Proceedings of the Standing Senate Committee on
Legal and Constitutional Affairs
Issue No. 14 - Evidence - October 27, 2016
OTTAWA, Thursday, October 27, 2016
The Standing Senate Committee on Legal and Constitutional Affairs met this day at 10:29 a.m., to study 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. 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 twenty-sixth meeting on this study.
Joining us today for the first hour, from the Congress of Aboriginal Peoples we have Kim Beaudin, National Vice- Chief; and Ron Swain, Senior Policy Advisor. Thank you both for being with us today. Gentlemen, the floor is yours.
Kim Beaudin, National Vice-Chief, Congress of Aboriginal Peoples: Thank you. Honourable senators, I'm pleased to be here on traditional Algonquin Ontario in beautiful Ottawa, Ontario, our national capital.
Our newly elected CAP National Chief Robert Bertrand asked me to make this presentation because I have for my entire adult life been concerned about justice and public safety issues for indigenous peoples.
I live in Saskatoon, which has one of the highest indigenous urban populations in the country. I was a justice of the peace for the province of Saskatchewan for five years. I currently work for a program, Straight Up, which is one of the only indigenous gang rehabilitation programs in Canada. In addition, I have been the President of the Coalition of Indigenous Peoples of Saskatchewan for the past seven years.
I would like to cite the Honourable Michael Phelan of the Federal Court in regard to Daniels v. Canada.
The Metis and non-status Indian people, lacking even the protection of the Department of Indian Affairs and Northern Development, are far the more exposed to discrimination and other social disabilities. It is true to say that in the absence of Federal initiative in the field they are the most disadvantaged of all Canadian citizens.
I must state in as strong a language as possible that Metis and non-status Indians are the most disadvantaged Canadian citizens. We must remember it took the Daniels case win at the Supreme Court of Canada to end the judicial limbo of Metis and non-status Indians stuck in the passing the buck between the provinces and the federal government. This is true. Provinces have been as much responsible as the federal government for the shamefully high number of indigenous people in the justice system and being incarcerated.
The Congress of Aboriginal Peoples is one of five national Aboriginal representative organizations recognized by the Government of Canada. Founded in 1971 as the national Native Council of Canada, the organization was originally established to represent the interests of Metis and non-status Indians. Reorganized and renamed CAP in 1993, CAP has extended its constituency to include all off-reserve status and non-status Indians, Metis and southern Inuit Aboriginal peoples and serves as the national voice for provincial and territorial affiliate organizations.
One of the sad facts is that Metis and non-status Indians have some of the highest rates of criminal records and interaction with the judicial system in every part of Canada. For example, family violence, drug and pill addictions and alcohol abuse have created a cycle of destruction that is devastating our communities. Poverty, poor health, education failure, family violence, addictions, lack of proper housing, personal and community indigenous culture alienation are factors that have put our indigenous members before the courts in disproportionately large numbers and frequency.
I would like to draw your attention to the recent Globe and Mail articles regarding indigenous people that highlight some of the points I would like to make in regard to this important hearing today.
Adam Capay was a living symbol of everything wrong with Canada's prisons, its justice system and the treatment of indigenous people. Mr. Capay is a 23-year-old indigenous man who was held in solitary confinement in Thunder Bay, Ontario, for four years. He was housed alone in a basement at the end of a long corridor. His cell was sealed with Plexiglass. The lights were on 24 hours a day until yesterday, and it took public outrage to move him into more humane conditions and accommodations.
To cite The Globe and Mail, Mr. Capay has no idea whether it's day or night. When Renu Mandhane, Chief Commissioner of the Ontario Human Rights Commission, visited him this month, she said he appeared to have memory and speech problems brought on by prison conditions. The only thing Ontario prison officials haven't done to the poor man was shackle him upside down on a dungeon wall. But they might as well have. Mr. Capay was arguably being tortured by the state, with solitary and depravation caused by constant light, an acknowledged torture technique. The United Nations says holding a person for more than 15 days in solitary by itself is a form of torture.
There is more. Mr. Capay is legally innocent. He was charged with first-degree murder in 2012 after the death of a fellow inmate in a Thunder Bay prison where Mr. Capay was being held on minor charges. Four years later, he still has not had a trial. The Supreme Court of Canada says that any delay in laying charges and completing a trial in more than 30 months are violations of the accused under the Charter of Rights; the accused must be tried within a reasonable time.
Mr. Capay was held without trial for 52 months. He has been in solitary confinement 100 times longer than the 15- day maximum the UN considers to be a threshold of torture. This young native Canadian man has had his human rights stolen from him. He would still be forgotten in prison if not for the brave prison guard who brought the plight of the man to the attention of the Chief Human Rights Commissioner of Ontario.
The inhumane treatment of Mr. Adam Capay defies categorization. He must never again be placed in solitary and should be given medical treatment specific to his mental health issues. His murder charge should be stayed due to the unreasonable delay and timely trial, and those who allowed this to happen must be held to account. Nothing less would compensate for this sickening reality.
Again, I would like to quote an article from The Globe and Mail. The Statistics Canada 2011 National Household Survey reflects stark differences: 43 per cent of reserve residents are unemployed compared to 6.5 per cent in the entire census division. In 2010, household income on-reserve was $19,091 compared to $60,000 everywhere else. A large swath of reserve residents lack education. Saskatchewan has the highest rate of Aboriginal in correctional services at 74 per cent, despite representing only 12 per cent of the adult population.
The car that Colten Boushie was sitting in when he was shot and killed ended up in a salvage yard because the independent forensic test was not done on it. That is a development that could have serious implications for the trial and the man charged in his death.
Mr. Boushie, a 22-year-old indigenous man, was killed on August 9 of this year in a confrontation with Gerald Stanley on a Saskatchewan farm. His slaying prompted demonstrations outside court and stirred racial tensions in the province of Saskatchewan. Premier Brad Wall issued a plea to stop racist and hate-filled comments circulating on social media.
According to the RCMP warrant application, Mr. Boushie was shot in the back of the head. Mr. Stanley was charged with second-degree murder. The brother of the late Boushie stated, "I want justice so that I don't take it into my own hands.''
As a former justice of the peace, I have some knowledge of the system and would like to make the following recommendations. The case of Colten Boushie is a prime example of the huge divide between indigenous people, who live disproportionately in poverty, compared to non-indigenous people who have property and are part of the main society. The fact is that a non-indigenous man, Mr. Gerald Stanley, who is alleged to have shot and killed an indigenous man, got out on bail. Meanwhile, indigenous persons in the justice system can't get bail; then, after being held in custody, they rely on duty counsel and state-paid lawyers. Then they get out when they plead guilty just so they are not further in jail, and also they have a criminal record.
An indigenous person, Adam Capay, is legally innocent. He was charged with first-degree murder after the death of a fellow inmate in Thunder Bay where Mr. Capay was being held on minor charges. Four years later he still has not had a trial.
The Supreme Court of Canada says any delay between the laying of charges and the completion of a trial longer than 30 months is a violation of the accused's rights under the Charter of Rights and Freedoms, and he should be tried within a reasonable time.
Mr. Capay has been held without trial for 52 months, and he has been in solitary confinement 100 times longer than the 15-day maximum the UN considers to be the threshold of torture. This young Canadian man's human rights have been stolen from him. He would still be forgotten in the prison's basement if not for the brave prison guard who brought his plight to the Ontario Human Rights Commission.
Diversion programs: Increase the availability of pre- and post-charge diversion programs for those suffering from addictions and mental illness.
A health care review: Conducted a comprehensive review on health services in the jail to see whether they meet the needs of inmate population.
Mental health training: Review the enhancement of mental health curriculum for correctional officers. Based on the Criminal Code, police services in Canada have no authority to act as a Crown and administer justice such as arresting people. They are wearing two hats.
