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Proceedings of the Standing Senate Committee on
Legal and Constitutional Affairs

Issue No. 4 - Evidence - March 9, 2016

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OTTAWA, Wednesday, March 9, 2016

The Standing Senate Committee on Legal and Constitutional Affairs met this day at 4:29 p.m. to study matters pertaining to delays in Canada's criminal justice system; and for the consideration of a draft budget.

Senator Bob Runciman (Chair) in the chair.

[English]

The Chair: I apologize at the outset for the delayed start of the meeting. I think the reasons have been explained to you, but we very much appreciate your patience.

Good afternoon. 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 seventh meeting on this study.

With us today from the Ontario Crown Attorney's Association are Kate Matthews, President; and Laurie Gonet, Vice-President. From the Canadian Association of Crown Counsel, we have Rick Woodburn, President. Also with us today is Ian Greene, Professor of Political Science, York University. Welcome all. We very much appreciate your attendance and the contribution you're about to make, which will be followed by questions. Professor Greene, the floor is yours.

Ian Greene, Professor, Political Science, York University, as an individual: Thank you very much for the invitation to be here today. It's a great honour to give you some of my ideas, and it's especially an honour to be back after 10 years. I was here 10 years ago to talk about ethics, and you had me back anyway.

Let me say that I've been looking at problems of delay, especially in Ontario courts, for about the last four decades. My PhD dissertation at the University of Toronto was looking at the causes of delay in Ontario courts. For that project I selected a random sample of 40 judges at all levels of court and interviewed all of them, plus litigation lawyers, Crown attorneys and court administrators who worked in the same courthouses as the judges I selected. I asked them all similar questions about the causes of unnecessary delay.

The most important thing I found was that all of these groups blamed each other. The judges blamed lawyers for being unprepared, for taking on too many cases, and for delaying in the clients' interests. Lawyers blamed other law firms for doing those things, but not them; they would never do that. They blamed judges for not being adept at administrative issues. The Crown attorneys blamed the judges and lawyers, and the court administrators blamed everybody else. Nobody was taking responsibility to try to tackle some of these problems, except in some of the smaller communities in Ontario. There were bench and bar committees and other informal associations developed where all these groups could be brought together with other stakeholders, like the police, to say, "Look, we don't need to have all these delays. What can we do to resolve these problems?'' Those kinds of groups worked effectively.

In 1997, Justice Thomas Zuber looked at my research when he was making recommendations for the restructuring of Ontario courts. He recommended that in all of Ontario's regions there should be a court administration advisory committee that brings together all the stakeholders so that they can talk about how to make the courts work more effectively, instead of blaming each other. This happened, and this recommendation was put in place. From what I understand, these advisory committees work or don't work depending on the personalities involved and, in particular, the leadership of the chair of these committees.

Over the years, I've come to see that delays in the courts are not simply inefficient and costly, but that they hurt real people. I gave an example in my presentation, which I won't go over, about a teenaged Aboriginal girl who was incredibly hurt because she was arrested for one of the administrative issues that Justice LeSage mentioned to you. There were six delays that were totally unnecessary, and she is still suffering years later from that traumatic experience. This happens hundreds of times in Canadian courts every day, and there are no consequences. So, the work you're doing is crucial. I'm so glad that you're looking at delay, because it can be tackled.

I'd like to say a few words about the Justice on Target project in Ontario, which has interested me a great deal. This project was started in 2008, and its goal was to reduce, by an average of 30 percent, the number of court appearances between the initiation of a criminal case and its disposition, and the average time between initiation and disposition. The goal was to be met in four years. This was focusing on the Ontario Court of Justice, not the Superior Court.

In 1992, the average number of appearances between trial and disposition was between three and four. By 2007 it was 9.2, so something needed to be done. After four years, the project succeeded in reducing delays by 6 percent to 8 percent, so it didn't come close to reaching the 30 percent target. I think one reason is that it was a top-down approach. Many good ideas came from people within court services, which are still being implemented today, but there wasn't enough engagement with the judiciary, the Crowns, or the litigation lawyers. Many of the litigation lawyers I've talked to have never heard of this project. They need to be engaged. All these groups need to be engaged if you're going to successfully reduce delays.

Another thing they didn't take into account was a very important variable called local legal culture. A famous study was done in the United States about 30 years ago comparing both state and federal courts with good administrative practices with those that had terrible administrative practices. What they found was that there wasn't a great deal of difference: Some of the courts with very good administrative practices were slow, and vice versa, and it tended to be the same in every city, both for the state and federal courts.

