Proceedings of the Standing Senate Committee on
Legal and Constitutional Affairs
Issue No. 13 - Evidence - October 20, 2016
OTTAWA, Thursday, October 20, 2016
The Standing Senate Committee on Legal and Constitutional Affairs met this day at 10:45 a.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 morning. Welcome, colleagues and invited guests. This is our twenty-fourth meeting on the study on court delays.
With us today via video conference is William MacKay, Deputy Minister, Department of Justice for the Government of Nunavut.
Mr. MacKay, we thank you very much for your attendance, testimony and for your patience due to technical problems we have been unable to resolve. Sir, you now have the floor for an opening statement.
William MacKay, Deputy Minister, Department of Justice, Government of Nunavut: Good morning, Mr. Chair and senators. I'm appearing by invitation on behalf of the Minister of Justice here in Nunavut, Keith Peterson. He sends his regrets, and I'm appearing on his behalf.
I'd like to thank the committee for allowing me to speak to you today on delays in the criminal justice system. We in Nunavut are very interested in seeing the results of the committee's work, which focuses on many issues of importance to Nunavummiut.
I will focus in these opening comments on four issues: court delays, judicial appointments, legal aid and restorative justice. Of course, I'm prepared to answer questions from the committee on any areas of interest to you.
I am turning first to court delays. As Nunavut's Deputy Minister of Justice, Mr. Chair, I understand the importance of having a criminal justice system that is both fair and efficient. Delays affecting the fairness and efficacy of the justice system are a national concern, and that's no different in Nunavut, but these can also have regional and local causes requiring solutions unique to each province and territory and the communities they serve. This is certainly the case in Nunavut.
With the Supreme Court case of R. v. Jordan, the spotlight has been turned even brighter on trial delays. Of course, in Nunavut this is no exception. There are trial delays — some court cases take several years to resolve — but for the most part, this isn't where our main focus lies.
Overall, Nunavut currently has one of the shortest times for processing criminal cases in Canada. According to Statistics Canada, the median processing time for cases in Nunavut is 71 days, and that's from 2013-14.
That being said, however, there are also ongoing challenges and threats to these efficiencies, and some of these are unique to Nunavut and related to providing justice in remote, northern Inuit communities, while other challenges are shared with the provinces and territories.
I'd like to turn now, Mr. Chair, to the topic of judicial appointments.
For the Government of Nunavut, our main concern respecting delays in the criminal justice system is the ongoing shortage of judges and deputy judges with the Nunavut Court of Justice. As senators may or may not be aware, the Nunavut judicial system is a unified court, and it's appointed federally, so we are reliant on timeliness in the federal appointment process to ensure that both judges and deputy judges are appointed and assigned to work in Nunavut.
As the Standing Senate Committee on Legal and Constitutional Affairs stated in its interim report Delaying Justice is Denying Justice, our justice system can function efficiently only when there are enough judges to handle criminal proceedings in a timely manner. A more expeditious and effective appointment system is needed urgently to address this situation.
Mr. Chair, this is certainly true for Nunavut. Out of six resident judicial positions, Nunavut has two vacancies currently. That's 25 per cent of our judicial complement.
Additionally, the list of deputy judges has been cut almost in half — from 92 to 45 — in recent years through attrition and without new appointments. Mr. Chair, deputy judges are sorely needed as well in the territory. These are judges that are non-resident but are prepared to use their own vacation time to come to Nunavut to serve as judges in our circuit courts. That's an important part of justice that the federal government needs to address as well.
The lack of judicial resources impacts court scheduling. As I mentioned before, Nunavut relies on a circuit court. It holds circuits in 24 communities that are accessible only by airplane. The communities range in size from 130 to 2,500 residents, but each community requires court services and is visited by a court circuit approximately one to five times per year. This circuit is continually running through communities.
In 2016, due to a shortage of judges, two Superior Court circuits had to be canceled, delaying matters in those communities for several months until the next scheduled circuit. Ongoing judicial shortages could result in similar occurrences.
