Proceedings of the Standing Senate Committee on
Legal and Constitutional Affairs
Issue No. 24 - Evidence - March 9, 2017 (Morning Meeting)
OTTAWA, Thursday, March 9, 2017
The Standing Senate Committee on Legal and Constitutional Affairs met this day at 11:40 a.m. to study matters pertaining to delays in Canada's criminal justice system.
Senator George Baker (Deputy Chair) in the chair.
[English]
The Deputy Chair: Good morning. Welcome colleagues, invited guests and members of the general public who are following today's proceedings of the Standing Senate Committee on Legal and Constitutional Affairs. Today we continue our study on delays in Canada's criminal justice system.
We have with us three experts in the area: Christopher Sherrin, Associate Professor, Faculty of Law, University of Western Ontario; Bruce MacFarlane, Professor, Faculty of Law, University of Manitoba; and Peter Hogg, Scholar in Residence, Blake, Cassels & Graydon LLP. Thank you all for being with us here today.
The floor is yours.
Bruce MacFarlane, Professor, Faculty of Law, University of Manitoba, as an individual: Thank you very much. I would like to thank the members of the standing committee for inviting me here today to talk about this important and difficult issue. I have already filed a brief with the committee, so I only intend to highlight the points that I would like to make.
Let me be clear on one thing at the outset. The decision of the Supreme Court of Canada in Jordan is quite frankly a game-changer. It's not simply an add-on to our understanding of the issue of delay. It changes the game. It calls for a fundamental change in the way we are doing work.
I say that because I'm not sure members of the profession are quite there yet or accept that notion yet. I expect that in the witnesses that you hear from, there will be some pushback, and the suggestion will be that we can make changes around the edges, but my suggestion to you is that we need fundamental changes. The status quo is not an option.
I come before this committee with four separate recommendations that I will highlight. First, I would like to recommend to the standing committee that the procedural parts of the Criminal Code be rethought and redesigned so that we have a modern criminal justice system and not a system that resembles the way things were done during the era of Charles Dickens.
I know that in your interim report you were wary of fundamental changes. Notwithstanding that, I would like to make an impassioned plea for two reasons. We now have the benefit of Jordan, which calls for fundamental change. I'm only suggesting that the procedural parts of the statute, not the entire Criminal Code, be rethought and redesigned. It's a more modest but nonetheless significant task that I'm suggesting ought to be undertaken.
The next three recommendations are somewhat more modest, and yet they are still very important. Second, we ought to either eliminate or reduce the role of the preliminary inquiry. Historically, the preliminary inquiry acted as a screening mechanism and also acted as a means by which the accused could obtain discovery of the Crown's case. The rationale behind those two backgrounds has largely dropped off. There are very few discharges at the conclusion of a preliminary inquiry, and disclosure is now achieved very effectively through Stinchcombe, so it's my respectful submission that the preliminary inquiry has out-lived its usefulness.
I suggest that there are two viable options, bearing in mind that the Supreme Court has made it clear that the preliminary inquiry is not required as a matter of constitutional law. The options I'm suggesting are the total elimination of the preliminary inquiry, or alternatively — and one that I'm somewhat more attracted to — confine its use to the most serious offences, such as murder and terrorism, perhaps with a five-year sunset provision to allow the effect of the change to be assessed.
The third suggestion I would like to advance to this standing committee is that there be a new section in the Criminal Code dealing specifically with the Jordan-type of issue, a section that could be headed something like "expediting proceedings to ensure compliance with constitutional requirements.'' Below that heading, set out a series of at least three principles that are directed to the three main players in the criminal justice system to make it clear what Parliament is saying to those three main players.
The first is to set out the expectation of Parliament in terms of prosecutors, that it's expected that prosecutors will provide disclosure in a timely way, will ensure that their case is focused in terms of the number of people charged, the number of counts, and the evidence led at trial. So it's a focusing expectation. Finally, that Parliament expects the prosecutors will be prepared to proceed to trial within the time frame contemplated by section 11(b) of the Charter.
The second principle would be directed to counsel for the accused. It would be to the effect that upon receiving full disclosure from the Crown, that Parliament expected that defence counsel would be ready, willing and able to proceed to trial, again within the time frame contemplated by section 11(b) of the Charter.
