Proceedings of the Standing Senate Committee on
Legal and Constitutional Affairs
Issue No. 16 - Evidence - November 16, 2016
OTTAWA, Wednesday, November 16, 2016
The Standing Senate Committee on Legal and Constitutional Affairs met this day, at 4:18 p.m., to study matters pertaining to delays in Canada's criminal justice system.
Senator Bob Runciman (Chair) in the chair.
[English]
The Chair: Good afternoon, welcome colleagues, invited guests.
Members, earlier this year the Senate authorized the committee to examine and report on matters pertaining to delays in Canada's criminal justice system and to review the roles of the Government of Canada and Parliament in addressing such delays. This is our thirtieth meeting on this study.
We are pleased to have with us once again the Honourable Neil Wittmann, Chief Justice, Court of Queen's Bench of Alberta, who is joining us via video conference from Calgary. As we all recall, the Chief Justice appeared before the committee last week, but we had some technical difficulties and had to end the session with him when we still had many senators who wished to pose questions. He has graciously agreed to join us again, from a different facility this week, so we hope not to incur the same problems.
Last week, Senator Baker had just finished putting forth his questions related to disclosure, the deadlines for Charter applications and the court schedule throughout the year when we had our technical difficulties.
The clerk sent the transcripts to Chief Justice Wittmann, and he is prepared to begin by providing his answers to Senator Baker's questions, and then answer questions other senators may have.
Thank you, Justice Wittmann. We very much appreciate you agreeing to come back, sir. The floor is yours.
Hon. Neil Wittmann, Chief Justice, Court of Queen's Bench of Alberta, as an individual: Thank you, Mr. Chair. Before I go to Senator Baker's question, there's one error on page 4 of the transcript. It's just a punctuation error. It probably doesn't matter, but where I begin, at the bottom of page 4, when you talk about an executive board, I'm talking about court governance in the Court of Queen's Bench of Alberta. The question was: Is that sort of mechanism commonplace across the country? And I responded: "I don't know the answer to that. I haven't heard of it,'' and then there is a period, followed by, "at our Canadian Judicial Council meetings.''
What I was trying to convey is that I hadn't heard of it at our Canadian Judicial Council meetings. When I say, "we developed that,'' I meant it was developed in Alberta solely by our court. Strategic planning as a concept is not unique to our court. It's common nowadays in many organizations, but I didn't want you to think that the CJC had developed it for Superior Courts in the country.
Turning to Senator Baker's questions, I read the transcript beginning at page 5, and it seems to me that the thrust is to get at what I think about some modifications to the preliminary inquiry status quo. He points out some issues with regard to what I think are called McNeil applications, where one, in some circumstances, can get the disciplinary records of a police officer. The idea is that all voir dire and Charter issues could be dealt with at a preliminary inquiry and that would, I gather, contribute to some efficiency; in other words, it would be the antithesis of delay.
I think that the preliminary inquiry deserves to be the subject of some intense study by a number of participants in the system as to its utility in its present form. But the idea is that if it's still to be a filtering mechanism to decide whether a matter should go to trial, in other words, number one, a defence lawyer or an accused has to ask for a preliminary inquiry under the system now. That can be modified to, basically say, "Well, I only need to examine the complaint. I don't need to examine anybody else.'' So it's just a partial examination.
A lot of agreements are made between defence lawyers and the prosecutor. They might be able to isolate an issue at a preliminary inquiry and say, "But we don't think you have any evidence on one element of the case.'' I think, as you know, if there is any evidence upon which a jury could convict, then the preliminary inquiry judge must commit the accused for trial.
There's a standard here that's far different from the standard used at a trial. The evidence is different. The preliminary inquiry judge under the existing regime is not entitled to do anything other than, in some very limited circumstances, conduct a limited weighing of the evidence.
The usual situation is that the preliminary inquiry judge is not entitled to assess credibility or even reliability, so it seems to me a number of those aspects would have to be changed. The Supreme Court of Canada has ruled against allowing the preliminary inquiry judge to entertain and make rulings based on the Canadian Charter of Rights and Freedoms, and they have done that on the basis that the preliminary inquiry court is not a court of competent jurisdiction.