Their theory was that people in certain cities get used to a certain amount of delay. This is the way it's always been. They're highly resistant to change, they like to blame other people rather than work with them to reduce delays, and they don't think it can be done. If you're to think about delays, you have to think about the local legal culture and you have to have a change management strategy that engages all the groups and convinces them that, yes, delay can be reduced, and if we don't reduce it, it creates a lot of unnecessary harm to people. Through reducing delays, you could save money, and that money could go to, for example, providing more resources to overburdened Crown prosecutors right across the country.

Justice on Target has continued since 2012, when it was supposed to have been completed, and they have succeeded in reducing delays a little bit since then. Instead of having a big target like 30 percent, they now have benchmarks for different types of cases. They're meeting these benchmarks by about two thirds and are trying to reach the benchmarks at higher levels, but it seems to have levelled off. It seems to be almost impossible to reduce delays beyond where they are. I think maybe, through some of the suggestions that your committee makes, more can be done in Ontario and the other provinces.

I have a number of other suggestions to make. Because I want to keep my presentation short, I'll go through them in bullet form.

The Chair: I'm going to have to ask you to be very brief because you're well over the guideline now.

Mr. Greene: Improve the system for federal judicial appointments; unified family courts across the country; more accountability for the courts, perhaps through the ombudsmen's offices across the country. Qualifications of Justice of the Peace need to be improved in some provinces, like Ontario. Nova Scotia has done a good job.

Ninety percent of criminal cases don't go to trial. They're settled mostly through plea bargains, so we have to make sure that process is efficient and fair.

On the civil side, we have the Canadian Forum on Civil Justice, which has a wonderful inventory of innovative reforms in the justice system. We have nothing like that on the criminal side. It would cost $100,000 to set up the same thing, and it would make a huge difference and help to fund projects like Justice on Target across the country.

I think that, with regard to criminal cases and drug cases, we don't need two sets of prosecutors. That's one source of unnecessary delay. I'd like to hear what the Crowns have to say about that.

Keep in mind that administration of courts is really complex. The Canadian Judicial Council has set out some guidelines for good administrative practices across the country. I think you should look at them and support the work that the CJC is doing.

The Chair: Mr. Woodburn, the floor is yours.

Rick Woodburn, President, Canadian Association of Crown Counsel: Good afternoon. Thank you for inviting me. I have about an hour-long presentation, which I had to write up on short notice, but I think I'm going to shorten it up quite a bit.

First of all, I'm the President of the Canadian Association of Crown Counsel. We represent about 7,500 Crown counsel across the nation, which is every province and the federal prosecutors — the PPSC, the Public Prosecution Service of Canada. Part of what we do is look at things that are of interest or at issue for Crown attorneys, such as workload. In this case, of course, that is delay, which is very important to Crown attorneys — not only federal Crowns but provincial Crowns across the country.

I'm going to dive right into what we generally think are the issues with delay. Like I said, I have a longer, prettier presentation, but I think what you really want are the bullet points and to get to the meat of this.

There has been some talk, at least from what I've read, about disclosure. There's an issue with regard to disclosure and late disclosure, and that causing delay. My understanding from across the country is that most disclosure is at least two packages that are given right from the police almost from the beginning. For most of our charges, especially administration of justice, thefts, all the low-end stuff that appears to take up a lot of time in court, numbers-wise, disclosure is given relatively quickly. In our jurisdiction, a lot of times, it's ready before the person is even at their first appearance. From what I'm hearing, it's usually by the time they get to court — maybe the second time they're getting ready to plea or elect — that the disclosures are ready. That could be a month or two, sometimes three, down the line. Disclosure is not as big of an issue as it might seem from some of the other speakers.

On the bigger cases, yes, there is an issue with disclosure; of course there is, because they're bigger cases. We're talking about, for example, over the years, a murder file I've handled started with a file. Years later, it's a box. Now it's 10 boxes. So the amount of disclosure on these bigger files is rapidly growing.

There are all kinds of differences on that. I'll leave it to Ms. Matthews to talk about mega-trials and the types of disclosure requests we're getting from defence.

Leaving that aside, most of our cases are flowing through fairly quickly with regard to disclosure. A lot of the bigger cases are going to take longer anyway; they're going to take a year or two, because they're large cases. There's just no way around that. Disclosure of large cases takes a long time to get it to defence sometimes, but that's understood. For the most part, much of it is getting through.