Bail reform: Examine the possibility of allowing police officers to optionally release officers on the same categories as arrests.
Bail beds: Government agencies who work together to review the feasibility of funding beds; residential bail programs outside the jail system.
Access to fair and equitable Canadian justice: Many people are on remand in provinces such as Ontario, Manitoba, Saskatchewan, Alberta, British Columbia, and there is a disproportionately high indigenous incarceration rate. Indigenous people should have access to the resources needed to ensure that options are explored to speed up the process. This will ensure we do not have indigenous people languishing in our prisons in Canada.
Access to bail options: The justice system needs to consider options that would consider the ability of the accused if let out in the community.
Follow through with various reports written and not acted upon by the provincial governments. Saskatchewan wrote a report in 2004. Not one recommendation was followed, and today it collects dust.
Systemic racism in the justice system: Cultural training is needed for federal and provincial employees. Cuts to the indigenous court worker program in Saskatchewan are an example. Just as the federal government put more money towards funding the system, the Province of Saskatchewan ended up cutting $2 million off that program.
Carding and racial profiling: This issue is contributing to the incarceration rate of indigenous people in Canada. This policy is an extension of the federal government pass system by Indian and Northern Affairs Canada. There are not enough indigenous elders' and women's healing lodges in the federal system.
Finally, I would like to address the scope and full review of the law, policies and operational procedures and practices in the Minister of Justice's mandate letter. The Congress of Aboriginal Peoples envisions engagement between the Minister of Justice and the Minister of Public Safety to reflect the shared priorities going forward to create tables to each agreed agenda item on a nation-to-nation relationship with the Crown and provinces, based on the recognition of rights, respectful cooperation, partnership and the road to reconciliation. This process must embrace the Truth and Reconciliation Commission's recommendations and the United Nations Declaration on the Rights of Indigenous Peoples.
The Chair: Thank you. We'll now move to questions, beginning with the committee's deputy chair, Senator Baker.
Senator Baker: Thank you to the witnesses for their presentation.
It is disturbing, Mr. Beaudin, the evidence that you have presented here, where a person is incarcerated for a comparatively minor offence and then, while incarcerated for a long period of time, over four years, without being brought to trial, there is another offence that the person is alleged to have committed.
The law says that when somebody is arrested, they are brought before a justice of the peace, or a justice, within 24 hours. That's in the Criminal Code. From then on, if that person is detained in jail, it is up to the Crown as to the progress beyond that.
Obviously, the Director of Public Prosecutions in the province where this took place bears a great deal of responsibility for what happened in the case that you outlined. As you point out, the 11(b) argument, trial within a reasonable period of time, has been violated by over 22 months in the case that you raised.
The Crown has the responsibility to bring the case forward. That's where the responsibility rests. The Crown is responsible. The Crown has not done their job in the particular cases you outlined.
You're a former justice of the peace. How would you suggest we might tackle this? Should there be some oversight? How do you think we can tackle this very important problem facing us? Do you have any suggestion as to what can be done about it?
Mr. Beaudin: Yes, certainly. I believe there should be oversight with respect to the process and that after a minimum amount of time, that should trigger it. For example, when I was doing justice of the peace work, I would actually note issues that had come up and say this person would need assistance within 15 days. For example, mental health issues would be listed on there. I was concerned that they would drop through the cracks within the system.
I'm not sure if it worked. I couldn't honestly tell you if it did. But I certainly wanted to make sure that I did note that on anything that I dealt with at the time.
Senator Baker: Have you ever conducted bail hearings?
Mr. Beaudin: Yes, I did.
Senator Baker: At your bail hearing, when the release is denied, then of course you can review the bail provisions in a certain period of time; or if there are new circumstances arising, a review can take place. You go to a Superior Court judge to do that, over the justice of the peace. So it would depend upon whether or not that person had competent legal counsel who could have then brought a review of the bail provisions before the court. But in the cases you're telling us about, obviously there wasn't competent counsel representing those accused.
Mr. Beaudin: That is correct, yes. I can honestly say that almost 100 per cent of the time, they didn't even have a lawyer; they would defend themselves in court. In terms of bail hearings, for example, they would be trying to get out on their own with respect to bail.
Senator Baker: So there is something wrong, then, with the provision of legal aid.
Mr. Beaudin: Yes.
Senator Baker: Seriously wrong.
Mr. Beaudin: Yes. Most of the time, the information they would get is they would work with the court workers within the system itself. We didn't consider it legal advice per se, but that's sort of how it would work. I have a feeling it's like that all over, but in Saskatchewan, for example, that's what would happen.
Senator Baker: Oversight for the Crown; legal aid for those who are detained in custody?
Mr. Beaudin: Yes.
Senator Baker: Those are your two main messages on those particular instances?
Mr. Beaudin: Yes.
Senator Batters: Thanks to both of you for coming here. My home province is Saskatchewan, so I'm anxious to hear more about that.
Yes, absolutely, Saskatchewan has many challenges, and you have pointed out some of them. At the same time, on the court delay issue, Saskatchewan has actually had success with some of their innovations. Saskatchewan has relatively good court delay numbers as compared to elsewhere in the country, and that's despite those major challenges.
I'm wondering if you can point us to innovations that you have seen for Aboriginal people that have helped in Saskatchewan and that you think could potentially be used to help Aboriginal people elsewhere in the country. I know that you pointed out the Aboriginal Courtworker Program. Are you saying it was the previous federal government that gave that particular program more money, and then the provincial government cut $2 million? Is that correct?
Mr. Beaudin: What happened was the federal government, this government, had given extra money to the Aboriginal Courtworker Program. Then, when the budget came down in Saskatchewan, they cut that program.
Senator Batters: This is recently, a few months ago?
Mr. Beaudin: Yes, in the last budget. It ended up probably almost balancing out. There was really no win-win for anybody within the system.
The other thing is that in my present job, as I stated earlier, I work with a program involving ex-gang members. We have just a little under a thousand members within our program in Saskatoon. They share their stories. I've been to court a few times with respect to the system itself and how it affects them, so I have some pretty good insight from that end. It's very frustrating for them, because a lot of times when they go through the system, it doesn't treat them fairly. Economic factors always come in as well. You're dealing with poverty and addictions. The two main issues we deal with in our organization that affect the justice system — no question — are mental health and addiction issues.
Senator Batters: Absolutely, yes.
Mr. Beaudin: I believe beyond a reasonable doubt that if we dealt with those two issues within the justice system itself — and even within corrections, which is under the province — you'd probably clear out more than half of the people who are actually in there at this point. Overcrowding would end. We could get back to where programming means something for people who are there. That would be a huge thing.
Senator Batters: In dealing with court delays, then, just so we can get back to some of the good recommendations, would you say that the specialized courts that you have seen — they have some of those in Saskatchewan, like drug treatment court and those kinds of things — would you say those are helpful things that you have seen and that you would like to see replicated elsewhere in the country that would help Aboriginal people? Are there any other innovations you can think of that you find helpful?
Mr. Beaudin: Another big one is that indigenous people move around a lot. What I mean is we have relatives who live all over Canada.
But let's take a look at Saskatchewan, for example. They come from up north, let's say way up in La Loche; they come into Saskatoon, and they run into an issue with the police. Charges are laid, and they have to deal with those charges. One of the things that happen is that when they go back to the community, many times they don't have the resources to get back to Saskatoon.
There is a jurisdiction issue in the province — and I'm pretty sure it's done like this in every other province — where they won't cross-reference into each jurisdiction, and that causes problems. In your report you talk about technology, which is great, and we should be using that.
