding the more resource-intensive and time consuming Superior Court. Finally, there was also some evidence that, in several provinces, preliminary inquiries were being used as an alternative to trials.
Within this context, one would want to be cautious in simply assuming that structural changes to the criminal process will necessarily make a significant difference to court delay.
Bail is another criminal procedure that you might want to consider. When thinking about solutions to our large and growing remand population, we tend to look exclusively at the bail process as the source and solution to the problem. While clearly interrelated phenomena, bail and remand have different efficiency issues and, likely, different solutions.
Looking first at the bail process, efficiency issues are related not only to police practices but also to those of the Crown, judicial officers and defence.
Using Ontario as a case study, between 2001 and 2012, despite the steady decline in both overall and violent crime since the mid-1990s, the police were laying a greater number of charges per case.
Further, the number of adults charged only started decreasing in 2009. In 2012, police were sending almost one out of every two criminal cases to court for a bail hearing.
Once in bail court, cases are not necessarily disposed of quickly. While roughly 75 per cent of bail cases in Ontario were resolved in two court appearances in 2012, the remaining cases took — in some cases — considerably longer. More importantly from an efficiency perspective, those cases taking three or more court appearances used more than 52 per cent of all bail court appearances, or, more concretely, they represented 73,000 additional court appearances in 2012.
Equally problematic, bail cases are often simply adjourned — a request normally from defence counsel, which is not often questioned by either the Crown or the presiding judicial officer. Moreover, an adjournment does not appear to necessarily ensure that the next appearance moves the case any closer to resolution.
Even when the Crown ultimately releases an accused, it is frequently with a surety, as well as with multiple conditions, often unrelated to the original substantive offence and constituting, often, unrealistic expectations. When combined with the often lengthy time that an accused waits on bail while his or her case reaches final resolution, it's not surprising that these individuals breach conditions, leading to additional charges.
As individuals with administration-of-justice offences are frequently held for a bail hearing and, if released again, often have an even greater number of conditions, the cycle tends to repeat itself.
The situation with remand is somewhat different in terms of efficiency issues. Clearly, for those cases resolved within a few appearances and released, the accused is in remand for a relatively short time, usually less than one week. However, while this group constituted roughly 65 per cent of those entering remand in Ontario in 2008, it is not what is driving the size of our remand population.
Rather, our large remand population is rooted predominantly in the much smaller number of accused people who are in remand for a very long time. While this latter group constituted less than 10 per cent of those entering remand in 2008, it accounted for over half of the remand days used.
Indeed, one remand bed, for one year, can either be used to house 52 different detainees each spending one week in remand or one detainee spending one year in remand. Said differently, one person in remand for one year counts exactly the same as 52 people each in remand for one week in terms of their contribution to the overall remand population.
Putting this in context, Ontario has witnessed a relatively steady increase in the number of accused persons spending one year or more in remand. As such, even large decreases in the number of persons spending only one week in remand would not reduce this population.
Indeed, in terms of potential avenues of intervention, solutions to improve efficiency in the bail process will likely be different from those that might reduce the remand population. In simplistic terms, reductions in the remand population will be largely rooted in improving case processing efficiency across the entire criminal process.
The focus of attention should be on reducing delays in resolving in-custody cases with particularly long remand stays.
One might also suggest that special attention should be given to the number of indigenous people in remand. Not only is the proportion of those admitted to remand who are indigenous much higher than in the population but also the proportion of those admitted to remand who are indigenous is increasing over time. That holds even in jurisdictions in which the overall remand rate is stable, such as Alberta, or decreasing, such as in the case of British Columbia.
The Chair: If you could end there, we'll have some time for questions. We will begin those with Senator Baker.
Senator Baker: Thank you to the witnesses for their excellent presentations. In the facts concerning bail, were you talking about judicial interim release in the first instance or bail review, or were you talking about both of them together?
Ms. Webster: I wasn't; I was only referring to the first.
Senator Baker: Judicial interim release.
Ms. Webster: Yes.