Finally, a principle that would be directed to members of the judiciary, and that would simply outline the expectation that trial judges are expected to manage pretrial processes in such a manner that the case can proceed to trial, again, within the time frame contemplated by section 11(b) of the Charter.
It's directed to all three players. It sets out roughly the same sort of equal obligations on all three, but makes it very clear that Parliament's expectation is that everyone will work together to try and meet section 11(b) requirements.
The fourth recommendation I would like to advance arises from my experience with an international criminal court in Europe. I was appointed by the United Nations to be an amicus curiae prosecutor and had an interesting experience with the International Criminal Tribunal for the former Yugoslavia over a period of five years. It's a system that involves a fusion of the continental system with the common law adversarial system and draws on judges, literally from around the world, all of whom bring their best experiences.
It was quite apparent to me that by virtue of the regulatory underpinning for this tribunal, which emphasizes that the trial judges are expected to control counsel. It was quite effective in terms of making sure that counsel was careful at trial. They stayed within the time frame that was allotted by the court. The court could say, for instance, "You have five days to call your evidence,'' and the court would watch the clock. At the end, the court would say to counsel, "You have one hour to make your submission,'' and would watch the clock, for both prosecutor and defence.
As well, any written materials filed with the court, any written motions, such as abuse of process or anything of that sort, was done in writing and came within a word limit — for instance, a word limit of 3,000 words. If you intended to exceed that, you actually had to go back to the court for permission to exceed. So at each stage, the court was controlling and monitoring counsel in terms of time and word-count and consumption of time.
Once the accused appeared and entered a plea, there are no further appearances unless there was some special reason. Counsel was simply advised by order when the trial was to start. That was usually in consultation with counsel, but the court made the order as to when it started.
There are other factors that I thought added to the expedition within which cases proceeded, but I'll leave it with the standing committee on the basis of my brief. I would simply point out that everything I'm talking about is in a document called "Rules of Procedure and Evidence'' that governs the conduct of cases in that court, and I have given you the link to the document.
The Deputy Chair: Thank you.
Christopher Sherrin, Associate Professor, Faculty of Law, University of Western Ontario, as an Individual: Thank you for inviting me here today. I'm going to confine my opening remarks purely to the issue of remedy for an unreasonable delay. I will try to keep it short.
My position is that the Supreme Court made a mistake a number of years ago when it determined that the minimum available remedy for breach of the right to a trial within a reasonable time was a stay of proceedings. I think that remedy has had a number of unfortunate effects, one of which is that on some occasions serious criminal charges have been dismissed, despite no evidence, or very little evidence, of any impairment of the accused's right to a fair trial.
Probably more frequently — in fact, I would say definitely more frequently — the distaste for granting such an extreme remedy has led the courts in a number of cases to grant no remedy, to not find a violation, in cases where there has been significant delay, where the accused has not been responsible for much or maybe even any of that delay, and where the accused sometimes has suffered evident prejudice such as lengthy periods in custody or lengthy time on bail restrictions.
I don't think a stay is a necessary remedy. It's a possible remedy. It might be appropriate in a number of situations, but not in all of them. The reason why the Supreme Court of Canada decided a number of years ago that a stay had to be the minimum remedy was based on simple reasoning that once delay is bad, more delay has to be worse. That, while attractive, is not quite correct because what the interest in a speedy trial protects is not so much the interest in not waiting, but the interest in preserving a fair trial, in preserving liberty, in preserving security of the person. In at least some situations I suggest it is possible to protect those rights, to perhaps compensate for any injury or prejudice that the accused has suffered, and also to prevent any prejudice from continuing. I think in some cases, probably quite a number of them, it's possible to do that without granting a stay.
To take a simple example, if the prejudice to the accused is that he has been detained in custody for an excessive period of time, let him out on bail, perhaps on very relaxed bail conditions. Then at the time of trial, if he is convicted, perhaps grant a reduction in sentence to compensate for the excessive period of time he spent in custody prior to trial and prior to conviction.
I think we have a remedial straight jacket right now. We don't need one. I think at the very least a statement from this committee affirming that might go some way towards leading to hopefully a consensus that we got it wrong a number of years ago and maybe it's time now to change.
The Deputy Chair: Thank you, Professor Sherrin. Professor Hogg is the most quoted legal author in case law in Canada. He was cited with approval in this report that we examined earlier on with Justice Hill. Mr. Hogg.
