Proceedings of the Standing Senate Committee on
Legal and Constitutional Affairs
Issue No. 12 - Evidence - September 28, 2016
CALGARY, Wednesday, September 28, 2016
The Standing Senate Committee on Legal and Constitutional Affairs met this day at 1:47 p.m. to continue its study on matters pertaining to delays in Canada's criminal justice system.
Senator Bob Runciman (Chair) in the chair.
[English]
The Chair: Good afternoon. Welcome, colleagues and invited guests.
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 twentieth meeting on this study.
For our first hour, we are pleased to have with us today the Honourable Neil Wittmann, Chief Justice, Court of Queen's Bench of Alberta; and the Honourable Terrence Matchett, Chief Judge, Provincial Court of Alberta. As we all know, it's an unusual occasion for a sitting judge to appear as a witness before a committee, so I have agreed to say a few words about the parameters of their appearance today.
As the role of the judiciary is to apply rather than make law, Chief Judge Matchett would prefer not to be asked questions relating to possible reforms in the law directed at improving efficiency. As such, I ask colleagues to respect these parameters when posing their questions.
Thank you, gentlemen, for being with us today. We'll move to opening statements.
Hon. Neil Wittmann, Chief Justice, Court of Queen's Bench of Alberta, as an individual: Thank you for inviting me and Chief Judge Matchett to these hearings. I think it's a tribute to the committee, if it was your decision, to have these hearings across Canada. Chief Judge Matchett and I have not conferred about what we're going to say here today at all. I think things are different in each jurisdiction.
With that in mind, I want to address the scope and length of delays in criminal proceedings in Alberta in the Court of Queen's Bench, which is the Superior Court in Alberta.
I am going to focus on that. I have read the interim report. I note a number of the recommendations for increased efficiency in terms of case management, case flow management, basically having non-judicial persons do a lot of tasks that are now being done by judges, and I'm quick to say that I agree with most, if not all, of those recommendations.
But I note the lack of resources, both judicial and non-judicial resources, in Alberta, which has been chronic for years and years and years, has not abated much, if at all, since I became an associate chief justice or chief justice. I'm now in my eleventh year in that role.
There is an alarming increase in lead times in our court. In the materials I've provided to you, I've indicated that this is caused, in large part, by the lack of judicial resources and the lack of non-judicial resources.
Currently, we have 65 full-time justice positions recognized by the federal government, plus 22 supernumerary justices. Supernumerary justices, for those of you who aren't aware, are basically half-time judges; they work half-time. This is embodied in provincial legislation, recognized in the federal Judges Act.
Currently, there are 59 full-time positions filled as of this date. If you look at the Commissioner for Federal Judicial Affairs website, it will show that we have six vacancies at the moment. I put the proposition that we have nine vacancies. Why do we have nine vacancies? Because the Parliament of Canada, or the executive branch, more properly, has never recognized section 3 of the Court of Queen's Bench Act of Alberta, which states how many Superior Court judges we have on our court; and that arose under the previous government as the result of our putting forward a plea for four more judges. This started in 2008.
Finally, in 2013, in January, the Province of Alberta said, "Okay, we'll give you four more judges.'' The executive branch in Ottawa said, "We don't think you need four more; we're only going to recognize two.'' In the Budget Implementation Act that had received Royal Assent in June of 2014, they recognized two only. That's why there's a difference between six and eight. The extra position is a second associate chief justice, which was amended, our Court of Queen's Bench Act, in the spring of 2015, which has never been recognized or filled.
In the previous report, it said our justice system can only function efficiently when there are enough judges to handle criminal proceedings in a timely manner. I agree with that. However, there must be sufficient judicial resources in a court of plenary jurisdiction like the Superior Court, like our court, because we do everything.
So we need judicial resources to handle all proceedings. We cannot keep redeploying judges who are scheduled to hear family matters, judicial reviews, personal injury cases, contracts cases, torts cases, and redeploy them over to the criminal side over and over. We've already done a lot of that, but we're stretched to the limit.
That's why, if you have a civil trial that is a non-criminal trial over five days, in our court today, and you go to the trial coordinator in Calgary, you will get a lead time of 138 weeks for your trial. That's totally unacceptable. That includes family law matters, by the way, for over five days.
Criminal matters now are 62 to 63 weeks in both Edmonton and Calgary; that's the lead time once your case is in our court and once you schedule a trial date. That's for a trial longer than five days. Many, many of our trials are longer than five days. It's aggravated by the proposition that most of the more serious offences are more than five days in length.
There are a whole number of reasons for that. I just read Mr. Newark's paper that was released yesterday from the Macdonald-Laurier Institute, and he seems to drill down into a number of the root causes there, which are all well and good, but from the point of view of the sitting judiciary, we have to operate within the confines of the Criminal Code and the criminal procedure that's mandated in there. We can't run amuck and say, "Well, we can make this a lot more efficient.'' You don't get to make any Charter arguments.
It's difficult for us to do that, but we try. I don't mean to imply or to infer that we can't do better at what we do within the resources that we've got. Any suggestions are also always welcome. We have town hall meetings with the criminal bar, with the civil bar, with the surrogate bar all the time. We meet with government officials all the time. We're often met by the proposition, "Well, we don't have any money for that.'' I understand that as a taxpayer, and I think most of the public understands that.
But the value that we put on our justice system and our criminal justice system I don't think is recognized by Canadians to the extent that it could be, and perhaps that's a lack of education being put forward by the judiciary, by the legal profession and by other, dare I use the term, stakeholders. I think it would be a good thing for every Canadian to experience, in a safe way, a judicial system outside of this country and then come back here and say, "We're pretty lucky here,'' because we have one of the finest systems in the western world in this country. It's admired by many. But we have to be vigilant to preserve that, and to preserve that we have to deliver what we do in a timely way. When volumes keep on increasing, we can't do it. The throughput is not good. We can't multitask. We can't do two cases at once.
In the written materials, in the written submissions, I put in one of our business cases from last June. Repeatedly over the last four or five years we've said to both governments, "Listen, we have the highest population-to-Superior- Court-judge ratios in the country. Whether you include supernumerary justices or not, we have the very highest ratio in the country.''
I had meetings with the then general counsel in Ottawa about increasing the numbers in our court back in 2008 when we only thought we needed four, and she looked me straight in the eye and said, "We don't care about population.'' Well, it's the population that's given rise to the accelerating volumes that are in the submission that I made to you. They're exponentially increasing. What's alarming is that our lead times are increasing even from June 1 to September 1.
Do we double-book? Do we triple-book? Yes, we do. We used to triple-book; now we double-book. We've sent home eight criminal trials this year so far because we didn't have a judge available to hear them. That's province-wide.
Do we try and give priority to people who are in custody? Yes, we do. But for people who aren't in custody, on some cases I have had to make the tough decision and say, "Well, I've got a family over here with children at risk. That case is going to be the one that gets the judge this week, not the criminal case where the people are not in custody.''
That's going to have some serious ramifications with Jordan, if it continues. What's alarming to me is, I don't think Jordan, with due respect to the Supreme Court of Canada, recognized the lack of — they talk about institutional resources, which would mean judicial and non-judicial, but they don't recognize the severity of the problem. They talk about a change in culture. Yes, we'll do our best; we'll do our part. We'll do more than our part; we'll do whatever we can. We're meeting this week with the chief federal Crown and the associate assistant deputy minister, criminal, of Alberta, to see how we can handle the Jordan issue.
So we're working to manage our workload as best we can. We're always welcome to suggestions to do it. We need some non-judicial resources to help us do that. Most of us haven't run enterprises in a significant way, unless you were the managing partner of your law firm or something like that.
I'm probably over my time, so I will quit there.
The Chair: Thank you very much. We appreciate that. We're not going to be rigid in terms of time limits. Having both of you gentlemen before us, as I said before, we very much appreciate it.
Hon. Terrence Matchett, Chief Judge, Provincial Court of Alberta, as an individual: Thank you very much, sir.
Good afternoon. I as well appreciate the opportunity to be here today to speak to the issue of delay in the criminal justice system, and to share with you some of the significant initiatives that have been taken by our court, the Provincial Court of Alberta, over the past eight years in partnership with our justice system stakeholders here in Alberta.
As you said in your interim report, delay in the criminal justice system defeats the achievement of just and appropriate results, and perhaps more than any other factor, undermines public confidence in the system. Those of us who sit in courts day in and day out, trial courts, know only too well that, in many cases, justice delayed truly is justice denied.
In the late 1970s, when I was a young defence lawyer in another jurisdiction, I could get a trial date within two to three weeks in provincial court. Every decade since then, those numbers have kept creeping up across the country so that today, in most provincial courts, you're looking at delays ranging between five and ten months and beyond, which is now, unfortunately, commonplace in the provincial courts across the country.
There are many reasons that we have arrived at this situation: the sheer number of cases and the complexity of those cases today, the advent of Legal Aid in the mid-1970s, the Charter of Rights in 1982, forensic and DNA, which by the mid-1990s had started to expand in all directions; and, more recently, the technological digital age that we're faced with. All of these developments, while they have improved the quality of justice outcomes, have increased complexity and they have contributed significantly to delays in the justice system.
As members of this committee well know by now, there are no quick solutions, no silver bullets, to address the issue of delay in the system. It's a complicated system with many inputs and many criminal justice participants. Delays must be addressed at multiple points and at many levels.
Because the participants in the justice system — when I say "participants,'' I'm talking about the police, the Crown, the defence and the courts — are, by necessity, independent decision-makers within their own sphere of responsibility, each depends on the other to execute their role effectively.
Unlike other systems, though, there is not actually one player who controls the whole system. This combination of independence, but interdependence, makes it critical that justice stakeholders work collaboratively to improve both case and case flow management practices. We must strive to seek agreement on our expectations for a properly functioning system, and then those of us who lead our respective organizations must be prepared to implement the changes required to deliver better results.
Because the courts possess a degree of impartiality and authority that no other stakeholder can claim, we have a very important leadership role to play in bringing all of the parties together in our joint efforts to improve case flow and to bring cases to trial as soon as possible.
Since 2008, the Provincial Court of Alberta, with the support of Alberta Justice and Solicitor General and our other justice stakeholders, have assumed the leadership role in a multi-phase, multi-year project known as "Court Case Management.''
The goal of this project has been to develop new and innovative ways to effectively manage cases in our provincial criminal court. This has been for us a transformational project. Over the past eight years, we've implemented many business improvements, technology upgrades, and delivered much improved case flow management systems within our court.
I know you had a tour of the Calgary Courts Centre this morning, which hopefully gave you an opportunity to observe some of these innovative changes and how we now run the business of our court. I've also provided the committee with documents summarizing the major initiatives and the benefits that have come from the implementation.
I'll speak briefly to those major initiatives.
The creation of a case management office: These are front counters where accused can make initial, routine administrative appearances. That has freed up judicial time for more significant and more substantial matters.
Assignment courts have allowed more cases to be scheduled on a certain date and reduce the risk of cases being sent away because of insufficient court time.
Electronic disclosure by the Crown places counsel in a position earlier in the process to elect mode of trial and set a trial or a preliminary date.
Crown file ownership of trials exceeding half a day encourages early disclosure and file resolution discussions with defence counsel in a timely basis.
The required appearance court operates concurrently with the case management office and allows, for example, same-day guilty pleas from the CMO counter and ensures judicial oversight when cases have not been set for trial within the timelines prescribed by the CMO.
The new case scheduling system interfaces with other applications to input witness availability, Crown elections, diversion eligibility and estimated times for trial.
Finally, remote court scheduling allows both the Crown and the defence to schedule cases 24/7 from their home or their office. It allows defence counsel to search criminal case information throughout the province.
What were the success factors that allowed us to implement such a broad range change initiative?
I think most of the stakeholders would say that the leadership of the court was very important. My predecessor, former Deputy Judge Lefever, was a leader initially in this project and certainly got it rolling. I've assumed the leadership now of the project since my appointment in 2013, and Judge Jim Ogle, the assistant chief judge here in Calgary, is the steering committee chair.
At all levels the message we're giving to the people that run the justice system in other areas of the province is that this is important to our court. We're prepared to lead it and we believe that us working together can accomplish significant things.
The governance structure, that included all stakeholders and so at the table we had assistant deputy ministers; we had the director of Legal Aid; we had the people who could actually make decisions within their own organizations. The project management team — I believe you met a couple of them this morning — was absolutely key to success because, as Chief Justice Wittmann has said, we're not really business managers or change experts, but a lot of the people that we had on that committee were. They were communications experts; they were change management experts; they were IT experts; and that expertise is absolutely critical in a major initiative of this kind.
Again, the involvement of stakeholders, not only at the steering committee levels, but at the local levels: in other words, what you might be able to do in Calgary with this local steering committee might be different from the steering committee involvement in another community like Lethbridge, because you have to look at the issues in that community; you have to look at the pressures in that community and the personalities of the people in that community. So every time we expanded, we had local committees that were consulted, that were asked for their input before we rolled this initiative out. Again, that sense of involvement, of buy-in, of commitment to what we were doing was absolutely critical.
Our court recognized that case flow management isn't just about what we can do together as a system and leading that, but what about our own court? What about internally? What shape are we in, in terms of our commitment to case flow management? One of the first things that we did when I became chief in 2013 was, we did a survey of the judges. It was a long survey; it was about 35 questions. It took a few hours for most of the judges to respond. We asked questions about lead times, case flow management, case management and other issues that would lead us to a more modern and progressive court. At the end of the day, we asked the judges what their priorities were. I'm very pleased to tell you that the number one priority of our court, according to the judges, was to reduce lead times, and that case flow management was right up there as well as a top priority of our court.