Senator Baker: In examining that there are fewer cases and that they take longer, did you look at the possible reason of the number of counts for an accused today compared to the number of counts for a similar accused 10 years ago?
Mr. Doob: To a large extent, this is a problem. If you look at the number of charges in cases, they certainly have been increasing recently. I do not know whether, in the very recent period of time that I looked at, that was the case. We're in the process of looking at these things but it's an important case.
The reason I think it is less likely to be that is that, when you look at categories of cases, all the categories of cases that you have, and then you look at individual charges, it's the same. So it strikes me as being unlikely that it's just that we're getting more complicated. If we're getting more complicated, we do also have fewer of them. We have 50,000 fewer cases in Ontario.
Senator Baker: I was just thinking while you were talking about the length of the period of time, is it violation of one condition? I thought to myself, yes, if you see a violation of one condition — the accused sends an email that he should not have sent — that's three counts. That is a violation of the condition that he not do so, a violation that he didn't keep law and order, and then there is a count that would be provincially directed, in legislation passed provincially, that he not have contact with that person.
Here is my main question to you: Have you ever looked at the difference in Crown manuals in this nation? I'll give you a short example.
In Ontario, the Crown does not lay a charge on impaired driving. The Criminal Code says .08, but it is .16. You don't tender the certificate of a previous conviction outside of five years.
The Crown manuals appear to be different in this country, and would you not perhaps suggest that we suggest that they become similar in all provinces so that we would have the same number of persons being charged for offences?
That's a Crown responsibility, I know, and it can only be instituted in the three provinces where the Crown lays the charge, which is the case in Ontario, British Columbia and Quebec.
Have you looked at, in any detail, these Crown manuals in each province and territory in this country to see how greatly they differ in the laying of charges, or the continuation of a charge after it is laid by the Crown?
Mr. Doob: I certainly haven't looked at them in the kind of detail that you want. We did look at them with respect to bail issues because we were interested to see whether there was useful guidance in them, and they did vary a lot. What I remember, when we looked at bail, is that they did, in a way, in which they constructed the concerns for the Crown attorney's decision, differ across provinces.
I guess the issue would be the provinces. If the provinces were sitting here they would be very jealous of their own responsibility to administer justice.
Mr. Baar: I was going to make a general comment on this because this is the kind of discussion that can inform public policy and can inform the decisions made in a provincial ministry of justice. I found again and again that our provincial ministries of justice, while they're automated, and they have data and technical staff who can put the data sets together, they don't have anybody to analyze them.
I can't tell you how many times I've said to senior officials in Ontario, "Tony Doob's office is a mile from your ministry. He turns out totally brilliant students with sophisticated statistical skills and you never hire them.''
The kind of discussion we're having today should be going on within the ministries, and then they could say, "Based on this, what should we be doing about laying charges?'' Maybe we should have more bail hearings by judges and not claim we're saving money with JPs when JPs can't take a plea. What percentage of those bail hearings could be completed by the acceptance of a guilty plea? But it can't happen if a JP is hearing the bail hearing.
Senator Baker: I disagree with the statement that he's made before the committee that he has in his presentation, where he says it's provincial responsibility for the implementation of delay reduction programs.
It's in the Criminal Code of Canada where case management changes were made. It's the Criminal Code of Canada that defines a Justice of the Peace, where a Justice can issue warrants, and so on. So trial delay is not the responsibility of the provincial government, it's also the responsibility of the federal government, as it says right in the Criminal Code. Wouldn't you agree?
Mr. Baar: In part, only. Remember, there's a difference between case management — which is what happens once the case is in the hands of an individual judge, and caseflow management, where you're trying to analyze it. Notice the difference between Justice Rolland in the Superior Court talking about a handful of cases, and Cheryl and Tony talking about thousands of them. If we could get the thousands of them right, then we might reduce our pretrial population and save a lot of time at that level, which could be translated into gains for the trial of the complex cases where you need a case manager. There is a different level of analysis.