That case was a 5-4 decision of the Supreme Court of Canada. It's called Hynes, and the minority said yes, it is. The difficulty, though, is if rulings are made on the charter for the remedy to exclude or include evidence at the preliminary inquiry, at a trial there may be more evidence led. There may be more of a context to the same issue, and one of the reasons the majority gave — the majority decision was rendered by Chief Justice McLachlin — was that the Charter litigation at the preliminary stage may ultimately serve no other practical purpose than to increase the costs and delays associated with the process.
I think that there's ample room for improvement when looking at the preliminary inquiry, but I also would caution everyone not to think, with respect, that there are some quick fixes out there that wouldn't have unintended consequences and which may, in fact, lead to the very problem that is intended to be cured.
I hope I've answered that question.
The Chair: Did you want to continue with the other responses, and then we'll open it for feedback and further questions? The two other issues are the deadlines for Charter applications and the court schedule throughout the year.
Mr. Wittmann: I'm all in favour of the deadline for Charter applications. I think there are deadlines now. The problem is they are soft deadlines, or at least that's how they're treated by the courts. I don't know of any decision, and don't take my word for it, because there are probably scholars out there and people more immersed in the criminal law than I and more familiar with it, but if you miss a deadline to give a Charter notice and it's fundamental to the defence of an accused person, I think a Court of Appeal or the Supreme Court of Canada would say that cannot trump fairness to the accused.
We are now seeing, in some cases — and I'll give you one example: If that deadline were to be missed by a lawyer who is later termed incompetent by the court, that's a ground for appeal, and it has been recognized now that the appeal is based on the fact that someone had incompetent counsel, which the appeal courts would correct.
My answer to the question of deadlines is yes. How to enforce them or to make them enforceable, I think, would be a challenge; but I don't think it would be insurmountable. I think the reason that they're not enforced as much now is, at least in Alberta, for example, the Charter notice must be given in advance of the trial.
If we had a system — and this would require legislative change, maybe provincial and federal — and we said that not only does the Charter notice have to be done in advance, but also you have to have your Charter applications heard in advance of the trial, so by the time the case is tried, that is water under the bridge, so to speak. But that would have to be done by the same court that's going to hear the trial, not necessarily the same judge because since the advent of section 551.1 of the Criminal Code — the case management section — a case management judge can make those rulings in advance of the trial. We're seeing more and more of that in our court because the defence bar and the prosecution service recognize — especially in a drug case where you have a preliminary ruling, for example — that the drugs are excluded from the evidence, which usually gives rise to a withdrawal of the charges. Conversely, if they're to be included, and that's the best defence that's available, sometimes that turns into a guilty plea.
I think those deadlines would be good, but you have to be careful in not letting them creep into the trial process because the decision in respect of that deadline has to be made in advance of the trial.
With respect to scheduling, because of the problems we had with video conferencing last time, I wasn't clear that our scheduling is just done in three blocks. January to June is one block; July and August is another; September to December is another.
The summers are lighter, but we do have trials. That's relatively new, I'd say in the last five years. Historically, our court did not have trials in the summer. They had a lot of motions, special applications, appeals from provincial courts and so on — all the rest of the court business, judicial reviews, but not trials.
Now we offer summer trials. To use the words that were used in Jordan by Justice Moldaver, that requires a cultural shift not so much by the court, because we began offering them and a lot of members of the bar didn't take us up on it very quickly. They are now and we're offering more and more summer trials.
That doesn't enable us to do more work on a 12-month basis. All it does is spread the work around amongst 12 months, whereas the majority of it was done in 10 months previously.
The Chair: Thank you. Since those were responses to Senator Baker's questions, I'm going to move around the table and he will have an opportunity later to perhaps respond to them.
Senator McIntyre: Welcome to video conference No. 2, Chief Justice Neil Wittmann. Sorry about the technical difficulties on November 3.
When you appeared before the committee in Calgary last September, you made a reference to various issues facing the criminal justice system in your home province of Alberta. That said, to tackle these issues, you suggested increasing judicial and non-judicial resources such as case masters. Could you elaborate a bit on the issue of case masters, please?
Mr. Wittmann: That's perhaps an idea that I should think out more, but it seems to me that we have case masters across the country in a lot of jurisdictions in the civil practice. They manage cases. That's what they do.
