Proceedings of the Standing Senate Committee on
Legal and Constitutional Affairs
Issue No. 3 - Evidence - February 25, 2016
OTTAWA, Thursday, February 25, 2016
The Standing Senate Committee on Legal and Constitutional Affairs met this day at 10:31 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 and 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.
Last month, 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 sixth meeting on this study. Joining us today for the first hour, from the Canadian Association of Chiefs of Police, is Joseph Oliver, Assistant Commissioner, Technical Operations, with the RCMP.
Mr. Oliver, thank you for being here today. We're looking forward to your presentation, which will be followed by questions from members of the committee.
Joseph Oliver, Assistant Commissioner, Technical Operations, RCMP, Canadian Association of Chiefs of Police: Thank you, Mr. Chair and distinguished members of this committee, for the invitation to discuss matters relating to delays in criminal justice proceedings.
I am here today as a member of the Law Amendments Committee of the Canadian Association of Chiefs of Police, and I am speaking on behalf of the president, Chief Clive Weighill, and CACP members.
[Translation]
The mandate of the CACP is safety and security for all Canadians through innovative police leadership. This mandate is accomplished through the activities and special projects of a number of committees and through active liaison with various levels of government and departmental ministries having legislative and executive responsibility in law and policing.
[English]
Law enforcement organizations in Canada understand the importance of safeguarding the fundamental rights guaranteed by the Canadian Charter of Rights and Freedoms, including the section 11(b) right to be tried within a reasonable time. It goes without saying that delays in criminal justice proceedings place an enormous burden on the law enforcement community, and the CACP welcomes this study.
Let me begin by briefly describing our operating environment. Despite a significant decline in reported crime rates, studies have demonstrated that demands on policing have increased for three primary reasons: the changing nature of crime, the requirements placed on the police by the criminal justice system, and increased calls associated with mental health and social disorder issues.
Over the past several decades, criminal investigations have become increasingly complex and resource intensive. Judicial decisions, new legislation, the increasing use of technology, disclosure obligations and the multi-jurisdictional nature of crime, to name a few, have impacted the conduct of investigations.
A 30-year analysis of policing in British Columbia completed in 2005 by the University College of Fraser Valley reveals that the time required by police to complete an investigation increased substantially. To complete domestic assault and impaired driving investigations took 964 per cent and 250 per cent more time, respectively.
The analysis also determined that the number of procedural steps required to complete an investigation increased exponentially as well. For example, a drug trafficking investigation increased from 9 procedural steps to 65.
Importantly, since this study was concluded, the policing environment has only become more complex and demanding, with recent case law and expanding use of new technologies.
The CACP also concurs is Justice LeSage's testimony that the criminal justice system is, in many ways, too complex. Data presented to this committee by Statistics Canada also seems to support the view that the criminal justice system is more complex. The number of reported crimes has significantly declined, the number of criminal cases has decreased, and yet the time it takes to process a case through the court system has remained stable or, in some cases, has increased.
When scrutinizing delays in Canada's criminal justice system, there may be value in conducting the examination from two perspectives: pre-charge and post-charge.
Police are at the front end of the criminal justice system, and decisions made by the police directly impact criminal justice proceedings. These decisions include whether or not to investigate; the breadth, scope and timeliness of investigations; and exercising discretion regarding alternative measures or formal charges.
[Translation]
In response to the frustrating delays in criminal proceedings as well as the associated resource burden, the police community has been quick to embrace new initiatives that minimize delays, reduce the burden on parties to the criminal justice system, and maintain public safety objectives. Let me touch on a couple.
[English]
On a number of occasions, earlier testimony touched on British Columbia's Immediate Roadside Prohibition program, which is often referred to as one of the toughest in Canada. A recently released draft of the report on B.C.'s 2010 Impaired Driving Initiative suggests roadside suspensions have contributed to an estimated reduction of 36 fatal collisions each year.
Another report completed in 2012 by Geoffrey Cowper, entitled A Criminal Justice System for the 21st Century, noted a significant reduction in the number of cases coming to Provincial Court in 2011-12 following the introduction of B.C.'s IRP program in 2010. In fact, the number of impaired driving reports to Crown counsel dropped by 8,000 that year.
The police are also supportive of alternative measures and pre-charge diversion programs. Given that offences against the administration of justice, such as failure to comply and breach of probation, now account for a significant percentage of adult criminal court cases, consideration might be given to better leverage pre-charge diversion programs for these offences. More social programming focusing on non-violent offenders suffering from addictions and mental health could result in fewer people being dealt with through criminal justice system, particularly in relation to offences against the administration of justice. However, for these programs to have a meaningful impact, I cannot overemphasize the need for them to be adequately resourced and competently staffed.
This committee appears interested in other reforms that could potentially reduce delays, such as expanded use of the Contraventions Act. In August 2013, the Canadian Association of Chiefs of Police passed a resolution calling on the federal government to amend the Controlled Drugs and Substances Act and the Contraventions Act in order to provide police with the discretionary option of issuing a ticket for simple possession where a formal charge pursuant to the CDSA would not be in the public interest.
At that time, the CACP felt that processing simple possession of cannabis cases through the criminal courts placed a significant burden on the entire system from an economic and resource utilization perspective. The CACP was also seeking to expand the range of enforcement options available to police to more effectively and efficiently address the illicit possession of cannabis.
While this may be a moot point given the current government's commitment to legalize marijuana, what it demonstrates is the desire of the CACP to find better ways to efficiently and effectively deliver public safety outcomes.
[Translation]
Despite efforts to achieve public safety outcomes through non-judicial measures, many investigations will advance to criminal court cases. As mentioned earlier, the evolving nature of crime and judicial decisions have greatly impacted investigative workloads and processing times.
[English]
From a police perspective, a number of factors contribute to delays in criminal proceedings after the laying of charges. These include: the accused appearing unrepresented, discharging legal counsel at the eleventh hour or failing to appear; guilty pleas at the beginning of a scheduled trial; case complexity, particularly in cases of multiple accused; foreign evidence and witnesses; the use of sensitive investigative techniques or classified information sources; lengthy judicial authorizations; digital evidence; delays in completing disclosure due to the absence of electronic disclosure; and sweeping and unfocused disclosure requests, such as transcribing all statements and audio video recordings or, in other cases, frivolous and unmeritorious pretrial applications.
These delays impact all criminal justice participants. The accused's life remains in turmoil. Witnesses' memories fade, and they become frustrated with the system. Police organizations incur unnecessary costs, as well as divert finite resources from other priorities.
Take, for example, the impact of last-minute trial cancellation or plea agreements on police witnesses and budgets. In addition to resource implications related to back-filling shifts to maintain minimum response capacity, the Edmonton Police Service spends approximately $2.6 million annually in court overtime. In many instances, police officers do not testify.
Even cases involving summary conviction offences can place an enormous strain on the system. On February 19, there was an article in Le Journal de Montréal confirming a mega-trial involving unlawful assembly and mischief charges, which are being prosecuted by way of summary conviction. The offences date back to August 2014, and a trial is scheduled for three months in August 2018. According to reports, there are 65 accused, 78 witnesses and large amounts of video evidence.
In complex cases, the investigative and prosecution strategies have the potential to significantly impact criminal proceedings. Therefore, early and ongoing consultation between the police and the Crown assists with case management. Little public good is achieved by investing millions of dollars and finite police capacity into cases that cannot be effectively prosecuted.
As you have heard, disclosure continues to present enormous challenges for the police. The Report on Disclosure in Criminal Cases by the Steering Committee on Justice Efficiencies and Access to the Justice offers some light into these challenges. All criminal justice participants must do their share to reduce this burden. For example, the police have the responsibility for early transmission of well-structured and focused disclosure packages to Crown.
There needs to be an effective process to resolve disputes early, the standardization of disclosure and the availability of electronic disclosure.
I'll make one final observation before concluding my remarks.
[Translation]
Society is increasing reliant on new technologies and the digital age is transforming our lives like never before. While the Internet and cyberspace have enriched our lives, technologies also provide new opportunities for criminal entrepreneurs, organized crime and terrorists. With a touch of a button from anywhere in the world, thousands of people and businesses can be victimized or critical services can be disrupted.
[English]
Despite some successes, our assessment is that Canada's law enforcement agencies and its criminal justice system are ill-equipped to deal with criminality in cyberspace. Criminal use of strong encryption, anonymizing technologies and the Darknet, as well as the borderless nature of crime, make it extremely challenging and resource-intensive for police to detect, investigate, disrupt and prosecute these cases.