Peter Hogg, Scholar in Residence, Blake, Cassels & Graydon LLP, as an individual: Thank you for inviting me. I am singing the same song that you are hearing from Professor MacFarlane and Professor Sherrin.
Concentrating on remedies, as we all agree, and I know this is also in Casey Hill's paper, which you have before you, it was a terrible mistake for the court to say that the only remedy could be a stay. Professor Sherrin didn't use the word "simple-minded,'' but it is based on very simple-minded reasoning that once you have reached an unreasonable delay, you can't possibly continue the case. I think that is a bit of a silly way to look at it.
There hasn't been much discussion of this, but what I argue in my book on constitutional law that the remedy should be an order for a speedy trial. That is the view of an American scholar, Professor Anthony Amsterdam. I'm not sure you see orders for speedy trials even in the United States. Sometimes I suppose the proceedings for challenging speedy trial, the trial is a long time ago, and sometimes it may not be practical. But that is a common-sense solution, it seems to me. Of course, the enthusiasm for defence counsel for their 11(b) right would tend to fade away if the primary remedy was a speedy trial.
Let me stop there, Mr. Chair.
The Deputy Chair: Professor Hogg, in the U.S. they do have the 100-day rule. That is in legislation. Do you agree with the suggestion made earlier in this hearing by the judge who appeared before us in camera that it would be a good thing for this committee to recommend that the Attorney General of Canada make a reference to the Supreme Court of Canada in effect to try to reverse the Rahey decision that a court loses jurisdiction once there is a violation of 11(b) of the Charter?
Mr. Hogg: I think that is a very good suggestion. The only problem that I see with it is that having decided the Jordan case so recently, I think it might be hard to persuade the Government of Canada to direct a reference of that kind because the court has talked about speedy trial very recently, and very inadequately, as I think all your witnesses have said, because they don't loosen up on the issue of remedy at all. I think it's a good idea, but I think you have to be realistic that it might be difficult to persuade the government to do it.
The Deputy Chair: But it's a good idea.
Mr. Hogg: It is a good idea, yes.
The Deputy Chair: Did anybody else wish to comment on that reference by the Attorney General of Canada to the Supreme Court of Canada to address the question that the Supreme Court of Canada has made reference to in recent decisions, that they have not dealt with that question directly?
Mr. MacFarlane: I don't think a reference to the Supreme Court of Canada would be crowned with success. I think that the court would say, "We have already answered that question. Why are you coming back to us?'' It would be my recommendation that the Criminal Code be amended to outline the options in terms of remedies, including an order expediting the trial. Almost with certainty, that is what the Supreme Court would say, so I'm not sure I see the point in doing that.
The Deputy Chair: You mentioned the question of disclosure, and this has been settled with Stinchcombe and so on.
In spite of that, in practically every case we see that's adjudicated in which there has been a positive finding of an 11(b) violation, disclosure has been one of the major issues. Whether it be Stinchcombe disclosure or McNeil disclosure, disclosure has been one of the major issues. So without disclosure, as you say, without full disclosure, complete disclosure, what do you think of that?
Mr. MacFarlane: I think that many of the cases where disclosure has been a problem and led, for instance, to a wrongful conviction were older cases prior to Stinchcombe. The practice right now is full disclosure, virtually everything in the Crown's file, so the world has changed in that respect, but I take your point.
The Deputy Chair: We have had a lot of witnesses who have a contrary opinion, but anyway, thank you.
Senator McIntyre: Gentlemen, thank you for your presentations. Section 11(b) is a Charter right, but there are other rights, such as victims' rights and societal rights, which are not enshrined in the Charter. So my question is this: Looking at the scope and the interests at play in the analysis of an accused's right to be tried within a reasonable time, shouldn't those rights, victim rights, societal rights, also be taken into consideration by our courts?
Mr. Hogg: Shall I start with that one? I think that is a very, very good suggestion. One of the things that was very unsatisfactory about the recent case, the Jordan case, is I don't believe there was any reference to the public interest in having a trial on the merits, which at the very least should be balanced against, and that is a constitutional right, of a kind, itself. It is certainly provided for in the Constitution. It was a little bit unbalanced settling these periods but without any suggestion that there should be some flexibility in light of that important value. Now, it has come up in other cases, but I don't think it came up at all in Jordan.