I fail to see why a case master, armed with some authority — I'm not talking about judicial section 96 authority, I'm talking about the same authority that a civil master might have to organize the case, to talk to lawyers or a self represented person and say: What are the real issues? What are you really going to proceed with? Which counts would you proceed with on this indictment? What are you looking for here? Is there any possibility of a resolution, for a lesser charge? All of the things that eventually get done at some stage, but a lot of those things, at least in my view, you do not need a Superior Court judge to do. A lot of it is scheduling. A lot of it is — I don't want to be pejorative — prodding, urging, asking questions and making sure that there's some movement in the case.
There's a tremendous amount of time in this country wasted, as far as I'm concerned, by accused persons and their counsel appearing in court for an adjournment. Sometimes it's by consent. The theory is, "Oh, well, the court loses jurisdiction over the person if we don't have that appearance.'' I think we should move away from that. It's the 21st century.
Senator McIntyre: All judges want a trial to proceed efficiently. From the evidence that we have all heard, there's no question about that.
Do judges under the code have the legal authority they need to ensure a trial proceeds expeditiously? Do they have that authority under the code or should the code be amended to give them more power, more authority to make sure that the trial moves and proceeds expeditiously?
Mr. Wittmann: First, I think a lot of amendments could be made to the Criminal Code to allow a trial to move more expeditiously than it does.
Senator McIntyre: Can you give us some examples?
Mr. Wittmann: For example, going back to Senator Baker's question, if you said in the Criminal Code that all Charter applications are to be made on notice by the defence to the Crown X number of days before the commencement of a trial and that they're to be heard and decided before the commencement of the trial, then that isn't so much of a matter of giving the judge power, but it certainly helps.
A judge, on a case management basis, could set those deadlines and some of us do set those deadlines now. The bar is not resistant to that. They welcome that. Everybody wants certainty. Certainty is a great value in the criminal justice system.
That's just one example I think where an amendment could be made that would be welcome. Will there ever be exceptions? Yes, I think there probably will, but that would change the dynamic substantially.
The other thing — and again this is resource-oriented — a lot of family law literature, for example, says we should have one family, one judge. In the criminal law, once the case gets into the Superior Court — in other words, whether it's a direct indictment or someone is committed for trial — if that were assigned to one judge then and there, I think that would be more efficient.
Right now, at least in our court — and I don't know how some of the other courts schedule — but I think we are like most other superior courts; the case management judge isn't necessarily the trial judge, for example. There are other judges that, for want of a better term, touch the file before it gets to a trial. If it's one judge, one file, then that judge doesn't need to get up to speed coming into it on a new basis. So that's just another idea that might deserve some study.
Senator McIntyre: Thank you.
Senator Batters: Thanks very much. I really appreciate you being with us here again, Chief Justice Wittmann. Perhaps this has already been said. I just missed the very start of your testimony, but thank you so much for the important testimony that you gave us in Calgary when we were there. Your testimony played a very important role, I would say, in having at least 24 new judicial appointments across Canada, in pressing the federal justice minister into doing that, so thank you.
I also note that last time you were here you spoke in your opening statement about the judicial advisory committee changes and how you were very concerned with them because all committees have now been disbanded waiting for this brand-new process that the federal justice minister has announced. So no one, as you pointed out, is eligible for appointment to a Superior Court right now.
What was the situation before the justice minister's announcement recently? How many judicial advisory committees for Alberta were there and how many were operational at that particular point?
Mr. Wittmann: My understanding is there are 17 judicial advisory committees across the country. The larger provinces, such as Ontario and Quebec, have more than one. I think Ontario has three. I could be wrong. But Alberta only has one committee. That committee wasn't disbanded until October 19 or 20, when they were all disbanded. That committee was intact. It met December 2015. It met March 2016, May 2016 and June 2016. It was to meet September 26, I think. That meeting was cancelled. It was adjourned to October 21, and of course that meeting was cancelled because everything was wiped out.
I understand the desire to reconstitute the committees, and I understand the reforms that have been put in place in terms of vetting provincial court judges, in terms of the "highly recommended'' category and in terms of having the institutional representatives only of the Canadian Bar, the Attorney General of the province, one judge from the Superior Court who now will have a vote, and also the law society and three persons appointed by the federal government, which I believe eliminates an institutional representative from law enforcement.