The other one, too, that I believe should pop up, talking from a justice of the peace perspective, is with regard to using the justice of the peace program even more. It saves millions of dollars for the Province of Saskatchewan, and I believe that it could actually save a lot more. The justice budget in Saskatchewan is $600 million. That's quite a bit of money. I believe the Canadian government's budget is $650 million, so you can see the numbers.
We just went through a civic election in Saskatoon, and as of yesterday we had a new mayor elected. One of the issues he talked about was the police budget, which has increased from $72 million to $82 million. That's what they are asking for. Every year we get that increase in Saskatoon, and somewhere along the line, you know, the dam is going to break. That's a lot of money and a lot of resources that the police service is asking to the public to pay. They don't really need to do that.
Senator Batters: On that budget issue, if I may, it's important for everyone to remember that of course the province is actually responsible for administering justice. They run the courts, and they have all of those major expenses for tonnes of staff and that sort of thing. The federal government is more focused on the policy side of it.
Mr. Beaudin: Yes.
Senator Batters: Thank you.
Senator Jaffer: Thank you very much for your presentation, which was very useful. One of the things that I would like to cover is the situation for women. You may have better numbers, but according to my information, one third of women in prison are Aboriginal women. If you would, please tell us how court delays affect Aboriginal women, and what three things the committee could suggest that could assist Aboriginal women with regard to court delays.
Mr. Beaudin: That's a really good question. I could never understand how over the years the incarceration of indigenous women has gone up so significantly. I believe a couple of years ago there was something like a 90 per cent increase. These are things that we should be looking at in terms of policies, right? The support networks have to be there.
I'm pretty sure that when indigenous women become part of the justice system, there is a huge effect on their families. When they are gone, all of a sudden you have all these other issues pertaining to families and children. Children end up in foster care, and it's a huge, vicious circle. It's just not good.
What we should try to do, as I see things in Saskatoon, is sit down and become more innovative. There are people calling for a review, and I have actually called for one of the system itself — not unlike a royal commission — to find out what we can do to make it work, and bring in people to do that.
We have a lot of work to do on this file. With regard to our indigenous women, who are one of the most important components in the family, that issue needs to be addressed. There is no question about it.
Senator Jaffer: What would help them? Based on your vast experience, what exactly could we, as a committee, recommend that could help Aboriginal women in reducing the court delays? What kind of things can you suggest, as someone who is on the ground?
Mr. Beaudin: I think that a lot of the time, charges should be referred to — I wouldn't necessarily call it a justice committee, per se — somewhere the women don't have to come into the system itself. What I mean, for example, is that someone who has often faced minor charges shouldn't really tie up the justice system. They should be, maybe, brought over to the justice of the peace program, for example, so they can deal with and monitor that, where no charges are laid. They can deal with the particular issues, and then it's off the books. I think that would go a long way in dealing with this stuff.
Again, it comes down to mental health. In particular, addiction issues are really big. To me, I see that as quite significant. We'll call it healing, for example. Culture is really important, and healing plays a part in that, in terms of our culture as an indigenous people. Another thing that comes up is that the justice system is really foreign to indigenous people. Where they get to know the system is when they are in it. I have heard different quotes where people call it the "just us system,'' not the justice system. That's not what they call it.
The other issue too, of course, is that they don't have a lot of faith in it, and they feel it doesn't treat them fairly. I believe The Globe and Mail came up with a stat a few months ago where they talked, for example, about how under the criminal offence common assault, indigenous people would be given six months, and a non-indigenous person would be given three months.
And when you look at it, really, common assault probably shouldn't even be in the Criminal Code. It should be diverted. I mean, for more serious crimes, that's different, but that's how I feel about that one, myself. This is how we could divert and focus on some more serious issues within the system and deal with those. We're all going to be winners if we can do that.
Senator Jaffer: Thank you.
Senator White: Thanks to both of you for being here today. I was really pleased to hear you talk, in particular, about addictions and mental illness. In Ontario, presently, there's about a six-month wait list for anyone who identifies a need for residential drug treatment, regardless of their age, whether they're a 14-year-old or a 44-year-old. Many of them are involved in criminal activity, to be fair, to satisfy their addiction while they are waiting, which becomes a bigger issue because they end up in jail before they end up in treatment.
Can you give us an understanding of the wait list times in Saskatchewan and what that looks like? You talked about 50 per cent, and I think we had someone here last week from the Canadian Bar Association who said 70-plus per cent of his clients have addictions issues. Can you give us an idea of wait list times and what percentage of the people in the system right now you think are battling one or the other, or both?
Mr. Beaudin: Well, my on-the-ground experience would tell you that it's probably hovering around 90 per cent. It's quite high. The percentage in addictions is higher than in mental health, but they are still quite high, there is no doubt about it. That's an issue we need to put more resources into, if we can get people, even within the provincial or federal corrections system, who have the expertise to assist people.
I get calls on my phone from numerous people who are presently incarcerated who say that their right to access to medication is being denied. There is a member in our program whose brother died because he did not get medical attention. He actually died of cancer. He pleaded with them to seek medical help, but they wouldn't help him at all, so he ended up passing away.
Senator White: Realistically, when we talk about the justice system, pretty far downriver are the jails and courts. But upriver, maybe there should be additional funding through our National Anti-Drug Strategy and health funding to create more of an early intervention model around the communities that you're familiar with.
Mr. Beaudin: Yes.
Senator White: We look at the fact that 25 per cent of women and 19 per cent of men in jails in Canada are Aboriginal, even though they only meet the 3 per cent threshold. Realistically, from your perspective, if we were to redirect funding into an earlier system, like health and a national drug strategy, that might be more helpful?
Mr. Beaudin: Certainly. I would agree with that 100 per cent.
Senator White: Thanks for being here, guys.
Senator Joyal: I try to think of how we can approach this problem of the overcrowded correctional system with Aboriginal people, the way they are treated in the system. When I read in The Globe and Mail this morning that 40 per cent of the inmates will spend more than 30 days in solitary confinement and that 214 had mental health issues — it was in The Globe and Mail this morning — I wondered if we can really satisfy ourselves that we are solving the problem, that is that we have implemented a real solution by just adding more of this and a little more of that. We will be satisfied that we have done something. To me it's a systemic problem, and a systemic problem you cannot paint with a touch of green and a touch of red and make sure that it looks fine. The issue deserves and calls for an unprecedented approach. Considering the political will of the government, it is my opinion that we have to establish a responsibility within the Department of Justice, essentially, for following up on all of the approaches that need to be put into place to address the problem, from the field to the end of it when an Aboriginal person who has been sentenced has also been rehabilitated and can assume his or her responsibility in the mainstream of Canadian society.
I read all of your recommendations here and there. Some of them will probably be acted on eventually. Some will be dropped, will gather dust on the shelf somewhere. It seems to me that we need, as we say in French, un coup de barre. We need to change our approach totally, holistically, to the issue of Aboriginal people in the justice system.
Unless we recognize the magnitude of the problem, we will be intervening only on individual cases, like Mr. Capay, which you described, and other Aboriginal persons who have found themselves in such a situation.
As much as I am in support of the recommendations you made, I am doubtful that they are the way to solve it. It calls for something more.
Mr. Beaudin: Right.
Senator Joyal: If we are really to approach it in the responsible way, it seems to me that's the only way. I don't have the experience in the field that you have, but seeing and hearing, day after day and year after year, the issue of mental health among Aboriginal people, the issue of drug consumption, of alcohol consumption, those are part of the overall approach that we have to take into account when those people come into the justice system. That's why they clog the justice system. In my opinion, there are no other causes than that.
How do we approach this? As Senator White has just said, we know we can put more money for the treatment of mental health, but the problem is bigger than that. In all fairness to Senator White, whose experience as a professional in the field of policing I admire, that is the conundrum I have with this. I have sat on the committee for so many years hearing that, and I say, at a point in time, how are we going to solve this? Where do we start with this? Who will have the political will? Read the article this morning, how the minister of Ontario —
The Chair: We will let the witness respond.