Mr. Sherrin: I would simply say that I agree. The interests of society and the interest of alleged victims and the interest of witnesses have to be taken into account. The curious fact about the current legal regime is that the remedy that is least desirable to those individuals is actually the only remedy available.
Now, the thinking, I suppose, has to be, "Well, if we provide such a drastic remedy, that will provide a drastic incentive for the prosecuting authorities, and maybe the courts and everybody else in the justice system, to move things along speedily so as to avoid that unpalatable result.'' We've had that remedy now for 30 years, and yet last year the Supreme Court of Canada talked about a culture of complacency regarding delays, so I'm not sure that's been terribly successful.
In any event, even if we change the rules so as to allow for something more than a stay, or something alternative to a stay, the very possibility of a stay being ordered would presumably provide a similar incentive to the authorities to proceed swiftly.
Senator McIntyre: Professor Sherrin, as you indicated, a stay of proceedings may not necessarily be an adequate remedy to address the issues of delays in our criminal justice system. You have also mentioned the possibility of looking at alternatives to ordering a stay of proceedings, alternatives such as a reduced sentence, bail, and I would add maybe monetary compensation, declaratory leave and so on. I agree with those remarks.
Professor MacFarlane, you raised four points in your brief, and one of them has to do with the preliminary inquiries, in other words, getting rid of preliminary hearings, the purpose of which is to determine if there is sufficient evidence to send an accused for trial. What is your view on the steps some provinces are taking in response to Jordan, which include trying to reduce the number of preliminary inquiries, in other words, prefer the indictment, going straight to trial, using a triage approach by assigning priority to cases proportionally within the seriousness of a case, among others?
Mr. MacFarlane: The experience of some provinces is potentially supportable in the sense that where the prosecution fears that a case is in peril, for whatever reason, indicting directly will bring the case directly to trial and avoid a Jordan type of problem, so it acts as a remedy. It acts as a step the Crown can take to avoid having a stay of proceedings entered.
In particular, Alberta has developed a triage approach, which has attracted a fair bit of attention, but on my analysis, and this has only emerged in the last short while, I didn't see anything new arising except a greater emphasis on the public interest side of the two-pronged test for charging and proceeding. It's always been the case with virtually all prosecution services in Canada that resources and the availability of resources was a factor to be taken into account on the public interest prong of the test. That's been part of the written policy framework for a long time. What's changed is that Alberta has come out and has issued a very clear statement that resources and the ability to cope with trials is now front and centre in their view and, as a result, they will enter a Crown stay where it doesn't meet the public interest test. So I don't see a major shift, except a greater emphasis on the public interest issue.
Senator Woo: Thank you for your very succinct and clear presentations. I find myself in the same choir, singing from the same song sheet that Professor Hogg referred to with respect to the idea that there should be a spectrum of remedies rather than just a single remedy. However, I'm trying to, with great trepidation, put myself in the shoes of the Supreme Court if and when they were to revisit this case, perhaps not through a reference, which others have pointed out may be premature, too soon for them to change their minds, but at some point in time when they are asked to reconsider this issue.
I ask this question without a legal background, but thinking about how they might revisit and rethink this question, they can, of course, refer to, as we heard from Professor Hogg, many other examples of jurisdictions that do it differently, but it would seem to me that the first thing they might do is to ask the question: Has what we put in place after Jordan succeeded? Have there been fewer delays? Have we been able to force the three parties to do what we were trying to incentivize, which is to be more efficient, add more resources and do things in a more innovative, clever way? Should the number of delays diminish, should there be some positive outcomes, to put it directly, might that lead them down the path where they simply reinforce the decision that they have already made?
Mr. Hogg: That is an excellent suggestion, and we're probably right that it's premature to direct the reference now because of the recentness of the Jordan case, but one of the things that strikes me about Jordan and the other individual cases is the court really doesn't have a clue what is happening in the various jurisdictions. It knows what's happened in this case. The beauty of a reference would be that evidence could be brought to bear on the state of the criminal backlog in all of the provinces. Suggestions could be made by experts as to the ways of dealing with it. It would be so much better than just doing it as part of an appeal from a single judge's ruling on a single case on delay. We could get stuff to the court that would make them look at it more closely. They set those timelines in Jordan without having any information whatsoever about the situation in any of the provinces other than the — what was the Jordan province? I can't remember.