All of that is fine. My consternation was that a lot of people went through the process and were approved — whom I think would probably be very good appointments, — but now they're not anymore. They say, "Oh, well, you can reapply.'' Well, the reapplication, I am told by some people in Alberta — and I don't purport to know it — is quite onerous to fill out. I've heard of estimates of 15 hours to get there. My concern is that some people will give up. They won't do it.
Aside from that, we had three vacancies when they disbanded the committees according to federal count. According to the Province of Alberta, we need to add 12 to that, because that's what Alberta legislation says. We had another vacancy on Monday. We'll have another one December 19 and another one January 3. I know I'm repeating what I said during my first testimony.
Senator Batters: That's okay.
Mr. Wittmann: This is a dynamic process. It needs to be managed on an ongoing basis. My fear is we're going to fall further behind because of the delay in getting these committees up and running, getting the applicants in, getting them reviewed and finally getting some candidates.
Senator Batters: Right. And as you pointed out last time, a couple of the appointments for Alberta that were very recently made by the federal justice minister were appointments to your Court of Appeal and so they were taken from your particular Queen's Bench court. Now there are those positions as well.
Mr. Wittmann: Yes.
Senator Batters: You spoke about the onerous process of the judicial advisory committee, the application process. What's also onerous — I'm sure you can comment on this a little bit — is the committee process for going through those applications, the meetings that need to be held on that, the references that need to be checked, all of those things. Can you tell us what sorts of things a judicial advisory committee would have to do and how onerous that process would be to have to start out with all those people all over again?
Mr. Wittmann: I don't think I'm equipped to comment on that because I don't know what goes on inside the deliberations of the committee before the change.
Senator Batters: Okay. You haven't sat in on those.
Mr. Wittmann: All I know is there will be a backlog. There was a backlog before because they would only process so many per meeting. Now, will they have more meetings as a result of the new process? Maybe they will. Maybe they'll have some catch-up meetings. I don't know.
I have also been told that they're going to have training sessions for these committees, which I think is a good idea. But, again, I don't know how long that's going to take to get them up and running.
[Translation]
Senator Dagenais: The implementation of measures to reduce delays will require the participation of all stakeholders. On the judges' side, you talked about training or special guidelines for making decisions that will have a significant impact on delays. Could you tell us how those talks are going?
[English]
Mr. Wittmann: Forgive me, but I didn't understand the question.
[Translation]
Senator Dagenais: When you receive training or guidelines on how to reduce delays in the courts, what does that entail? Are you told: "Here's what you need to do,'' or is it more in the form of discussions with the people responsible for the training?
[English]
Mr. Wittmann: The training I was referring to was the training of the judicial appointments advisory committee members. I don't know what that training is or will be. I'm not on the committee, to be clear on that — there's a judge from our Court of Appeal on it — so I don't know what that training is going to be.
[Translation]
Senator Dagenais: Typically, as a judge, you receive two or three weeks of training every year. During those training sessions, are you told what to do to reduce the court delays?
[English]
Mr. Wittmann: I think most of my colleagues across the country would prefer to call it "continuing judicial education'' rather than "training.'' We have education programs, both within the province for every member of our court and also programs in which judges gather together to attend across Canada. Those programs run a spectrum of almost any subject matter that we deal with as judges.
If you're asking if there's a specific program put on by the National Judicial Institute to deal with delays in the criminal justice system, I'm not aware of one.
However, I would expect that as a result of Jordan they will be developing a program to deal with it. We in Alberta had a session on that in our program at the end of September. It was the week before I initially testified. Part of that program, a half-day, was on how to deal with delays.
We brought in the chief Crown prosecutor for the province and the chief federal prosecutor for the Public Prosecution Service of Canada. We talked to them about what they were going to do and what we could do so that we were all basically pulling in the same direction.
[Translation]
Senator Boisvenu: Justice Wittmann, welcome.
My question has to do with the new reform of the judicial appointment process. Recently, the government has changed its way of doing things. First, based on the information we have received about judicial appointments, the advisory committees would be disbanded, and committees would be set up within a more standardized framework. What do you think of this reform in relation to the appointment of judges?