Senator Joyal: I will be cut off by the chair, politely.
The Chair: I don't want to cut off the witnesses; I want to give them an opportunity to respond.
Senator Joyal: I understand that.
Mr. Beaudin: I believe that if we start writing these kinds of issues that we're dealing with into policy, then it will eventually start to funnel down through the system itself.
I know we talk about money — and money is a huge issue here because things are costly — but I think we will save money from that end once we get it down to policy. I can't remember the last time we really revisited the justice system itself and its particular impact on indigenous people.
We go back to the Royal Commission on Aboriginal Peoples' report. It goes way back then; it talks about that in the report. To me, it has been ongoing. I am 58 years old. When I was a youth, this was a big issue. I remember our former leader who passed away, Jim Sinclair, brought this up. He talked about this 30 years ago.
Yes, somewhere along the line, if we can build it into policy and sort of set the marching orders, let it funnel down, we probably can deal with this system. I think it will eventually work out for us. But, again, the political will has to be there as well. You make some important points.
Senator McIntyre: Thank you for your presentation. Many Aboriginals persons live in remote communities, and such communities are often served by a circuit court. Could you tell us where the challenges associated with a circuit court are, and does a circuit court contribute to delays?
One of the things that I'm interested in, because you said you've done bail hearings, is if the community lacks incarceration facilities, what happens when someone is arrested and is to be held without bail?
Mr. Beaudin: When they are held without bail, they are usually held right where they are, for example, Saskatoon or Regina or Prince Albert. They're kept there. If they're from La Loche or La Ronge or something like that, way up north, Cumberland House, for example, they're away from their communities. That's another issue that comes up.
You talked about circuit. I know a number of the schedules of the courts that go to particular communities, and it might only go there once every two weeks or something, twice a month. That's not going to speed up a whole lot of stuff when you only have the opportunity to go there a couple of times.
The report talks about more judges needing to be put in place to deal with this kind of stuff.
Senator McIntyre: On that issue, can a circuit court deal with all of the criminal law matters like a Superior Court, or must it send certain serious matters to a higher court?
Mr. Beaudin: I would say that I think they could deal with it. It doesn't necessarily have to go to a higher court. It also depends, really, on how serious the charges are, but I think they could. I believe they could do that. It would speed up the process as well.
Senator McIntyre: Do Aboriginal court workers deal with circuit courts?
Mr. Beaudin: Yes, they do. They travel. For example, in Saskatoon, they'll go to North Battleford to deal with issues around there and provide people with information. So, yes, they do travel around, and, again, the resources are stretched to the limit.
[Translation]
Senator Dagenais: In a country such as ours, I have trouble believing in the injustices. However, I'm not saying they don't happen. The Supreme Court set out what was too long in Mr. Capay's situation. Who is responsible for his situation?
[English]
Mr. Beaudin: When that report came out, I was quite disturbed because the minister had indicated that it was up to the system itself with respect to the guards and who was handling it.
What jumped out at me is that it's the court that handles that. They would be the ones who would try to figure out what happened to Mr. Capay. Why was he languishing there for four years? How did he get lost in the system? The jail system just administers the process.
That's why I was kind of surprised when he said that because the justice of the peace or the various judges are the ones that administer. You could easily request what happened to him.
That's one thing I stressed earlier; it talks about the administration of justice. The judges should have more responsibility to figure out what is happening with particular individuals. Where are they going? Are they getting lost? How come I haven't seen this person in such a long time?
They should be made aware of that. I know they can't memorize everything, but certainly they should be made aware of these kinds of things. Then these kinds of issues wouldn't be coming up, and the Government of Canada and the Province of Ontario wouldn't be embarrassed by this sort of thing.
We have a really good reputation in this country. Now we need to bring indigenous people up to that level. That's what I'm hoping to do.
[Translation]
Senator Dagenais: He spent four years in prison. No one paid attention to his situation, no family member, no lawyer, no legal aid. Some people end up in Saudi Arabia and make the headlines each week. I can't believe that no one took care of him for four years.
[English]
Mr. Beaudin: Yes, I have to say the same thing. One thing I thought of as well is that we should be doing a review to see if there are other people caught up in the system as we sit here today. Maybe we don't even know. I'm hoping each minister makes a phone call and says what's going on within each province. We're hoping we don't have anyone who is languishing within the system like that.
You made a good point as well. I thought of countries like North Korea and Iran. They would have stood a better chance of getting out of there than, unfortunately, Mr. Capay.
The Chair: I have to say that I shared your surprise and shock with respect to the Ontario government's response, both from the corrections minister and the Attorney General. The Attorney General yesterday, responsible for the Crown, said essentially, "It's not my call.'' It would have been more appropriate to express concern and compassion and say, "I've asked my officials for a report on my desk tomorrow as to why this occurred and what can be done to alleviate this situation for this individual.''
Talk about monitoring these kinds of situations where someone is not only in segregation but is awaiting trial in a remand centre for a significant period of time. I'm assuming your organization doesn't have the resources to monitor those sorts of things. We hear from organizations like Elizabeth Fry, the Salvation Army and John Howard that do that. Do you have any kind of relationship with those organizations? If you don't have the resources yourself, have you established those kinds of relationships to keep you informed with respect to those kinds of situations where you can, as an organization, start to ring the alarm bells?
Mr. Beaudin: We presently do not have any relationship with the organization. It comes down to resources as well.
Where I work, we run on a volunteer basis. Our organization is not federally funded. We do a lot of visits at the correctional institutions, both federally and provincially. We have volunteers that go in there and talk to people who are presently incarcerated. We try to help them out. It takes a lot of people resources. If we had those kinds of things in place, we could help people out, speed up the process for them and ensure that they're being heard. That's the key.
The Chair: Do you have any sense that there is a consistent issue? Is it lack of legal representation, which is a big factor here? Is there some sort of consistent, top-number issue that is creating these delays and that is behind these folks not getting to trial?
Mr. Beaudin: When we talk about the person upon whom the charge has been laid, when I was working as a justice of the peace, a number of people did not have access to lawyers. They didn't even have the resources, even the $50, to put down as bail to get out. Let's say if they missed court two or three times, the system would keep them there, and they couldn't get out. So they would just languish there for months and months, beyond remand.
Sometimes when that happened, the charges would be either stayed or dropped. They would be within the system for quite a while — months in corrections — and then the charges would be dropped.
I know that one of the deputy ministers in Saskatchewan spoke to me about that. He couldn't understand why one system would keep them there and another process would let them go on a Monday, for example.
It keeps going up and up. Our crime rate is going down, so we can't figure this out. Yes, it's a bit of work.
The Chair: We have a bit of time for a second round.
Senator Baker: Mr. Beaudin, you've made a very interesting suggestion, and I think I agree with you on it. You didn't have it in your presentation, but halfway through your presentation, you said, "I personally feel that common assault cases could be dealt with outside of the court.''
When we look at the court dockets in Canada, we see every day "common assault,'' assault simpliciter. If I touch you and you didn't want me to touch you, that's an assault, and court time is taken up every single day on that.
Some people belong to cultures in which touching is a common thing to do. I know it is in my province of Newfoundland, and I know that it might be for some indigenous persons, also.
If I make a threatening movement toward you, that's assault. If I pick up a pen and throw it at you, that's assault with a weapon.
What you're saying is why don't they take simple assault simpliciter cases out of the court system totally and let it be decided by a justice of the peace. That's your suggestion?
Mr. Beaudin: I would suggest that, yes.
Senator Baker: Why didn't you put that in your presentation? Because it was your own personal feeling, was that it?