Another issue with disclosure as of late is that disclosure is supposed to be what's relevant to the charges, so you can make full answer in defence. We're finding more and more with defence that they're asking for everything. I can give an example. I'm on a homicide where there are probably 50 police officers, and it goes back to 2009. They've requested every single email that transpired among these police officers dealing with this matter. They had to write a special program just to get those emails. I'm not sure how relevant that can be, but those are the kinds of things we're facing when looking at disclosure.

That could be reined in a little. It may be helpful for delays, because a lot of time we're fighting disclosure requests when we don't actually know why we're handing things over, because they don't have to tell us.

We're taking some of this on the chin, too, as Crowns. It's busy. It's hard to get it out sometimes. We have to vet it to make sure people's privacy rights are looked after. It does take a little longer, yes. But in our view, it's not the thing dragging the system down.

I will say this: I have spoken about lab closures in the country. This is important, because the RCMP last year decided to close half the labs in Canada. So what does that mean? When we send out a DNA test — blood to be tested in a homicide — it goes to the lab, and they say they can get it back in 40 days. That's just a diary date. In 40 days, they don't have it ready. Why? Because we have half the labs and half the people working on it. Those lab closures are creating a big issue with disclosure. That's a problem.

The lab has decided to streamline what they want. So when they get a submission from the police, say 20 or so tests, they choose that they're only going to do seven. When they send them back, they say, "We didn't get anything.'' So they have to do another submission, which takes longer — 40 days upon 40 days upon 40 days.

So we're waiting for lab results before we can even take a look at whether they will be useful at trial. Those are the kinds of things that slow us down. That's a real issue — the lab closures. They saved I think $3.2 million. I don't think it was worth it, in my humble opinion.

I'm going to move on to preliminary inquiries, which we've heard a bit about already. We can't advocate to get rid of preliminary inquiries. You'd be divided if you talk to various Crowns, even at this table maybe, as to whether they should be abolished. But you have to think about why preliminary inquiries are there in the first place. They were created because on serious matters, defence had no disclosure. These were created before there was any right to disclosure. Now they have a constitutional right to disclosure and full disclosure of our entire case.

So you look at preliminary inquiries and think to yourself what is the use of them? They already have all the disclosure. So preliminary inquiry, in and of itself, is just used to test our case. Well, that's why we have trials. If you think about all the big cases, they last for two years — and that's very conservative. That's fast. One of those two years is gone because of the preliminary inquiry.

Once again, I can't advocate for abolishing them, but I thought when we talk about committal to trial, that's usually what they're fighting over. If committal to trial is removed from the equation, you're left with — the Crown doesn't have to worry about whether there's a committal, because we're moving on. If the defence actually wants to discover witnesses, they can certainly call them, and they can discover them. They can directly examine what they need to know. They can discover what they want, and that's really what the preliminary inquiry is for.

So if we remove committal — that is, the Crown has to prove on the Shephard test that it moves on to trial — and this is just an idea — it may be the kind of thing where people are less and less likely to ask for a preliminary inquiry. Really, the notion of discovery is all in the folder that you have and that's been given to you already by the Crown.

It's important to know about preliminary inquiries, too. They have become mini-trials. It's not just a discovery of one or two witnesses. It's a mini-trial. I've had preliminary inquiries, believe it or not, that have lasted longer than the trial. What is that?

There's also re-litigation. We have to litigate the voluntariness of a statement, for example, at the preliminary inquiry. Then we have to turn around and do it again at trial? That doesn't streamline things. That doesn't make any sense. That's not a discovery, if you will.

Those are the kinds of things we think about when we think about preliminary inquiries.

Subsection 540(7) is the section where you can introduce hearsay. Why are we introducing hearsay? Aren't we just reading a story to the defence that they already know? If I'm reading in somebody's statement, they already have it. They can just read along. So it's almost repetitive, especially if you think to yourself that committal is not an issue. If they want to know what the person says beyond their statement, they can certainly call them.

Like I said, smarter people than me can formulate it better, but it's an idea where we don't abolish but the defence still gets what they want.

I'm sorry I'm flashing through this quickly.

Another thing is institutional delay. When you're thinking to yourself what's the biggest part of delay, I've heard a lot about pretrials, disclosure, rights to election. That all takes place before you even set the trial.