What you're talking about is important, but I'm saying there's a different one and it's the one we tend to ignore. The provinces who work on this have got to staff up, develop competence in those areas and share their responsibilities with the judges and not think they can do it alone, which was the problem with Justice on Target, in Ontario.
Senator McIntyre: Thank you all for your presentations. I will begin by making an observation. Professor Baar is a former practitioner. I have to admit that I agree with not only the recommendations, but with the additional recommendations in your report.
As far as the third recommendation, in which you are inviting this committee to promote legislative support for delay reduction is concerned, it is unfortunate that your draft bill died on the Order Paper. We'll leave it at that.
Alternative measures are something that I would like to bring to your attention. As you know, alternative measures are defined in section 716 of the Criminal Code as measures other than judicial proceedings. Examples of such measures include victim-offender mitigation, sentencing circles and diversion programs.
In your opinion, should Crown prosecutors and police officers have more discretion to use alternative measures such as fines, administrative penalties, mediation, and so on?
Mr. Doob: The answer is I'm going to be nervous about answering the question as to whether there should be more, in part because what we do know about that issue is that they are being used, it appears, quite frequently, and what I don't know very well is when they're being used.
Let me just give you an example. About 32 per cent of all cases in Canada — not charges — end up with all charges stayed or withdrawn. There is a lot of variability across the country in the proportion of cases that are stayed or withdrawn, so that in New Brunswick it's 20 per cent and in Ontario it's about 44 per cent of cases. There's a lot of variability.
My hesitation in answering the question about whether it's more stems from my not knowing exactly why such a large number of cases are withdrawn.
My own feeling regarding the mandate of this committee in terms of processing of cases is that the first thing I would like to know is when they are withdrawn in the process. I have a strong feeling that, at least in Ontario, with youths, that they're withdrawn quite late in the process. That seems to undercut many of the purposes of alternative measures. The choice to do something other than make them criminal matters, for many cases, is almost certainly a good idea, but to do it in addition to seven court appearances, it seems to me, has less value.
If I might, I would actually like to go back to this question about the federal and provincial roles and to give an example of where I think the federal government stepped in to something that could have been fixed by the provincial governments, but wasn't. During the 1990s, not to go back very far, there was a fair amount of consensus among those who looked at the operation of the youth justice system that most provinces and territories were bringing too many kids into the youth justice system.
The exception to that was largely Quebec. The question was that if Quebec could do it well, why couldn't the rest of the country do it well in terms of what "doing well'' meant. The federal government's answer, it seemed to me, was a good one, which was to say: "Let's craft legislation that has the same effect for the rest of the country that is appearing to occur in Quebec.''
I think it may be that what you can learn from the variability across provinces and territories is what the best practices are. Then you can figure out how to craft those best practices into legislation.
Mr. Baar: It's really important to think outside the box. What I talk about when I'm with students is not just alternative dispute resolution, but dispute avoidance. How do you prevent those disputes from happening in the first place? When I was preparing for this, I thought back to when I spent a few weeks in the subordinate courts in the Republic of Singapore, which are reputed to be really draconian, with an emphasis on punishment.
One day there was an auditorium full of high school guidance counsellors who were invited there and three of the senior judges talked about the ways in which schools could resolve disputes among students that might lead to conflicts that would later appear in court. Just thinking about how to address some of the causes of conflict put them in a position to make some contributions beyond simply developing another procedure for resolving an existing conflict.
Senator Joyal: Thank you, Ms. Webster and gentlemen, for your contributions to our reflection.
You heard former Justice Rolland answering our questions earlier this afternoon. It seems to me that judges have a very important responsibility in terms of managing the trial.
I wonder if we're not ready for a cultural change, in terms of the initiative that judges could take to really make sure that the trial takes place in a reasonable period of time. I think we're too dependent, in a way, on the initiative taken by the Crown or by the defence. The judge sits there waiting to appoint and he intervenes really as a last resort when the case is close to collapse because the delays have been so long that the trial will end without any party being heard.