Mr. Beaudin: It's not necessarily a personal feeling, but when the questions are coming up, your thought process is, "Oh, I could have put that in there.''
Senator Baker: It would substantially relieve court time in Canada if that were the case. You're talking about assault simpliciter, which is something like threatening movements, touching, throwing a pencil at someone or even the more serious crime of using a weapon.
Mr. Beaudin: Yes.
Ron Swain, Senior Policy Advisor, Congress of Aboriginal Peoples: I would like to follow up with Senator Baker's question as to why it wasn't in our brief. I'm a colleague to the vice chief. I assist him with research and putting together the briefs.
I know Senator White because he was a police officer for 33 years, and I was also a former police officer of 33 years with the Ontario Provincial Police. He was with the RCMP.
The Chair: I'm going to ask you to respond, because we have two other senators that wish to ask questions.
Mr. Swain: The problem with common or simple assault is that it comes to domestic violence; it's a precursor. It starts out with simple assaults, and it eventually escalates. So we're careful when it comes to that.
In our communities, family violence is rampant, touched with addictions, mental health issues and cultural deprivation of our people from different sources, such as the residential schools. Those precursors have set up our communities and families to suffer family violence higher than the norm.
I know it's a simple answer, but when it comes to simple assault and domestic violence, it is a very complicated issue.
Senator White: I want to follow up on the discussion you're having. Do you think maybe it's time that we have a full review of what we consider to be a criminal offence? We often have the dual procedure, indictable or summary conviction, but we don't have the discretionary pieces that go with that.
We have had some people speak to us about whether there need to be administrative avenues to take rather than only the Criminal Code or the criminal courts avenues we're now taking. Similar to this is British Columbia with the administrative option for impaired driving. Do you think that could assist as well?
Mr. Beaudin: For sure. When you're talking about British Columbia, these are avenues we could explore to deal with some of this stuff.
The other one, too, I forgot to mention is with regards to sentencing circles, particularly indigenous sentencing circles. I had the opportunity to participate in one a few years ago. They're far more accountable in terms of the accused. The accused is more accountable to that system than they would be to a court system, because the community is the one that talks to them and addresses that issue.
I remember the person, when he went through it, he said he did not believe how hard it was for him to sit there and be chastised by his community for his behaviour. He said he thought it was probably way easier to go through the court system.
Sentencing circles should be up front there with respect to some of these issues we're dealing with. The support would be there as well, because there would be recommendations for support.
The other thing I noticed within the system when I was working is that when the arresting officer picks someone up and charges them with different offences, when it goes through the whole system — when we talk about support and the issue around how the officers interact with the people, there's that huge divide, and we call it systemic racism. We call it that because indigenous people believe that that's born within the system and it continues on with the police. That's the thing we need to get over.
If you deal with high areas where indigenous people live — for example, Saskatoon, Prince Albert, Regina — that comes front and centre. People say we need to hire more indigenous officers, something like that. The discretion just isn't there, because again they're following policy and what's laid out.
To me, it doesn't really matter if you're an indigenous person or not, if you're a police officer. If they really care about what's going on, that would also make a difference as well. That's what I believe regarding the police officers and that.
Those are good things that you pose, and I'm hoping that sentencing circles is another one that we can build into the equation.
Senator Batters: First of all, I'm glad, Mr. Swain, that you brought the point forward about domestic violence. When I heard that area of questioning, that's an extremely serious issue. The vast majority of assault cases, I would think, would be related to domestic violence. It unfortunately affects all communities in Canada, but I know that for the Aboriginal community it's a very serious problem and can lead to dramatic escalations, including murder. We don't want to have anyone think we take those cases anything but very seriously. That is why I would personally not be in favour of any sort of move towards that. I know that's not what Senator Baker in any way was suggesting, but I just wanted to point out the severity of that.
Mr. Beaudin, I wonder if you have ever met Kim Pate. She was involved with the Elizabeth Fry Society, perhaps she still is, but I know that recently she's been a law professor in Saskatoon. That could be a very helpful organization. You're based in Saskatchewan, are you? I missed the very beginning of your testimony.
Mr. Beaudin: I presently live in Saskatoon.
Senator Batters: So she could be a good person for you to connect with. She often appears at our committee, and she could be a helpful person for your organization to make that connection with.
The Chair: Thank you, gentlemen. We appreciate your appearance here today, and your testimony and your assistance to the committee in its deliberations.
Joining us for our second hour, via video conference from Toronto, is the Honourable Justice Shaun Nakatsuru, Gladue Court Administrative Coordinator of the Ontario Court of Justice. He is joining us today to talk about the Gladue Court. As a sitting member of the judiciary, it would not be appropriate for Justice Nakatsuru to comment on any potential reforms to the law, and, as such, I ask my colleagues to respect these parameters when asking their questions.
Mr. Justice, thank you for being with us. Would you like to make an opening statement?
Hon. Shaun Nakatsuru, Gladue Court Administrative Coordinator, Ontario Court of Justice, as an individual: It is quite a privilege, and I hope I can be of some assistance to this committee. Let me say this: I have never appeared before a Senate committee, so that may be a good thing or not necessarily a good thing.
As you stated, Mr. Chair, I am somewhat circumscribed in some of the answers that I can give to your questions, but what I'd like to do, as much as I can in the time that's been presented to me, is to give you some information about the Gladue Court here in Toronto, how it performs, how it functions, and touch upon the issue of delay maybe generally, as well as delay specifically in the Gladue Court, because, as I understand it, that's the focus of this committee's meetings.
Let me start off by saying this initially about the Gladue Court: I am the coordinator of the court and have been for about two or three years now. I also preside in the Gladue Court on a frequent basis.
I'm going to give you a little bit about the history of the Gladue Court. I don't want to spend the valuable time here giving you a lecture about the principles of Gladue or anything like that. I think it may be more useful to actually give you the sort of in-the-trenches view of how our court operates, but I think I would be remiss if I didn't start off with the seminal case of R. v. Gladue, which I'm sure most of you are aware of. That was a decision by the Supreme Court that really gave birth to the origins of our court in Toronto.
As you are probably aware, the Supreme Court of Canada in that case looked at a provision in the Criminal Code, section 718.2(e), which talks about how sentencing judges have to pay particular attention to the circumstances of indigenous offenders, as well as think about alternatives to incarceration when approaching the sentencing of indigenous offenders. They found that this is something that is truly remedial in purpose and has to be given substantive meaning by the various trial courts.
Subsequently, in the case of Ipeelee, the Supreme Court of Canada affirmed those principles, and the Supreme Court of Canada basically encouraged trial courts of all levels to give meaningful attention to those particular circumstances of indigenous offenders whenever they appear in our criminal justice system.
Those principles, known as Gladue principles, have since been applied in other contexts, for example, bail hearings, extradition, et cetera.
Our Gladue Court in Toronto is a specialty court in the sense that we deal with certain issues, certain offenders, and in a particular way that I hope addresses some of the concerns raised by the Supreme Court in Gladue. It was a judicial initiative, with the cooperation of Crown and defence lawyers and other stakeholders in the system, in 2001, because there was an impression at the time that not enough was being done to address the concerns raised by the Supreme Court in Gladue.
I know that Jonathan Rudin, who is the Director of Aboriginal Legal Services, was also invited to appear before you, and he is a tremendous resource person because our court, quite frankly, could not function without the assistance of the Aboriginal Legal Services here in Toronto.
What do we do, and how does the Gladue Court work? We do basically three things. We do bail hearings, we do sentencing, and we do diversion. Anyone who self-identifies as indigenous has the opportunity to go into the Gladue Court here in Toronto. Wherever an indigenous person appears, in whichever court across this nation, of course, the presiding justice of the peace or judge must apply those Gladue principles. But anyone who wants to come to our Gladue Court for those purposes is free to do so once they self-identify.