Why is that important? It's important because I'm not the boss of the judges in Alberta. They're my colleagues, and I need to get their buy-in. I need to get their cooperation. I need to get every judge in every courtroom, every day, moving every case along as quickly as they possibly can, and to do that, I need to do it through consultation and I need to do it through their commitment. That was an important part of what we did.
The other thing that was important was to communicate, we, the leadership of the court, myself, the chief, and the council members, the assistant chief judges across the province, that we saw case management as important. What we did was we created a case flow management committee in all three areas of our jurisdiction: criminal case flow management committee, which I chair, a family and a civil case flow management committee, and that committee meets several times a year. We go over the statistics in terms of volumes of cases that are now coming in. We look at the lead times in every area. We look at the completion rate: are we at 100 per cent completion rate or are we below that and therefore probably falling behind?
In those areas where there are excessive lead times, we dedicate some resources to that area to try to alleviate it, and we came up with particular case flow management options for improving our performance overall. I believe I sent a copy of just some examples of that, like the continuous trial protocol, confirmation hearings, et cetera. So leadership at the top, continuous planning at the top, the involvement of the judiciary throughout the system: all of those were key.
I believe the results that we achieved were impressive. Between 2013 and 2016, criminal case lead times in the province were reduced from an average of 22 weeks to 18 weeks, which is a 20 per cent reduction in the course of two or three years. Based on my review of other initiatives across the country, I believe that that would be considered a highly successful reduction in a relatively short period of time. This was accomplished, I must note, in spite of the fact that during that exact same period we experienced a 20 per cent increase in the number of criminal charges commenced.
As Justice Wittmann has said, the situation in Alberta has changed rather quickly for us. The number of cases commenced in the first few months of this fiscal year, that would be from April, is already up 13 per cent from last year. It was up in that range, 13 to 15 per cent last year, so if you look over two years, we've got an almost 30 per cent increase in cases commenced in the province. Frankly, that is starting to have an impact on our lead time such that the lead times today have gone back up again. Today, as I speak, the lead time is over 20 weeks again, and our completion rate is down around 92 per cent, which is very troubling to me.
What are we going to do about it? We're in a difficult time in Alberta. The financial contribution to CCM is basically drying up. What we have done, though, the leaders in the system have sat down and said, perhaps our provincial implementation committee, after we implement the disclosure process in Calgary this year, doesn't have a mandate with money, but that doesn't absolve us of our responsibility to lead. So whether you're the chief of police or you're the chief Crown prosecutor, the assistant deputy minister, the head of Legal Aid or the chief judge, we together have to continue to work. We had a meeting a couple of months ago, and there was agreement across the board that that was the case, that we were going to continue to meet, to look for other initiatives that we could take forward, and to do whatever we could to reduce lead times.
At some point, resources always become an issue and the province has agreed to, for example, with our court, study the issue of the appropriate complement of judges for the province over the next few months and come up with an appropriate formula to determine what the needs are to keep our court running in an efficient and in an effective way.
I don't have time to touch upon the other points that I listed in my speaking notes, but I'm certainly willing to answer any questions that might be asked.
Thank you.
The Chair: Thank you very much. We'll move to questions, beginning with the committee's deputy chair, Senator Baker.
Senator Baker: First, I thank the witnesses here today. Our committee has been examining the problem of court delays, and with the Supreme Court of Canada decision in Jordan it becomes all the more important that we come up with some solutions to suggest to all participants in the court system to try to head off these possible thousands of cases being thrown out because of court delays, which happened under the Askov originally. The Supreme Court of Canada says we don't want this to happen under this present adjudication, but unless something happens to change the system then obviously what has been laid down will apply, as the Chief Justice said. We thank you very much for appearing before this committee and putting it on the record, because we need that information. We are simply senators; we have lawyers around the table here as senators, a former solicitor general, a former head representing the police in Quebec, the Sûreté; and a political hack like myself with, over the years, 43 years in Parliament.
We thank you very much. In the end, the administration of justice, whether it's in disrepute or not, or whether we're shocking the conscience of the community, depends upon the production from our courts. As you mentioned, Chief Justice, the recent decision in Jordan was accompanied by a case called Williamson, which everybody has heard about in this jurisdiction, a case thrown out. The general public would be, I think, shocked at the result of that.
This September 1, I was looking through your case law, as most of us do, and discovered another case. I believe it's called Lam; I'm not sure.
Mr. Wittmann: Lam, L-A-M. I quoted from it in my submission.
Senator Baker: There we had, I believe, a similar period of time as in Williamson. It took 14 months for a case to be heard — that wasn't the entire reason for the delay — in Superior Court. Now we look at Lam and a similar period of time, I believe, 14 months for a case to be heard in Superior Court.
We think you are doing the best of any jurisdiction in Canada to overcome the problems that you have, but per capita, you just don't have the judges that the other provinces have. Would you, Chief Justice, say that perhaps the biggest reason for these 11(b) stays of proceedings in these very serious cases that we're addressing, the primary responsibility goes back to the lack of judges in your court? Is that what you're suggesting to us?
Mr. Wittmann: I think in the Lam case from Edmonton, Madam Justice Pentelechuk, whom I quote in my submission, seems to indicate that, and I think somewhere in the decision she found as a fact that the case was delayed once, and then it had to be resubmitted, for want of a better term, or rescheduled, and it couldn't be rescheduled as soon as the lawyers were available. The earliest date that could be given institutionally by our court was such that I think it put it into the 55-month range.
That's one case, but I think each case is different. We had one last week. I don't know the result. I think the judge reserved. We've got another one this Friday. They're coming at us with alarming frequency now. I didn't go into all of this, but some of the innovations we have, we have a criminal appearance court in Edmonton and Calgary, which is devoted to scheduling and, basically, a review and saying why isn't this case moving?
File ownership is a great innovation, and it came to the Crown in Alberta as an initiative, I think, largely from the Provincial Court of Alberta. What that means is that the Crown attorney gets the file and keeps it till it's finished. It used to be that a Crown lawyer would do the preliminary; they would hand it off to somebody else; somebody else would do the trial, and so on. What that's done in scheduling in our court, after the preliminary is over — and we don't get the case until it comes out of provincial court — is that we're staring at two people's calendars all of a sudden.
So the file ownership has given rise to Crown counsel saying the same thing as defence counsel. I will say, "We can give you a date for this trial in September 2017,'' and they will say, "Well, I'm not available. I'm booked up,'' this is the defence lawyer. I will say, "Well, how about October?'' The defence will say, "Fine.'' The Crown will say, "Well, gee, I'm not available in October. How about November?''
What is a judge to do in that situation? One of the things a judge can do, and some of our judges, I think, may be on the brink of saying, "We don't care. Here's the date. Be there.'' Now, that gives rise to serious issues in courts of appeal, trial fairness, counsel of your choice, "I couldn't get my own lawyer because you made me go ahead when my own lawyer wasn't available,'' and so on and so forth. It's a huge problem, not only institutionally, but in terms of the calendars of defence counsel and Crown counsel. I'm sorry for rambling.
It's not just institutional availability, or availability of a trial date per se, but that's a huge, huge factor. I would like it to come down to the fact where we could say, we have to do this within this time. If you can't do it with Lawyer X in this time, you'd better get yourself another lawyer, and then a Court of Appeal would back you up on that. I don't think they will right now.
Senator Batters: Thank you very much for being here. As I was telling Mr. Justice Wittmann earlier, it's very important that we get these comments on the record so that we can refer to them when we're doing reports, as we did this summer with our interim report. So thank you; we really appreciate it.
Mr. Justice Wittmann, you're saying that right now, in your court, there are nine judicial vacancies for the Province of Alberta?
Mr. Wittmann: Six have been recognized. We would be very happy if those six could be filled in a timely manner.
One thing I did not mention, and I'm very perplexed by this, is that last week the Acting Commissioner for Federal Judicial Affairs said, as of September 21, which was last Thursday, there are 56 vacancies in the country in the superior courts.
Senator Batters: Wow.
Mr. Wittmann: Everyone who elects supernumerary status gives at least three months' notice, or in some cases you retire and we need a replacement for retired. Absent someone dying in office, which happens sometimes, the federal executive has notice of when the vacancy is going to occur. I do not understand why it cannot be filled concurrently with the happening of the vacancy.
I have no idea what happens in cabinet. I know this: We have a system in this country, since Ray Hnatyshyn put it in under the Mulroney government, that no one gets appointed from the practising bar if they don't pass muster in front of a provincial judicial appointments committee. But the people in that, as I call it, pool of candidates approved, at least in Alberta, is significant. There are plenty of people to choose from, and there has been throughout the last year or two years. Why can we not get appointments or vacancies filled in a timely manner? No one has ever explained that to me.
Senator Batters: Absolutely. We have been seeking those questions, too. In fact, that was one of our recommendations that we made in our interim report this summer, and that's why we felt it was important to come out with an interim report. At that point, there were 44; now you're saying there are 56 vacancies across the country for federally appointed judicial positions.
You can obviously only comment on what's going on in Alberta, but I don't think that the federal Liberal government has instituted a new judicial advisory council; is that correct?
Mr. Wittmann: I think there's a popular either misinformation or misunderstanding about that. Do you mean a judicial appointments adviser to the minister, a single position?
Senator Batters: No.
Mr. Wittmann: Because she has been in office for two weeks plus a day or two days. She has met with every chief justice in the country that wanted to at the Canadian Judicial Council meetings last week in Winnipeg. She has talked to people on the phone. She is the most refreshing person to hold that office that I've ever encountered, and I hope she doesn't lose her enthusiasm.
Now, the judicial appointments committees are by province.
Senator Batters: Yes.
Mr. Wittmann: I'm told that east of Ontario, they were disbanded for some number of months and not reconstituted. That may be so; I don't know.
But I know two things. Number one, Alberta's committee has been intact throughout. The Alberta committee met in December 2015, March 2016, May 2016, June 2016 and was to meet yesterday. They got a call from Ottawa saying, "We're not meeting yesterday, and we can't tell you why.''
Senator Batters: Ottawa made that call? Interesting.
Mr. Wittmann: Yes. That's what I'm told. There are plenty of candidates in the pool in Alberta, and I think there are in the rest of the country from previous committees.
Senator Batters: Just this summer, Supreme Court Chief Justice McLachlin made the comment, use those people who have already been approved by those particular councils that were in existence prior to the last election.
I just want to pick up on something you mentioned. This new person, the judicial affairs adviser for the Minister of Justice federally, you're saying she's been in her new job for two weeks?
Mr. Wittmann: Yes.
Senator Batters: So it took them 10 months to put someone in place?
Mr. Wittmann: Apparently.
Senator Batters: Thank you.
Senator Jaffer: Thank you very much to both of you. As I know all my colleagues truly appreciate, this is unusual, and you're doing this because it's a very important issue. To both of you, I sincerely thank you for doing this publicly. As you know, we can then form a record.
You did say that the vacancy issue is not a new issue; it's not a present government issue. As you said, Justice Wittmann, it was from 2008. So this is an ongoing issue, and it's not really a political issue in the sense that this is an issue you have being dealing with.
Chief Judge Matchett, we were in your courtroom this morning, and I want to congratulate you. Steve Owens from your office and his team gave us an amazing tour there. We are hoping that we can put that as part of our best practices in our report. Our analyst called it, "Modern court in a modern era.'' We were really taken by it.
You both have talked about systems; you both have talked about technology. We're struggling with one thing. We have been in Vancouver, we've come here, and we've heard before, about specialized courts. I'm struggling, and some of my other colleagues are struggling; I don't know if specialized courts help with court delays.
For example, you have the spousal abuse court. We saw yesterday the community court and drug court in B.C. In a way, it takes away some of the work from your court — not so much from your court, Justice Wittmann — but is that the route to go? Besides technology, besides systems, besides appointing more judges, the work is increasing. What else can we put in place to shorten delay to get around the Jordan decision?
Mr. Wittmann: One of the things we were given —when I say "we,'' the Canadian Judicial Council members on which I sit — and I think this is a public letter, was the mandate letter to the federal minister, Ms. Wilson-Raybould, from Prime Minister Trudeau. In that letter, part of her mandate is to put, I think, a unified family court in jurisdictions where unified family courts are not present. They're not present in Alberta right now. That is an area that I think is, Madam Senator, ripe for a specialized court in this jurisdiction.
When I came back from Ottawa after that meeting, I talked to Chief Judge Matchett who, of course, has a specialized family and youth division in Calgary and in Edmonton. I said, "Are you in favour of a unified family court?'' He said, "Absolutely.'' I said, "So are we. Let's write a joint letter on that issue.'' We did that, and I can't remember exactly when it went out, I think in May of this year. To date, we haven't got a response.
We are very earnest about certain areas of specialization in our court. Because we're a circuit court, we sit in 13 different places in Alberta, all our judges circulate. We have specialization committees; we have a specialized commercial court in Calgary that is probably recognized, along with Montreal and Toronto, as a go-to court for bankruptcy, insolvency, large mergers, plans of arrangement, that sort of thing.
So we're making some inroads there. Change is difficult, especially when you're dealing with judges over whom you don't have, as my friend Chief Judge Matchett said, authority. They're colleagues, they're independent, and they have their own minds. some of them will say, "I didn't take this appointment to be a specialized judge,'' and we say, "Well, I guess we'll cross that bridge when we come to it.''
Mr. Matchett: I would argue that restorative justice approaches are absolutely critical because you don't have a justice system if all it is is efficient. If it's not fair, if it's not, in the criminal context, addressing the underlying causes of crime, if it's not seen to be trying to create safer communities and avoid as much as possible recidivism of offenders, it's not a justice system. The Chinese have a very efficient justice system; I don't want to see that in Canada, their justice system.