But if you look at the delays, the delays are actually institutional. From the time you set the trial until the actual trial, it can be six to nine months. That's your longest delay. And you're just sitting there; there's nothing going on. In between, there are some motions and so forth, yes. As I said, they're built in. But that's not time that's wasted; the time is there because there are not enough courts, judges, Crowns, legal counsel — especially legal aid — or court administration. There's not enough space to hold those trials.

Is there a way we can cut down on the number of trials? Even if we remove preliminary inquiries or decide on hybrid offences — we say let's make everything hybrid, so everything is in provincial court — now instead of 20 trials in Supreme Court, you have 20 trials in provincial court. It won't really matter, one way or the other.

But the institutional delay is still there, and that's the biggest chunk. The reason why it's still there is because there's not enough room to hold these trials. Our courts are already full of trials already running.

I did want to talk about hybrid offences. I don't know how much time I have.

The Chair: I'd appreciate your wrapping up. We're almost 11 minutes now.

Mr. Woodburn: So now it's speed round.

Most of the code is hybrid offences. I'm not sure if with alarming the Queen, terrorism or murder you want to go to hybrid offences — it's not somewhere we feel we need to go, in the Crown's respectful submission, of course.

Administrative offences are important because people say there are too many of them. Our entire bail regime is founded on the administration of justice, so if we let somebody out on bail, most of them are people who have reached their bail conditions. So if we're not going to punish them and monitor them but release them on bail, what happens then? They're just going to run free. I don't think the public would like that very much.

Finally, this is anecdotal, and I'll give a few stats. In my little corner of the nation, Halifax, in 2006-07, we weren't prosecuting any murders. Not that there weren't any, but no murders were prosecuted in that year. We had 35 prosecutors. We were busy.

In 2013-14, we were prosecuting 21 homicides. There were 21 attempted murders in 2006-07. Now there are 40. Those are just two offences, and some of the major offences.

I can tell you, at least from what I hear anecdotally, those are the types of offences that take the longest, and they are growing.

All that being said, we have the same number of prosecutors and not much more money. We also have the same number of judges and courtrooms.

I'll be ready for your questions when they come. Thank you very much.

Kate Matthews, President, Ontario Crown Attorneys' Association: Thank you very much. I'll just tell you a little bit about me and my colleague, Ms. Gonet. I am an assistant Crown attorney. I have been since my call to the bar, and I have practised exclusively in the downtown Toronto Crown's office — a very busy jurisdiction. Ms. Gonet has been practising the same amount of time in the Etobicoke Crown's office.

The association we represent has been in existence for 70 years. We represent the professional, educational and employment interests of approximately 900 front-line Crown attorneys, assistant Crown attorneys and appellate counsel who work for the Ministry of the Attorney General of Ontario.

As trial Crowns, we deal with the reality of trial delay every day. We see it as a very serious and frustrating problem. We have seen first-hand the detrimental effects of a prosecution that takes too long: Witnesses are lost, the passage of time affects memory, and, consequently, the reliability of evidence is shaken. When defence counsel bring successful applications around the Charter for delay, those cases are dismissed without ever having been considered on their merits. When that happens, justice is not done; it's not done for the accused, the victims or any other participants.

I am going to speak about what we see as the causes of trial delay, and then I will move on to talk about some possible solutions.

We are constantly faced these days with the statistic that criminal charges are going down, and if criminal charges are going down, why do we have these problems with delay? The reality is that the nature of criminal investigations and prosecutions today is vastly more complex than it was, even in the time that we have been prosecuting — 17 or so years. It's not even comparable.

We have increased disclosure overall, but the nature of the evidence has changed dramatically. We have seen a 75 percent increase in the number of investigative videos prepared by the Toronto Police Service in the last five years. Those all become part of prosecutions. They all take time to watch, time to prepare and time to present in court.

We have seen a tremendous increase in electronic data; the analysis of hard drives, which takes a long time; the use of cellphone records and forensic evidence. This evidence is very welcome for trial Crowns, because it's often the very best objective, reliable evidence, but it inevitably increases the time it takes to prosecute these.

Along with that, it often presents far more opportunities for defence to challenge the admissibility of those types of evidence through their pretrial motions. I am not taking a position that it is right or wrong, but it is an inevitable consequence of it.

We have seen an increase in what we would call mega-trials. We have a guns-and-gangs unit in Toronto. Those are mind-bogglingly large. We have criminal organization prosecutions. Beyond those, we have major frauds and dangerous offender applications. We have seen a tremendous increase in the dangerous offender applications brought. Those are time-intensive.

We have an increase in the number of technology-based crimes: cybercrimes, child pornography and Internet exploitation.