That was one of the original problems that led to the origins of our Gladue Court in 2001, that there wasn't enough education or information amongst the various stakeholders in the system to say, "We will apply those Gladue principles.'' In short, not enough people self-identified in the judicial system, even though they may have come from an indigenous background. So the Gladue Court, which meets or sits twice a week here in Toronto, addresses that problem. I think it wouldn't come as a surprise to anybody, but it's done a very good job of doing that.
It has also done a good job, in my estimation, of addressing the concerns raised by the case of Gladue. Principally, at the time, it was the disproportionate over-incarceration of indigenous offenders. But in addition, I think it also addresses the issues of alienation and distrust and supports the whole concept of reconciliation between indigenous people and the rest of Canada.
So, what do we do differently? First of all, we have a team of dedicated judges, assistant Crown attorneys, federal prosecutors as well as provincial prosecutors, duty counsel, as well as members of the defence bar, who become particularly skilled in dealing with the application of Gladue principles. So there is an atmosphere of cooperation in the Gladue Court and a desire and a motivation to try and address the concerns that I have already articulated.
In the context of bail, sentencing and diversion, we don't do trials. If the matter is going to ultimately be a trial matter, it goes into the regular stream at the courthouse and is dealt with there.
I'm not going to get into a great deal of detail about bails. You can ask me about them, if you want. I don't know if it might be of benefit to you. In terms of bail, sentencing and diversion, generally speaking, we try to take a restorative approach when it's appropriate to the case. In other words, we resort to issues of rehabilitation without, of course, ignoring deterrence and denunciation when required, and we try to craft an appropriate resolution which addresses the concerns of the offender, the victim and the community in general.
We have considerable resources at our disposal. We have the services of Aboriginal Legal Services, where they provide in-court case workers, after-care workers to follow up on any programming the offenders do, as well as the Toronto Bail Program, which will come forward and provide services to indigenous people when there are no sureties available for indigenous offenders. And ultimately, in that sort of spirit of cooperation, most of our resolutions are agreed to by all the parties.
We feel that we give an opportunity to individuals in that court to be heard by the judicial system. In other words, we do take time. Sometimes our dockets are long; sometimes our cases take significantly longer than cases in the regular stream, and I'll come back to that when I deal with the issue of delay. All in all, the Gladue Court in Toronto has operated and functioned rather successfully in my view — again, these are my personal views, not those of anyone else — in meeting the objectives that are set out by the court.
For those of you who might be interested in it, Ryerson University Associate Professor Scott Clark recently did an evaluation of the court in 2016, and you can find that evaluation on the Aboriginal Legal Services website. That provides a lot more information and substance about how our court operates, and how well we are doing in terms of achieving the goals that we have set out for ourselves.
That is, in brief compass, an overview of our Gladue Court. I would be remiss if I did not say that ours is not the only indigenous or Gladue court in Ontario or in the Greater Toronto Area. There are a number of Gladue courts, or indigenous peoples courts, throughout Ontario. Some of them operate very similarly. Some have been even more creative in their approach in dealing with indigenous offenders. Here, at Old City Hall, we too have been trying more creative approaches. I think I may have heard somebody mentioning sentencing circles, and we are in the midst of doing more of those for individuals, on consent, in the right type of cases. As we do those, we are learning as we go about how best to conduct them.
Those are concrete, meaningful alternatives that the overall criminal justice system is seeking in terms of putting into application those objectives set out in the Criminal Code and in jurisprudence.
Let me get to the issue of delay.
I think it's trite to say "justice delayed is justice denied.'' Unreasonable delay, when it affects indigenous offenders or indigenous victims or communities, is the same as it is for any other individual who has come into contact with the criminal justice system.
You have probably heard a lot about the negative consequences, so I don't want to take your time and repeat them from my perspective. What I would like to say, though, is that not all delay is cut from the same cloth. I want to bring it back into our Gladue Court.
Sometimes, meaningful justice, culturally appropriate justice or justice sensitive to the circumstances and needs of indigenous peoples can take time. Getting it right is important, and getting it right sometimes takes time. If you go to Professor Clark's 2016 evaluation, you will see from the data he collected that cases in the Gladue Court take longer, with more court appearances than other cases at our courthouse or in Ontario. Part of the reason for that — and this is something that is not always captured by the data — is that the way we deal with cases in the Gladue Court is sometimes very different.
What do I mean by that? First of all, in many cases the court deals with specific offenders in a case management type of way. In other words, to try and develop a meaningful alternative to incarceration, there are a lot of steps that may need to be taken outside of the court, amongst the various parties, to get to the stage where that meaningful alternative can be implemented.
For example, there is a pretty healthy diversion system here in our Gladue Court. Protocols for diversion are also public; you can find them, as well, on the Aboriginal Legal Services website. In the right case, the Crown, both federal and provincial, may divert a case outside of the criminal justice system, implement a stay of the charges or a withdrawal, and that individual who accepts responsibility for his or her actions will, in the right circumstances, be sent to a restorative environment, which is community counsel.
That community counsel, run under the auspices of Aboriginal Legal Services, is one in which volunteers from the community, indigenous themselves, try to put into practice those restorative principles that I think we're all familiar with, outside of the criminal justice system. They conduct a circle or a meeting with the offender and they get information and make recommendations and dispositions that the offender has to comply with.
Now I think Jonathan Rudin would have a lot more information about how these community councils run, because I as a judge do not participate in that aspect of the restorative part.
However, to get to that stage where the Crown stays the charges, there is often a requirement either to have the individual do certain things or information needs to be obtained. That often results in repeated appearances in the court, and again, that sometimes takes time, but the ultimate result is worth it.
So even though the statistics might show that there is delay in the court proceedings, and that there are numerous court appearances, something is actually being done in order to get to the right meaningful result.
The same can be said about bail hearings, as well as sentencings. Most of the time when there are repeated remands, or when sentencing is not completed right away, that's because many programs or services or other things are being put into place by counsel in order to ensure that the appropriate sentence that is meaningful for this offender and that implements restorative principles when they are applicable are there for that particular case.
In addition, because we have this sort of case management approach with some of the offenders, we like to have that continuity between the court and the offender, so that individual comes back to court on a regular basis, not just to check in but also to see the progress of that individual.
As you must appreciate, many individuals we see in our court system are individuals who come from a vulnerable sector of our community, who may have been marginalized due to some of the factors mentioned by the court in Gladue, and who have never really had a voice in their future when it comes to the criminal justice system.
What impacts me a lot about the way things function in our Gladue court is that if you look at the comments made by offenders who were interviewed by Professor Clark, you see a common theme among them that they feel somehow empowered or listened to in our indigenous court, which they hadn't experienced at that level in some of the other courts they may have been to in the past.
So again, my point here is maybe a bit trite, but delay is not always cut from the same cloth. Delay is not always negative in its consequences to the accused offender community or victim. That being said, I think every person in the criminal justice system is mindful of the need to run an efficient criminal justice system where delay is not in any way unreasonable. But I think we also appreciate that in the right case sometimes the delay is not only inevitable but can have some very positive benefits and advantages.
That's essentially what I have to offer as an opening statement. I hope I haven't taken too long.
The Chair: Thank you, sir. Senators, we have a little over 30 minutes to deal with questions and answers, so I would encourage all of you to respect providing all members an opportunity to pose their questions. We'll begin with the deputy chair, Senator Baker.
Senator Baker: Thank you, Mr. Chairman, and I'll put both my questions right from the start. I'd like to congratulate the judge on his presentation to the committee, a very interesting presentation. I might note that you have a great history in case law with over 80 reported cases starting in the late 1980s. I think 1988 was your first reported case right up to your appearance before the Supreme Court of Canada in 2004, I think representing the Attorney General of the province as an intervenor.