Our justice system, if we truly want results, we have to invest in a lot of different ways; for example, drug treatment court. The federal government contributed to drug treatment courts for a number of years. A couple of years ago they redistributed the drug treatment court monies such that, in Alberta, we had reductions in both Edmonton and Calgary in our drug treatment courts because the province took the money and shared it between the two courts, whereas it was only targeted to Edmonton originally. The net result is that we can only deal with half the clients now in drug treatment court, so 15, 20 max, instead of 30 to 35 clients.
Having sat there, I've seen the impact that those treatment courts can have on people's lives. They save lives. I've seen it. These are not people that leave the court and walk away and get right back into drugs. Many of them come back. They visit years later to meet the people who are in the program now.
All the studies on drug treatment court show that the return on investment is 5, 6, 7 dollars per dollar invested. It only makes sense. These people were committing so many crimes beforehand, all property-related crimes, in order to feed their habit, so you've got savings in terms of those cases coming before the courts, the savings in terms of them otherwise being in jail, the revolving door and probably coming back after their jail term is finished, the health care system, the policing, prosecution.
Some of these cases can be diverted, not just to specialized courts, but it's time that the system started triaging the people who come before it. Why is this person before us today? Do they have an FASD problem? Do they have an alcohol problem, a drug problem? If they do, perhaps a diversion out of the criminal justice system is going to be more effective; it's going to be more likely to create a safe community, because you're going to address the underlying causes, and that's both efficient and it's the right thing to do, and it's an effective and a just system.
So I'd like to see more emphasis on triage, because the current advocacy system between prosecutors, defence lawyers and judges doesn't really encourage asking the fundamental question, what brought the person before the court. But if we could bring in some those social agencies up front and try to make that determination so that we only have the people in the system that need to be in the system for public safety, and bring the other people to a different system, the health care system, et cetera, then that will make us more efficient, more fair and more effective. I think that that's an important consideration.
The Aboriginal situation — you're going to hear that out West. Aboriginal justice in the North basically consists of this: Trials are set and hardly anybody shows up for trials as witnesses. The cases get dismissed and the victims have no recourse. There are no programs for offenders, assuming they do show up and are convicted. There are no healing programs available in the communities. There's a dearth of resources in most northern communities.
In the South, it's different. There are more resources available, and the reserves that are closer to the cities have some resources themselves. But, in Northern Canada, it's time that we invested more in those kinds of assistance to the Aboriginal people. Really, that's diverting those cases, hopefully, out of the court and again reducing the incidence of crime and, by that manner, reducing the pressure on the courts.
Senator Dagenais: Thank you for your presentations, Mr. Justice Wittmann and Judge Matchett. I have a question that I will ask in French.
[Translation]
As to the judicial appointment committees, I served on those committees in Quebec. We made recommendations to the justice department and, curiously, the appointments were not made until a year and a half or two years later. Without wanting to blame the department, I understand what you mean about the delays often being due to the recommendation and approval process by the justice department.
That said, one of the key recommendations in your report is that the federal government should work with the provinces and territories, and with the judiciary, in order to reduce delays. Everyone has to work together. I would like to hear what you both think of this recommendation that will be included in our next report.
[English]
Mr. Wittmann: I agree with the concept. There is an expression that we use, whether we put a defence to the jury or not; it's called whether it has an air of reality.
The problem with federal-provincial cooperation is that I have seen examples — I think it's in my speaking notes — where they say, "We want to work collaboratively with the federal government about expanding your court, Chief Justice Wittmann.'' Then I've had situations of previous governments in Alberta that say, "Well, we're not going to amend the Court of Queen's Bench Act until Ottawa agrees that if we do, they'll make those appointments.'' This goes on and on and it never seems to get done.
I'm all in favour of cooperation, but I don't think you can have cooperation only by virtue of goodwill or a carrot. Somehow, there has got to be a stick in there that says this has to happen within this reasonable time limit, please. Otherwise, I don't see it happening.
Oftentimes — and I know this has happened in Alberta, the Deputy Minister of Justice in Alberta came and spoke to our annual meeting, all 81 judges of us, and said, "We are taking four more positions to cabinet.'' That was at the end of May. To date, nothing.
All I've heard is, "We want to cooperate with Ottawa; we want to see what Ottawa is going to do if we expand the court by four,'' and they're concerned about the resources they'll have to put in to a new federally appointed judge position. Although that's paid by the federal government, the support is paid by the province. So what we have is budgetary silos. As Chief Judge Matchett alluded to, if we want a mental health court, then we're going to engage people from social services, health services, the police and so on; but everybody's got an interest in their own siloed budget.
You can make a great case that this is going to save the taxpayer — because there's only one taxpayer — tremendous amounts of money in the long run, but that seems to get lost when you say, "Well, we don't have money for that. You got money for that? No, we don't have money.'' Who's we? Sorry.
Senator McIntyre: Thank you for your presentations.
As you know, we've already tabled the first report and we expect to table a second report early next year. In our first report, we have looked not only at the consequences of delays but also at the causes of delays, and we have also looked at ways to address those delays, including case management practices and procedures.
On that issue of case management practices and procedures, some witnesses have appeared before our committee and informed us that practical amendments should be made to the code, namely, because the code has become too complex and merits a broad review.
The Chair: A brief question, please.
Senator McIntyre: Yes. For example, a trial judge first seized with a matter would hear all counts and charges against an accused regardless of whether the counts are exclusively provincial or superior court jurisdiction. What are your thoughts on this? One judge would handle all charges against the accused, summarily or by indictment. Get it over with.
Mr. Wittmann: It sounds like a good concept. I'm not aware of whether there are constitutional impediments to those kinds of amendments. We're judges; we're sworn to uphold the law, and we will.
I'm willing to stray into legislative reform that makes sense from a process point of view, but I'm not well-versed enough on specifics that you've put to know whether that would require amendments to the Criminal Code, to the Provincial Offenses Procedure Act, to summary conviction sections, all of that sort of thing, but there are a lot of people out there that do know that, and if there were a will to have a comprehensive review, process review, of the Criminal Code, a lot of improvements could be made.
I have read the interim report and I agree with it, but talk about case management. Case management, section 551.1 of the Criminal Code, was implemented in 2011, 2012, somewhere in there. We utilize that all the time and we're going to utilize it more and more. People say, "Well, why don't you use it all the time?'' I say, "Where am I going to get all these judges to do all this case management work all the time?'' Every time someone makes a suggestion to me, I say, "Great. Would you want me to pull a judge from family law chambers or what?''
The Chair: We've run out of time. One downside to being the chair is that I don't get to ask all my questions. I had a list of five here, but I'm going to put the subjects of them on the record quickly.
Supernumerary, which you raised, is very interesting. We haven't had a thorough discussion about that and what the implications are with respect to scheduling and so on, and the fact you have 25 working half-time, as you described it.
Mr. Wittmann: Twenty-two.
The Chair: Twenty-two. I'm just wondering whether it's too attractive, perhaps may be one of the questions; the usefulness of preliminary inquiries in the wake of Stinchcombe; the increase in charge numbers, which Justice Matchett mentioned. We had the situation in Ontario recently about the allegations of overcharging and significant numbers of stays as a result of police overcharging. There is the impact of pre-trial credits on delay, we'd certainly appreciate; and the boss issue that Justice Matchett mentioned as well, and this may not be indicative, and unfair to mention, but we were in the court this morning, didn't hear the justification, but the Crown mentioned there had been 19 adjournments and the judge granted the twentieth.
Those are the sorts of issues that I'd like to pursue more vigorously, as I'm sure members around this table and others will as well. I would appreciate it if you would give some thought to an invitation from the committee and the chair to come to Ottawa at some point prior to the completion of our study, because I can tell you, we could have had this session extended at least another hour. That's how much we appreciate your attendance and responses to our questions.
Once again, on behalf of all the committee members, thank you very much.
Senator George Baker (Deputy Chair) in the chair.
The Deputy Chair: For our second hour, we have joining us, from the Sheldon Kennedy Child Advocacy Centre, Mr. Kennedy, who is Lead Director of the centre; from the Calgary Police Service, Chief Constable Roger Chaffin; and from the Alberta Crown Attorneys Association, Damian Rogers, Treasurer.
We look forward to your presentations, which will be followed by questions from the senators. Gentlemen, the floor is yours.
Damian Rogers, Treasurer, Alberta Crown Attorneys Association: Thank you. I'm appearing on behalf of the Alberta Crown Attorneys Association. I didn't circulate a disclaimer in advance, but I should say that I am not here as a representative of Alberta Justice. Although I am employed by them, I can't speak for Alberta Justice. What I hope I can do in answering questions is speak about some of the ways that myself and my colleagues in the Crown Prosecution Service encounter delays and things that we are involved in in trying to manage delays.
The Deputy Chair: Is that the provincial Crown attorney?
Mr. Rogers: Correct.
The Deputy Chair: Not the federal Crown attorney.
Mr. Rogers: Correct. We are a voluntary association of prosecutors employed by the Province of Alberta and we've been an association since 1971. We don't represent every single prosecutor employed in the province. Of that group, there are about 300 trial Crowns throughout the province and the number we represent varies from time to time, depending on who pays their dues.
I will address three areas in short comments and try to respond to questions. My comments focus on three areas: Crown workload, court resources and procedural reform. I also may be able to address in some questions, issues relating from self-represented litigants. I have recent personal experience with a very long trial involving a self- represented litigant. I would be happy to share my comments on that.
I know that provincial Crown workload, at least, is an area that this committee cannot have much influence on, but I would be doing my association's members a disservice if I didn't mention that Alberta's Crown prosecutors are among the busiest in Canada in terms of cases carried per prosecutor. Alberta's population has grown and the number of Crowns has not kept pace with that growth. As you heard in the comments from members of the judiciary, the number of charges that are entering the system has also increased at a quite significant rate.
Many of those charges are for significant criminal behavior. StatsCan data shows that Alberta criminal charges are, on average, for more serious crimes than the national average; and provincially, of course, our Government of Alberta is in a period of hiring restraint. Currently, eight out of fourteen Crown offices in this province are below their full complement of prosecutors, and that has an impact on our ability to prosecute in a timely manner.
In theory, I would say that, on the bulk of our files, those that require a trial of a few hours or up to a couple of days to prosecute, the Crown would, in theory, require about six weeks between the setting of a date for trial and the trial itself. That lead time would allow time for the Crown to issue subpoenas for witnesses, for the police to serve them and for the Crown to prepare for trial.
But the combination of Crown schedules, defence counsel schedules and court schedules means that it's not possible in this province to schedule a trial within anywhere approaching six weeks. You heard some of the stats from our provincial court and from our Court of Queen's Bench as to the lead times for trial bookings.
Oftentimes, the limiting factor is the court's schedule, you heard about those lead times, but prosecutors' schedules also can be a limiting factor in this province. Many prosecutors in Alberta are pre-booked months into the future. I currently work in a prosecution role where I prosecute large-scale economic crime, and my case load, in terms of number of cases, is quite small relative to when I was in general practice; but when I was in general practice, I would have to book my vacation about a year in advance in order to not have it overwritten with trials. I was booking trials eight to ten months in the future on a routine basis, and that continues to be the case for many of our prosecutors.
You've already heard the stats on court lead times. I had some comments on that and some stats, but you've heard it from those who are better able to provide them.
I wanted to touch on procedural reform, and I think you'll hear from some other members of this panel on this. Alberta has previously recommended to meetings of the federal and provincial and territorial ministers of justice that the availability of preliminary inquiries be reduced to the most serious of charges, such as murder. That, as I say, was a position taken by our government, not necessarily by the association that I represent, but we would observe that preliminary inquiries do increase the burden on provincial courts. They take up court time when they do run; they also take up court time when they don't run. Many preliminary inquiries are waived on the day of the preliminary inquiry, or so soon before that preliminary inquiry that the court time can't be used.
That said, our association does not have an official view or position to advance with respect to whether and how preliminary inquiries might be addressed by the federal government, and opinions amongst Crown prosecutors would, I think, be quite varied.
In speaking to some of my colleagues, I heard options such as restricting those to the offences set out in section 469 of the Code. Those are the ones that give exclusive jurisdiction to the Court of Queen's Bench for trial, or the superior courts for trial. The only one of those commonly charged is murder. Restrict them to offences where the maximum penalty is 14 years of imprisonment or more, which would again be limiting them to some of our most serious offences like aggravated assault, sexual assault causing bodily harm, and so on, eliminating the issue of committal for trial to make preliminary inquiries for discovery purposes rather than the issue of committal.
It might be observed that the Crown standard for continuing a prosecution is a reasonable likelihood of conviction. That is a higher standard than the standard for committal for trial. So when Crowns are doing their job, the Crown ought to discontinue prosecutions that don't meet that standard. For that reason, the screening function of a preliminary inquiry is largely redundant. I stress, though, that that relies upon the Crown properly reviewing the case.
Those are the comments I wanted to make in opening. Thank you.
The Deputy Chair: Thank you. Mr. Kennedy.
Sheldon Kennedy, Lead Director, Sheldon Kennedy Child Advocacy Centre: Hello, and thanks for having me. Thanks for taking the time to visit the Sheldon Kennedy Child Advocacy Centre this morning. I hope it was a good learning experience of the impact of child abuse and the number of cases that we see on a monthly/yearly basis. It's an honour to be here with Mr. Rogers and Mr. Chaffin. The Crown and the police service in Calgary are great partners of ours.
When I look at the issues, when I look at court, when I look at kids that have been hurt, and victims, I think that for a long time we focused on the incident and we forgot about the impact. When we look at the impact, the impact is what we end up dealing with long term.
If you look at the numbers, 72 per cent of people in treatment centres have disclosed early childhood abuse. Kids that have been abused are 26 times more likely to experience youth homelessness. Kids that have suffered abuse are 30 per cent higher risk of high school dropout. Males that have been abused by a family member are 45 times more likely to perpetrate dating violence.