Today, this committee is studying matters pertaining to current delays in Canada's criminal justice system, but given the fact that Canadians are increasingly living their lives in cyberspace, the CACP would encourage this committee to consider a future study on the ability of our criminal justice system to effectively and efficiently respond to and address the increasing number of offences in cyberspace.
In closing, reducing delays in criminal justice proceedings requires a comprehensive approach and a willingness on the part of all criminal justice professionals to be part of the solution. In his report to the B.C. Minister of Justice and Attorney General, Mr. Cowper referenced the "culture of delay'' in the court system that is resistant to change. I can assure you that the CACP welcomes innovative reforms that reduce the burden on police, enhance public safety and improve the experience of those interacting with the criminal justice system.
Thank you and I look forward to any questions.
The Chair: Thank you for your presentation and for your study suggestion. Hopefully we will have an opportunity to look at that in the not-too-distant future.
We will begin with questions with Senator Dagenais.
[Translation]
Senator Dagenais: Thank you for your testimony, Mr. Oliver. I was a police officer for 39 years with the Sûreté du Québec, and during that time I had to go to court on numerous occasions. Just like me, I am sure you have experienced situations where a judge will agree to adjourn a hearing to a later date because the crown attorney states that he did not have sufficient time to acquaint himself with the file. That postponement is then followed by another a few months later, at the request of the defence attorney, who is in the same situation. Sometimes a further request for a postponement follows, because the expert is not available, or the accused may decide to find a new lawyer, who will then need time to study the file.
I could go on at length about these different situations. It is frustrating for police officers and for all of those involved. Do you think judges are too lenient? You have certainly experienced similar situations as a police officer.
In addition, you are probably aware of the SharQc case, in Quebec. There were numerous delays, to such a point that the trial was discontinued. It cost society millions of dollars.
Does the problem originate with the Crown, where there is a shortage of staff, or with the defence, which uses the tactic of unreasonable delays? When I was a police officer, we all knew lawyers who were known experts in unreasonable delays. I would like to hear your thoughts on this.
[English]
Mr. Oliver: When it comes to these unreasonable delays, you have to look at the full continuum. There are opportunities to reduce those.
One observation that the police community would make is that judges could take stronger control of their courtrooms. Section 551.1 of the Criminal Code — the case management judge — provides an opportunity. There is Justice Cournoyer's recent decision where matters are being set and certain time is being limited for pretrial applications. I think that's what needs to occur in order for the system to move along a lot smoother, particularly when the matter is before the courts. There are off-ramps for different things, like alternative measures and other ways of diverting certain cases from the formal court process, but once it's in the system, it's going to require a willingness on the part of both the Crown and defence to raise issues early and to resolve disputes early, and on judges to set schedules and demand some sort of accountability.
Senator Baker: I would like to thank our witness for the great contribution to policing he has made over the years. We followed him from the CBSA until today, and it's truly remarkable. You and your family have made a great contribution.
You mentioned the amount of time that an officer has to spend during the trial on a complicated case. If one of the counts in the charge would be a count that is exclusively of provincial court jurisdiction, and the majority of charges are before the Superior Court, on an election of the accused to go to Superior Court without a jury — judge alone — which is normally the case, then the entire matter is re-litigated at the provincial court level, if there is a charge that is exclusively of provincial jurisdiction, and it's pursued summarily. So you'd have a police officer going to two courts, for the same accused, on the same facts. Is that what you were referring to?
I tend to go on too long, so before the chair cuts me off, I will ask the second question, which has to do with disclosure. You gave your approval to setting time limits during trials, pretrial arguments and so on. Would you be in agreement with also setting time limits on disclosure by the police — well, it's the Crown. But we had a witness yesterday who appeared before this committee who said there is certain disclosure that we know in advance has to be supplied by the police — your sworn information to obtain a wiretap authorization, which you know about because you have authored some of these sworn affidavits. Some of these are 500 or 600 pages long. You know there will a motion before the court to unseal the packet and edit what's in between. Pretrial, shouldn't there be an order for the police to unseal that, take out the original ITO, give it to the Crown to vet and black-line — whatever they have to do — which would then shorten the process of trial?
Mr. Oliver: Thank you for your kind words. My family has been involved in policing. I have two sons that work for the RCMP, as well.
When it comes to the first aspect of your question, this is where there is an important piece for the Crown and the police to get together to strategize on the objectives of an investigation, or at least to consult. The issue is that if the police bring forward a case that is too complex and will require Crown from the province and the Crown from the federal government, it could be an unwieldy case to move through the system.
So part of managing a case is for there to be a focused investigation, consultation with the Crown along the way to ensure that issues that could be contentious during the investigation or at trial are considered. It may not necessarily be the case that they can be avoided, but it is worth examining them to figure out how to bring the case forward in a more efficient, effective and focused manner.
With respect to disclosure, setting time frames would be important. But, again, this is where consultation between the Crown and the defence on contentious issues need to get resolved early. When there are disagreements, they ought to be brought for a pretrial application for a quick decision.
There is no public good in police preparing a huge disclosure package that is of no value to the defence that they will not focus on. With some of the larger cases today, we're talking interceptions in terms of transcripts of 350,000 phone intercepts or 1 million text messages. To transcribe all of that information that has no value for the defence, there is a question of the early need to get focused on what the real issues are around the case.
In some instances, the demands placed on the police to prepare disclosure packets — and I would suggest that in most cases a preliminary disclosure package is prepared even before the charge is a laid. Often that requires consultation with the Crown. The Crown will then review the package and will go forward.
But in other instances, particularly with things involving digital evidence or digital forensics, there is a backlog. These things take time. By the time the charge is laid, some of those digital forensic matters may not be concluded yet. There will be a staged disclosure in those cases.
Senator McIntyre: Thank you, Mr. Oliver, for your presentation.
I want you to know that we all appreciate the good work that police officers are doing in order to avoid court or trial delays as much as possible.
Bearing that in mind, I have two questions. The first has to do with the statutory release powers of police officers. In doing so, I draw your attention to sections 496 to 499 of the code. As you know, those sections give an investigating officer or the officer in charge the power to release a suspect on a summons, appearance notice, promise to appear, recognizance or undertaking. If this power is not exercised, the accused remains in custody; in other words, he will be detained for a bail hearing.
Do police officers make full use of their statutory release powers in appropriate cases? If not, what can be done to encourage officers to use these very important powers set under the code?
Mr. Oliver: Each case has to be assessed on its own merits. There are some limitations on when police feel comfortable releasing individuals.
If I may refer to section 503 in terms of release on an undertaking, there are concerns about the authority of police to add additional conditions in those cases. The stipulation today relates to additional conditions specifically focused on protecting the witnesses or the victims. If the police had more power to add additional conditions, there may be instances where they would have the comfort in releasing people with additional conditions in order to maintain public safety.
Senator McIntyre: Obviously it's easier to release on minor charges.
Mr. Oliver: Yes.
Senator McIntyre: My second question has to do with screening charges. In three provinces, including my home province of New Brunswick, Crown attorneys are involved in screening charges before they are laid. In other provinces, the police lay the charges. What has been the experience of police officers with charge screening, and do you recommend that it be implemented in all Canadian provinces, all jurisdictions?
Mr. Oliver: I didn't have time to canvass the entire police community in terms of their views, but the sense I received from those I canvassed was that there is some value in a formal consultation process with the Crown, but pre-charge approval did not seem to be fully supported. The concern was, in some instances that have been raised, is the time that it takes and that it's just adding an additional delay to the system.
Based on what the community is telling me, I don't think there is consensus on the value, but what I'm hearing is concern over delays and that it might add more to the system.
Senator Fraser: I have two questions, both based on crass ignorance, so bear in mind you're talking to a novice here. The first has to do with electronic disclosure, because just about everyone who has come before us has talked about how electronic disclosure would help a great deal. How much of the material that must be disclosed or ends up needing to be disclosed is suitable for electronic disclosure? Are we talking the vast majority or half?
Mr. Oliver: Actually, all material could be disclosed electronically.
Senator Fraser: All of it; great.
Mr. Oliver: The law enforcement community relies on the records management system.
The difficulty, even within the law enforcement community, is that we have records management systems that don't talk to our major case management systems. When we take our major cases managed and share those with the Crown, in some cases they import it into a different system and some of the links we developed to make it searchable get broken.
So there are issues, particularly with mega-cases. We're talking thousands and thousands of documents.
Senator Fraser: Great. I don't really know much about computers, either.
Senator Fraser: When you were talking about the factors that contribute to delay, you mentioned lengthy judicial authorizations. Could you expand on that?