The Deputy Chair: British Columbia.
Mr. Hogg: But it's distressing that they lay down these rules and that it doesn't occur to them that there's anything wrong with laying down rules for the whole nation without knowing what happens in the rest of the nation.
Senator Batters: That very point, just exactly what Senator Woo was talking about and Professor Hogg is responding to, is exactly what we have been doing at this Senate committee for the last 14 months, I think, almost. We have undertaken this study on court delays knowing that this is a massive problem across the country, examining the full scope of the problem, doing our role as guardians of our regions and representatives of our regions, and also providing some significant sober second thought, travelling across the country to numerous locations and hearing from witnesses from across the country, here in Ottawa as we went, and also taking tours of different places where we can see the scope of the problem and also where we can find solutions. So that's exactly what we have been doing.
Senator Joyal: I want to make a general comment and maybe ask you to react to it. When I read Jordan, it was, of course, during summertime. The court talked about a change of culture. Well, a change of culture happens to touch on a lot of issues. Culture is a way of doing. A way of doing has rules, has practice, has habit, good and bad, and has mentality. A change of culture is really encompassing a lot of things.
When the cases started being stayed, the famous cases of homicide and cases involving sexual assault where victims were really upset by the decision, and public opinion also, I think rightly, I was really surprised that the Chief Justice and the Attorney General of Canada, the Minister of Justice, would not have considered going back to the court and saying, "Listen, there are so many implications of cases involved here, like, as you've said, in Alberta, the triage in the province, rushing to try to train people, immediately appointing judges and so on.'' There were so many aspects to cover in that change of culture that that could not be triggered by just a fiat of the court, "From now on, this is how you're going to do things.''
As you said, Professor Hogg, in all deference to the Supreme Court, I don't think they had the number of cases involved in each province that would have to be reviewed and determined and so on. In other words, it was a tsunami change in the system. I'm surprised that the Chief Justice didn't call a national meeting of the Attorneys General of the provinces to say, "Okay, how do we approach this from now on? You're part of the administration of justice, and I'm responsible for this. How can we tackle that?''
At least there would have seemed to be leadership somewhere. Now, it's every province reacting. You've seen Justice Joyal, in Manitoba, asking to get rid of preliminary inquiries. You've seen Alberta with the triage. You've seen Ontario trying to cope with all of those implications. It seems to me that we lack a national approach to this that would be coherent and would reassure the public, which has to keep its faith in the system of justice, and the victims and all of the stakeholders.
Now, it seems to have let everyone run in their own direction, and we are trying to keep the parts together. I don't want you to criticize the Minister of Justice. I seem to be criticizing the Minister of Justice, but so many months after Jordan, where is the leadership coming from?
The Deputy Chair: Would anybody have a comment? Do the witnesses have any comment on Senator Joyal's statement?
Mr. Hogg: Except that it's absolutely correct. Perhaps Bruce and Chris might well have some particular comments. It troubled me enormously in Jordan that it was just a majority judgment; the Chief Justice was in the minority. You might have thought that, well, if we're going to make a big change, at least the court will be unanimous on it. Then they had the gall to say, "We looked at a number of cases that had come before the courts where challenges had been made under 11(b),'' as if that were adequate evidence for a new nationwide rule. It's very, very unsatisfactory.
The Deputy Chair: Of course, the Supreme Court of Canada did say there's a transitional period, not to have the same effect of 50,000 cases thrown out as there was in Askov, so they did predict there.
Senator Sinclair: Gentlemen, thank you for your presentations. I asked a question earlier of a witness that I'll repeat for you. I'll begin with Professor Hogg, but I would invite each of you to consider this.
One of the thoughts that has occurred is the possibility of a Criminal Code amendment dealing directly with the implications of the Jordan decision as far as the utilization of the stay remedy under section 24 of the Charter, followed by or accompanied by a notwithstanding clause utilization. Do you think, if the Criminal Code were amended to directly deal with the implications of Jordan, the finding that the stay is the only remedy under section 24 of the Charter, that utilizing the notwithstanding clause might be one possible route for Parliament to take?