So when we connect the dots and make sense of the invisible damage that comes with abuse, and understand it, it's a severe crime, very severe crime. If you look at the cases that come through our door, the highest percentage of cases that are assessed by the health professionals is suicidal ideation. So when we connect the dots to the impact of crime on the victim, it's significant.
Victims of crime in this country cost our country $54 billion a year. Direct cost to child abuse in this country is $21.4 billion. That's not a light number in my mind. I think when we look at the disconnect between children services and adult services, and when we talk about poverty reduction, we have to understand the impact of these types of crimes on children.
We had a presentation yesterday at our board table from our head psychologist, Dr. Daniel Garfinkel. He talked about the gold standard that we've been able to work on and think outside the box on and be best practice on in the treatment of kids, young offenders under 12 that are acting out sexualized behaviour, kids that have been abused, and they get out of treatment, they're done with their treatment, they're moving on in their life, and then the court process comes and they have to go to court another year or year and a half down the road, and these kids are back in treatment, suicidal ideation, and the list goes on, and that process.
If we look at our numbers, so we do 130 investigations a month, and 68 per cent of those are sexual abuse. The remainder are the most severe physical abuse and neglect cases. The majority of the age of kids is 4 to 12. Ninety-eight per cent of those kids are abused by somebody they know; 47 per cent are abused by a parent or caregiver. So when those kids are sitting on the stand in the courtroom, do you not think that there's a power imbalance between the perpetrator and the child? What child, whether their parent is an abuser or not, wants to see them get in trouble or do anything hurtful to their parents? None that I know, but that's what's happened. We're making these kids testify, and what if we understand the imbalance of power?
I just want to read a letter, and these are consistent. This is a letter we received from a mother, and I just want to read about their experience through this system.
I have been dealing with the legal system for the last two and a half years. I want to facilitate Change in a System that is undeniably skewed.
I was married to my High School sweetheart; we were together for twenty one years. He was all I knew, at 17 when we first became a couple I thought our future was full of possibilities. I had no idea the horrors I would endure or the all-encompassing pain I would experience. My suffering however pales in comparison to what my children had to face.
On April 12th, 2014 my beautiful, courageous daughter disclosed to me that her father (biological I might add) had been sexually abusing her and her sister. He was still in the house at the time, I had to quickly devise a way to get my three children out of the house undetected and we immediately went to the authorities. He had been torturing them for ten years, it started when one was 7 and the other was 3. My son was also terribly physically and mentally abused, though thankfully was spared the sexual aspect. I will not going on into to detail, except to say that the trained detectives who deal with this on a daily basis were reduced to tears during the interviews as these angels told their story. He was picked up that night on an assault he had committed on me in December 2013, and formally charged with 23 different charges the next day.
There were threats on our lives, and an Emergency Protection Order was put in place, basically a piece of paper telling him to stay away from us, that is all that separated us from this monster for two years as we waited for the legal system. Twice he said he would plead guilty only to change his mind the day before he was going to go in. Finally in October 2015, he pled guilty to a much lesser agreed statement of facts. We were set to deliver Victim Impact Statements on March 17, 2016. Which we did; my incredible, strong, courageous daughters stood before their abuser, looked him in the eyes and told him exactly how his crimes impacted their lives. Our Statements were so powerful two articles in the paper were written about us. . .
On June 10th, 2016 He was sentenced to 9 years in prison. We were elated, no amount of time would have been enough really, but at least this meager sentence was in some way comforting. I should note that even at this point he still refused to take total responsibility for his actions, blaming my oldest daughter for the abuse.
I thought finally, I could breathe, finally it was over, finally we could truly begin to heal. (We are healing and with the help of the Sheldon Kennedy Centre . . .) I could not have been more wrong, this is not over. Here is where I feel the system has truly failed . . . He will likely be eligible for parole in three years. Oh and it gets better, in one year he can apply for supervised visits outside the jail, and in just two years he can apply for DAY PAROLE UNSUPERVISED. . . So a man can rape his children for TEN years, deliver unto them unspeakable torture and basically get a slap on the wrist? This man fooled everyone. This man executed a nuclear bomb in my life, the fallout reaching everyone who knows me and my children. The pain inflicted by this man's actions is immeasurable and will continue for the rest of our lives. We will heal, we will manage the PTSD symptoms and live full amazing lives, however as people come into our lives and learn of our story we will watch as the all too familiar pain crosses their hearts.
The saddest and hardest part of all of this is the horrible truth that my story is not unique. This happens far too often, this is actually quite common. How as Canadians can we just stand by and accept this as the norm? How can we let these offenders get such easy sentences?
That is a common letter; it's way too common.
I have some suggested recommendations coming out of the Child Advocacy Centre.
Let's get rid of the preliminary hearings altogether in cases of sexual assault. It's critical, with this recommendation, that the judicial resources be applied to this recommendation. To ensure for proper infrastructure, Queen's Bench will require more judges with criminal law expertise if the prelim hearing is eliminated.
Second, we need specific specialized child abuse court, modelled after the drug court, which has shown to reduce recidivism and prevent reoffending.
I will leave it at that, and I look forward to your questions.
Senator Bob Runciman (Chair) in the chair.
The Chair: Thank you. Chief Chaffin.
Roger Chaffin, Chief Constable, Calgary Police Service: Good afternoon, and thank you very much. I'm humbled by the offer to speak before you today. I do also commend you for the initiative to come to Calgary and to hear from us.
As a police chief, I represent almost 3,000 sworn and civilian members who look after approximately 1.2 million Calgarians, and the complexity of crime and victimization in this city.
Your topic today of looking at the delays in the justice system is critically important as a matter to the policing as well. At the front line of this, we deal with real people who are suffering from real feelings and effect of delays in justice.
For the purpose of the study, and specifically to provide input on solutions that could be implemented at a federal level, we are proposing three different areas within the spectrum of factors that will lead to trial delay, which the federal government could study and consider addressing.
First and foremost, I'd like to support the recommendation by Mr. Kennedy on the elimination of preliminary hearings for vulnerable children. I think it's obvious that the more they're exposed to reliving their horrors, the more difficult it is for them to move on with their lives.
One of the complexities I'd like to recommend to you is to help you understand from a policing standpoint that the complexities of the judicial system reflect on the complexities of policing. The ability for us to manage complex cases, complex organized crime cases, or serious and difficult cases is a huge resource effort for policing. It's very expensive, it's very time-consuming, where a simple organized crime event can lead us to multiple months, into years, of investigation at hundreds of thousands into the millions of dollars to bring a matter to court, only to find that courts are not structured to receive such a complex investigation.
That means that we're hiving off matters, saying that we'll only bring this person to justice and not these people, and that certainly interferes with the idea of the high-risk witnesses and high-risk victims that have suffered because of these investigations and suffered because of the original matters, and we quite simply believe that there needs to be a restructuring of the court process to allow for the same kind of resource attention to the major and complex matters before us.
We're suggesting that violent and pervasive organized criminality in our municipalities causes great concern to real community safety. Law enforcement agencies invest heavily in human and organizational resources to combat these groups as gang violence escalates. When gang violence is targeted and interdicted by police, charges are laid after very complex investigations, and then the criminal justice system is engaged to appropriately sanction and denounce the behaviours that were targeted. But the roadblocks or delays within the system lead to an erosion in the community's confidence in the administration of justice.
What we are asking you to consider is allowing some divisions of the court to focus on low complexity matters like diversion, where there's emphasis on rehabilitation, where there's emphasis on the joint resourcing and the relationship between stakeholders like police, social services and probation, and then to allow for some focus on high-complexity courts.
High-complexity courts really need to be able to holistically look at violent gang-related types of crime: guns, drugs, heavy violence. These are rarely the acts of one person. When we're seeing dozens of people involved in the organization of an offence, they all need to be brought forward to be at least considered in the administration of justice.
When we look at wiretaps right now, the ability for Part VI investigations to be able to properly investigate, it's getting very, very complex, and it needs the attention and the ability of the courts to see these in a timely manner.
Consideration of things like cybercrime as it's evolving, and our MLAT structures, all need the time for the courts to properly receive those and understand them. White collar crime, as we call it, is becoming so intensely difficult to investigate, we are simply leaving victims at the side of the road right now because we can't get them into court. If we can't get them into court, you're talking about multiple years before we've ever got to the end of the day where justice could be at least considered to be served.
We're looking at things like a designated superior court scheme that could have collaborations between multi- jurisdictional police agencies, as is the norm right now. Rarely is it something just Calgary deals with by itself. Often we bring in other agencies to look at these complex matters.
Case management should include assessment of community safety. The thing that we're going to deal with and other police are going to deal with is how a community is actually going to be managed after all of this is done.
Federal agencies could be involved, like CBSA, the RCMP, corrections, probation, all need to be involved in this scheme, as well as the Crown and accused's lawyers, all have to be part of the consideration. What we're suggesting here is actual funding and appropriate training to specialize in these criminal courts so that we're actually not dealing with courts that don't understand or can't manage these things in a way that we'd like that will at least be harmonious with the complexity of the investigation that brought this to court in the first place.
The other matter in line with that is that in order to bring these matters to court successfully in the beginning — policing is struggling; it's very difficult with bringing DNA matters to court because it simply takes too long to have DNA analyzed. We'd really like the committee to consider a scheme or a support to provide that provincial and federal collaboration to see if we can make some changes to the DNA scheme. The weeks and months and months it takes to get DNA analyzed means perpetrators are out there that we can't get a hold of until we can get that evidence back, and every week, day and month that delay happens puts people at risk.
Last, I'd like to at least entertain the idea around Bill C-13 as another issue we have to deal with. We know from section 487.021 that the Criminal Code is going to require a comprehensive review of sections of Bill C-13. I can tell you from a policing perspective, the scheme has noticeably increased the complexity of even the simplest investigations that our service has to undertake.
The number of warrants and production orders sought by CPS investigators over the past year has increased by roughly 25 per cent and that trajectory is escalating year to year. Technological searches, including something as simple as acquiring a customer name and address, are now standard investigative steps requiring judicial authorizations. Our members are simply becoming overwhelmed with the need to provide these authorizations over and over again. They're bogging down major investigations as well as small investigations.
The intent of the Bill C-13 scheme was to streamline and simplify the ability of law enforcement to investigate and interdict technological and/or Internet crime. It's simply not doing that right now. We are becoming overwhelmed with the burden.
With that, I thank you for the opportunity and will also entertain any questions the committee might have. Thank you very much for the time.
The Chair: Thank you all.
We'll begin those questions with the deputy chair, Senator Baker.
Senator Baker: Thank you. I have two questions for the Crown Attorneys Association.
First, regarding the testimony of the chief justice a few moments ago before this committee in which he said that there are several cases that are arising that could result in 11(b) decisions, that could see serious crimes that were committed just being thrown out of court, and the fact that it was this Alberta jurisdiction in which the accompanying case to Jordan involved sexual assault against children in which a person was convicted and then had the entire thing just thrown out and swept away by the 11(b) argument.
My first question is this: will the Crown attorney verify that, whereas we have a lot of these cases now in Alberta and throughout Canada that are just going to be thrown out of court, that when the transitional provisions of Jordan are finished with, that's in 18 months and 30 months from now, then the crisis happens in which we will have thousands, perhaps, of cases, unless something is done about court delay, just thrown out of court automatically?
My second question is very simple. We are looking at several changes we may suggest in our committee report regarding rules of court, regarding the Criminal Code, looking at Crown disclosure, police disclosure, shortening the periods of time and so on, and warrants, and also what Senator McIntyre raised in the last hearing here, and that is certain provisions in the law, when you have multiple charges against somebody, half of them could be exclusively superior court jurisdiction, some of them could be exclusively provincial court jurisdiction; you have the police officers going back and forth to two different courts on the same facts to establish the case against the accused eating up court time.
I understand, Mr. Rogers, that you've overcome somehow in this jurisdiction that requirement under the Criminal Code that these issues like 4(1) and 5(1) of the CDSA, exclusive Provincial Court jurisdiction, can be dealt with by one judge in the first instance, whoever has it. Could you explain how you have somehow overcome that?
Mr. Rogers: Dealing with the first question about Jordan and its impact, I am able to say that certainly Jordan is a matter of considerable concern to prosecutors and considerable concern to the Alberta Crown Prosecution Service.
In terms of the prosecution services' response to Jordan, I think we are blessed in this jurisdiction with a good set of technological resources. I previously practiced in Ontario. I think that our resources in Alberta, in terms of tracking our cases, compare very favourably with those that I'm aware of elsewhere in the country, but there are many cases in our system that, when you just look at the numbers alone of how long they have been under prosecution, how long has it been since an information was first sworn, that may have issues with respect to the default timeline that's set out in Jordan.
We now have access to that information very quickly. One of the computer systems that many of our prosecutors have access to is used in jurisdictions where court case management has been rolled out. It's an application called PRISM. Prosecutors are able to look at every case that they have assigned, every case that they have ownership of, and see just how long it has been since charges were laid. Red flags and yellow flags will alert them to those cases they are carrying that are at risk as a result of Jordan. Similarly, those who have administrative roles will also receive reports, and this happens whether they're in court case management jurisdictions or not. They will receive information about those cases being handled by those prosecutors that they have a supervisory role in respect of that would appear to be at risk based on the guidelines.
I think that will help us in trying to bring to the attention of prosecutors and bring to the attention of the court cases that have problems, but that isn't manufacturing court resources.
We, in many jurisdictions, have procedures in the province of Alberta to write to the assistant chief judge or other administrative justice or judge to identify cases that should be brought forward to find earlier dates, so we can try to do that, but those dates may not simply be available, and there may have to be decisions made to not prosecute some less serious matters in order to make room for more serious matters. We may find that we have cases which, despite our best efforts, are stayed as a result of the decision in Jordan. I think that that is a real risk.
Senator Baker: Second question.