We have seen an increase in prosecutions involving people with mental health issues. We have great diversion programs, and they work well. Those specialized courts — we would not want to turn away from them. But there are many for whom diversion is not the appropriate route to take, because the charges are just too serious. Those typically include assessment orders, treatment orders, fitness hearings and not-criminally-responsible hearings. They're very time intensive.

New legislation has an effect on the time to trial — pre-sentence custody and the calculation of pre-sentence custody, for example, and the increase in mandatory minimum sentences. We don't take a position on the substantive merits of that kind of legislation, but we see an effect in the courts, because fewer people are going to plead guilty if they do not see any advantage to doing so. So we see more cases — especially the serious ones — that might have been resolved that are going to go to trial.

We see unnecessary and unnecessarily long preliminary hearings. The legislature tried to deal with that through amendments to the preliminary inquiry rules — subsection 540(7) in particular, which gives the ability to basically file evidence instead of calling witnesses. In our jurisdiction, that is not being used in the way I think it was likely intended. We are trying, but, by and large, defence will not concede that issue, and we're litigating it. The litigation again — the motion alone — increases the time it takes to conclude these matters.

Underfunding of legal aid is a significant problem. The increase in self-represented litigants also inevitably leads to longer trials. If you were running a trial or any proceeding with a self-represented litigant, they cannot concede certain issues that trial counsel might, and you cannot ask them to. We can't narrow the scope of proceedings that we might otherwise do. We have to take great care to ensure they understand everything that's happening in the process and that their rights are respected.

Despite all of those reasons for delay, there has not been a corresponding increase in the number of trial courts and the personnel needed to staff them. I am repeating what my colleague Mr. Woodburn has said on that. There just has not.

Solutions: This committee has heard from an array of witnesses advocating for legislative amendments that could make criminal proceedings more efficient. I know that you have heard about changing or abolishing the preliminary inquiry rules. I know that you have talked about increasing the number of hybrid offences and the decriminalization of certain offences in favour of certain regulatory schemes. If you ask 100 Crown attorneys about their opinions on that, they would probably have different opinions about whether that was the proper way to go.

There is more of a consensus on the use of preliminary inquiries. At the very least, the intent of subsection 540(7) has not worked.

You could consider whether the legislation could, for example, be changed to make them presumptively paper proceedings. If the issue is committal for trial, you file your materials, file your documents, your statements, and your videos, and then you can just argue the issue for committal.

I say presumptively instead of mandatorily because I do know that some of my colleagues feel they do benefit from hearing from certain witnesses prior to setting something down for trial.

Overall, though, that fact that we don't have enough hybrid offences, or that we have too many preliminaries, or that too many offences could be prosecuted in other ways are not the primary causes of delay, in our opinion. The reality is that we are doing all of that. We have been doing it, now, for quite some time in Ontario. We have been electing summarily wherever we can and wherever it's been appropriate. We haven't decriminalized certain offences, but we have used diversionary courts and diversionary programs in many ways. We have already been trying to deal more quickly and effectively with everything that we can possibly do.

We are increasing our pretrial resolution rates, and are increasingly trying to make use of the preliminary inquiry rules. Despite all of that, we still have a problem, and we are still struggling to prosecute our cases properly, to the full extent that the public would want to see them prosecuted.

Every time a Crown makes that decision — do I divert a case; do I offer a resolution; do I reduce a robbery into an assault simpliciter or a theft simpliciter? — we have to always consider the overriding question of whether it's in the public interest to do so. When we get to the point where we are saying to ourselves, "I have to do this, otherwise we're never going to be able to get through our trials,'' we're going to see an increase in 11(b) applications brought. We are no longer asking ourselves the right question.

In our view, we have to be careful about finding an approach that is pragmatic. That is not necessarily a bad thing; there are many good ways and reasons to be pragmatic, but we cannot tip the balance so that we are so concerned with pragmatism in getting cases out of our system as quickly as possible that we are no longer giving weight to the principles under which we are supposed to be governed.

If that is the case, we, as Crown attorneys, are not fulfilling our obligations to the public, and we are not fulfilling our obligations to the proper administration of justice. In the end, I think it is valid for this committee to look at whatever legislative changes can be made to reduce delay. Any reduction is better than none, and there are ways, which I think people have already identified, that that can happen. Essentially, this is a significant issue of resourcing. The system is not probably resourced, and we cannot really conquer these problems until we are.

The Chair: Thank you very much. We'll move to questions and begin with the committee deputy chair, Senator Jaffer.