[English]
Mr. Wittmann: I don't know that the committees are set up in a "more standardized way,'' which was the English translation. I don't know what that means. I think they're set up in the same way in terms of a judge who will chair, a Canadian Bar Association representative, a law society representative, attorney general of the province representative plus three people appointed by the federal government.
The difference is the absence of someone from law enforcement as an institutional representative in terms of the composition of the committee and the ability of the judge to vote who didn't have a vote under the previous regime.
I was on one of those committees in the 1990s as the law society representative and I can tell you that very rarely did there have to be a vote, much less have the chair vote. There's usually a consensus on a candidate.
The reference checks are rigorous. The community people, mostly the lay people on those committees, check out a candidate from a different perspective than those who are legally trained.
I think the new process will probably be improved because of the "highly recommended'' category which was changed by the previous government to "recommended'' or "not recommended.'' Depending on the province and committee, I think that resulted in an undefined standard where the bar was raised. When you just have "recommended'' or "not recommended,'' I think some committees said they were going to go for exceptional people only.
How that will play out I don't know because I don't know what the criteria will be, whether they'll be written down, or what the training is going to be.
[Translation]
Senator Boisvenu: We know that Quebec trails behind in terms of delays, which are twice as long as in Ontario and almost three times longer than in the Maritimes. Quebec's Minister of Justice has just introduced an action plan to reduce delays. Are you familiar with that action plan?
[English]
Mr. Wittmann: No, sir, I'm not. But if it would be helpful in Alberta I would love to see it.
The Chair: Chief Justice, I have a couple of quick questions. You mentioned having a meeting in September prior to sitting down with our committee. I'm wondering about the discussion at that gathering with respect to clarification on how you interpret what the Supreme Court said in Jordan about cases currently in the system. I'm not going to ask you a question about any particular case, but the court was indicating that it wouldn't be subject to the 30-month limit if the Crown could demonstrate the case proceeded according to a reasonable reliance on the laws that previously existed.
We just had another situation here in Ottawa where a murder case was stayed after four years. I'm just wondering how your court is approaching this issue. Have you provided some kind of direction? Is there an understanding with respect to how you arrive at a decision like this?
Mr. Wittmann: No, and I don't think there will be. As you know, all of our judges are independent. It would be improper for me to suggest any interpretation, I think, based on my interpretation.
What we and all judges in this country do, if a case is decided in another jurisdiction which deals with that issue, is try to make everybody aware of it and say, "Look, here's what happened in Ontario.'' It's more persuasive if it's from an appeal court, perhaps, but it might be too soon for that.
The part of Jordan that you're speaking about, of course we discuss these matters informally when there's no case in front of us. I haven't heard anybody who knows exactly what that transition of reliance means.
It seems to me to be a bit odd because most judges do, and I think all judges should, rely on evidence. What's the evidence going to be for reliance on the previous law in the context of that transition? I think we're going to have to wait and see until somebody raises it, argues it, perhaps leads some evidence, and a court decision is made on it.
The Chair: The average layperson reading a contextual application probably even leaves the judiciary scratching their heads.
Another issue was raised indirectly and brought to my attention. This hasn't been brought forward as part of testimony throughout our hearings. That's whether or not there's a case to be made for a single trial division in the Canadian court system. How do you react to that?
Mr. Wittmann: I think I would be in favour of looking at everything. I know we have what we call a flat trial court. That situation exists in Nunavut, for example. In Alberta we had controversy over that in early 2000, 2001 and 2002 because the provincial court and Court of Queen's Bench were really at odds over that very issue. It arose when there was discussion over a unified family court in Alberta. The provincial court said, "Why not just make it a unified court? Never mind the family part. Let's put the whole thing together.'' That gave rise to some animosity.
I think it was very unfortunate because we ended up not getting a unified family court at the time. I don't want to be political about it, but I do remember the Alberta government wrote a letter on this to the federal minister, because that would require extensive amendments to federal statutes. I think it was the Honourable Martin Cauchon who wrote back and said to contact him when we get the rest of the provinces onside. That never happened, and that initiative sits today.