Mr. Rogers: In terms of the multiple charges situation, I'm not familiar with any provisions here dealing with problems relating to charges where there's exclusive provincial court jurisdiction, exclusive superior court jurisdiction, because, of course, many of the offences we deal with are hybrid offences and we can proceed on them by indictment even if we might not otherwise because they're joined together on an information with straight indictable offences.
But you did mention as well CDSA offences, drug offences and provincial offences. We do have in this province an agreement between the federal Crown and the provincial Crown, commonly referred to as the "major/minor agreement,'' I'm sure it has a more technical name, which does allow the province to assign to a federal Crown, and federal Crown to assign to provincial prosecutors, the prosecution of more minor charges that would ordinarily be prosecuted by the other. Certainly, provincial prosecutors often prosecute simple possession of narcotic offences together with provincial offences and so forth.
Senator Baker: Good.
Mr. Rogers: I gather that that is not an agreement that is in place in all of the other provinces.
Senator Baker: No. It violates the Criminal Code.
Mr. Rogers: I can't speak to that, but it is done, and I'm not aware of challenges to it.
Senator Baker: Congratulations.
Senator Batters: Thank you very much, all of you, for being here today and for relaying these important comments to us.
I want to start out first with Mr. Kennedy. It was quite an impressive tour that we had this morning of your facility, so thank you very much. Thank you for all you have done to help Canadians who have been so impacted by these types of tragedies. Because your story has become so well known, sometimes people forget how you turned a complete tragedy in your own life into something so powerful. So thank you for that.
I noticed a couple of slogans in your centre's materials, one of which was "Hope, Help and Healing.'' I don't think that could have been put any better, actually.
I would like you to tell us a little bit more about the considerable impact of criminal court delays on victims of child abuse. We heard a little bit while we were at your centre today, and I'd just like you to tell us about what kind of impact that has on these very vulnerable victims.
Mr. Kennedy: Thank you, Senator Batters.
I asked the mental health clinician from our mental health program that works right in the back with these cases. They're front-line workers; we have 30 police officers; we've got 30 social workers; we've got mental health workers. We have psychiatrists, the Crown's office, the RCMP, all working together, again, to not try to re-victimize these children. Laura Patterson is her name. Her mandate is dealing with kids that are going through the court system. Most of the time they're done with therapy and they're going on with their life, and all of a sudden they've got to come back to court.
I look at the numbers. From January 1, 2015, to June 30, 2016, we had 44 cases, and 59 per cent of these young kids, mainly teenagers in this case, are presenting suicidal ideation; 20 per cent of those kids have attempted suicide; aggressive behaviour, 25 per cent; sexualized behaviour, 16; substance abuse, 20. The list goes on.
When we look at what we know, the science is clear on the developing brain of children. When kids have lived in sustained toxic stress environments, in situations long-term, no different than the court process, that changes the way their brain is developed. The science is clear today, yet our systems have not caught up with the science.
When we look in cities and we talk about and we hear this all the time, we talk about poverty reduction strategies, I believe that the process of the court has a significant role to play in poverty reduction strategies in our communities, because if we're not doing a good job with these kids here and understanding the true impact in all these areas, we're seeing them down here, and we can't afford fiscally not to change the way we do this work. We can't afford it. We cannot afford to have the disconnect between child services and adult services.
How many of these attempts of the 20 per cent out of the 44 were successful? I would have to say that, when we're not doing a good job with our kids, it's killing our kids, and that's what we know. I think we've been able to finally connect the dots to that and we've finally been able to make visible the invisible around the impact.
I am a full believer in a fair trial, but I don't think it's fair when you're a four-year-old on the stand against all adults. That, to me, is not a fair trial. I think we need to understand that and we need to pay attention to that. I guess what we see is the end result of this, and the end result of this is, these are the kids that are filling our prison systems, are filling our mental health systems, are dropping out of school and are being arrested by the police.
Senator Batters: And are dying.
Mr. Kennedy: If we look at mental health, a sample size of seven out of a thousand is mental illness. Over 80 per cent of mental health concerns in this country stem from adverse childhood experiences. If we want to erase the stigma around mental health and understand where it's coming from, we'd better understand it.
Senator Batters: Right.
With these criminal court delays, sometimes we see adjournment after adjournment, and we've heard victims talk about how they feel like they're re-victimized when they have to go back. We heard a little bit this morning at your centre, talking about how victims might feel that they're even questioning, "Oh, does the judge not believe me because this isn't going ahead? Why isn't this going ahead?'' Just maybe tell us a little bit about that.
Mr. Kennedy: We know that part of the biggest impact with these young children, because they're abused by persons of trust in their life, is that they've done something to deserve this and it must be their fault. When we look at the process that they're put through — and I think the gift of the Child Advocacy Centre is that we've got the systems that have the legislative mandate to do this work to say, you know what, we can do this different and we can do it better. I think that's what we're asking here today. What we see with these kids is that it's very confusing to them.
The way the system is set up, and I know in some of these standing committees that I've talked about before, we need to bring a balance here as far as the system understanding the victim. There's very much an imbalance around the victim and the accused. The criminal rehabilitation and promise is a lot greater than the victim, and I think we need to bring that down and we need to get back to a balance.
The only way we're going to do that is really understand the true impact. You can go look at any of the studies around the adverse childhood experience or the ChildTrauma Academy with Bruce Perry, the Palix Foundation here in Calgary, and the science is clear that this stuff is very much impacting our kids.
Senator Jaffer: Thanks to all three of you for your presentations. You're certainly going to help our work.
Mr. Kennedy, we were at your centre today. You have done amazing work with others to bring the centre together, and I congratulate you for the centre.
When I was at the centre, I saw that with others — the police, the hospital — you've been able to be specialized, do a bit more for the children. It's all child-centered, but the two groups that were missing were defence lawyers and judges, and for obvious reasons defence lawyers cannot be there. I know judges can't be there, too, and even Crown. It's dicey how much they can do. I left there thinking that maybe we need to look at specialized courts.
I have a question for all three of you. We have been looking at specialized courts. We saw the community court; we saw the drug court yesterday, and we know you have family matters court.
From your three experiences, do you think that if we took some of the work from the main court to specialized courts, would it change or would it lessen the time in court? Would it affect court delays?
Mr. Chaffin: It's an interesting question, because I do respect that, as we create more unique court environments so that we can look specifically at issues, it would in theory help to manage delays and get us more organized.
As Mr. Kennedy said, though, you're really looking at long-term outcomes. Having a specialized court without specialized services to follow up on it only serves the interests of courts. Again, I'd want to promote that these are real people; these are not docket numbers; these are not statistics. These are people that need a comprehensive address, whether they're violent offenders and their victims or these vulnerable, vulnerable people out there.
My big concern is somehow this is being treated as if we need to streamline the process and not understand that these are true victims who have real big community safety impacts, life impacts; social fairness and social justice is not being understood simply by racing them through the courts. We have to have an end-to-end process that allows them to be looked after.
Senator Jaffer: The chief judge of the provincial court said something very powerful. He said, not efficient courts; China has efficient courts; justice, and you have to think about the person.
What we saw yesterday was looking at the global change to get services to people. It is a long-term change, but also does it help with court delays?
Mr. Kennedy: We just had an international conference here in Calgary, 40 countries. We had a chance to talk to some other countries about some of the work they were doing. If you look at the two pieces that you suggested were missing, and they are missing from the Child Advocacy Centre, one of the things that was recommended is, why wouldn't the defence attorneys interview that child in a child-friendly setting, and why wouldn't we have CCT, closed- circuit TV, for kids to testify from the centre? The whole process would happen from the Child Advocacy Centre. We do that with kids, young offenders, in the courtroom.
I am telling you that that face-to-face imbalance of power is real. If you even look at adults when workplace bullying is happening and the fear of people speaking out, let alone a child being sexually abused for 10 years by their father, that is real, and I think that of everything we can do, that would be a simple solution.
Why are we putting kids in front of these offenders? We're already doing it. It's not like we're trying to reinvent that wheel. I think it's adding a few spokes to it. It's an easy fix. It would have significant less impact on the child, but those are two solutions that were brought to our attention.
I go back to Roger, and I know I keep harping on this. The decision we need to make is not try to spin people through the court system as fast as we can. We need quality and we need efficiency. The only way we're going to get that is understand exactly the individuals that we're dealing with, and understanding the criminal side of it, too.
Yes, I was a victim through the court system. I've spoken in prisons before, and I can tell you that people in there have been impacted as children as well. We need to understand all of that and make our decisions accordingly.
When we make our decisions on behalf of all of the agencies that are in our centre, we put the child in the middle and we make the decision on behalf of the child, not on behalf of the agency, and I think that that's critical.
Mr. Rogers: I would echo what Chief Judge Matchett said earlier, that some of those specialized courts can really improve outcomes for people who are struggling through a cycle of criminality.
The drug treatment court in Edmonton is one that I'm probably most familiar with. There's also a drug treatment court here in Calgary. I know that the drug treatment court in Edmonton, and Chief Judge Matchett talked about the funding issues around that, some of the funding that was provided federally was cut. Even before that reduction in funding, there was tremendous oversubscription of accused people who wanted to take advantage of the program in the drug treatment court and weren't able to.
They would do intakes from time to time, signs would go up around the Edmonton courthouse that applications were being accepted, and within 24 hours or 48 hours of the applications opening up for a new intake, applications would be closed again and there would simply be not enough resources.
As to whether that's a solution or whether it addresses court delay, it's probably a bit of a long game in terms of addressing court delay. There are a lot of resources in the immediate term that go into a drug treatment court, that would go into an Aboriginal offender court or a Gladue court, that would go into a mental health court. That investment may well be worthwhile in the long term. It may help people to get out of repeating their criminal offending. I don't think it's a short-term solution because a lot of resources have to go into it, from social work, community organizations, the judges involved in those courts. But, as Chief Judge Matchett said, these are human beings and our goal is not only to punish people for crimes, it's to rehabilitate people and protect the community from people reoffending. On that count, those specialized courts seem to be very effective.
Senator Jaffer: Thank you.
Senator McIntyre: Thank you, gentlemen, for your presentations.
Mr. Kennedy, I agree entirely with your recommendation that an amendment be made to the Code and that we eliminate preliminary hearings in the case of sexual assaults involving children. I was at your centre this morning. I spoke with your staff and I did make that recommendation. Congratulations, and I hope it will become a reality.
Mr. Chaffin and Mr. Rogers, in my home province of New Brunswick, as well as in B.C., Crown attorneys lay charges as opposed to police services. In Alberta, the opposite takes place: police services lay charges. I understand there must be a certain element of independence between police services and the Crown attorney's office, and I also understand that, in your province, there is good consultation between the two bodies. Are you satisfied with this structure presently in place?
Mr. Chaffin: From a Calgary Police perspective, yes, I'd say we are satisfied because of the intimate relationship we do have with the Crown. When we need support and advice, we will seek it out.
I think, though, what we're starting to see, as we talked about before, around this idea about delays, is the complexities of the justice system now, it's starting to surpass some of our members' ability to understand the law and the details within the law. So we find more and more often we're seeking advice and counsel before we lay charges.
Informally, we're already taking as many steps as we can to make sure we've done our due diligence, our reasonable grounds are being understood and our practices are going to be supported in court, but what you're seeing, as you saw in your jurisdiction, is it's simply becoming more and more difficult to expect a generalist to understand the significant complexities in 2016.
Mr. Rogers: We do have in this province provisions for pre-charge consultation, but you're correct that the majority of charges are police laid without prior consultation with the Crown.
There are a couple of areas in which that differs. I work in a specialized prosecutions unit where pretty much all of our files are prosecutions that involve pre-charge consultations. We have several units: economic crime, technology and Internet crime, which primarily involves prosecution of online child abuse and child pornography offences, regulatory offences and organized crime, so we do have that level of pre-charge consultation.
I believe cited in the interim report of this committee, there was a citation to a report that was done by our former assistant deputy minister Greg Lepp, who is now a judge of the provincial court. That report, which was called "Injecting a Sense of Urgency,'' talked about wanting to make some changes in the prosecution service here with respect to making it easier for police to access Crown prosecutors for pre-charge consultation on serious cases. That report came out of a case that was stayed for delay that involved sexual assault. I think that there are procedures in place to allow for pre-charge consultation in this province. As to whether they can be adjusted or changed, it's probably outside of my place to say, but we are doing that.
Senator Dagenais: My question is for Mr. Chaffin.
[Translation]
Mr. Chaffin, our goal is to find ways to reduce the length of the process. We know that having police officers in court requires a lot of overtime, since they are sometimes on vacation or on their weekly time off. If they have to attend court, which means overtime, that is extremely expensive to the police force. Some police forces, along with crown prosecutors, ask police officers to attend court during their day shifts to avoid the cost of overtime. Yet this can cause delays.
Have you experienced this in Alberta? For example, have you ever decided, together with the crown, that a police officer could only testify during a specific week or three weeks later because he was on a month-long vacation? Moreover, would that kind of situation involve overtime? I know that is the case in other provinces.
[English]
Mr. Chaffin: That's a really good question. I know Damian would probably have some thoughts, but that is one of the big complexities, in a shift work environment where an officer is working day and night and on odd shifts. It's not like the fire department where perhaps you have the same shift your whole career. It depends what unit you work in where your shift could change radically from one week to the next, and trying to schedule court out in advance and trying to find ways to avoid the extra cost, but it's also the fatigue, where an officer could work a 12-hour night shift without sleep and be asked to be in court that morning to testify in a complicated matter, and then try to drive home in the afternoon after having been up for more than 24 hours. Those are the sort of real health complexities we deal with in policing.