Mr. Oliver: In many cases, the police, particularly when we deploy more intrusive investigative means or are conducting searches, have to go and seek judicial authorization in order to use those means. The way jurisprudence has evolved, those have become very long applications. I think Justice LeSage mentioned that he has seen them where they are 3,000 pages long. That's not unheard of. That's for us to get authority to go take an investigative step. The ITO, or the application, when it comes to wiretaps, can be very long.
When it comes to a trial, those documents could be the basis of a pre-trial application as to whether the police had enough grounds, or was there an error in there. It becomes a question of even that document facing a lot of scrutiny during the trial time.
There is the length of them, the amount of information, and the fact that the police officer who swears to these has to have intimate knowledge of each fact and detail they put in there and can be cross-examined at the time of pre-trail.
Senator Fraser: So "lengthy'' refers more to the process of producing the stuff than to the judges taking time off before they make a decision.
Mr. Oliver: It's a combination of both: producing it and when it goes to trial it becomes part of the matters that may be reviewed and challenged, and then defending a lengthy document and explaining and justifying each element of those.
Senator Plett: I'm not sure you're going to be able to answer this, but I will ask. I did ask a similar question a week or so ago and was told it was not a real serious issue.
How often is a case stayed or dropped because of the length of time? I'm thinking specifically about sexual abuse cases, and even more specifically about sexual abuse cases involving minors. Is that a real issue? I think even if one case is dropped it is a real issue. Is that a significant issue in Canada?
Mr. Oliver: Unfortunately I don't have the statistics.
Senator Plett: Are statistics available?
Mr. Oliver: I don't know. For policing, I don't think we collect them in that way, so for us to find them would probably require a case review.
You can easily go on to many of the provincial court sites where you could get the list of recent decisions. You could type in 11(b) and you would see a whole slew of cases where decisions have been made based on unreasonable delay Charter argument.
It is of concern to police because a lot of effort is put in to bringing these matters along for criminal proceedings, only to have it bogged down in the system. Ultimately the cases are dismissed based on delay in getting the matter to trial.
Senator Plett: Do you believe that there are defence attorneys who use the delay tactic in order to have this happen?
Mr. Oliver: You are kind of putting me on the spot.
Senator Plett: And very intentionally so, because the defence attorneys say no.
Mr. Oliver: I don't know that defence attorneys maliciously do it. I think defence attorneys are, in their view, vigorously defending their client when it comes to a case. This is where I think judges need to step in, and where the Crown and the defence — all of the professionals — have to sit down. What are the real issues here? There are focused defence strategies and focused case proceedings that the Crown is bringing forward, and judges have to set time limits and deal with it in a more timely manner.
Senator Batters: I have a supplementary on that last point, to Senator Plett's question. You were just trying to figure out what the motives of the defence attorneys may be, saying they did not necessarily have malicious intent in doing that. However, it does happen, and that is a tactic or strategy to try to get their clients acquitted. Is that correct? Am I interpreting your comments correctly?
Mr. Oliver: I think they are vigorously defending their client's right to a fair trial, and so forth. To suggest that they are doing it maliciously —
Senator Batters: I'm not asking you to comment on that. I'm just asking you to confirm that it does happen.
Mr. Oliver: I think based on the jurisprudence where cases are unreasonably delayed, that becomes an opportunity for the defence to bring that forward and make an application that there has been an unreasonable delay.
Senator Joyal: Thank you Mr. Oliver for your contribution.
It must be very frustrating for police officers to go to court and expect to testify and move on to other files, only to come back with absolutely no movement. Have you ever figured out the amount of money that might be lost because of those delays, that police are not able to bring to the justice system the elements of the information needed for justice to be rendered?
Mr. Oliver: There are two aspects looked at. I think the delays are not only frustrating for the police, but the reality is that police are professionals of the criminal justice system and are paid to be there. I look at it from the perspective of victims and witnesses who have to disrupt their lives and come up and see a matter put over time and time again.
I had an opportunity to do some quick canvassing. I went to the Edmonton Police Service and they provided statistics. Over the past five years it has ranged from $2.3 million to $2.7 million in court time, and in most of those instances, the police officers did not testify.
That does not include the cost of having to backfill the night shift that that officer was pulled from in order to maintain minimum response standards so they can respond to emergencies during that shift, while the officer is off to testify in court, but then they don't testify.
Yes, it has an impact on police budgets. It has an impact on the accused, because their lives remain in turmoil when these things are not dealt with efficiently. It has an impact on the victims and witnesses. Overall, I think people start to lose confidence in the ability of the system to deal with cases in an efficient manner.
Senator Joyal: Nationally, are there no statistics that would give us a magnitude of the amount of money?
Mr. Oliver: That would be an exhaustive study. Each police force would have individual systems for how they manage their budgets.
Senator Joyal: My other question is in relation to page 5 of your brief. I will ask you to take the French version because I think it is even clearer in terms of the words, or the meaning that you want to convey to us. I will read it in English and then in French. It's page 5, the first bullet, a third of the way down the page:
The police are also supportive of alternative measures and pre-charge diversion programs.
In French it says:
La police appuie aussi les mesures de rechange et les programmes de déjudiciarisation avant la mise en accusation.
To me, the French version better targets one essential reform that could be brought into the system in comparison with what is done at the civil level, whereby the procedures try to prevent a trial from happening by trying to solve the issues before going to court and taking up the court's time. It does not mean that the judge should not be involved, but that we should try to avoid a lengthy trial.
I suggest that to you because the most interesting information is under footnote 4. You did not read it, but I want you to because it seems to me that this should be in the minutes of this committee. Would you please read footnote 4?
Mr. Oliver: It says:
Adult criminal courts in Canada completed 360,640 cases in 2013/2014, of which 39 per cent included at least one offence against the administration of justice among other charges.
Senator Joyal: Almost 40 per cent of the cases are offences that could be dealt with differently than by going to court, because they are more or less administrative offences.
It seems to me there is a vast field of potential for reform that would have significant impact on the clogging-up of the system. I am surprised that we have not had more witnesses and more facts in front of this committee that would expand on that aspect of the problems the system faces nationally. Your references are undoubtable. I think it is a very important element in the concept of déjudiciarisation that you mentioned in the French text, which is, in my opinion, one of the major avenues to take in order to make a significant change in the system.
Mr. Oliver: When you look at these cases when it comes to offences against the administration of justice, often we are dealing with individuals who are prolific offenders or have addictions or mental health issues; and they are put on conditions when they are released, either a probation order or an undertaking, to abstain from the use of alcohol when they are alcoholics. What happens is they end up breaching or failing to comply, and then they get into the system for that.
Part of the challenge I spoke of earlier is that people, pre-charge, can be off-ramped into a diversion program or alternative measures program. The challenge, though, is making sure that the systems are there to support those individuals so they do not find themselves in a difficult situation when it comes to social programming and making sure it's adequately resourced and competently staffed. If police have an opportunity to divert people into these programs, it would in many instances help to reduce the number of cases that actually make it to the criminal courts. The criminal courts should be reserved for the most serious offences and violent offenders.
The Chair: We have had a fair amount of testimony about police not exercising their discretion as much as some witnesses feel should be the case. We did have one witness who touched on the issue — and you touched on it in your submission — of domestic violence and zero tolerance with respect to domestic violence.
Three members of my family are front-line police officers. I know about these situations where they go to a home. There has been a call, and obviously nothing of a violent nature has occurred, but they are obligated under the zero- tolerance policy to arrest the individual accused. I think I saw something in terms of the remand population as well, how many of them are people who have been involved in this sort of accusation. The individual said to me afterwards, "You are not going to pursue that because it's not politically correct.'' When he raised it at a conference, someone was screaming, "We have come so far with respect to dealing with domestic violence.''
How big an issue is that, and is the policing community ready to talk about more realistic approaches to this?
Mr. Oliver: You see a lot of rigour around many of these cases, for a number of reasons. One is that if they are not addressed, if the situation is not dealt with, the cycle of violence continues and continues and has the potential to become more violent.
Police have been criticized in instances in the past where they have not made an arrest or they have not removed one party, and then there has been another violent act. The police become the subject of much scrutiny.
I think there would be an appetite from the police community to look at these if these services are available to divert these people into programs where they can get the attention.
We have violence and relationship follow-up policies in many cases. If there is a domestic situation, police are responsible for checking back in on individuals to make sure things are remaining calm and that the relationship is under control. But it goes back to the idea that if there is a change in direction, we need the social programming that will support the ability of police to take those matters and put it into that system where they are resourced and competent to deal with it.
The Chair: You are talking a lot about inadequate resources. One of the other topics you touch on is mental health. Could you speak briefly to the scope of the problem with respect to the impact on courts, court delays, and policing as well, obviously?