Mr. Hogg: That would certainly be effective, I think. I'm sure Professor MacFarlane and Professor Sherrin will have comments on it too. The trouble is that governments, and this particular Liberal government in particular, will be allergic to the idea of using the notwithstanding clause. Yes, it would be effective, but the opposition will immediately leap up and say, "You're trashing the Charter now,'' and "Nobody's ever done that before.'' Senator Sinclair, it's a very good suggestion, which is probably not practical.
The Deputy Chair: Professor MacFarlane, do you think the Liberal government is allergic to — no, I won't ask you that question. What do you think of the statement by Senator Sinclair?
Mr. MacFarlane: I agree largely with Mr. Hogg's comments. I would simply add that it may well be possible to marry some of the elements of the things that we have been talking about. For instance, it might be open to government to make a reference to the Supreme Court to ensure that a full evidentiary package is provided to the Supreme Court and attach a proposed bill outlining amendments to the Criminal Code with options in terms of remedy. So it would be a full package of a reference with evidence and a proposed bill, and then pose this question to the Supreme Court: Is there any constitutional impediment to enlarging the number of remedies? In that fashion, one would tease out from the Supreme Court whether that was simply a policy decision on the part of the Supreme Court to confine it to stays or whether it was more in the nature of a policy decision.
The Deputy Chair: Excellent suggestion, professor. Professor Sherrin?
Mr. Sherrin: Yes, I actually think it is an excellent suggestion. I would think that use of the notwithstanding clause is probably not very practical for reasons outlined by Professor Hogg, but if you did enact or propose a bill that clearly outlined a series of remedies, the sorts of circumstances that might justify one remedy versus another, and then combine that, getting back to Senator Woo's question, with real hard data about what's happening post-Jordan, then you might get an interesting response from the court.
One of the problems with assessing the effectiveness of Jordan is it would be very hard to figure out how you've succeeded or whether you've succeeded. For example, you could take a simplistic approach and say, "Well, has the number of stays decreased?'' That suggests we're meeting the time frames. The problem with that, of course, is that Jordan is flexible. It's not just 30 months and 18 months. It's 30 months plus defence delay, plus exceptional circumstances, but it doesn't apply in particularly complex cases and so on and so forth.
What the court could really benefit from is some very sophisticated, well-thought-out hard data on all the implications of Jordan, perhaps combined with a moderately detailed alternative approach, and then seek their views. Not so much as under the notwithstanding clause — obviously that's not for them — but to determine whether or not there is a constitutional issue.
[Translation]
Senator Dupuis: Thank you for your extremely clear and relatively succinct presentations. It's good for us, given the number of documents we need to read.
I have a question for Mr. MacFarlane. On page 4 of your brief, in your third recommendation, you spoke of adding a new section to the Criminal Code to cover the procedure issue. I want to draw a parallel between this recommendation and the answer you gave earlier. You said that the Supreme Court won't budge, and that, if the court is asked anything, it will answer, "I've just decided this and I won't budge.''
What vested interests are at stake regarding this remedy issue in the criminal law sphere in Canada, in 2017, that lead you to suggest something else, but also to propose legislation that will be necessary for all three parts of criminal law?
[English]
Mr. MacFarlane: As I understand it, the question relates to what vested interests are at stake here. I hope I can answer that question in the sense that arising from the status quo, arising from the practice that's been in place for decades, if not hundreds of years, the three main players in the criminal justice system are simply used to acting in a certain way, and yet Jordan calls for a dramatic change.
The vested interests on the part of the defence are typically and traditionally of the notion that, with delay, the Crown's case starts to crumble. That's a huge vested interest. It's not articulated publicly that often, but that is a reality. It's a serious reality, not only for the Crown but for the public, because the public is entitled to a decision on the merits.
As well, I wanted to mention one of the points that I think this standing committee ought to bear in mind is that in terms of a contextual approach, one which takes into account the public interest — and our understanding has been clear — that crime ought to be dealt with locally, in the community in which the crime was allegedly committed. The public is entitled to see that case disposed of. That's a huge vested interest on the part of the public: a need to see that the case is dealt with on the merits, to see if something did, in fact, go wrong.
The Crown also has a vested interest that again is not articulated that often, and that is that through the preliminary inquiry process, it sometimes needs the testimony on the record in case the witness dies or disappears; there's an ability to read that evidence into the record.