Since judges are only federally appointed in Nunavut, we support the standing committee's recommendation for the Government of Canada to ensure that the necessary judicial appointments are made as expeditiously as possible. Again, I would note, Mr. Chair and senators, that this of course applies primarily to the two resident judges in Nunavut but also to ensuring that there is a sufficient complement of deputy judges from other courts that are available to serve in Nunavut.
I'd like to turn now to the topic of legal aid, which is also very important to Nunavut to ensure timeliness of access to judges and timeliness of trials. It's crucial to fairness and efficiency for criminal justice in Nunavut.
Nunavut continues to have the highest rate of crime in Canada, in particular violent crime. Violent crime in Nunavut is almost three times the national average, and, even more concerning, domestic violence in Nunavut is 11 times the national average. Because of the lack of legal resources in Nunavut and the lack of personal resources of these offenders, all of these offenders require legal aid services. Those are very costly to deliver in Nunavut.
Because of this, the Government of Nunavut has invested significantly in legal aid in recent years. Our budget for legal aid services has more than doubled since 2006, from $5 million to $11 million. Federal legal aid contributions during that same period have not increased. The result is that Nunavut now has the lowest percentage of federal assistance for legal aid as a proportion of actual legal costs.
In Nunavut now, of the $11 million that we allocate for legal aid, 19 per cent is provided through an access-to-justice agreement with the federal government.
That being said, Mr. Chair and senators, we are encouraged by the Government of Canada's commitment to increase legal aid. They've made a public commitment to increase legal aid over the next five years nationally by over $30 million. We anticipate that this new funding will bridge the gap between territorial and federal contributions to legal aid in Nunavut.
Nevertheless, our territorial government's goal for this cost-sharing program is equal territorial and federal funding. Again, Mr. Chair and senators, I would reiterate that that was the original formula and objective agreed to by provinces, territories and the federal government, at least nominally, for the federal government to contribute about 50 per cent to legal aid in provinces and territories. That continues to be our goal for legal aid. We think legal aid is an important part of ensuring, at least in Nunavut, that there is real, fair access to justice.
Finally, I'd like to turn to the topic of restorative justice. As you are aware, Nunavut is 85 per cent Inuit. Its extended population is probably 95 to 98 per cent Inuit. As a result, restorative justice for Nunavut is an important component of ensuring that we're able to reduce crime rates and address the root causes of crime. I'd also add that restorative justice reflects Inuit culture, which is focused on healing and reconciliation.
Restorative justice and alternative court models present great potential for Nunavut to address recidivism and reduce stress on the criminal justice system. The Nunavut Department of Justice provides support to restorative justice programs in Nunavut through our Community Justice Division. Certain cases may be diverted by police or prosecutors, pre- or post-charge, to local Community Justice Committees in each of Nunavut's communities. So all of the 26 communities in Nunavut have established a community justice committee. These committees meet with the offender, victims and members of the community to try to heal relationships damaged by criminal behaviour.
The committees also help offenders reintegrate into their community after incarceration, through community-based counselling and guidance, in which all community members are invited to be involved. The goal, again, Mr. Chair and senators, is to ensure effective reintegration of offenders into the community.
These justice programs allow for greater participation and input from Inuit and can be informed by traditional Inuit values on justice and rehabilitation. It's important that the justice system, as I'm sure all the senators on the committee have heard from different witnesses, should be reflective of the population it serves, and this is especially true of the indigenous population in Canada, which, as we all know, has a higher rate of contact with police, a higher rate of incarceration and a higher rate of recidivism. So we would encourage the committee to look at that particular area of the population, indigenous groups, and how delays may be affecting their ability to navigate the justice system.
Mr. Chair, we strongly believe that the Government of Canada can provide a critical role in guiding research and providing financial and administrative support to implement local restorative justice and alternative court programs in indigenous communities throughout Canada, including Nunavut, and helping to develop best practices across Canada.
In conclusion, I'd like to thank you for inviting me to address this committee as the Deputy Minister of Justice on behalf of the Government of Nunavut. I'm available to answer questions or follow up on any of the issues I've raised this morning or anything else the committee wants to discuss. Thank you.