Mr. Oliver: It starts even with policing. We are available 365, 24/7. We are the go-to people when it comes to mental health or social disorder issues.
A number of studies have looked at this. The Economics of Policing review identified the fact that policing is increasingly being called upon to deal with these situations that are really not policing matters.
As well, what happens is that once an individual comes to the attention of the police, often the only mechanism is that they end up in the court system and under some sort of conditions, and it keeps going round and round.
The Chair: And your only answer to that is?
I guess we're going to talk about resources again, and that's essentially a provincial responsibility.
Mr. Oliver: I think it comes back to the idea that very promising models exist out there, such as — I think it's often been referred to here — the work that's been done in Prince Albert and the Hub concept, where a collective team comes together to either deal with prolific offenders or earlier intervention that will actually try to divert individuals from getting into the court system at all. With models of that nature, the collective comes together to deal with these issues and try to improve public safety without relying on the criminal court system.
The Chair: Does your organization have any view on the need for preliminary inquiries, with increased disclosure under Stinchcombe? We have had testimony that they should be restricted or limited. Has your organization taken a position on that?
Mr. Oliver: I don't think there is a common position on that issue. Some see value in preliminary inquiries. I think the PPSC and Justice Canada have said that there is no consensus across the country. The sense I get from the limited opportunity I've had to speak with the police community is that the same would apply. But I think it again goes to the need for a focused management of the issues that should be dealt with when it comes to a criminal matter proceeding.
Senator White: I have a follow-up, if I may.
You talked about domestic violence cases as a result of the question from Senator Runciman. Are you familiar with the Family Violence Prevention Unit post-charge restorative justice program in the Yukon or the research out of Calgary they've been doing? It's a 16-week program.
Mr. Oliver: No, I am not familiar personally.
Senator Baker: Would you be in agreement with a recommendation from this committee that there be an electronic disclosure package available that is consistent across Canada, consistent in its searching qualities, that the material in the CD would be easily accessed; that there be a uniform system across Canada; that the police and the Crown will use the same system; that matters that cannot be indexed — for example, officers' notes, which are very important to a proceeding — that there be hard-copy disclosure of those matters that cannot be indexed? As you know, right now there is no uniform system across this country. If this committee were to recommend that, with a certain amount of hard-copy disclosure — which the judge and the court will need anyway — would you be in agreement with that?
Mr. Oliver: Certainly I think the police community would welcome any reform that will make the system simpler, one that standardizes and actually provides for electronic disclosure. Even officers' notes can be scanned and become disclosable in electronic format.
Senator Baker: But they can't be searched.
Mr. Oliver: They can't be searched, but I think they can be indexed with regard to a summary of what the officer will say, and then you can have a link from there to the officer's notes, where they can be scrutinized in more detail.
There are promising technologies. You mentioned the CD, but I would suggest that CDs are becoming a thing of the past.
Senator Baker: Well, I'm a thing of the past, officer.
Mr. Oliver: Currently, in child sexual exploitation cases, where we have large volumes of files that we as the national coordination centre have to share with other policing agencies, we actually put the file in a place where they, with their credentials, can go in and pull it down, without anybody having to send a disc. It is just a question of giving them access to the location where the file is stored.
Could that be a way forward? Absolutely. There are technologies, and standardization would help significantly.
Senator McIntyre: The issue of a diversion program has been raised, and I would like to follow up on that briefly.
We know that police officers have the ability to divert young people from the criminal justice system under the terms of the Youth Criminal Justice Act. Do police officers regularly divert young people from the criminal justice system? And if so, is such diversion successful?
Mr. Oliver: I don't have any information on evaluations of how successful diversion programs are, but I can tell you they are often relied upon to keep individuals out of the system, particularly for minor or non-violent offences, and not just for youth. There are programs pre-charge for adults as well. Increasingly things like restorative justice initiatives will help, I think, reduce the number of cases that actually make it into the criminal justice system itself, into the formal trial process.
Senator McIntyre: Both young and diverted adult accused?
Mr. Oliver: Yes.
[Translation]
Senator Dagenais: I have one last question for Mr. Oliver concerning costs. When police officers have to go to court, with all of the delays that occur, they often have to work overtime, since this is done outside their normal work hours. Do you have some idea of the costs involved, among others for the Royal Canadian Mounted Police? As a member of the Canadian Association of Chiefs of Police, are you aware of the costs this means for police corps in Canada?
Mr. Oliver: The only statistics I have are for the Edmonton police service. We would have to do some research for the RCMP. I do not have that data in hand.
Senator Dagenais: Unfortunately, these circumstances lead to huge costs. Some police chiefs adjust work schedules so as to reduce the number of hours of overtime. If you could send us those figures, that would be very useful.
Mr. Oliver: I will ask my staff for this.
[English]
The Chair: It's a common refrain, I suspect right across Canada, the costs of policing.
Something I was interested in a number of years ago was doing a red tape review of policing, because if we look at issues you've raised, Mr. Oliver, if there is a charge of impaired driving causing death, the paperwork that policing officials have to face takes an officer off the road for at least three weeks.
Instead of simply looking at new resource avenues like photo radar, which I read about recently, there should be an in-depth look at issues like that as well as court delays and the impact on policing and policing costs right across this country.
Mr. Oliver: From my own experience, it has been a while since I have been on the road doing general duties, although occasionally I will join my son on patrol in Burnaby.
Even 30 years ago, when the first roadside suspension was introduced in Williams Lake, B.C., when I was a young constable, I could pick up one impaired driver and spend the evening in the office processing that case. When the 24- hour suspension came out, a colleague and I within a four-hour period took 12 impaired drivers off the road by giving them 24-hour suspensions, having their vehicles towed and sending them home.
From my perspective in terms of public safety, the 24-hour suspension or those other administrative schemes work very efficiently in achieving the same outcome. As you saw in my comments regarding the B.C. experience, there were 8,000 fewer Crown briefs in one year and according to the report it contributed to 36 fewer deaths on the streets.
Senator Joyal: Your brief referred to the digital age. I don't want to ask you an embarrassing question, but do you think police forces in Canada generally are ready for the digital age? Have they been trained to use the equipment and the technology in the way it could be used for its most efficient return?
Mr. Oliver: I can tell you that we are learning every day and investing in it every day.
But when it comes to the investigation of digital offences or cybercrime, for instance, it's something that the police community needs to look at very seriously. In the past it used to involve fibres and blood; now it's DNA and zeros and ones. Trace evidence today is digital evidence, and every police officer has to have an understanding of that.
Senator Plett: Maybe I don't understand the B.C. suspension process, but I want to question you on the comment you made respecting these five people you took off the road, that a 24-hour suspension did the same thing as taking this person to court if he is thoroughly impaired and removing his driver's license for a considerably longer period of time. How does that have the same effect?
Mr. Oliver: Thirty years ago it was a tool we had because I would have only taken one impaired driver off the street versus the 12 that I took off. I was looking at it more from how many people I pulled off the street that had been drinking and driving and from a public safety perspective, not necessarily from a consequence perspective. That's why when you look at today's revamp of the IRP in British Columbia, the sanctions are more severe insofar as if you get a fail, there is a seizure the driver's license, a removal of driving privileges for 90 days and a seizure of the vehicle.
Senator Baker: I would like a clarification on the 11(b) arguments you were discussing earlier. Would you not agree that 11(b) decisions by our courts are only given favour where there has been Crown delay and institutional delay, and that defence counsel delay does not contribute to an 11(b) argument?
Mr. Oliver: It is my understanding that that is the case. I am not an expert on the Constitution, but that is my understanding.
The Chair: Thank you, Mr. Oliver, very much. We appreciate your attendance and your testimony.
Joining us for our second hour are, from Legal Aid Ontario, David Field, President and CEO, and Marcus Pratt, Acting Director General, Policy and Strategic Research; from the Nova Scotia Legal Aid Commission, Karen Hudson, Executive Director; and from Legal Aid BC, Mark Benton, Chief Executive Officer.
Thank you all for being with us today. We look forward to your presentations.
Mr. Field, the floor is yours.
David Field, President and CEO, Legal Aid Ontario: Legal Aid Ontario is pleased to have been invited by the committee to contribute to this important study. As the independent statutory corporation that administers the Ontario legal aid program, LAO is familiar with the issues and challenges related to delays in the criminal justice system. By way of background, LAO issues approximately 50,000 certificates annually for the defence of criminal charges; provides over 600,000 criminal duty counsel services annually; and LAO's duty counsel contribute to the resolution of approximately 45,000 cases per year.