There are a number of vested interests that emerge contextually if you look under the surface. The problem with the decision in Jordan is that it was, for all intents and purposes, a bright-line decision that doesn't take into account all those contextual and vested interests.
The Deputy Chair: Fascinating.
Senator White: Thanks to the witnesses for being here. I wanted to have a quick discussion that's going to take us off track. I know what you're focused on here, but we're trying, as well, to reduce the number of cases that are bogging down our court system.
We have identified the challenge we have with Jordan, but can either of you give an opinion on the opportunity for us to take a number of different criminal charges and move them to an administrative role, as we have seen in British Columbia with impaired driving, as an example? A large number of impaired driving cases are now being handled administratively. In fact, they would tell you that they've seen a dramatic reduction in cases that are delayed when it comes to impaired driving. Do any of you have an opinion on that?
Mr. Hogg: I think the B.C. example is a very good one because the process that they now use for drunk driving cases does not typically end up in the courts at all. It just gets bypassed, and so-called civil remedies are applied. The car is taken away from the defendant, and various expenses are charged to the defendant, which come to several thousand dollars, and nothing goes into the court system at all. It's wonderful. It's suitable to this sort of drunk driving situation, but it might be hard to extend it to other areas of crime.
The Deputy Chair: Especially if there are mandatory minimums involved.
Senator White: For clarity, we have had leaders of policing and even the Crown here talking about the opportunities.
We now have, as you know, dual procedure offences, but could we not have some offences where the offender has no previous record — shoplifting, common assault, administrative breaches, breach of probation — where not only could they go criminally, but they could go administratively as well. The Crown in the case of New Brunswick and British Columbia, but the police in the case of the other provinces, could make a decision as to whether or not they're going to proceed by criminal charge or proceed by another process. That's what's happening with impaired driving.
Mr. Sherrin: I think you've hit on an area where there might be a lot of room for good work there, namely, administration of justice offences. There are administration of justice offences, and there are administration of justice offences. A huge number of offences or charges that clog up the courts are for what might be termed fairly technical breaches of bail conditions or probation conditions, such as failing to report that you moved. There is no criminal conduct involved in and of itself. It seems to me that at least some of those offences could be properly and appropriately dealt with outside the criminal courts, which could — given the number of such offences that are before the courts — really assist in the delay problem.
The Deputy Chair: If you look at the court docket of any provincial court in this nation, you see that the majority of charges are a breach of something or other.
Senator Joyal: I want to come back to the question raised by Senator Sinclair and the notion that there are many ways that this could be dealt with.
Section 33 of the Charter is the hammer; it's five years. However, the Supreme Court, in decisions like the Carter case, stayed the effect of the decision, which was an important decision, for a year. The government went back for six months and got four months. In other words, the decision was stayed for a year and four months.
In the prostitution case, when sections of the Criminal Code were thrown down, the court recognized that Parliament would have to legislate for a year. In other words, the government has a capacity to go to court and get a delay. It might not be five years — section 33 — but it might be a reasonable delay if the government is in a position, as is my opinion in the present case, to explain to the court the number of cases, the seriousness of the cases, the administrative problems and the perception of the public in relation to section 11(b). As you stated, quite appropriately, there is a community or a societal element in 11(b), which is the trust of the public in the administration of justice. When you see the whole of an investigation, like the biker shark operation in Quebec, being thrown away after four or five years of investigation being done by the police force, the public reacts to that. I don't think the court can be insensitive to that.
If the government goes to court and explains in a more detailed way what the exceptional circumstance could be where a case could be not stayed but authorized to proceed, then I think the government would have done due respect to its responsibility in relation to the whole of the system. In my opinion, there are safety valves in the system to get an extension of time on an issue like that proves to be systemic. I talked about "cultural change,'' but I would have used the words "systemic change'' in the administration of criminal justice in this country.
I don't think the courts are insensitive to reality. They read the paper, like you and me. They listen to news, like you and me. They understand the concerns of police forces and of everybody involved in the administration of justice in this country. We're not hamstringed to the point that where the court has said this is it, we bend and sit in a queue. The government has a responsibility in such situations to go back to the court and explain it. It's not too late to do that. After six months, we just have an idea of the implication of all this.