The Chair: We appreciate your appearance and your testimony. Your comments have generated a number of questions. We'll begin with the deputy chair, Senator Baker.
Senator Baker: Thank you, Mr. Chair, and thank you, Mr. MacKay, for your presentation. I have one question to put to you. This is, as you mentioned, a unified court. You mentioned the case of Jordan, which presents definitive timelines. The law before Jordan had definitive timelines. The timelines applied to the court of first instance, provincial court, and then to the superior courts of the provinces and set time limits. Where you don't have a provincial court and a superior court, which guideline applies? Is it the court of first instance, being the provincial court, those guidelines? Jordan simply makes a distinction between provincial and superior and comes up with two timelines, 18 and 30. So which one would apply in the case of your jurisdiction?
In answering that question, my one question to you, I'm also interested in this: We've been examining the rules of court across the country as they apply to preventing trial delays. I can recall you appearing before a judge years ago as a counsel on a third-party matter. It was the beginning of the 2000s. Correct me if I'm wrong. That was in the Northwest Territories Superior Court. Are the rules of court similar in those northern jurisdictions?
The first part of my question was, of course, which timeline applies to you? You just mentioned that months now go by because you don't have enough judges. That would sort of tell me that, under the Morin guidelines, you're going to have some 11(b) arguments there, and these cases are just going to be thrown out.
Mr. MacKay: Thank you, Senator Baker. To first answer your question about which applies, we don't know, although I guess we're working on the assumption that it would be the timeline that was laid out in Jordan, which is 2.5 years.
Because the Nunavut court is a unified court and federally appointed, it handles all matters, including complex criminal matters, so presumably if a complex criminal matter was brought to the Nunavut Court of Justice, it would be 2.5 years. Where that dividing line is, I don't know, because there are other matters that are less complex that would normally go to a provincial court or a Northwest Territories or a Yukon territorial court. We're not sure where that dividing line is, and I guess we'll be waiting for the judges in Nunavut to give us guidance on that. I don't think that answers your question. But it's a federal court, superior court, so 2.5 years would apply, unless it's not a complex criminal matter that would normally be at a lower court.
In terms of the rules of court, the rules of court are similar to those in the N.W.T. and you're right that they do address delays, which the Supreme Court in R. v. Jordan has diminished quite a bit, but the rules of court give the judges a certain amount of discretion in deciding whether or not the delay has elapsed to a degree that an offender's section 11 rights have been offended. But the rules of court are similar, and I would go even further. The rules of court were adopted by the N.W.T. from Alberta and then adopted by Nunavut from the N.W.T. That's where it landed on the rules of court.
You're right. I did appear as counsel on a number of matters for the Government of the Northwest Territories in the early 2000s, so thank you for noting that. That's a very good memory.
Senator Batters: Thank you for appearing today, Mr. MacKay, and providing this important information to us. One of the major concerns, of course, has been that court delays are exacerbated in places like Nunavut, where you have these extreme distances and all of these other challenges to contend with, so it's a very helpful perspective to have.
I appreciated your opening remarks, particularly dealing with the judicial vacancies, which is getting to be a bit of a crisis. I questioned the Senate government leader during Senate Question Period yesterday about this very issue because the federal justice minister continues to say that appointments are coming, very soon, shortly, in the near future, yet there are now 61 vacancies across the country. From what you're telling me, all of your appointments are federal appointments, so those would be her responsibility as well; they are encompassed in that. And you were telling us that of your six positions, two are vacant, so it is a 33 per cent vacancy rate, which I find shocking.
Yesterday when I questioned about how we now have a worst-case-scenario situation where a first degree murder charge in Alberta has been dismissed because of court delays, the Senate government leader referred to only a 5 per cent vacancy rate in judicial appointments across Canada, which is unacceptable.