Legal aid services in Ontario are provided in a variety of ways: through private bar lawyers who acknowledge legal aid certificates; through the staff and per diem duty counsel in the courts; and through legal aid staff and lawyers who provide a range of services from brief telephone legal advice to full representation in court. Through each of its service delivery mechanisms, Legal Aid Ontario has implemented improvements and worked to improve the efficiency and effectiveness of the overall process.
Delay in the criminal justice system does not have a single cause and is not something that any one justice system participant can solve or fix. The problem is made up of many parts, and it will take a combined and cooperative effort on the part of many players to deal with this effectively.
In LAO's experience, some of the most important factors that contribute to delays include federal legislation, such as mandatory minimum sentences, limited availability of conditional sentences, and amendments to the Immigration and Refugee Protection Act 2013. Bail system issues continue to cause delays and increase the growth of the remand population.
There is an overrepresentation of vulnerable client groups such as Aboriginal populations, which represent only 2.4 per cent of Ontario's total population but 20 per cent of the legal aid criminal law certificates.
There are also mental health issues. Approximately 25 per cent of Legal Aid Ontario's annual budget is spent on mental health clients.
Clients ineligible for legal aid also cause delays by seeking court-appointed counsel or through self-representation.
There are problems associated with obtaining and accessing disclosure, as referenced earlier today. The volume of data included in disclosures continues to grow and present challenges and problems for the entire system.
With regard to court administration and management processes, they continue to be paper based, which causes delays. Technology needs to be used more effectively in the court system, which we are trying to do something about.
What has Legal Aid Ontario done to address the issues of delay? We've expanded legal eligibility as well as financial eligibility over the last 18 months. We're expecting another 6 per cent increase in legal aid eligibility effective April 1 of this year.
We've improved oversight of big cases by introducing a complex case rate. We've established a lawyer panel with specific eligibility criteria in relation to homicides and major cases to ensure quality, and we've developed vulnerable client strategies such as a mental health strategy and an Aboriginal justice strategy.
We've developed and expanded coverage for bail variations, second bail hearings and bail reviews. We've improved and enhanced our support for test case work. We've increased our support for mentoring by funding new or mid-level lawyers to apply for mentoring on complicated cases. We've made billing improvements to reduce the administration burden on lawyers doing legal aid work, and we've enhanced our duty counsel services.
Legal Aid Ontario does have specific recommendations for consideration by the committee. They include expanding legal aid support. We feel that legal aid can have a positive impact in the administration of justice. All the examples I cited in terms of positive developments and programs that legal aid has implemented illustrate the benefits that could be received by an investment in legal aid services.
We need to tackle the revolving door problem and support programs for vulnerable client groups. We need to provide support for specialized courts and diversion programs and awareness training for those involved in the criminal justice system.
We need to look at what can be done regarding bail. One of the best practices around is related to bail supervision programs as an alternative to reliance on sureties.
Revisiting recent amendments to the Criminal Code to see where there are opportunities to reduce challenges to legislation and provide incentives to early resolution are also examples of things that could be done to reduce delays in the criminal justice system.
Thank you for providing me with an opportunity to present these issues.
Karen Hudson, Executive Director, Nova Scotia Legal Aid Commission: Thank you for this opportunity to address you all this morning. I hope this opportunity will allow me to make the point that a lack of federal investment in legal aid across Canada means a missed opportunity to strengthen effectiveness for individuals and efficiencies within our criminal justice system.
I'm going to touch on five points. My speaking notes that I shared with you outline six points. I will touch on five.
First, what is legal aid? I joined Nova Scotia Legal Aid in 1985. It has been my whole career. I've never looked for any other job and I believe in what I do. It is a great opportunity to serve the most vulnerable in our communities, and it is an honour to do so.
Legal aid, in essence, promotes a society where everyone counts and everyone gets a chance. Legal aid is effective access to justice for the economically vulnerable, and that includes historically vulnerable groups.
Legal aid can support efficiencies in the criminal justice system because nothing slows down the criminal justice system like a self-represented accused. That comes and is reinforced by a 2014 federal study with the title of "Maximizing the Federal Investment in Criminal Legal Aid.''
My second point is a good news point, and that is that I am happy that there is a growing understanding of the value that legal aid brings to the criminal justice system and to helping those who struggle most with accessing justice.
In 2010, federal-provincial-territorial ministers endorsed a statement that stated criminal legal aid was a pillar in the criminal justice system.
In 2008, an Ipsos-Reid survey stated that 94 per cent of Canadians supported the importance of criminal legal aid in our criminal justice system.
In 2013, the CBA nationally, representing all Canadian lawyers, stated that there needs to be renewed federal investment in legal aid and that inaccessible justice costs us all but visits its harshest consequences on the poorest among us.
My third point, though, is not such a good news story. It is a little bit of a bad news perspective that I share with you and I have the evidence to support it. Federal investment in criminal legal aid has eroded. Federal dollars to the provinces have remained the same since 2003. The federal investment nationally in criminal legal aid is $112 million. Total government spending in legal aid plans — these are 2013-14 numbers — was $759 million. So the federal proportion of total government spending on legal aid is only now 15 per cent.
I will give a little bit of context on that: The federal dollars have remained the same since 2003. That means, in essence, we're missing an opportunity for legal aid to be a better part of the solution.
We have an anemic legal system that contributes to delays. We are, in essence, a one-armed swimmer, trying to be innovative and to better serve those depending upon us.
I have a couple of points of context in terms of what that flat line of dollars means. Federal dollars have remained the same: $112 million since 2003. If you factor in inflation erosion, there is another 23 per cent erosion of those federal dollars from 2003. There is an increased cost that we bear to deliver criminal legal aid. Since 2003 nationally the increased cost borne by legal aid plans to serve our clients has gone up 29 per cent. Our demand for full-service cases — that's a lawyer for the case — has gone up almost 10 per cent. The complexity has gone up. In Nova Scotia I shared one figure with you in my brief, and that is that the cost per case for sexual assault cases has gone up 79 per cent for us from 2003-04 to 2013-14.
The disbursement costs have gone up. Those are borne by legal aid plans, and I gave the example of Nova Scotia Legal Aid. Our disbursement costs have gone up 87 per cent, and that excludes the high-cost cases; i.e., a homicide case. Then we see increasing seriousness of cases, with more mandatory minimums and decreased availability of conditional sentencing.
Mandatory minimums provide little room for front-end early resolution. It can prolong proceedings and it can result in pointless, nothing-to-lose trials. This is an observation from a colleague and friend of mine who I was talking to in preparation for this appearance. This is a very experienced lawyer and I asked him to share a quote with me, and I've given you the full quote in my background brief.
Basically, mandatory minimums can prolong the proceedings, result in pointless, nothing-to-lose trials and sentences that are just plain wrong. We need to trust judges to do the right thing in sentencing.
I'd also like to briefly touch on the issue of underrepresentation. This can lead to delay. Is only duty counsel available for this accused? Duty counsel is not available but there is a wait for a full-service lawyer. And if you get a full-service lawyer, does that full-service staff lawyer have 300 other cases that they are handling, or if you get a certificate to a private bar, is that private bar lawyer being paid a certificate on too low a retainer from legal aid?
Underrepresentation can lead to delay. It can lead to denial of justice and it can lead to delay with issues of "we need another adjournment'' because you're dealing with too much on your plate at any one time.
I'd like to end by outlining a couple of ways in which renewed federal investment in legal aid can be a solution. My brief expands on them a little more fully.
Federal investment can help address financial ineligibility for legal aid. Financial eligibility for legal aid is too low. It is below poverty measures. We heard from Legal Aid Ontario that they are increasing their financial eligibility, but it is still very much below a low income or LICO measure, whatever your measure of poverty is.
When an accused is making less than $20,000 a year and is found financially ineligible for legal aid, then "Houston, we have a problem.'' That is a problem faced by all the economically vulnerable across Canada who are applying and depending upon legal aid.
Legal aid investment can help our responsiveness to First Nations clients. These are the people we are here to serve. We have many strategies and innovations. We are increasing our understanding and can help address the recommendations outlined in the truth and reconciliation calls for increasing the accessibility of justice for our First Nations people, and I have outlined specific recommendations in which legal aid will figure prominently as to whether we as a country are successful.
Finally, I will say that federal investment in legal aid plans can help legal aid be a true partner in problem-solving court approaches to address the root causes of mental health and addictions. More than 80 per cent of people serving a federal sentence have been identified as struggling with mental health and/or addiction issues, and we need to address them. An ounce of prevention, as our grandmothers used to say, is worth a pound of cure. There are great things being started across Canada, but these problem-solving approaches depend upon the full participation of legal aid plans and we are stymied in our ability to fully step up to the plate and be part of those approaches.