But they are the scheduling issues that we go through. We try very hard with the provincial courts to ensure that our schedules are out in advance, that we have structure within our collective agreements with our unions to make sure we know what kind of notice we have to give employees, but somehow lining all that up with the availability of court. That simple delay in court could mean that all gets destroyed and start over again. Try to find the next time that officer and the court might be available, and then we have a way to do things, and making sure that they're able to give the best evidence possible, that they're rested enough, that they're prepared enough, given they're working on other matters at the same time.
One of the relevant topics for policing right now is how to keep our members healthy, make sure they're doing the best they can to represent the victims and the administration of justice as well as they can, but then do it in a cost effective manner. That has been a challenge between the police and the courts for quite a while, and getting more complicated.
Senator Dagenais: Thank you.
The Chair: I just want to follow up. You say it's getting more complicated. I'm wondering if you can expand on that.
Mr. Chaffin: The collective agreement regimes with our members are more and more asking for more controls over things like this, the cost of going to court, the implications of when we start paying and the time delays, or the length of time that we have to provide them to change their shifts. Each iteration of our collective agreements, the membership get more aware that this is unhealthy to do what we're doing, and requires some respect for their own lives, their ability to manage their lives.
As the court delays start to happen, it gets very onerous to say, if we don't get this done now, in the era of perhaps this Jordan decision, that inability to show up for court or that unwillingness to be there for court or some problem to get to court may lose that case. I think that's causing complications for us all.
Trying to work with the Crown, work with the police with a complicated regime with their employees, and lining all that up is not obvious work; it takes some time.
The Chair: Has there ever been any discussion about video conferencing? The defence bar might not be supportive of that. I don't know whether it has even been discussed.
Mr. Chaffin: It's like Mr. Kennedy said: I would strongly support anything that would create that kind of efficiency. You can imagine being up for 12 or more hours and then having to drive to court, the fatigue and the exhaustion and the impairment of these people. I would love an environment where officers could rest a bit better.
The Chair: I know that argument. Three members of my family are front-line police officers, and I know the frustration they've expressed to me about cooling their heels in courts.
I had just one quick comment. We met earlier with Mr. Stooke. He's a senior officer. I'm not sure what his rank is.
Mr. Chaffin: He's a retired deputy chief.
The Chair: Retired deputy chief, and he talked about what you did, chief, with respect to the DNA problems. Has the CACP done anything with respect to that? It seems to me it's such a simple issue to resolve with pretty serious implications for the justice system and for so many victims and potential victims as well.
Senator Baker: It causes delay.
The Chair: It causes delay, but if you're waiting for a DNA and someone is out there continuing to commit crimes and his DNA is on your system, those are the kinds of challenges. It seems to me there should be real uproar about addressing this. The provinces should be more vocal about it, your organization, CACP. I'm not sure what's happening from their perspective.
Mr. Chaffin: I also sit on the board of CACP. It is a national issue. We look at countries like the United Kingdom where they're looking at five-day turnarounds for DNA, and we're well in excess. We're into the 60-plus days of turnaround.
The Chair: Shameful.
Mr. Chaffin: That's for the most serious cases as well. It's just a different business.
The DNA is handled by something called National Police Services, which falls under the auspices of the RCMP, but it's not particularly funded by the RCMP. So there are challenges around the ability to put enough funding to it to make it relevant.
The need for DNA has out-surpassed the capacity to manage all of the DNA, when you think all you can manage is serious cases, things like house break and enters or things that would otherwise be deemed less serious that impact Canadians every day, where justice is not being served because we can't get those matters to DNA because they're simply too busy.
We're having these discussions now with the senior RCMP and the National Police Services to say there has to be another way. There has to be another way where locally we can pick up more capacity for DNA.
But it's the idea of being able to link to the national databases. If you went off on your own or hired companies to do it, are you necessarily going to meet the standards of court and are you going to be able to link to that national database? That's sort of the complexities that we're dealing with. It's an old regime that we're trying to modernize, and it needs some support and some advocacy to say that there must be a better way.
The Chair: I think there should be more noise about it, and we may add our voice as well.
Senator Batters: Mr. Rogers, earlier today we were speaking to an Alberta Crown prosecutor. Today is September 28. She told us that if she were to set down a murder case for trial today in Alberta, that trial date would be set for 2018; is that correct?
Mr. Rogers: I think it depends where it was being set down.
Senator Batters: I think she was talking about in Calgary
Mr. Rogers: Certainly in some jurisdictions that would be the case.
Senator Batters: Shocking.
Mr. Rogers: I am currently prosecuting somebody involved in the theft of automated teller machines. This fellow also has a number of charges in other jurisdictions. I know that as of May of 2016, he had a trial date set for January of 2018, and that was a five-day trial in the Court of Queen's Bench in one of our smaller rural courts. So, yes, those are the kinds of lead times we're dealing with.
In the provincial court, I think the average lead time, and Chief Judge Matchett mentioned this, might be in the range of 21 or 22 weeks, but that includes many small matters that are being set for trials of an hour or two in our low complexity court that deals with those sorts of trials. The time for getting five or ten days of trial is very much longer.
Senator Batters: Yes. And now with Jordan —
The Chair: We'll have to stop there, I'm sorry.
Thank you, gentlemen. We very much appreciated your attendance and testimony.
Before we begin with the last panel, I want to mention that Senator Batters hopefully will rejoin us, but she has a difficult personal matter that just arose so she had to leave the meeting. I'm not sure how long it will take, so I just wanted to explain her absence.
For our last panel, we have joining us, from Legal Aid Alberta, Suzanne Polkosnik, President and CEO; from the Calgary Youth Justice Society, Denise Blair, Executive Director; from the Criminal Trial Lawyers Association, Graham Johnson, who is a partner with Dawson, Duckett, Shaigec & Garcia; from Calgary Legal Guidance, Margaret Keelaghan, Senior Managing Counsel; and from the Criminal Defence Lawyers Association of Alberta, Ian Savage, President. Thank you all very much for being with us today.
We'll begin with opening statements from Ms. Polkosnik. The floor is yours.
Suzanne Polkosnik, President and CEO, Legal Aid Alberta: I would like very much to thank you for having the opportunity to make submissions and to be able to provide some context from the Legal Aid perspective today. Certainly, our submissions that we did in writing cover a variety of topics, but I think for the purpose of my oral comments today, I'd like to really focus on the issue of unrepresented individuals before the courts and how that contributes to the delays that we're seeing within the system.
Legal Aid plays a significant role in providing representation to individuals, and, as a result, is a very important factor in its ability to be able to deal with that issue of unrepresented individuals.
What we're seeing is a growing number of people who are appearing before the courts that are unable to afford a lawyer in a system that is increasingly complex and unnavigable if you don't have a lawyer. Legal Aid is supposed to be positioned to help address that need. Increasingly, that is becoming a struggle, and I think it's fair to say, and I certainly don't say it with any pride, that we're failing. We're failing as a result of a variety of issues, but, most pressingly is the fact that demand continues to increase and funding does not.
We receive funding primarily from the provincial government, but a portion of our funding comes from the federal government. That federal funding has remained essentially flat since 2008. The announcement of new funding coming for Legal Aid programs, when you take a look at the dollars, the current funding formula, the number of years over which it will be spread and the amount of money that really is at stake, it translates into about an additional million dollars for Legal Aid Alberta on an annualized basis, which results in us being able to operate for an additional six days.
So while I would not in any sense say that we're not appreciative of the gesture, in actual fact it translates into very little in terms of our ability to address the issue of the increasing numbers of unrepresented individuals.
I think it's fair to say that Legal Aid in this province, and it's not exclusive to Alberta, has suffered chronic underfunding, and what that ends up resulting in is it really does serve to imperil the fairness, effectiveness and efficiency of the system overall.
What we are encountering in Alberta, both by virtue of increased population and our current economic situation, is unprecedented demand for our services. As a result, we find that we are increasingly unable to serve the needs that are before us. We know that when individuals are unrepresented, you see an increase in the number of administrative processes before the courts that take place, the phenomenon of increased adjournments, and not to speak to the fairness with which the system can operate when you don't have a balanced playing field.
Our financial eligibility guidelines, which is the primary means test by which people are either eligible or ineligible to receive Legal Aid representation, has a net income threshold of under $20,000 a year. If you earn more than $1,639 a month and $20,000 a year, you are too rich to receive Legal Aid in the Province of Alberta. We know that you would be hard pressed, at $21,000 a year in annual income, to retain a lawyer, so what you have is an increasing crisis before the courts.
Certainly, the committee has heard today about a variety of aspects that are impacting delay: the unavailability of adequate number of judges, issues associated with court availability, issues confronting the enforcement side of the equation, the prosecutorial side of the equation, that there is no question that the masses of unrepresented or under- represented have a significant impact on delay.
The Chair: I'm going to have to ask you to sum up.
Ms. Polkosnik: Absolutely. As we go through this, we have made several attempts within our Legal Aid system to try and find ways to improve how we can contribute within the means we have, but as long as the financial eligibility guidelines remain a function of the funding available as opposed to being responsive more to the needs that actually exist, those delays are going to be difficult for us to assist in addressing.
The Chair: Thank you. Ms. Blair.
Denise Blair, Executive Director, Calgary Youth Justice Society: Thank you so much for the opportunity to be a part of helping to influence positive change in our criminal justice system. We are truly honoured to be here.
Our submission will show how our work can help to reduce delays in criminal proceedings in two ways. First, an immediate and direct impact is made by diverting young people with minor charges away from court; for youth involved in the alternative, it's expedient, and less youth in court is fewer delays for those who are.
Second, a longer-term impact is made by reducing recidivism and by preventing youth from criminal involvement in the first place. What I also hope our submission will show is our belief in the potential of young people, the potential of volunteers, and what's possible when positive connections between these two are made.
For 20 years, Calgary Youth Justice Society has been supporting youth justice committees to administer a community- based alternative to court. Thousands of volunteers have supported youth and their families in their neighbourhood through a challenging time by providing resources and encouragement to turn things around. The result so far is 12,000 young people diverted from court, 12,000 young people with hope and possibility for a brighter future.
When given a second chance on a bad decision, most young people take the opportunity and run with it. Ninety per cent are successful and, at one point, a three-year follow-up found that 80 per cent had not re-entered the system on new charges.
The trend over the past eight years has been fewer referrals, but more serious offences and youth with more complex needs. In response, Calgary has a culturally specific approach for indigenous youth living inside of Calgary; a specialized committee to support youth with mental health needs; and, presently, we're exploring how to improve the experience for immigrant youth and families who face unique challenges when encountering our justice system for the first time.
On the prevention side of things, a new program called "In the Lead" builds resilience in young people vulnerable for risk-taking behaviour that can lead to criminal activity. This unique approach sees strengths and possibility in young people where others see deficits and risk: a focus on what's strong and not wrong.
With mentorship from volunteers within Calgary's corporate community, youth participants transform their view of themselves, their communities and their futures. Over five years of evaluation, participants consistently demonstrate significant improvements in their overall resilience and are less likely to engage in risk-taking activities.
When given the right supports and opportunities, all young people can and do change. Prevention, diversion and restorative justice play a significant role in the administration of justice and, even more important, in the lives of youth and community.
To support this important work, a few questions may be worth considering. How can the value of this important work be more known and supported? How can we enable caring volunteers to extend their reach to better meet the needs of youth during and following their involvement in the justice system?
In my written response I told the story of a mother who challenged us to do more. Her daughter successfully completed the sanctions program, but later tragically lost her life to an overdose. Her mother said that, once the program to deal with the offence was over, so was the support from the community. She reminded me that her daughter was a part of our success rate. I wonder what could have happened if the community was able to stay connected.
How can this system better respond to and support youth with special needs, such as mental health and immigrant youth and their families? While maintaining equality, how can a focus on equity help to ensure that every youth has what they need to be successful? Last, how can systemic changes make an immediate impact on reducing the number of youth in court?
Encouraging pre-charge referrals over post-charge referrals to the sanctions program can eliminate two court appearances per young person. In Calgary alone, this would equal 600 court visits each year. Also, could citizen involvement be encouraged to divert young people from court in other ways? Is this valuable volunteer resource being fully utilized throughout the system and throughout Canada?
In conclusion, an indigenous elder once told me, "Denise, programs and systems don't change people; relationships change people.'' When addressing lengthy court delays, it's important notajust to look inward for the solution, but it's also important to look outward. It works when we engage community volunteers and partnerships to connect with youth in positive ways with a focus on strengths, possibility and healing. Government can lead the way by encouraging and resourcing and enabling citizens to continue and grow their involvement as an integral part of the solution.
I would also like to add that Calgary Youth Justice Society offers our assistance if we can be of any help going forward with the next steps for the Senate committee.
The Chair: Thank you. Mr. Savage.
Ian Savage, President, Criminal Defence Lawyers Association of Alberta: Thank you. Just to clarify, I represent the Calgary-based Defence Lawyers Association. Mr. Johnson is here on behalf of the Edmonton-based association, but for many years the two associations have been working together on a provincial basis to advocate for various issues, and most laterally in the last few years for Legal Aid. We've been working closely with Suzanne here to lobby both the previous provincial government and the current provincial government. We've had marginally more success with the current provincial government than the previous, but it's still slow going, and we continue to lobby in those efforts.
We recognize that the provincial funding is by far the lion's share for the Legal Aid plan, but we do endorse Legal Aid Alberta's submissions here that federal funding simply has to increase if there's going to be any hope of reducing unrepresented numbers of accused in the Alberta court system.
There are a couple of positives I can tell you about in Alberta. Most defence lawyers probably won't like me saying this, but the electronic disclosure initiative by Alberta Justice, which you may have already heard about earlier this morning — I don't want to repeat anything that's already been mentioned — will inherently or obviously reduce front- end delay in the system. It's just going to help.