I wonder if there is not, as you said, Professor Baar, an opportunity to think outside how we have been doing things traditionally and to try to put them in the context of more modern means. As you heard today, we never mention that we are in a different period of time. When technology is involved, there's a capacity to contact much quicker and to get answers quicker.
I wonder if we're not really passive in terms of being creative in trying to rethink the system — not outside the way we've been doing things but on different parameters, with the essentials that we've learned from Charter protection. We know that. We don't want to re-question that. It seems to me that there is the possibility for improvement, if people want to put their mind to it.
From the short and limited experience that I have had in court, it seems to me that there is the possibility for the country to move forward in that. I wonder if I'm dreaming in technicolour and if you think that this exists but everybody sits on the sidewalk and waits until there is a catastrophe somewhere before they act. There is room, in my opinion, for rethinking the essentials of the system in a contemporary context.
Mr. Baar: I agree. A lot of these can also be done locally. My favourite one was the College Park Courthouse in downtown Toronto. They built a new eight-judge courthouse and they found a judge who had spent many years as a police detective before going to law school. He knew how the system worked. He constructed a system that was so expeditious that when we got the data at the time of Askov his court was two or three times as fast as any other provincial court at that time. As soon as the government needed to respond because of all the dismissals of cases, they increased his workload by 50 per cent and his courts still functioned more effectively than many others.
So it's possible to find the solutions. When Winnipeg ran into problems, they said, "What's Judge Scullion doing in Toronto,'' and they brought that system in. They tried it for a few years, but eventually abandoned it.
We've got to document the best practices. We can't use technology — technology isn't the answer. You can't automate a bad system. You've got to figure out a better system, and automation goes hand in hand with that.
If you automate first, then everyone throws up their hands and says, "We haven't got the resources to redo all the computer programs and all the reports with the new system.'' It needs some of that thought.
In the last 20 years, more of that thought was put in on the civil side than on the criminal side. I think we have to re- engage with the needs on the criminal side, get the judiciary more actively involved and look for the people who are really committed to doing that. You're never going to get everybody on side. Empower the people who are ready to put the effort into it and, all of a sudden, people will be looking down the hall, or over in the next town, saying, "Oh, my God. If Joe can do it. . .''
The Chair: We are pushing the clock. We are already running overtime. I'm going to pound the gavel no later than 6:30. I'm going to ask members to tighten up their questions and our witnesses their responses as well. It would be appreciated.
[Translation]
Senator Dagenais: My first question is for Mr. Doob. Senator Joyal alluded to the fact that technology now allows everyone in the world to be in instant contact with one another. When we write, we can get a response in seconds. Our lives revolve around technology. Mr. Doob, do you get the impression that the justice system is still in the Stone Age when you consider the technology available to us today?
[English]
Mr. Doob: The simple answer to your question is, yes, I do. I see that in terms of information, not in terms of answers. We could have a better idea of where the delays are happening if we could capture data a bit better and make it available in a more timely fashion.
At the same time, unfortunately, even the data that we have now, which have severe limitations, I think are not used as much as they could be.
[Translation]
Senator Dagenais: My question is for Ms. Webster. Let us put judges and lawyers aside for a minute. What are the biggest challenges in your view that we might address in our report?
[English]
Ms. Webster: Certainly within the context of bail, which I was talking about. I think one of the biggest challenges we're facing is a different mentality than what bail was originally supposed to serve.
We're seeing a significant risk aversion, or risk-averse mentality, and that seems to be creating all sorts of problems on various levels. We see it in terms of legislative changes, for example, the reverse onuses that have been added and the changes to the interpretation of the first and second grounds and in terms of the addition now of a tertiary ground.
On the legislative side, we see it procedurally as well. We're seeing it administratively, where it seems — at least from the outside — that each of the main players in bail are delaying decision-making processes or passing it on to the next person.