As Professor MacFarlane mentioned, the government could identify some other criteria to the court. I think the court must then consider them seriously. I think there is a way at this stage for us, as a country, to address this issue in a reasonable and rationale way, with, as I say, the concurrence of the court. That is, unless I'm dreaming in colour, we're stuck with it and we will try to save the furniture, as we say in French.
Mr. MacFarlane: I think that is an excellent suggestion, and I say that for a couple of reasons. First, historically the Supreme Court has been reasonably responsive to the effect of a stay of the effect of their decision where it realizes that there will be a significant impact on society and on the institutions of society. There is an historical willingness to give serious consideration to a stay.
Second, once again, it would give an opportunity to government to provide that full evidentiary package that I talked about earlier of the effect of a decision of this sort.
Third, the experience after Askov from the Supreme Court was, quite frankly, disastrous. The figures vary, but roughly 50,000 cases were dismissed in Ontario alone. I think that the court is sensitive to that.
The problem with Jordan is it was like it was dropping a bomb on the legal profession. Yes, the cases that were already going through the system are treated differently, but a charge laid tomorrow is under a different regime without the ability of government to have the opportunity to respond or the ability of the profession to have the opportunity to reorganize its culture. It was simply a bomb that was dropped with no opportunity to adjust.
My suggestion is that the court would be very responsive to that suggestion if government were to bring that motion before the court.
The Deputy Chair: Given the fact that 24(2) of the Charter includes the societal interests, the test there includes what its effect would have on the administration of justice. However, in 24(1) that standard is now removed and, one year from now, this new regime of 18 months for the provincial courts comes into effect. You will no longer have those interim measures to protect this onslaught of cases being thrown out of court. Am I correct in that?
Mr. Sherrin: You are correct. The only caution I would add is that I wouldn't be surprised, if you bring a case too quickly to court, that it will respond, "Look, we have a transitional period. We're not finished with that. Furthermore, we haven't got to the period where our standard regime is going to be in play. Therefore, we don't know how that is going to work out. We want to see some evidence.''
I think of maybe a bit of delay here in bringing the matter back to the court in order to be in the best position possible and to have the necessary evidence to show that this is the impact. The transitional period has had either this impact or that. Now that we've passed that, we can show whatever we're going to show through the data.
The Deputy Chair: Do you agree with that Senator Joyal? Then we'll close.
Senator Joyal: There is another element that has to be taken into consideration. When the government goes to court, it has to understand that the decisions that are being taken call for profound changes in the system, for instance, reviewing this book on preliminary investigation. You go to the court and you say, "We have suggestions from our colleague Senator Baker and justices from Manitoba, Ontario and other stakeholders of the judicial system.'' This cannot happen overnight. It needs to be reflected upon, thought about and evaluated in relation to impact and so on. You explain to the court that, in order to be able to meet the overall objective of time frame, there is not only the hiring of more Crown prosecutors and the appointing X many judges to fill the seats that are already there, but also problems to be addressed there. This call on the legal community to come forward with suggestions that are needed to give effect to those changes in the Code doesn't happen in two weeks' time. The court knows that. It gave a year or a year and a half to change the Criminal Code, as I mentioned, in relation to Carter or to the other decision you quoted.
The logic is there, so we should be quite vocal and quite strong in our recommendation to the government to explain to the court those implications of changes to the procedure that are also at stake there. That needs time — not to procrastinate unduly, but to pay full respect to the systemic change that is expected from the judicial system in Canada.
The Deputy Chair: Any further comment, Professor Hogg?
Mr. Hogg: I thought that Professor MacFarlane's suggestion for a bill that would cover a number of elements of the Criminal Code and which could then be directed to the court in the form of a reference was very much what you had in mind, Senator Joyal, and it would accomplish that result of giving them something to chew on in the context of other things as well in the Criminal Code. Being a reference, it could be supported with expert evidence about the state of the judicial systems and the various provinces.
I think there are the seeds of a very constructive idea there, if I may say so to Professor MacFarlane.
The Deputy Chair: Good; the MacFarlane solution. Thank you, Professor Sherrin, Professor Hogg and Professor MacFarlane, for your interesting, instructive and informative presentations to this committee.
I want to remind committee members that the Attorney General of Canada, the Minister of Justice, will appear before us at 3:30 this afternoon on these very subjects. This meeting is adjourned.
(The committee adjourned.)