Another point I'd like to strongly emphasize is that for hundreds of years our court system has been premised on personal appearance: personal appearance by an accused person, by their lawyer, by a Crown attorney, and by witnesses in court at almost every step, certainly, during the adjudicative or trial stage; and, unfortunately, in our technological age, that's an arcane concept that we need to address by amendment to the Criminal Code to permit, at a minimum, defence counsel to be able to appear electronically on routine appearances.
We don't need, at this point, to get into the more complex issue of witnesses appearing remotely, but they already do. That's already permitted for expert witnesses, and I heard members of the previous session address you on child witnesses or police officers being permitted to attend or testify remotely. If we're going to go that step, which I think is probably inevitable, frankly, then certainly at the front end routine appearances must be permitted to be made electronically. That's going to reduce a significant amount of delay.
The only other preliminary point I'll mention, again, you may have already heard about Alberta's undertaking on bail review, and that's an ongoing process here in Alberta, but understand, as I'm sure you all do, that the issue of bail and bail procedures, and the availability of bail, links directly into the issue of overcrowding in remand and correctional centres, which in turn leads directly into the effects of those two systems, the bail system and the remand system on disadvantaged and Aboriginal and other racially affected groups. So that's a complicated issue, but it's an issue that needs to be addressed. Thank you.
The Chair: Thank you. Mr. Johnson.
Graham Johnson, Partner, Dawson, Duckett, Shaigec & Garcia, Criminal Trial Lawyers Association: What I hope the committee takes away from our presentation is that, in order for the justice system to function fairly, properly and efficiently, the system depends on flexibility.
There are an infinite number of fact scenarios that can come before the court. Victims, witnesses and accused have an infinite combination of individualized factors that bring them before the court, and the system needs to be as flexible as possible to address that; and, recently, there has been a trend away from flexibility towards rigidity in the system. There has been an increase in the number of mandatory minimum sentences. There have been restrictions on the use of valuable sentencing tools like conditional sentence orders, and it can make it very difficult to settle a case that often should be settled if someone knows they're looking at a mandatory minimum. Mandatory minimums can capture conduct you might not necessarily think, if you're not practicing on the front lines, that it's going to capture.
For example, one of the most dated files in my practice right now involves an incident that occurred with an 18-year- old Aboriginal charged with sexual assault with a weapon on a person under the age of 16. That attracts a five-year penalty. When most people hear that offence, they're thinking of something like the full-blown rape of a child at knifepoint, or something like that, and most people would probably not have a problem with a five-year minimum for that type of conduct.
But what's alleged to have happened here is an 18-year-old, with no prior record, was briefly left alone with about a 10-year-old girl, and she claims that he had a rock in his hand and said, "Don't move or I'm going to hit you with this rock.'' He then slides his hand down her pants but on top of her underwear, and she does move and runs away. If he had said, "I'm going to hit you with my fist unless you don't move,'' he wouldn't have been caught by the mandatory minimum. He might have been looking at six months, nine months, a year in jail for the offence. But because he's alleged to have done it with a rock, it fits the definition of a weapon in the Criminal Code, and it attracts the five-year minimum.
It's making it virtually impossible to settle this case in advance of trial, which I'm sure should be settled. This young girl I'm sure doesn't want to testify, a relatively unsophisticated 18-year-old Aboriginal probably does not want to testify, but looking at a five-year minimum, it's the type of case that proceeds to trial.
Briefly, I would endorse everything Suzanne said about Legal Aid funding. In Alberta, things got so bad about a year and a half ago that repeatedly we were seeing applications called Rowbotham applications, applications for court- appointed counsel on behalf of people who, in many cases, were below the poverty line but didn't make Legal Aid's financial eligibility guidelines.
In Edmonton and Calgary there was a dedicated court dealing just with these applications. Judges and prosecutors were doing what used to be the function of Legal Aid officers: "How serious is the offence? How much money do you make? What are your expenses?'' This was all being litigated in open court. It was horribly inefficient and, again, unless there's a serious injection of Legal Aid funding, that's the type of problem that's going to continue. Thank you.
The Chair: Thank you. Ms. Keelaghan.
Margaret Keelaghan, Senior Managing Counsel, Calgary Legal Guidance: Thank you, senators. I appreciate the opportunity to be able to address this panel on behalf of Calgary Legal Guidance. I'm not going to repeat anything that was said, but I will say that I endorse Suzanne's comments, as well as the comments of my friends Mr. Johnson and Mr. Savage.
My background is a criminal defence lawyer, but I work now for a non-profit organization. We provide a variety of legal services to socially and economically disadvantaged Calgarians.
I'm going to try to restrict my comments today to issues that are relevant to those who are in the criminal justice system who are dealing with issues of poverty and marginalization.
I'm going to briefly echo the comments that Mr. Johnson made in relation to pretrial custody because, in my submission, it's a very serious issue that we're dealing with, particularly in Alberta. I know that this panel has seen the statistics, but I'm going to briefly reiterate them. The rates of accused persons held in pretrial custody has tripled in the last 30 years, and the proportionate rates of sentenced offenders relative to accused being held in remand has reversed in the last decade.
What we're seeing now is prosecutors very frequently asking for detention of accused persons with previous criminal records. These are often disadvantaged individuals, and there's no uniformity in policy in the exercise of discretion as to whether to seek detention, and bail revocation provisions are very regularly used in Alberta courts by Crown prosecutors.
This results in these very large numbers of accused persons who are detained in pretrial custody. We're seeing a real push for those detained accused who are vying for the earliest available trial dates, and leaving those that are on judicial interim release to wait longer and longer periods of time for their trials.
The other impact that we see with respect to these high numbers of remanded prisoners is an increase in guilty pleas, so that accused persons can clear their matters and basically get out of jail. That might sound like an appropriate or a good positive outcome, but what's happening is the detained accused persons are pleading guilty in situations where there may be a valid and viable defence, where there might be constitutional and Charter breaches, or there might be in fact insufficient evidence to secure a conviction.
So this results in a vicious cycle of accused people who are getting longer and longer criminal records, so that the next time they're in custody they have less and less opportunity to obtain judicial interim release. That creates, as you've heard, a huge amount of pressure on the system, and that results in delay.
This is particularly true of indigenous offenders. Alberta has one of the highest rates of incarceration of indigenous offenders and, really, the lowest level of services for them.
Calgary Legal Guidance is very much in support of the use of increased bail supervision programs such as John Howard Society provides in a number of different jurisdictions in order to reduce the number of remanded prisoners.
Our written submissions address some of the issues in relation to sentenced offenders. I echo again the submissions of Mr. Johnson in relation to the increasing restriction on alternative sentencing. We very much support a rollback of some of the amendments that came into force in 2007 and 2012 that restrict the use of conditional sentences.
Conditional sentences are an alternative to incarceration that have been proven to be very effective, that reduce recidivism and, again, if we have fewer people coming into the criminal justice system, we have fewer delays. We very much support the rollback of some of those amendments, as well as the amendments in relation to mandatory minimums.
Again, I agree with my friend Mr. Johnson in relation to the effect that those types of restrictive sentencing provisions have on the criminal justice system in terms of delay. We do see, anecdotally, many more accused persons setting matters for trial because there is no incentive to resolve their matters when there's no availability of alternatives such as conditional sentences or they're facing those very high mandatory minimums.
The Chair: I have to ask you to wrap up.
Ms. Keelaghan: Thank you. In relation to self-represented accused, I briefly address in my written submissions some innovative provisions that are being applied in Calgary. Calgary Legal Guidance has been involved in the trial confirmation project, which is a voluntary project that's run by pro bono lawyers and students, which provides assistance to unrepresented accused to help them resolve their matters before they come to trial. This has resulted in a very significantly reduced collapse rate on trial days.
In my written submissions I also address our support of increased diversion programs and community courts as a way to reduce recidivism.
Thank you, sir.
The Chair: Thank you. We'll begin questions with the deputy chair, Senator Baker.
Senator Baker: Thank you to all of the witnesses for your on-the-record presentations that will be used in the consideration of our report, which the government has to respond to within a certain period of time.
My one question, which is all I would have time for, is highlighted by the fact that the Chief Justice of the Superior Court was here earlier, and he mentioned, and he said it's in his presentation, which I had not read to that point, but I had brought up a number of cases, and one recently September 1 here in Alberta, which was thrown out under an 11(b) Charter argument, and the Chief Justice highlighted one of the sentences of the trial judge.
But I was thinking about a different sentence of the trial judge, which the trial judge said, that McNeil disclosure — and you know as defence lawyers what McNeil disclosure is — there is, the trial judge said, a culture of complacency in the province of Alberta in this disclosure.
My general question to you is this: Since disclosure appears to be one of the major problems for trial delay in Canada, one of the major reasons is disclosure, what is wrong with demanding — and I know there are arguments against it — that all disclosure that is intended to be used at trial be disclosed at an early time prior to trial, prior to even the demands on you to present Charter arguments, pretrial, you have all the evidence disclosed.
In other words, the police will get to work immediately, immediately when the charge is laid, and provide the disclosure, including the unsealing of warrants, of a 186 warrant, all of which has to be disclosed anyway, but you have to bring out an application to the court to do it.
Is there anything wrong with recommending that disclosure must be provided prior to trial, and the only exception is, is that if it is provided during trial, the Crown has got to prove that it wasn't available prior to trial and that they used due diligence in trying to get it. Is there anything wrong with making that suggestion, any of you criminal defence lawyers?
Mr. Savage: I'll address that.
No, there's nothing wrong with doing that. The general disclosure obligation exists. The issue is the delay in getting it, and as well, the fact that on bigger cases it will trickle in up to and including and, unfortunately, during the middle of trial.
Defence lawyers would very much be in favour of the concept you advocated or mentioned a moment ago about how, if the Crown intends to rely upon pieces of evidence at trial, it must be disclosed by a certain point in time, and to justify any attempt to use it past that date.
Mr. Johnson: I would agree with that. The theory behind the Supreme Court's decision in Stinchcombe, which allowed for disclosure, is you're supposed to have complete disclosure before plea. That's the theory. It doesn't always work out in reality.
Sometimes these problems can be handled by judges doing case management, pretrial conferences; but, increasingly, if you have judges who may be appointed without having much criminal law experience, they don't necessarily know the right questions to ask, if they're presiding over an arraignment court or something like that, that can catch these problems at an early stage so you don't have something go off the rails at trial because of a disclosure problem.
Mr. Savage: If I can just add one sentence: That is the flaw in the disclosure process right now. There is no offence to Crown prosecutors, but there is no direct impact upon the Crown or the police if disclosure is made a day before or on the day of trial. The defence gets an adjournment and that adjournment gets counted against the Crown, so to speak. But in provincial court, in Alberta at least, my experience is, you're going to get your trial within 18 months, you're not going to run afoul of the Jordan restrictions, so there's not going to be stays there.
You might run into problems in Queen's Bench because of our judicial appointment lag that you've heard about already, with murder trials or other trials being set into 2018. That's where you're going to have the problem, Queen's Bench on complex cases; but right now, there's no stick over the Crown and or the police for delays in disclosure, and I endorse what you are suggesting.
Senator McIntyre: Thank you all for your presentations and for being here today.
I'm sure you've all heard about the Hub model in Prince Albert, and as a matter of fact, in its report dated August of this year, the committee referred to the model. As you know, the model brings together an integrated multi-agency team that focuses on crime prevention by putting together health, social services, police services, educational organizations and other services in one location.
Are you aware if Hub models are used by some communities in your province and, if so, could you explain how the community can benefit from such an approach? Ms. Blair, would you care to go first?
Ms. Blair: I don't know. I don't have an answer to that. I'm not aware.
Ms. Keelaghan: I could perhaps address that, senator. I'm not aware of a Hub model that's similar to what they have in Prince Albert in Alberta.
Again, in my written submissions, we talk about our support for community courts. I have counsel in my office who is involved in a study of community courts throughout Canada and the United States. They've got similar models in the United States, and we're certainly advocating for that here in Alberta, where people that are charged with low-level offences and traffic offences are able to come to court, and it's very much a neighbourhood court or a community court, where they have access to a number of different services that will address issues like addictions or mental health issues. It's almost like a one-stop shopping, but they're also able to address their low-level criminal issues and traffic issues. That has the effect again with respect to delay of clearing charges out of the system. But as I say, I'm not aware of a similar model to the Hub model in Alberta.
Ms. Polkosnik: Nor am I, but I can say that, through Legal Aid, we do something, a far cry from a Hub model, but does try to marry together defence work with something that might be more considered social work.
Within our criminal youth defence offices, we have youth workers that work in conjunction with our lawyers and our clients to help address some of the adjunct issues that may be facing individuals, that may not be strictly legal in nature but do impact the legal outcomes.
You will have a social worker working in combination with a lawyer, helping coordinate all the services that a youth might be in receipt of through other systems, including Child Welfare, including the educational system, including various health providers, addictions counselling as they may be receiving, in an attempt to bring all of those supports together to provide some kind of coordinated approach.
But that is done exclusively in our Edmonton and Calgary offices. It's done exclusively in respect of representation of youth and only within our staff offices, and hasn't been extended more broadly. That's as close to a Hub-type approach as we've been able to approximate within Legal Aid.
Senator McIntyre: Okay.
The Chair: I think I should mention that the committee did visit the community court earlier today. We were all very impressed with the operation, but there is some question about its impact on court delays.
Senator Jaffer: Ever since this study started — I'm looking at you, Mr. Savage and Mr. Johnson, and also you, Ms. Polkosnik — it's all your fault. Everywhere we heard, it's all defence counsel's fault. All day today we've heard that, it's all your fault, and having been defence counsel myself, every time I hear it, it makes me cringe.