Could you tell us if you happen to be aware of whether the judicial advisory committee for Nunavut has its own judicial advisory committee to recommend the appointment of federally appointed judges, and if so is it currently operational? I heard that some JACs across the country are not operational because they don't have any or enough members to operate. Regarding some other ones, I just heard that in Alberta their last two meetings were cancelled, so a big crisis is potentially getting worse.
Mr. MacKay: Thank you, Senator Batters. You're right. I will answer your question about the judicial advisory committee in a minute, but I appreciate your questioning the Senate government leader about judicial vacancies. I think I said 25 per cent, but your math is better than mine. It is 33 per cent, two vacancies out of six, so it is exacerbated.
As I mentioned, in terms of the time between charge and trial in Nunavut, we are doing pretty well in that regard, but those statistics are from two years ago when we had a full complement of judges, so we expect the time lag to be extended because of the lack of judges. We would like to see those two judges reappointed.
As I mentioned and would like to reiterate, the judges in Nunavut do perform a very valuable service. As you can imagine, it is very difficult for the resident judges to go on every circuit. Some communities have a judicial circuit come to town five times a year, so the good graces of deputy judges who are willing to put their name on the list of deputy judges that will serve in Nunavut and use their free time to serve on a circuit court are very important. It is not a lack of volunteers but more that the federal government hasn't appointed these judges. I know at one point we had 92 deputy judges, and we now have 45, so that's another important part the situation.
Turning now to your question about judicial advisory committees, there is an active judicial advisory committee in Nunavut. As a side note, I would point out it doesn't have a full complement of members, but we do have enough members that we are able to meet and have a quorum at the meetings.
They made recommendations to the minister regarding who they would like to see as judges in Nunavut. So those are with the minister, and the minister can take those recommendations or leave them, but we are hoping she will appoint someone from that list or someone else she considers appropriate in due course. I hope that answers your questions, senator.
Senator Batters: When you refer to deputy judges, I'm assuming you're talking about judges from other jurisdictions in Canada who agree to go in occasionally and help out Nunavut by serving there. Is that correct?
Mr. MacKay: That is right.
Senator White: Thank you very much for being here today. My question is around drug addiction treatment access for offenders in Nunavut territory, as well as mental health treatment access, and I know from my time up there that the vast majority of offenders certainly had drug addiction and or mental health issues, some of it caused by the systemic issues that have occurred over the last number of decades. Has there been an improvement in access for offenders when it comes to mental health treatment and drug addictions treatment? I know there is no facility in the territory now; right?
Mr. MacKay: No, senator, you're right. There is no drug or alcohol treatment facility in the territory right now. But you're right; the problem with drug addiction, alcohol abuse and mental health problems is a problem throughout Nunavut but in particular with the offender population. Just to give the senators a bit of a picture of the typical offender in Nunavut, at least the intake at our correctional facilities, 30 to 40 per cent of those offenders have indications or exhibit some form of mental disability or some other form of cognitive impairment. In terms of substance abuse and substance addiction, 90 to 95 per cent exhibit some form of alcohol or other drug addiction symptoms, so that is a significant problem for the offender population.
But I will say that once they are in the correctional system, there are treatment options available to them, so the real focus has to be on the preventive side. I talked earlier about community justice committees. Those community justice committees can divert offenders from the regular justice system and can impose conditions on them to come back into the community and reconcile themselves with the community. But the missing part of that is the access to substance abuse and alcohol abuse treatment. Without that, it's very difficult for them to reintegrate into the community, both through the community justice committee system and also through the community correction system or parole system when they come out of the correctional facilities.
In terms of access to mental health, it's a little bit better. There are mental health facilities in Iqaluit in the hospital, and every community has a mental health nurse who provides mental health services and also some addiction treatment, but we do need a treatment facility in Nunavut. I hope that answers your question, senator.
Senator White: It does. Thank you. I appreciate your candour, and I know your offender numbers are extraordinarily high compared to your population.
The second question is in terms of discussions for a new health accord federally. Has the Nunavut government identified the need for increased funding specifically to deal with treatment or lack of treatment, particularly in the territory, in an effort to at the same time reduce some of the criminality? Leading into that, have you had any discussions on the national drug strategy that could assist the Nunavut territory?