You have also taken part in 11(b) arguments in your career. You have two of them in reported case law in which you were a lawyer at the time. I won't direct my questions toward any of that, but just to point out that you have this great knowledge of the criminal law and how it operates.
First, you make the point exceptionally well that the time it takes for a trial to take place — from the time of charge to sentencing, which is the period of time that the court looks at as to whether or not there is substantial court delay to justify an 11(b) argument — in certain circumstances the time period in court delay is a good thing, a necessary thing in bringing justice to a particular case.
I don't know if you want to comment on this, but I would assume that the Supreme Court of Canada in Jordan, and in other cases that it has adjudicated similar to that, would regard the extra time that you are talking about here as coming within the umbrella of exceptional circumstances as far as court time is concerned. This very strict rule, we have had heard a lot of evidence of people who object to having a 30-month and an 18-month time period as being not logical. But I would say that a special court would fit within the exceptional circumstances considerations that are outside of the 30-month period.
That's my first observation. I don't know if you want to comment on that. I have looked at the case law so far. There are 69 reported cases concerning Jordan. None of them deal with special courts as to whether or not it will be regarded as an exceptional circumstance.
What would be the advantages to justice to the accused with the conditions of release that they would get from your court versus the normal conditions of release, some of which are required under the Criminal Code but others that are, by custom, given for a particular offence? I'm talking about the conditions of release. Would there be special consideration? A few moments ago, we heard from witnesses who said that certain indigenous persons want to travel. They have to go back home. Of course they can't leave the jurisdiction, in conditions of release, if they are charged with a normal offence, to attend their home outside that jurisdiction.
Could you comment on the advantage of the Gladue court in the conditions of release versus a normal court procedure? Thank you.
Mr. Nakatsuru: Let me try to address the first part of your question in this way about exceptional circumstances. It's not something I can comment on specifically because obviously it's a matter that could be litigated at some point, but I could say this about the practice in Gladue court. Because some of the delay that occurs obviously occurs with everybody's consent and oftentimes to the benefit of the defence, the practice is quite often that the defence will specifically waive any of the delay caused by these adjournments.
They understand and the offender or the accused understands that there is a positive reason why we're delaying this and there is a need for further time to investigate and get it right, in other words, so the delay is usually not a problem because it is considered explicitly waived. Even in the new framework of Jordan, that delay would not be contemplated within the presumptive ceilings set out by our Supreme Court of Canada.
The second part is in regard to conditions of release. It is very important in every case, but in particular when you're dealing with an indigenous accused person, to carefully tailor those conditions of the release to the circumstances of the individual and the case.
In the example where you pose some restriction on the individual's ability to travel, it must take into consideration that restriction may be much more deleterious for an individual who lives in a remote community and who needs to travel than for somebody located in an urban community. All those conditions must be tailored to the individual.
The difference between the Gladue Court and the indigenous people's court is we are specifically directed to pay attention to the context and the particular circumstances of the indigenous offender. As a concrete example of how we may do something different in indigenous court, we have Aboriginal court workers who will interview individuals who are seeking bail in our courts. They obtain the information required to try and address those things in their background that are bringing them to court, for example, addiction, lack of stable housing, and particular dislocation from their communities. They take that information and offer culturally appropriate programming and services to that individual. They develop a plan of care and a way to release that individual with a lot of the supports available to that individual upon release.
When we come to dealing with the conditions of release, we take that plan of care and attach it to our bail conditions for a couple of reasons. One, it's not a mandate that they follow them or suffer a breach, because that would be unfair to a lot of individuals, some of whom are just taking their first steps for rehabilitation. However, it does provide them with an opportunity to access available programs and services, and it provides a degree of protection to the community, knowing that those conditions which led this offender to the criminal courts are being addressed. It's important that this is done at a very early stage of the proceedings, even before the matter gets to sentencing.
The Chair: Your Honour, I hate to interrupt a sitting judge, but we have a significant number of senators who would like to pose questions, and the time is getting narrow here.
I'm going to move on at this stage. If we have time at the end, perhaps you can have a few closing comments on areas you wish to expand upon.
Senator McIntyre: Thank you, Justice Nakatsuru, for your presentation. I have two questions, one regarding Gladue and one regarding sentencing. As we all know, the Supreme Court in Gladue examined section 718.2(e) of the code. Is that section of the code sufficient for achieving fairer outcomes for Aboriginal offenders, or does the code require further revision in this respect?
There are a number of restorative justice programs in place which deal with Aboriginal persons, sentencing circles, healing lodges in prisons and cultural and spiritual services. What is your assessment of these programs? Do these programs work to reduce recidivism and divert Aboriginal offenders from further dealings with the criminal justice system?
Mr. Nakatsuru: I'm going to follow the guidelines set out. I'll try to be as brief as I can.
On the first question, senator, I think you would be in a much better position to answer that than I am in terms of what reform is required.
Second, there are evaluations out there on how well some of these things are doing. The difficulty, of course, is that the objective data is not always complete and the methodology isn't perfect. The only response I have is that just because there isn't hard data to say that they're working doesn't mean that we stop trying. When you're respecting the provisions of section 718.2(e) of the Criminal Code, the more options and alternatives out there that a sentencing judge or a parole board or anybody else has available, the more room there is for creative alternatives when it comes to sentencing other than incarcerating individuals.
Senator Jaffer: Thank you very much for your presentation. I certainly found it very useful.
Our study is about court delays. I don't know how many cases are removed from the main courts. I'm saying main court for lack of a better word. Is the removal of those cases from the general court freeing up any time? Is that helping with court delays, even though it may not help in your court?
Mr. Nakatsuru: Any time you can divert a case from the criminal justice system, you will help with issues of delay. Diversion is an important aspect of case management in the court judicial system.
I don't know of any data or objective studies. Obviously it's only anecdotal. Throughout our country, most courts have a very heavy docket. The more you can divert those cases, the less delay there will be overall. That's the best I can do to answer that question.
[Translation]
Senator Dagenais: Thank you, Mr. Nakatsuru, for your presentation. If we draw a parallel between the traditional courts and the Gladue court, can we conclude that Aboriginal people are privileged to have access to a court such as yours? Do you know how much the Gladue system costs? Can the government save any money?
[English]
Mr. Nakatsuru: Responding to your second question, I really don't have any information to be able to assist you with that.
With respect to the first question, the answer lies in the cases like Gladue or Ipeelee where the application of Gladue principles and section 718.2(e) is never an automatic discount for indigenous offenders. All principles of sentencing need to be applied to indigenous offenders just like any other offender.
The only difference is that for the reasons already noted in the jurisprudence, sometimes substantive equality requires more than actually exact sentencing, because no two individuals who appear in front of a judge will be exactly the same.
While we must respect the principle of parity, ensuring that similar cases are treated similarly, the application of the Gladue factors for indigenous offenders doesn't breach that parity principle. It enhances it in many significant ways.
Senator Joyal: Thank you. My question is more legally technical. When an offender is accused of an offence for which there is a minimum sentence, they can't appear in front of you. They can't go the route of the Gladue approach. Does that apply to bail? In other words, is it the definition of the offence that makes the qualification for you to hear the case, or in the case of bail, would you have to pronounce on the decision involving an Aboriginal person?
Mr. Nakatsuru: Thank you for that question. First of all, all cases can come into the Gladue Court, even ones with mandatory minimums. It does mean, of course, that those mandatory minimums have to be respected in terms of any decision made by the court, absent any constitutional concerns or challenges.
It doesn't matter if the case or the offence is serious, whether it has a mandatory minimum or anything else. It can still come into the Gladue Court in Toronto.
With respect to your second statement, whether there are mandatory minimums or the definition of the offences, it doesn't prevent them coming into the bail court. It may figure in in terms of the actual application of the law with respect to bail, but it doesn't prevent access to the Gladue Court.