I don't know whether that would increase fairness and efficiency. For example, you would have a lot of cases on standardized procedure perhaps going forward with more judges and more common resources, and intuitively you would think that would probably be more efficient. Perhaps it would be.
Conceptually, I'm not against it. I can tell you that I think a lot of Superior Court judges in the country wouldn't like the idea. A lot of provincial court judges would love the idea.
I should make full disclosure that my wife is a provincial court judge in the criminal division in Calgary and has been for 16 years. We don't discuss that at home.
The Chair: I think I'm hearing you say it's worthy of the committee's consideration.
Mr. Wittmann: I think it is. The only cautionary caveat I put on that, Senator Runciman, is this: I have experience in amendments to the civil rules in Calgary. I was the chair of the steering committee at the Alberta Law Reform Institute from 2000 to 2010. It took us 10 years to do that.
I found that the problem with trying to design a new and perfect system is that sometimes it never gets done. Even when it does get done, sometimes the events of the culture, of the times, the era we're living in, overtake the reforms that you thought were good in 2000 and which don't matter so much in 2010.
I would be in favour of isolating some areas for improvement and at least trying them and going ahead with some reform rather than redesigning the entire system.
Senator Joyal: Thank you for your contribution.
In one of your answers you said that we are after all in the twenty-first century. Do you see any urgency in reviewing the mechanical operation of the system with the priority on the use of modern technology to make it more in tune with the way the new generation of lawyers has been trained? They are very at ease with that. And there is no doubt that the system, as you've said, operated on a different kind of premise than modern society operates today.
Do you see any merit to a system with an eye on modern technology? Do you see how that could be used to ensure that the system is more efficient and in sync with, of course, the overall objective of Jordan?
Mr. Wittmann: Yes, indeed I do, sir. Modern technology, though, is both a curse and a blessing in many aspects. The blessing is speed, retrieval of information and an ability to get information that would have taken a long time to get in order to make a decision, and I'm talking from a judicial perspective.
The curse, I believe, is in not filtering or properly discriminating what information ought to be used. I may have alluded to this last time, but our civil practice is inundated with a lot of electronic discovery, much of which is not relevant and is useless because it's not filtered.
I have never seen, and I won't see as a judge, the entire disclosure required under Stinchcombe in a criminal case, but I know that the prosecution service in Edmonton has just moved to electronic disclosure.
My fear is that it will be unfiltered. They will get it from the police and then they will spew it out. The problem is the defence gets it and then they have to filter it. If they're doing their job, that takes time.
In my view, the problem is trying to get a system that respects technology but also uses that same technology to filter out what's really needed for the decision.
What does the defence really need for its decision in the criminal context? There have been examples where they've used technology in a civil context; they use key words, for example, after everything is scanned in electronically, and if the program is properly crafted, that is more reliable, more accurate than a human being going through it. If we could get to that in disclosure to the defence, I think that would be wonderful.
Senator Joyal: As you alluded to before, you preside over civil procedure. Do you have any kind of precedent where you have recommended some initiative that could be seen as inspirational for criminal procedure?
Mr. Wittmann: I think that the courts, at least in Alberta — and I know this is a matter of resources again — we should probably move to an e-filing system. I don't know of a court in this country that has an entire e-filing system; in other words, everything is electronic. So when you go into a courtroom, you could see on your monitor what's happened on this case — and it's in front of me on the monitor — and say that I want to know how many orders have been made on this case; I want to know how many adjournments have happened on this case; I want to know if there's been a voir dire; I want to know the result. And if you had all of that electronically, I think that would help. But again, that technology is what I call the hard technology.
Courts have to supply that before the bar and the bench will use it, because now in some of our civil cases the bar will bring in some of the electronics and the software programs to do the cases. Then we can have an electronic trial.
That should be a court initiative. That should be supported, in terms of a superior provincial court, by the provincial governments.
Senator Sinclair: Thank you, Chief Justice, for your comments. I had a few questions based upon some of the things you said that I wanted you to perhaps expand upon.
First of all, on the issue of trial delay, given the fact that the Charter requires that a trial be held within a reasonable time, and the courts have now given some direction as to what "reasonable time'' is needed, do you think that we need any extensive legislative changes in order to fix the issue of trial within a reasonable time? I'm not talking about delay or pretrial custody issues; I'm just concerned about the trial question for now.