Mr. MacKay: As all senators know, the health ministers met earlier this week. They also met with the provincial, territorial and federal finance ministers to discuss the new health accord.
Nunavut has identified several needs in terms of its health requirements, and part of that is obviously treatment for drug and alcohol addiction and mental health issues.
We do get money under the health accord now, and it's specifically allocated to programs that address those concerns, but obviously the money can be more, and we've requested additional funds under the new health accord.
In terms of whether we're part of the national drug strategy, I don't know the answer to that, senator, but I can certainly get back to the committee on that.
Senator White: Thank you for the response. In relation to the national drug strategy, it was more whether or not you were pushing the government for a new national drug strategy, as we are probably four years behind on that. But thank you for your response.
Senator McIntyre: Thank you, Mr. MacKay, for your presentation. We've heard from you on the issue of circuit courts as they relate to criminal law matters. What about civil and family law matters? Are Aboriginal persons able to pursue those matters through a circuit court?
Mr. MacKay: The circuit court does address those matters. Most matters are heard in Iqaluit on the civil and family side, but the circuit court does address those civil and family matters as well.
As an aside, I would note our legal aid funding includes family and civil matters to a certain extent. That's true in the other territories but unlike the other provinces. It's for that reason. In the communities, Inuit litigants don't typically have access to legal services, so we require it to provide that so that they have access to justice, not just for criminal but, as you point out, senator, also for the important family and civil matters as well.
Senator McIntyre: On the issue of restorative justice programs, I take it they include sentencing circles and healing lodges in prisons.
Generally speaking, how successful are those programs to divert Aboriginal offenders from further dealings with the criminal justice system?
Mr. MacKay: We don't have statistics on that. We know that there is a high recidivism rate in Nunavut, as there is everywhere, especially for Aboriginal or indigenous offenders.
I wish I could give a better answer to that, but at least anecdotally we found from offenders and community members that using those restorative justice techniques, such as the community justice committee that I mentioned or within the correctional facilities, where they do on-the-land programs in which elders take offenders out on the land and show them traditional Inuit ways of harvesting wildlife, at least anecdotally from community members and from offenders themselves, we find those are very helpful.
I would also add that the reason we don't have the statistics and evidence we need to evaluate the success of those programs is because they're relatively new in Nunavut, especially on the corrections side. We've just built a new correctional centre in Rankin Inlet in the last two years that was specifically geared towards healing. It was meant for people who were interested in rejoining society, becoming part of society and integrating into their communities. It takes people who are ready to take the steps necessary and the skills they need to reintegrate into society.
It's set up with two divisions. One is a full-time incarceration division, and the other is a division whereby people stay in the facility during the night, and during the day they're employed by local businesses in order to help them develop their skills. That facility has only been open for two years, but we are finding, at least anecdotally, that the residents of Rankin Inlet, offenders and the public at large, are very supportive of that and have, at least in their eyes, identified the successes in terms of particular offenders being able to reintegrate into society.
Senator Dagenais: We don't have translation this morning, so this is an opportunity for me to practise my English.
Thank you, Mr. MacKay, for your presentation. For your information, I'm a former police officer and technician for the breathalyzer test. I remember when I went to justice court as a witness, the defence lawyer used a specialist to fight the breathalyzer test.
Do you have a similar problem in Nunavut? With this specialist, it created a delay in the justice court.
Mr. MacKay: I don't know specifically on that. I haven't heard of people using those specialists to defend against impaired driving charges, so I'm sorry, senator, I don't think we have those specialists. That obviously isn't a factor in delays in our criminal justice system.
Senator Dagenais: Would you have a suggestion for our committee's report on reducing court delays, especially for Nunavut?
Mr. MacKay: Yes. I would encourage the committee to look at restorative justice programs across the country, especially those that are aimed at indigenous people, and look at best practices in terms of which reduce recidivism and help offenders reintegrate into communities, and look at funding levels. In a lot of cases — this is true in Nunavut as well — funding is typically eaten up by law enforcement and corrections, and there is not a lot left for restorative justice.