I would like to end by saying that I believe that my comments and some of the brief materials I was able to pull together for you quite quickly on a Sunday are a little antiseptic, but I would like to end on a personal note. Our motto at Nova Scotia Legal Aid is that we're here to help. Legal aid plans all across Canada are about hope. We have the privilege to help those who struggle most. We want to do a better job, and we can be a better part of the solution.
Thank you.
Mark Benton, Chief Executive Officer, Legal Aid BC: I want to start by saying what a pleasure it is to follow the Canadian Association of Chiefs of Police in the presentation. I think 20 years ago in my career I wouldn't have thought that would be an asset. As a number of us have had the opportunity to work with the leadership of the Canadian Association of Chiefs of Police, we've gained a better appreciation of how the system ought to work together. The leadership that association has provided has been remarkable in terms of developing and engendering cross-system discussions about how the system ought to change and develop.
I understand that you will be hearing at a later meeting from the chair of the reinventing criminal justice forum, Ray Wyant, who I have no doubt will talk about some of that work. It has been terrific to see a more private group approach to looking at justice system change, and I encourage you to look at any of their reports. None of them deal with delay specifically. All of them touch on criminal justice dysfunction of one kind or another, which is the theme of what I want to talk about. This is a systemic problem that requires a systemic response.
In the scheme of things, I lead one of the more anemic legal aid plans in Canada, which means there are lots of studies about it. Quite a few studies have looked at the more data-driven conclusions that can be drawn about how legal aid makes a difference. One of them, Leonard T. Doust, QC's report, Foundation for Change, was driven by the Canadian Bar Association, the Law Society, and it concluded that timely and appropriate criminal legal aid results in cost savings to the system overall, specifically that inadequate criminal legal aid costs society in additional court appearances, longer trials, extended jail terms and increased recidivism, all of which can be minimized through the provision of timely and effective legal aid.
My other message is that data is not the plural of anecdote. We often hear in criminal justice about stories on their own to try to drive this, without the data to back it up. It is profoundly difficult to measure many of the things we're talking about today in the absence of real data, whether it's just about cost or whether it's about delay in substantive terms and how the interrelated and interdependent parts of the system play into that.
From the legal aid perspective — and I think Ms. Hudson referred to this briefly — we're representing victims and accused in this process. Often, today's victims are tomorrow's accused. We see what's happening to those folks. We know those wrap-around services that Mr. Oliver referred to, or the absence of them, are what's needed to break those cycles. But they're not there. The criminal justice process will not do it. It needs to be a full-system review.
We see those delays in justice as having four quite profound effects in addition to cost. We see them in eroding public confidence in how criminal justice works, when those cases are so expensive, when it's not apparent that there are real cost controls in place and when the timelines are simply unbelievable. We recently had a case in British Columbia when a major trial started six years after the murder, and it wasn't a question of they didn't charge somebody soon enough. It was a real problem with how the case was marshalled. It cost the system broadly; it cost civil and family justice as well.
Justice delays are a problem when those delays compromise public safety, and, again, Mr. Oliver referred to that. When we are seeing those folks in remand over a long period of time, there is no rehabilitation going on. They get none of the benefits of serving real time. They're doing remand time, and that means being released back on the street, typically often, far from where they live, and having lost their job and housing. It's the worst-case scenario solely as a result of remand delays.
We are looking at delays and the detrimental impact on civil and family justice. Those delays in criminal justice are consuming the resources available in the justice system. It's compromising the timeliness in every other area as well, and it interferes with justice.
You were talking about it this morning. Those delays that result in trials collapsing result in justice not being done. It's a profoundly difficult and problematic issue.
In terms of where some of those answers lie, as I was saying earlier, they squarely sit in a systemic frame. In addition to Leonard Doust's report, Mr. Oliver referred to the Geoff Cowper report on criminal justice for the 21st century. They take an integrated approach that say everyone has a part to play. Much as Patrick LeSage said, everyone has a part to play in fixing large cases, but getting the traction to make that happen requires political and policy leadership that we're still not seeing in Canada. As much as the legal aid plans are doing their best to manage the cost of large cases, we're not seeing real collaboration happening to address that systemically, and I think it is a profoundly important issue for you to attend to.
Thank you.
The Chair: Thank you all, and we'll begin questions with Senator Baker.
Senator Baker: I want to thank the witnesses. These are remarkably helpful suggestions you've made.
In looking at the Criminal Code and how you deal with it, I'd like to ask a relatively simple question. Say you have an accused who is charged with a serious offence in British Columbia, for example, a grow-op, as they call it, and part of the counts are obviously indictable and for which the accused as an election, and they elect judge and jury or judge sitting alone. But some of the counts are within the exclusive jurisdiction of the provincial court. For example, theft is in the exclusive jurisdiction of Provincial Court. The accused has opted before a Superior Court judge, and you have a couple of charges there, for example, stealing electricity. That's a common one in B.C., stealing electricity, $200, $300, summary counts. You have the police officer. Would you have two Crowns? Would you have two legal aid lawyers in that case? Would you have one proceeding in the Superior Court and another proceeding in Provincial Court? There is duplication right down the line. Is that what happens?
I would like a short supplementary question after you try to answer that question.
Ms. Hudson, you're a litigator. I remember your cases. You may have some opinion on this.
Ms. Hudson: Thank you, senator. Oftentimes I feel like a very ineffective leader.
Senator Baker: You're a great litigator.
Ms. Hudson: Thank you.
In terms of your question, and I listened as you put it to the earlier witness, I can see this is something that should go forward for consideration. There is nothing like duplication of services to lead to inefficiencies.
However, the justice system as a whole is a low innovation sector. Lawyers are really great at showing the reasons why not, overall, but we do need to have collaboration to move forward. Leadership means pushing forward on some things and making clear recommendations, so I can see some basis that might be a way to go forward that should be considered.
In terms of duplication regarding matters that are in the exclusive jurisdiction of Provincial Court, Nova Scotia Legal Aid, for example, would be very able to handle those in Halifax, in our urban area, through the Enhanced Duty Counsel Program. I touched on this in my brief; I didn't get time to touch on it in my comments.
Enhanced duty counsel is effective at not dealing simply with release issues but with the overall resolution of matters. British Columbia, Nova Scotia and Legal Aid Ontario have pilot projects to show that these can be an effective way of getting final resolution at the earliest opportunity. It is time now, however, to maximize something we know works, but we're not able to do so because of the fiscal realities we face.
Marcus Pratt, Acting Director General, Policy and Strategic Research, Legal Aid Ontario: Perhaps I can give an even more optimistic answer from legal aid's perspective.
Since the Code-LeSage report, we have had more robust case management. The scenario you set out, senator, is common. It's something we would be involved in with our case managers, with both the federal Crown and the provincial Crown, to identify the most serious cases and prosecute those, and drop the less serious ones or resolve them in some other way so we don't waste resources. In particular if there is an organized crime or a serious allegation with the grow-op, I think that's how it would proceed in Ontario.
Senator Baker: We are looking for ways to save court time. This is one of the obvious ones, where you have jurisdiction involved and police officers are tied up in two trials regarding the same offence, multiple counts.
Section 468 of the Criminal Code says that Superior Court has jurisdiction over indictable offences. If the theft were proceeded with by indictment, then you could assume jurisdiction. However, if it is small, under $5,000, as you know, there is the exclusive jurisdiction of Provincial Court.
Would you disagree or agree with the suggestion from this committee that a change should be made to the Criminal Code whereby, on multiple counts, if a Superior Court judge is seized with a matter, the Superior Court judge — regardless of the exclusive jurisdiction of the provincial court over theft — will have the jurisdiction to litigate the matter that is within the sole jurisdiction of Provincial Court?
Mr. Pratt: That's a good question. I don't know if it's necessary to make that kind of change to the Criminal Code. That then brings problems into Superior Court and potential delays there.
The better solution is a more engaged case management by both federal and provincial Crowns, as well as the case managers from the defence bar. To try and resolve it, let's identify the most serious cases and see if we can resolve some of the less serious ones either by not proceeding or by way of guilty plea rather than making a wholesale change to the Criminal Code.
Mr. Benton: I do think, too, that there is another way to view this problem; that is, what is the discipline around the charge process? Is it appropriate in the first instance to be laying that array of charges when all those that fall under the larger ones are likely going to be pled out or dropped in the process? It happens; it's not by exception. That's routine.