Mr. Wittmann: The legislation you're speaking of is Charter legislation.
Senator Sinclair: Yes.
Mr. Wittmann: I hope I'm not too naive, but I would have thought that changing the Charter is a lot tougher than changing the Criminal Code. Changes in the Criminal Code will not trump the Charter. So, should we change the charter? I don't think so. I think it's a perfectly legitimate idea to have a trial within a reasonable time. The question is: What's reasonable?
The Supreme Court of Canada has now purported to give time guidelines to define what's reasonable. To get there in today's world, I think a number of the players need to do a number of things. I think Justice Moldaver referred to a number of them. Be clear on this, the courts and the judges have to step up as well as every other player in terms of a cultural shift and what we can do to do things better, but we cannot sacrifice fairness at the altar of efficiency.
To get a trial within a reasonable time, at least in our jurisdiction in Alberta, we're going to need more judicial and non-judicial resources. Right now in Calgary and Edmonton we're setting trials that come into our court, and if they're over five days, we're setting them 62 weeks out. If they don't get here for 18 months, we've only got 52 weeks till we hit the 30-month ceiling. As soon as the case gets into our court, we've exceeded the Jordan guideline, but for subtraction for defence delay and all of that sort of thing.
To get those lead times down, we need to put on more judges in our existing system to fix it so that everything else works better. That lead time would go down also. A number of factors could do it.
Senator Sinclair: I apologize, Chief Justice; perhaps I didn't state my question very clearly.
It was on the basis that the Charter requires a trial to be within a reasonable time. My question was: Why would we need legislative amendments to the Criminal Code if the Charter is very clear about the issue of a trial within a reasonable time? Related to that would be my next question, and that is: Do you think there's any merit to considering removing the right to a preliminary hearing from the Criminal Code?
Mr. Wittmann: I'm sorry I didn't grasp the first question. Yes, I do think legislation could help, because what does "trial within a reasonable time'' mean? It's like people who talk about access to justice. As soon as you turn around and say, "What exactly do you mean by that?'' They pause. Do you know why they pause? Because the phrase has become so standardized that it's almost meaningless unless you think about what it means, and it means different things to different people.
So too with trial within a reasonable time. That's precisely why Jordan set the times. It says these are reasonable outside times. These are times within which a presumption will occur.
But each case is different and there will be exceptions and they said they talked about complexity, defence delay and they talked about a whole raft of other things. I think amendments could be made so that the system would result in trials being held sooner, generally speaking, which, to me, means there's a better chance of all the trials being held within a reasonable time.
The Chair: If I could jump in here, you addressed the preliminary inquiry issue earlier, and that will be available on transcripts in response to a question posed by Senator Baker, so we won't ask you to run through that again.
We have one senator who has a quick question before we run out of time here.
Senator Baker: We want to thank you sincerely for your presentations to this committee. It's really been outstanding and very helpful.
Sometimes, applications are just filled with boilerplate language, and not any substance. Should this committee recommend that courts throw out any application made that is filled with boilerplate language that doesn't address the facts of the case to back up the charter argument being alleged? Do you have any comment on that?
Mr. Wittmann: I'd like to think we do exactly that. One of the interesting things about the criminal law is that there's no sanction for losing. I'm not suggesting that there should be in a trial context, but we're talking about applications which have absolutely no merit at all and why they are being made, if the court will call them anything from desperation to a Hail Mary.
I don't know that our system should necessarily concentrate on that because most of the bar are lawyers of integrity, and they don't participate in that. I'm not saying nobody does, but the vast majority of it is not a cause for worry, I don't think.
I'd like to close by repeating something I said the first time. We have one of the finest criminal justice systems in the free world. I know that, and don't let anybody tell you any different. The face of our justice system, in this country, is now and has been Chief Justice McLachlin. She's revered worldwide, and she speaks worldwide, so let's not get down on ourselves because there are some delays, because we still have a better system than most, I think.
The Chair: Thank you, Chief Justice Wittmann; you've been very generous with your time and very helpful with your testimony. It's truly appreciated by the committee. Thank you, sir.
(The committee adjourned.)