Let me tell you, and it's no news to you — I'll start with you, as CEO of Legal Aid — even today, we heard that Legal Aid counsel want to have their half-day in court because they only get a hundred dollars if they do bail and sentencing. You know what I'm saying — the chair will give me only limited time — and I'm just wondering, having done Legal Aid and knowing what Legal Aid is, I know that you don't sit up at night asking, how am I going to bill Legal Aid more, how am I going to extend this case? Where I'm coming from is, isn't there a way that you can sit with defence counsel — I know your money is limited — and work out a better way of compensating defence counsel so that we get over that hurdle and see how we can work more efficiently, rather than this idea that defence counsel is billing and that's why there are the delays. I'm sure you've heard this before; this is not news to you.
Ms. Polkosnik: Certainly, although the perspective that Legal Aid takes is not that this is a problem created by defence counsel. We are acutely aware that the system, at least in Alberta, is, not exclusively but in no small part, borne on the backs of our defence counsel, who are constantly caused, through our billing regime, because of its tremendous restrictions, to supplant with their own volunteerism the inadequacy of our ability to pay. So while there are issues associated with certain kinds of billing codes, if you will, for certain perfunctory type pieces of work, I would say generally there is no issue with respect to Legal Aid taking the position that we are overcompensating or being inappropriately billed for the work of defence counsel.
Senator Jaffer: No, I'm not even for a minute worried about that. That's not my concern. It's just this perception that one of the reasons, not the only reason, is that defence counsel is in this practice of coming to court, and every time you come to court — I'm not trying to be flippant, I'm just saying — you get a hundred dollars, and so it becomes sort of like machinery. Truthfully, I find that offensive, but also that's just not true.
Ms. Polkosnik: I'm sorry; I misunderstood. Under our tariff and our roles, that actually is not a kind of expense that is permitted. We watch very carefully the cause for adjournments. If this is a defence-motivated practice, it's not payable under our tariff.
Senator Jaffer: Thanks.
Mr. Savage and Mr. Johnson, yesterday, when we were in Vancouver, we heard something that I've known forever — I'm almost at the end of my career — that lawyers do not have, like doctors do, the idea of training younger lawyers, not as much as doctors do, or so I've always thought.
You both are very committed. You are here on a voluntary basis today. What do you think we should have in place to strengthen the one stakeholder that does not get state money for education, does all their education on their own, does a lot of volunteer work if they are doing Legal Aid because it's not properly compensated, what do you two think we can do to help with court delays to strengthen the bar?
Mr. Savage: If you're talking about internal education systems, frankly, technology has been our greatest ally. We now have, and most defence lawyer associations do have, an internal list server that members can join and get free education from their fellows through email every day, frankly speaking.
In terms of attending educational sessions around the country, I attend many of them. It is expensive to travel to different locations. If there was a tax credit of some sort for self-employed lawyers, professionals attending sessions like that, that would be of assistance as well. But with technology, frankly, I think the ability of junior lawyers to receive help and training has increased drastically.
Senator Jaffer: Yesterday we heard from the trial lawyers from B.C. that we don't get enough young lawyers going into court, and there's no better experience than a senior lawyer taking a junior lawyer to court, and that's what's lacking to build up a stronger bar.
Mr. Savage: In my 29 years in the bar, it is extremely difficult for junior lawyers to get an articling position if their interest is criminal law and criminal defence law, it's just difficult because it's a private system. Most defence lawyers don't make a lot of money and therefore don't have the ability to take on that added financial benefit.
The Law Societies are becoming more flexible, allowing articling students to share time amongst various principals throughout the bar, and that is helping somewhat.
[Translation]
Senator Dagenais: My question is for Ms. Polkosnik. Since this morning, we have talked a great deal about children. We visited the Sheldon Kennedy Centre. I would remind you that on July 23, 2015, Mr. Harper's government proclaimed the Canadian Victims Bill of Rights, which gives victims the right to information, protection, and participation in the judiciary process. They are also entitled to damages.
Are victims well enough informed about the criminal justice system, the role they can play in it, the services and programs to which they are entitled, and the complaints they can file should one of their rights under the Canadian Charter of Rights and Freedoms be violated? To your knowledge, is there someone here in Alberta who informs victims of their rights? Does it vary from province to province?
[English]
Ms. Polkosnik: Certainly with respect to children, one of the comments made in the previous panel's submissions is how frequently victims and accused ultimately become one and the same, and that those who have been victimized often become offenders. Certainly, we see within our youth population that Legal Aid serves, that's very much the case.
I can say that Legal Aid is focused almost exclusively, because of its mandate, on the representation of those who are accused. It isn't an organization that has a mandate to deal with the victim side of the equation.
Having said that, within our programs, and it is true within our youth criminal defence office, as well as our family law office, where we also have the provision of the social workers, that they are often dealing with victim issues because they so closely track those who have the same issues that the offenders themselves or accused are facing.
So it is something that we deal with, but we deal with very much from the perspective of the accused despite the fact that they may have, at some point, been victims themselves. It isn't something that, from a Legal Aid perspective, we're directly engaged in.
[Translation]
Senator Dagenais: Thank you.
Do you have any comments, Mr. Savage?
[English]
Mr. Savage: All the Crown agencies, the offices in Alberta that I'm aware of — the major ones at least; I'm not sure about the smaller locations — have a victim services unit, have had for many years, that has responsibility and an ability to liaise victims with various agencies throughout the community. I don't have any personal knowledge of that. I'm a defence lawyer, not a prosecutor, but that's been in existence in Alberta for decades.
Mr. Johnson: If I could just add, certainly what Mr. Savage said is correct. There are victim services, in my experience. It will even be noted on the file. A police officer will ask at the very front end if the victim wants victim services support and follow-up, and that's noted right in the disclosure that comes to defence lawyers.
As to whether victims are being fully informed of what's going on in the case, sometimes not as well as they should be, because the system right now, in terms of restrictions on sentencing tools and mandatory minimums, is so inflexible that sometimes we have to work around the system. Sometimes there are deals done between prosecutors and defence lawyers, for example, to reduce a charge so that someone will not be caught by the mandatory minimum, because the prosecutor agrees it would be unjust.
We go into court, and the victim is probably wondering why a reduced charge is being taken here. Instead of the victim being able to sit in court and hear representations of both sides and understand why a judge might decide whether a particular sentence is or is not appropriate, it's being done in private negotiations between Crown and defence because the system is so inflexible right now.
Senator Dagenais: Thank you.
The Chair: My question is in keeping with the "it's all your fault'' theme.
Ms. Keelaghan mentioned an increased numbers of folks being detained in pretrial custody. Is there any relationship that you see there, and this is really for the defence bar, from the impact of pretrial credits on delay and that overcrowding issue?
Ms. Keelaghan: It's funny you should ask that. I was thinking about that over the weekend. Initially, when the amendments were made to the Criminal Code to restrict the amount of pretrial custody that could be credited to an accused person who had been detained in remand, I understood that one of the reasons for that was because the perception was that accused people were sitting in remand letting their time build up so they could get double or triple credit.
But when you look at those statistics, you'll see that, since that amendment came into force and effect, the remand rates have continued to increase and, in fact, have continued to increase at a significant rate. If that was what that provision was designed to address, it failed.
When I was in private practice, I cannot tell you about any cases where clients have said to me, "Let me wait in the remand centre, where I'm triple-bunked, where there are no programs available to me, so that I can just run up a little bit more time and then plead guilty.'' It was nonsensical.
The Chair: Assuming you all share that view.
I have a couple of other quick questions. The increase in charges or overcharging, we saw some news stories out of Ontario recently with respect to significant numbers of stays. The author of that article was attributing a lot of that to overcharging by police, police discretion, and attributed to a concern about plea bargaining, or whatever the reasons may be, risk aversion, we don't really know. Are you seeing any of that in Alberta? Is that a problem? You have systems similar to Ontario's in terms of the laying of charges.
Mr. Johnson: Yes, I would find that it's a problem. Part of it is because there have been a number of amendments to the Criminal Code to create very specific offences for things that were already caught by more general provisions.
For example, possession of stolen property has always been a crime. Recently, it's been specified that possession of stolen identity documents are a separate offence, or motor vehicles or whatever.
What you'll see is, whereas previously someone in a vehicle with a bunch of identity documents might have been charged with possession of stolen property under $5,000, they're now charged with 35 counts of possession of stolen identity documents, one count for each stolen credit card or identity document that's found in the vehicle.
It's much more cumbersome for the Crown to prove. They have to introduce each one of these things one by one if it goes to trial. It's much more inefficient. It was, in my view, largely unnecessary, because the same conduct was already caught by the general provision of just possession of stolen property.
The Chair: Senator Baker was pointing out to me earlier, and he can clarify, that the violent crime charges, the property crime charges have dropped dramatically in Ontario.
Senator Baker: Ontario has the lowest violence crime rate in Canada, per capita.
The Chair: I want to get your reaction very quickly. We had testimony and we heard it at the Sheldon Kennedy Centre and also from Mr. Kennedy himself with respect to the usefulness of preliminary inquiries. He obviously feels very strongly about doing away with preliminaries with respect to child abuse cases. I'm just wondering what your reaction is to that as a proposal? You all can comment.
Mr. Savage: That's a very difficult topic. The system is premised on a zealous defence and an ethical defence for any accused person. We obviously play an essential role in the system, just like the judge and the prosecutor and the police do. A lot of people have trouble with that, but it's the basis of our modern criminal justice system, and I'm not afraid to defend it.
As part of that role, cross-examining child witnesses is part of our job, and as long as those offences are on the books and are charged, you're going to inevitably have to have defence lawyers cross-examining children. That's the nature of the game.
The Chair: No one's questioning that, but we're talking about preliminaries.
Mr. Savage: I understand that. With respect to preliminary inquiries, I'm still going to defend preliminary inquiries because they still serve a useful purpose. It helps both the Crown and the defence isolate the true issues and will end up still saving time and reducing delays by preventing unnecessary cases from going to trial. A three-day prelim is better than a three-week trial.
Mr. Johnson: I would agree with that. In addition, I would also say that, often when you're dealing with child witnesses, they give statements to police officers that are quite vague. The police are sitting down and saying, "Something happened to you. Can you tell us what happened?'' It's not always totally clear what specifically the child is alleging.
For example, in the area of sexual assault, there's a big difference between what our courts in Alberta term a major sexual assault, which would be something involving penetration of some sort, versus sexual touching, touching over the clothes or something like that, and sometimes it can be thought by both the prosecutor and the defence lawyer that a child might be suggesting it's a full penetration sexual assault that's occurred.
You have a preliminary inquiry; you ask a few questions of the child; you can clarify that that's not what the child is alleging. Often that can then facilitate settlement of the case in advance of trial. In my view, they serve a very useful purpose.
The Chair: I'd like to pursue this issue further. I'm sure we will have further hearings. We don't have time today. We have time for one quick final question from Senator Baker.
Senator Baker: On the subject of the judges who take charge of a trial, all the pretrial arguments and all the dates and so on, when you look at the rules of court, say, civil rules of court or the federal rules of court, you see mechanisms there to relieve the judge of a lot of these responsibilities. In the federal court system, we have what are called prothonotaries, and if a Charter argument comes they hear it; even interlocutory matters, they make decisions. These decisions are appealable.
During our meeting with some judges we asked the question, and the federal court judges said this they believed could be used, it could be borrowed into the criminal justice system. In civil matters you have settlement conferences and so on that are useful to determine a trial like that, make final determinations.
Do you have any opinion at all on whether or not we could borrow the concept of prothonotaries hearing these pretrial arguments, Charter arguments, whatever, to relieve the assigned judge of that responsibility, or any other procedure in civil proceedings that could assist in relieving the judge of long trials?
Mr. Savage: That procedure already exists in the Criminal Code with respect to mega-trials, so what you're proposing is potentially extending it to more trials, or all trials perhaps. I don't have any objection in theory to that process, as long as, of course, the decision made by the preliminary judge, if I could put it that way, the initial judge —
Senator Baker: Who's not a judge at all, but a lawyer with great experience like yourself.
Mr. Savage: Certainly. Thank you for the career move. In any event, as long as those decisions are eventually appealable —
Senator Baker: To the trial judge.
Mr. Savage: — to an appeal court.
Senator Baker: To the trial judge. You can't have an interlocutory matter —
Mr. Savage: You'd have to wait till the end of the trial to appeal it to the appeal court.
Senator Baker: Yes, that would be the downside of it. Do you agree?
Mr. Johnson: I can see it perhaps creating more problems than it's worth.
Senator Baker: Really.
Mr. Johnson: In the sense that you're caught in a whole new regime of policies and procedures, and things that need to be filed in advance, and if argued, if you don't like the decision, you might have to wait until the end of the trial and you're not appealing the trial —
Senator Baker: You've got to wait until the end of the trial anyway. You can't appeal it during the trial to the trial judge.
Mr. Johnson: No, you can't.
Senator Baker: You've got to wait, so your point doesn't hold up.
Mr. Johnson: My view, though, is that, to the extent that that procedure already exists for mega-trials, I can see some benefit to it, but having extra rules and policies and procedures that need to be followed sometimes creates more delay than they are designed to solve; and rather than having complicated procedures and rules, often the most effective way of settling a case is a pretrial conference with an experienced judge who can sit down and, "Crown, what's the essence of your case? Defence?'' and say, "Here's how I see this. Defence, your position is not sounding very strong to me. You might want to rethink it,'' or "Crown, I'm seeing some weaknesses here. Maybe you should go back and rethink this.'' Often those kinds of conferences can be very, very effective at facilitating settlement, with a fraction of the time that might be spent on interlocutory applications before these officials.
I would suggest that common sense prevail and what's better is case management conferences, pretrial conferences with experienced judges who can get to the essence of a case very quickly.
The Chair: It's a good thing we're at the end of our time. I think you're waving a red flag there.
Thank you all for being here and giving up your time to assist us in our deliberations. We very much appreciate it.
(The committee adjourned.)