I would encourage the committee to look at the resources put into restorative justice across the country, and if they could provide, especially to Nunavut, some hard data on the success of those restorative justice programs, that would be very helpful to us.
The Chair: Mr. MacKay, RCMP officials will be appearing before the committee. We've heard some concerns about the use of forensic labs and DNA testing, for example. Is that a significant factor in delays in Nunavut, awaiting those kinds of results of testing?
Mr. MacKay: That is a factor. If the RCMP is relying on that kind of forensic material in court, then yes, they have to send it south to be examined. That can cause delays in the justice system. But I would say that for the most part, the RCMP in Nunavut haven't relied on forensic evidence as much as just witnesses to the crime. They have had quite a bit of success. The RCMP in Nunavut have a 92 per cent clearance rate. They have been able to have success without relying on forensic evidence or the delays that come with that. It hasn't been a significant problem for us.
The Chair: What about the use of technology? In vast areas like the one you're responsible for, you would think the technology would be of great assistance and would work better than it is working today. What are you doing in that area?
Mr. MacKay: Senator, that's a big priority for us in terms of trying to ensure that there is access to justice in Nunavut, and it's a cost savings as well. We're looking at ways to deliver our services, especially being able to hold not necessarily trials but show-cause hearings and interlocutory applications, those types of things that can be done over the phone or by video conference. We make use of that as much as we can.
In communities, obviously, there are a lot of problems with the technology. As senators probably know, the access to broadband in the North is fairly limited, so it's often difficult to be able to use video conferencing in the North. But we do use it, and it's something we're hoping to expand in the near future, when we get more broadband access and better technology for remote communities. That is a big priority for the government.
Senator McIntyre: We often hear that Aboriginal persons have difficulties with the criminal justice system. My question is this: Is there merit in the suggestion that there be a separate Aboriginal justice system? If so, how would such a system differ from the current one?
Mr. MacKay: Thank you, senator. These are obviously my own personal views, but, at least in my experience, the more reflective the justice system is of indigenous communities, the better it serves them. So I would say move to a system that's not necessarily separate but one that is within the current justice system, that better reflects indigenous culture and values and better reflects the indigenous people, so more indigenous lawyers, more indigenous police, more indigenous judges. Those are steps that I think would really increase the confidence of indigenous communities in the justice system, at least in Nunavut. Again, this is my own personal observation. In Nunavut, the vast majority of the population is indigenous, and the government is run by indigenous people, Inuit people. They have, at least for the most part, chosen to continue with the same justice system that they inherited from Canada. To a certain degree, they've had to do that, but there does seem to be a certain acceptance of the same principles of justice that the rest of Canadian society has. So I think the key is to make it more reflective of the people that it serves. That would go a long way to increasing confidence.
Senator White: Thanks again for being here today. Has Nunavut looked at a lay judge program at all? Some of the other northern countries like Greenland have piloted some lay judge programs where they use local Inuit judges, similar to the JP program except with expanded responsibilities and training. Have you looked at that at all?
Mr. MacKay: Yes, senator, we have in a way. You mentioned the JP program, and that is what we're sort of relying on in order to give people in the community a greater role in the criminal justice system. Every community in Nunavut has a JP that has been appointed, and we have an extensive training program for them. They're able to move up the ranks, like a tier 1, 2, 3 and 4 level JP. So a tier-4 level would typically be a legally trained person, and they could hear summary offence applications. Then at the lower level are more basic JP functions, like notarizing documents and assisting people with legal questions and that kind of thing.
We are hoping that that JP program can expand and take on more duties so that those people who are from the community can play a greater role in terms of administering justice in the community. That is a focus for us.
The Chair: Is there anything else from any other member? Seeing none, Mr. MacKay, thank you again for your appearance here today. Your testimony is very helpful to the committee and very much appreciated.
Mr. MacKay: Thank you, Mr. Chair.
The Chair: Members, if you can hold your seats for a minute or two, we'll go in camera to discuss other matters.
(The committee continued in camera.)