We see, in terms of the police, that they are laying more charges per case. They're sending almost half of all the cases now to bail court for somebody else to decide in terms of release. When the case gets there, we're seeing a culture of adjournments on the part of defence counsel. They will have consecutive adjournments while they're trying to prepare the perfect release because, of course, there seems to be, on the part of the Crown and JP or judicial official, this need now for much more onerous release conditions, et cetera.
Even though there are consecutive adjournments where they don't seem to lead to any advancement in the case, there is almost no questioning on the part of the Crown or, as Senator Joyal was raising, this notion of the judicial officer intruding as well and asking.
Senator Batters: Professor Doob, you were giving those different percentages for different provinces of the percentage of cases dismissed or stayed in Canada. What is the Quebec percentage, if you have that handy?
Mr. Doob: I didn't mention Quebec, because Quebec deals with matters in a different way. If you look, overall, at the proportion of people for whom acquittals were entered, and stayed or withdrawn, it's about 24 per cent.
The problem is that most provinces and territories have few that are coded as acquittals, so that, overall in Canada, the number of acquittals is tiny — about 3 or 4 per cent. In Quebec, they are entered as acquittals. If you take those two together across Canada, it would be about 36 per cent and about 24 per cent for Quebec.
Senator Batters: We've heard a lot here in our court delay study about impaired driving cases. When I look at Statistics Canada numbers, they seem like a real glut in the system that increase court delay. First, you were talking about the length of an average murder trial, I think — or maybe that was a previous witness — and how much it has gone up, but impaired driving trials have gone up exponentially and there are so many cases dealing with that.
Could you please tell us your view? I know you said you're nervous about simple solutions, but could you give us a couple of top practical suggestions to decrease court delays on impaired driving charges?
Mr. Doob: It's interesting. While you were speaking, I was looking at impaired driving for Ontario. In 2012-13, they were taking on average of 5.3 appearances. In 2015, they were taking 5.9. Now, 0.6 doesn't sound very much, except when you multiply them by thousands. So that illustrates the problem.
The increase with impaired driving is sort of comparable to everything else. I don't think I have a specific solution to that, but I actually would like to go back to something that Senator Joyal said perhaps in answer to your question. This is actually consistent with what Professor Baar said: There can be things that judges do. There is a study of four lower courts in Scotland, three of which sounded to me like some of our worst courts and one of them didn't. They went in and tried to study why that was happening, which would seemed to me to be exactly the kind of thing one would want to do.
They found that in the fourth court, the judge was taking responsibility. People knew that they had to be ready to go forward. There wasn't anything about coming into a plea court and saying, "We would like to put this over to another day.'' The judge would say, "Sure you can put it over. I'll see it at one o'clock this afternoon,'' and people would quickly get the message that this judge was taking control over this process.
So there have been a number of studies of individual courts that have shown that kind of thing, where you simply need to have a judge who says, "These are the new rules.'' Now, there may be some problems — and I'm not a lawyer — in forcing these things not to the next day but to 11 o'clock that morning rather than nine and so on. That may be the way to do things. Other judges in other studies have used this kind of technique of saying, "You want to delay? Fine, how many hours do you need?''
Senator Batters: I practised law for many years, and what you were speaking about — yes, you definitely, as a lawyer, know which particular judgers are going to give you a more difficult time than others. It may be a matter of chief justices stepping in on certain things and asking their judges to take those types of measures.
Ms. Webster: If I could add to that, at the University of Ottawa in criminology, we had a master's student who tried to replicate this study that was just described. It was done in two bail courts that were similar in nature but with very different numbers of appearances and time. One was quite a bit slower and one was faster.
Through a number of interviews, it was replicated exactly as they said: There was one court that was very fast and the justice was very proactive, interventionist, questioned all the adjournments, required them to proceed when possible, et cetera. The other was very passive and was more concerned with just getting through the docket each day.
The Chair: Thank you all. I know we have to operate within some time constraints here. If you feel you would like to expand on any points that you didn't have adequate opportunity to express, please feel free to communicate with our clerk in writing, and it will be circulated to everyone here.
Thank you very much for your appearance, and we appreciate your assistance.
(The committee adjourned.)