Senator Joyal: My colleague Senator McIntyre asked you about the rate of success of the Gladue approach to prevent recidivism. Do you have any figures or any way for us to understand the level of success or the usefulness of the Gladue approach?
Mr. Nakatsuru: To answer your question as directly as I can, some evaluations have been done on recidivism on the community council or the restorative part where individuals are diverted from the criminal justice system, and those evaluations are, again, on the Aboriginal Legal Services website. There are a couple of evaluations.
Unfortunately, the data is a little bit old. The last evaluation was 2000. There were some conclusions, as I recall, that it did have a positive effect on recidivism.
Regarding the actual criminal court system and recidivism, I am not aware of any actual study done assessing recidivism on an objective basis. The one thing I will say, though, from a judicial perspective, is that we always have to be careful of evaluating recidivism as a measure of success, because there are many other successful measures which cannot be easily quantified like recidivism. For example, the encouragement of reconciliation between indigenous peoples and communities and the criminal justice system, whether or not individuals feel like they've been given a fair hearing by the court, whether it be victim or indigenous person, because you have to keep in mind that in many communities, the victims are often indigenous individuals themselves. It's not just indigenous offenders that we deal with.
Finally, on recidivism, the data is sometimes difficult to assess. I'm not a social scientist, but it's difficult to assess because how do you quantify recidivism in terms of a particular individual? An individual, for example, comes back into the Gladue Court, but they're charged with much more or much less serious offences than they would have been had they not been connected to the social services or the programming beforehand. It's hard to measure that kind of question when you look at data regarding recidivism.
Don't get me wrong. I do think this kind of study is important. Obviously, we need objective measures for how our judicial system is operating. It is something that would be of help not only to judges and lawyers but also to people like you.
Senator Batters: Thank you, very much, Justice Nakatsuru. I'm just trying to get a grasp, and perhaps I missed this right at the beginning of your presentation, of what sort of numbers we are talking about here. How many Gladue cases does your court handle on a daily, weekly, yearly basis? How often does your court meet?
Mr. Nakatsuru: We meet twice a week, Wednesday and Friday. Part of it is resources. We don't have the resources to meet more frequently in terms of not only personnel but actual court space. The dockets can be very long.
To give you an immediate answer, keep in mind that the numbers that come into Toronto may be very different than those other areas of Ontario where there may be higher percentages. I would go back to Professor Clark's study where he did some number crunching and looking at the information.
I don't have the information here, but I recall him saying, in terms of the overall percentage of cases, that the Gladue Court handled maybe 3.2 per cent of the cases that came into the Old City Hall courthouse. That's not to say that indigenous offenders were only 3.2 per cent of all the individuals who came in. It's just those individuals that came into the Gladue stream. There are a host of reasons why they may not choose that stream.
If you want actual concrete numbers, Professor Clark has them in his study.
Senator Batters: What does 3.2 per cent mean? How many people is that on a daily, weekly, yearly basis? If you don't have those numbers, could you please get them for us?
Mr. Nakatsuru: I can only suggest you go to Professor Clark's study. It's on the Aboriginal Legal Services website. He has actually crunched the numbers. I can't remember whether it was a seven-month period, but there were some 94 individuals who came through the Gladue Court at that time. That's my best recollection of the numbers.
Senator Batters: Your recollection is 94 people in seven months? We'll check that, but that's your approximate recollection?
Mr. Nakatsuru: Yes. You can check that with Professor Clark's study.
The Chair: I'm not sure if you've heard of the first Aboriginal court in Canada on the Akwesasne reserve that was announced a couple of months ago. They're not dealing with criminal matters but minor matters like bylaw, regulations, tobacco issues and vandalism, that sort of thing.
You may not have an opinion on this, but would you see any merit in the committee perhaps encouraging the government to take a look at broadening this kind of initiative to establish Aboriginal courts completely outside the regular system that could deal with defined criminal matters? Do you think that's worth this committee perhaps recommending to the government to consider taking a look at?
Mr. Nakatsuru: That's in the law reform area. Initiatives are being taken. The Ministry of the Attorney General is probably in a better place to answer questions like this.
The way I can answer that question from a judicial perspective is that, first of all, if you are looking at the issues of systemic delay in the criminal justice system, any diversion of cases or offences outside of the criminal justice system can only help alleviate the issue of delay. It just makes common sense.
Second, in terms of answering that question, one the most important considerations of cases like Gladue or Ipeelee at the Supreme Court of Canada — again it's not something new; numerous commissions as well as the Truth and Reconciliation Commission report have always encouraged our judicial system to think of creative solutions to problems such as alienation and to make more meaningful to indigenous offenders aspects of how the law affects them on a personal and a community level.
Any creative solutions that this committee, the government or provincial governments can bring their considerable intelligence and resources to bear on can only be welcomed not only by the criminal justice system itself but also by the people we serve.
[Translation]
Senator Boisvenu: Thank you for your testimony, and more importantly, congratulations on your work. It's not easy to work in your field.
The profile of incarcerated Aboriginal people greatly concerns me. They are younger and less educated than the white population, and they are more likely to have a drug history, to be incarcerated for violent crimes, to receive a larger sentence as adolescents, to be disproportionally affected by a history of family violence and to be part of street gangs. We see that incarceration is not a solution. When we try to improve the conditions of incarceration and the time frames, we fail to focus on the causes. We're working on the consequences of a social system that doesn't meet the expectations of the communities with regard to reducing crime and helping the youth receive an education or obtain employment. Education and employment help reduce crime rates. Are we taking the right steps by trying to improve the conditions of incarceration rather than the judicial process, when there may be other causes?
[English]
Mr. Nakatsuru: The profiles that you've mentioned, senator, are profiles that we commonly run across with respect to the individuals who come before the Gladue courts. I would endorse and support the fact that these characteristics, sadly, do exist amongst those indigenous offenders who are often brought before the criminal justice system.
I think some of your comments that you have made are echoed by the Supreme Court of Canada in the case of Gladue, where the court recognizes that the criminal justice system may not be able to actually address some of the real core problems that are very challenging to indigenous individuals and indigenous communities, and they recognize that, just as you have recognized it in your question.
But what they ultimately came down to saying in their judgment was that while we may not be able to solve all of the problems that result in that kind of profile and in the disproportional overrepresentation of indigenous peoples in our jails, we do have, as judges, some power in that we can try to be a part of the solution rather than just simply add to the problem.
While our courts agree with the comments you have made, ultimately, the court has said we need to do our fair share of being part of that solution.
[Translation]
Senator Boisvenu: The governments in reserves or communities have an intrinsic responsibility. There seems to be contradictions. Aboriginal people are incarcerated in prisons found in white communities. Once they have served their sentence, they return to their community and often live in isolation. Are the chiefs of the communities aware that the solutions must come from both within the community and the government as part of its major social measures?
[English]
Mr. Nakatsuru: You've pointed to some systemic problems, and again there is a limited capacity within our institution to deal with that, but what I can say is that within the judicial system, there is a willingness and an openness to involve as best we can community views about what's important to them. I think that is important not only to our Gladue Court but also to the overall health of the criminal justice system when it comes to dealing with indigenous offenders. If there isn't room for the voice of those individuals in communities, then ultimately the respect for the administration of justice, not only in those communities but in the country at large, will be diminished.
I do believe there is a recognition of that, certainly within the justice system.
The Chair: Thank you, Judge Nakatsuru, for bringing your expertise and experience to our committee's consideration of some very important issues. It is much appreciated, sir.
Hon. Senators: Hear, hear.
Mr. Nakatsuru: Thank you very much for having me.
The Chair: That completes our business for today. The meeting is adjourned.
(The committee adjourned.)