One of the things we see in our large case management program, and even in the medium-sized cases, is that the practice of overcharging drives a lot of process, cost and disclosure. Because we don't have a culture that looks at the downstream costs of decisions made at the front end of the system, we don't have protocols in place that happen everyone else in the world on everything else. In justice, we seem to feed the beast and expect the process to work.
This happens throughout the system. Being more conscious and deliberate about decisions and their consequences is an important piece that ought to be encouraged.
Senator Plett: I think Mr. Pratt may have answered my first question, but I'm going to put it out there anyway.
As Senator Baker has said, many of these things are provincial jurisdiction, some federal. In the two presentations of Mr. Field and Ms. Hudson, I got from Mr. Field that maybe certain changes should be made to the Criminal Code. I'm not sure that he said that specifically, but I felt that. From Ms. Hudson I felt that if the federal government, or any government, would throw a lot more money at the system, then all the problems would go away. I put that out as an observation and would appreciate your comments.
My other question is that statistics show we have a declining crime rate. Stats available for 2013-14 show a 7 per cent decline in criminal cases from the previous year, yet somehow the median trial time is increasing. How is that possible when fewer cases are going through the system?
Mr. Field: I will start with the issue of legislation. If you look at what has happened with youth crime and charges related to youth, legal aid is now issuing 39 per cent fewer certificates in the area of youth largely because of the legislative changes the federal government has made. So I do think there are opportunities for the federal government to consider changes that will have a positive impact on the administration of justice and on the expenditures related to legal aid.
Do you want to answer the second part of the question?
Ms. Hudson: First, I think it is very worthwhile to look at some legislative changes, specifically to revisit the issue of mandatory minimums and the issue of the conditional sentencing act and the changes made only a couple of years ago with respect to that.
With respect, senator, I really hope that I didn't come across as whining and saying just throw money at it and it will get better. I just wanted to make the point that it is what it is, and legal aid plans can be a better part of the solution. We are innovative. We account for what we do, and we've got great people who care about what we do in terms of helping people. However, when federal investments haven't increased since 2003, it is what it is and it needs to be addressed. I didn't mean it as a whine.
In terms of the value we can add and why there are delays or why there is a decreasing number of charges but yet we see case processing times continue to increase, I think that the last witness from the police association dealt with that. I would reiterate those comments.
I believe there are a number of comments contained in our briefs that we see an increase in disclosure which increases delay times. The disclosure requirements, the amount of disclosure and the increasing or changing nature of the crimes being investigated for which charges are laid mean that there is an increasing amount of disclosure, increasing forensic disclosure and increasing wiretap disclosure. The amount and depth of this type of disclosure came about through case changes after the Charter, the Stinchcombe decision and the changing nature of crime. Also, infrastructure costs: salaries increased; the cost of paper increased; the cost of electricity to run court rooms increased. All these increases in costs are simply things that we have to consider. That adds to costs overall for cases.
If I wanted to step back and summarize why cases are going down yet delays are going up, we look at the type of crime that is being investigated and for which charges are being laid; we look at the fact that there are more multiple co-accused now; and we look at increasing disclosure.
I think I will leave it there. I'm sure there are things that I've forgotten and that others can add.
Mr. Field: I wanted to reiterate that in Ontario we've only seen a positive investment on the part of the province. We have had significant increases. We're going to have a 10-year commitment made to Legal Aid Ontario by the provincial government to address our financial eligibility. I think the province has stepped up and demonstrated the value of that kind of investment, and I think we've illustrated a number of the initiatives that we're able to undertake with that additional money.
I think the federal government is also obligated to think about making an investment that matches what the province is doing, and it would have a positive impact. I really think it would be of benefit to all the system if we could provide appropriate resources to legal aid across the country.
Senator Fraser: Mr. Field, in your written brief there is a passage that plays to all of my biases. You were talking about electronic disclosure, which you say was supposed to be the answer but in practice is not because all too often the disclosure tends to be provided in large, unorganized data dumps of wiretap transcripts, financial documents and so on.
It's been my experience that very often electronic things are supposed to clarify and simplify but end up having the opposite effect. As you also note, there will be more and more of this kind of evidence, as Mr. Oliver talked about as well, so what do we do?
Computer people will always say, "We will standardize the system,'' and I'm always leery about the single magic solution to any problem. Is that what we have to do? Do we have to go to the standardization of everything? How will you cope?
Mr. Field: The operative term in that response is "data dump,'' and we have to think about whether it's appropriate. Marcus will provide us with some comments on that.
Mr. Pratt: I think the issue with disclosure has changed in the last 10 years from the availability of disclosure to the accessibility of disclosure, and accessibility of disclosure is part of Stinchcombe.
The example of a data dump is very challenging for defence counsel and for legal aid who funds defence counsel, because they have it either on a CD that is not searchable or literally paper copies, and they have to go through that. That is their obligation as defence lawyers. We need to have everyone work together so that the systems used by the police and by the Crown to prepare their cases are the same that are made available to the defence. Of all the witnesses that have testified, that is something everyone is in agreement on.
Senator Fraser: So you aren't talking about standardization of formats or categories, indexation?
Mr. Pratt: In my mind, it's standardization of best practices. I assume as the police investigate and develop information for the Crown, they will always be looking for the best way to provide that information to the Crown so they can make the best case prosecuting. I would hope that the same practices would then be shared with the defence so we can access that information to defend the accused.
Senator Fraser: Are the computer systems in all the various parts of the system readily compatible?
Mr. Pratt: I think the answer is no. That may be a generalization. Different police forces may be stronger than others in that area, but I think as a general matter, unfortunately not.
Senator McIntyre: Thank you all for your presentations.
Before graduating from Dalhousie law school, I was involved with Dalhousie Legal Aid Service, and I can assure you, Ms. Hudson, that was a very interesting and rewarding experience. I enjoyed every moment of it.
My question has to do with legal issues that are not covered by legal aid. In your respective jurisdictions, are some legal issues not covered by legal aid? For example, where there is no threat of someone going to jail, is it harder to get legal aid?
Ms. Hudson: Yes. Nova Scotia Legal Aid has a menu of services: criminal, family, and we've added social justice. I talked about what that means. It's everyday help for everyday issues that if not addressed will lead to further intersection in the criminal justice system. If someone doesn't have access to a residential tenancies matter to resolve it appropriately or if they're denied CPP disability — I understand that 80 per cent of applicants for CPP disability are turned down and they often need help accessing that type of remedy. So if their income stream is compromised, they are more likely to intersect with the criminal justice system.
I wanted to put a plug in for all of my colleagues who also only ever did criminal or family law and now are doing social justice law and have added another hat.
Traditionally, legal aid plans have had barriers for clients, such as financial ineligibility, but also coverage in criminal law. One of the big barriers was there had to be a likelihood of incarceration if there was a conviction in order to get a lawyer for your case. That is a criterion that is still commonly employed by most legal aid plans. However, there is increasing understanding that there are — Legal Aid Ontario came up with this category — secondary consequences that should be realized. Even if a person is unlikely to be incarcerated if they are convicted, they still should, in appropriate cases, receive a full-service lawyer for that case because there are very serious consequences to having a criminal record in our society now. It affects everything, as you know, from your ability to get a job. You can't be a dog walker in our society without having a criminal record check anymore. You can't go to the U.S. or travel outside of the country without problems. A lot of people try to do that to secure employment. It is a barrier to getting housing. It is not a ground for discrimination in residential tenancies if you have a criminal record. It affects child welfare issues in terms of whether or not you can be a placement for a family member whose child has to be taken from that family but you have a 10-year-old criminal record.
With respect to legal aid plans that have incarceration upon conviction as a barrier to accessing criminal legal aid, we are trying to move forward. We need to move forward to not have that act as a barrier any longer.
The Chair: Do others wish to comment?
Mr. Field: The secondary consequence criterion is something that we started to use in June of last year. Up to that point, threat of incarceration was the only test. With the new funding we have received, we have been able to take cases that we would not have been able to in the past because of our criteria.
Mr. Benton: I would only add that there is a sad diversity in the range of services available in provinces across the country. My colleagues are from two of the richest legal aid plans in the country that actually provide that broader range of service. In many other provinces — even wealthy ones like British Columbia — legal aid funding doesn't come to a level that permits anything more than what courts would order governments to provide.
The Chair: You are the only government with a surplus, and maybe Saskatchewan.
[Translation]
Senator Dagenais: I want to thank our witnesses.
Before asking my question, there are a few things I'd like to say. You are no doubt aware that, in Quebec, there was a Hells Angels mega-trial. In fact, a courthouse was built for them, because there were too many of them appearing at the same time. This gave them the time to transfer their assets to straw men, which made them entitled to legal aid. Have you had any similar trials in your provinces? If so, were you given the budgets and the resources needed to avoid adjournments? I am sure you will understand that with the Hells Angels mega-trial, there were so many postponements that the trial was discontinued, much to the investigators' dismay. I'd like to hear your opinion on this case.
[English]
Mr. Benton: The challenge with mega-trials right now on the legal aid side is peculiar to just a few jurisdictions: Ontario, British Columbia and Quebec. Each of those provinces has some kind of process in place to try to identify and address the range of challenges associated with getting a large case from its inception in investigation through to its prosecution and its defence and finally decisions.
We seem to be quite good at the construction of facilities to deal with it but not so good at actually managing these cases through from beginning to end.
I am aware of a couple of different processes that are in development. Often they will be championed by judges. The Canadian Institution for the Administration of Justice has been sponsoring a series of round tables. They did one in Ontario and one is ongoing in British Columbia where judges, police, prosecution, defence lawyers, legal aid plans and corrections people, because they have all those folks on remand, get together to talk about how to do it all better. I think largely we're at the stage of talking rather than doing. It's one of those areas that would benefit from a strong nudge in that it's time for action to address this more effectively.
Mr. Pratt: In Ontario, since the Code-LeSage report, we have this robust big case management. A lot is directed to mega-trials of organized crime, what we call guns and gangs prosecution. A lot of appropriate resources are put into that by the police and the prosecution. We have developed resources to assist in the management of those. We have case managers who go to the early meetings where judicial pre-trials are set to determine appropriate funding. We are very careful of the costs of those cases and often will identify specific skilled lawyers who can bring the legal motions on behalf of all the defence; so it's not all lawyers paying to bring the motions. We have been quite successful since Code and LeSage brought these in. I know there have been difficult some cases in Quebec where they have gone off the rails. I think we have systems in place so that will not happen.
[Translation]
Senator Boisvenu: Regarding legal aid, we know that several victims' groups have asked to have access to it, so as to have better support during the trial. I am thinking, among others, of the victims of sexual assaults.
We know that certain American states have prevented criminal groups from having access to legal aid, or, in cases where criminals have re-offended a certain number of times, they are no longer entitled to legal aid. Would it be possible for the provinces to study this approach, so that an individual who belongs to, or is recognized as belonging to a criminal organization and is up to his seventh or eighth offence cannot receive legal aid?
Since we know that the program has very limited resources, this would be a form of accountability that would also allow victims' groups to have access to legal aid.
[English]
Mr. Benton: The provincial governments generally are of the view that they recognize a scenario where someone appearing with nine prior related offences is likely to require a lawyer to ensure a fair trial, depending on the seriousness of the offence, largely because they will go to jail.
In the province I work with, they are clear that they want their first dollars to go to what courts would otherwise order them to provide. They want to make sure that we are providing representation in those circumstances because courts would otherwise order the AG to stay the case.
In terms of victims, we have a limited victim assistance program, particularly in relation to sex assaults, trials and the cross-examination of victims. That is one area the province has identified as a priority.
With most of the plans in Canada, there is a back-and-forth discussion about where the province feels their funding ought to go as a priority. I'll leave it to my colleagues to talk about the circumstances in their jurisdictions.
The Chair: It's interesting in Nova Scotia and Ontario with respect to assistance for victims. Is that common in your jurisdictions as well?
Ms. Hudson: With respect to the preliminary issue of whether money should be freed up for victims and to do that by perhaps saying you've already had your shot at getting legal aid and you can't come back again, it would be wrong for the individual accused and wrong for the criminal justice system to have them go through unrepresented. Obviously, we have the Charter, which talks about the right to a fair trial, and the United Nations obligations. If legal aid is going to say, "I'm sorry, you've had two kicks at the can and you're not getting a third one,'' you'll just see an increase in state-funded counsel applications, Rowbotham applications. In Alberta, the government was faced with more than 300 applications last year because the province had to restrict funding to Legal Aid Alberta.
On services for victims, a program like Nova Scotia legal aid does not provide a specific program for victims. It is very worthwhile, though, to think and recall our annual report where we provide a comparable level of service in terms of civil legal aid, family legal aid. The users of family legal aid are overwhelmingly 70 per cent women. The users of criminal legal aid are almost 70 per cent men.
There are overlaps between civil legal aid and criminal legal aid. It has been referenced that sometimes in one day you will be an accused and the other day you will be a victim. There are intersecting issues between domestic violence criminal matters and child protection family matters. We do in fact represent people who unfortunately are struggling in poverty — those among us who can access the least. That means they are susceptible to intersecting with both the civil and criminal justice systems, and we try to do our best.
Mr. Pratt: I concur with my friends on the issue of whether we could not provide legal aid assistance for repeat offenders. That would move costs to another part the public purpose by way of Rowbotham applications. Legal aid has systems in place to ensure that there isn't an overuse of public funds by people whose case is overwhelmingly against them. We have limited discretionary payments after the fact — if you bill legal aid but you're over what we pay, you can apply for discretion. We have very much limited that to exceptional circumstances. I have talked about case management, and we look at the merits of any motion. A repeat offender with an overwhelming case against him will not be allowed to run a trial forever. We don't pay for that.
In terms of support for victims, we have funding for representation on O'Connor/Mills applications. This occurs when defence counsel brings application for private records from victims because Charter rights and privacy are involved. We provide representation largely for women in that situation.
We also have a domestic violence strategy where we've expanded eligibility in a number of areas. We are moving in the area of providing more support for victims.
Senator White: It sounds like we have too few dollars and too many accused. The odds of getting more money based on every province, except Saskatchewan and B.C. maybe, sounds pretty light.
However, there are opportunities to try to get some of the accused out of the system. We were told that in British Columbia, some 8,000 impaired driving cases have been removed from the system and put under "administrative.'' Now they have an appeal process. It is not a judge, but they could they could go to judicial review. It seems they have taken care of that.
I would suggest that we have too many people going to court now. The fact that 25 per cent of the offenders in Ontario end up with suspended sentences or are discharged would indicate the same thing.
Ms. Hudson, Nova Scotia has a very strong program, NSRJ-CURA. Would you support the province taking on more of a role around the administrative aspect, whether it's through a Contraventions Act ticketing scheme or shoplifting or common assaults where two males at a bar have a discussion? Should police have the discretion to roll those kinds of cases away from our system? It's not to get any more money. Realistically, this is about allowing lawyers to spend money on the cases they should. I would argue that would solve our problem. Would you support that?
Ms. Hudson: Yes, I would, Senator White. I believe that the Province of Nova Scotia is making a really good strides toward implementing a differential response that not every case and not every charge should be treated the same way; that there should be more pre-charge or post-charge diversion and pre-court diversion. Once you're in court, a vulnerable witness case or a quick snapper case or a lengthy case all have to be treated the same way.
We've heard about more case management once you're in court. Keep court for the serious cases, get the churn out of there and start looking at doing a better job — which we are doing — in addressing the root causes of mental health and addictions, and bring a more restorative approach to our First Nations' issues. They are huge issues.
Professor Llewellyn and our Chief Judge of the Provincial Court, Pam Williams, have done great things in the province of Nova Scotia. The Department of Justice, through our deputy minister and minister, have moved this forward, along with the Chief Justice of Nova Scotia, Michael MacDonald, with a focus on trying to implement a differential response.
The Chair: Do you see a lot of abuse of legal aid? If you apply for a legal aid certificate, there is an income qualifier. I'm recalling the case of a former police officer charged with murder, who got rid of his assets and then milked the system for over $1 million, I think. How frequent is that sort of attempt to gain access?
Mr. Field: We have an ethics hotline where people can call, complain and identify issues. We have maybe 1,000 instances a year where that's an issue. I don't think that's a major problem for us. We have an investigations department that looks at issues of concern.
Fraud over $5,000 is usually an area where we have to be careful. A person might have assets that are hidden, but generally we're not seeing a lot of abuse.
We talked about people shopping around for lawyers and firing lawyers. We track our change-of-solicitor applications. We issued 50,000 certificates in the area of criminal law last year, and we only had 1,300 change-of- solicitor requests, so it's pretty small. It is a couple of percentage points. We do pay a lot of attention to why people change their solicitor, to be sure there are no issues related to the lawyer's capabilities, but I think in general that's not really a problem for us.
The Chair: Thank you all very much. We appreciate your being here. I assume most of you came in last night during that ice storm, so we thank you as well for overcoming the weather challenges. We very much appreciate your appearances and your testimony.
Senators, that completes our business for the day.
(The committee adjourned.)