Senator Jaffer: I have many questions, but I will try to ask as many as I can in the first round.

Professor Greene, you were talking about more accountability of courts, but you didn't elaborate. I know you didn't have time. May I ask you how you would set up the accountability of courts? How would you do that?

Mr. Greene: I've been thinking about that since I was asked to come to this committee. One thing that occurred to me is that, perhaps, the jurisdiction of the ombudspersons in the provinces that have them can be expanded to include court administration, and firewalls could be set up to protect judicial independence. I used to be a public servant in Alberta. I really liked the ombudsman's office, because I liked them to come in and see whether we were doing a good job, and how we could improve what we were doing. I liked the internal audit structures as well, because you can learn from them. If you have objective advice, you can improve what you do. There's nothing like that in the courts, and I think that's one of the reasons that the maladministration in the courts get overlooked, and it just continues on.

Senator Jaffer: I have a question for you, Mr. Woodburn, if I may. You said many interesting things, including something about preliminary inquiries. Maybe I'm out of touch now. You said we don't need them, and that we can discover the witness. I know there is no property in the witness, but how would you say that you can discover the witness?

Mr. Woodburn: It would be set up almost exactly the same way it is now. It would be court-run. We're not saying we should abolish them, but they should be looked at in different way. The initial changes were set up so they would be more streamlined and focused, but it didn't work.

If we were going to discover somebody, for example, and committal is not an issue, we don't have to know whether the person is on, we just know they are. If the Defence says, "Look, I'm interested in hearing from this witness; I want to hear from Senator White,'' for example, we can call them as a witness in court, have them recorded just as you would normally, and they can discover them, so they can treat them as their own witness and ask them the questions they feel they need to. Once they have what they need, that would be quicker than us having to, basically, prove our case through a mini-trial, which is what we're doing right now.

Senator Jaffer: I have a question for all three of the Crown attorneys. You've covered a lot of things we've heard, so it's been very useful. Thank you. One thing we've heard a lot about is that there are too many appearances, and we have heard from defence counsel, as well, asking why we can't do some of these appearances of Crown attorney and defence counsel electronically and cut down the number of appearances and time in remand court.

Do you think using more electronic technology would be more effective in reducing the use of court time?

Ms. Matthews: Set date appearances can sometimes feel like an endless slog. You spend a full day there processing people, and you think, "Do we really need to go through these steps?''

I do believe there are ways that we could make that part of the process — the appearances and set dates — better. I think part of the reason why it hasn't worked is partly the self-represented litigants. They often need to be in front of a jurist because they need direction, or, in appearances, it doesn't look good for the Crown and a self-represented litigant to try to work out these issues. Those people will have to be in front of a judge.

Ideally, everyone would have their disclosure on the first appearance, and there would be one more after that, and that would be it.

Laurie Gonet, Vice-President, Ontario Crown Attorneys' Association: An interesting fact has developed regarding electronic appearances. Moving a body from the jail to the courthouse and then moving the body throughout the courthouse is very inconvenient and labour-intensive. Because electronic appearances are significantly less inconvenient to everybody, statistically, there are more of them, so it is actually doing the reverse in terms of the number of appearances. It's costing less in terms of transportation and inconvenience to corrections, police, and court officers, but it's not actually reducing the number appearances that people are making.

Senator McIntyre: Thank you all for your presentations.

Professor Greene, as you've indicated, the blame goes around. My question has to do with the role of judges, the person in charge, or the captain of the ship, so to speak.

What is your view on the role of the chief judge in dealing with other judges, assigning cases, avoiding court delays, and on the role of case management judges encouraging the parties to make submissions and reach agreements, imposing deadlines on the parties — now, that's a good one — hearing guilty pleas, and imposing sentences? As I recall, you briefly covered the role of justices of the peace and officials other than judges being in charge of specific pretrial matters. May we hear you on the role of the captain of the ship?

Mr. Greene: Yes. The role of judges in terms of good administrative practices is absolutely crucial. Some chief justices or judges are good administrators, and others are not.

In terms of the selection of the chief justice, more attention needs to be given to selecting chiefs who have good and proven administrative ability, ones who will listen to information that they can gain about good administrative practices and try to put those into effect in their courts.

I think the Canadian Judicial Council has done a good deal of work on thinking about how to improve court administration. Once again, I think it's worth it for your committee to go to the CJC website and look at some of their recommendations.

It's incredibly important — not just the role of the chief justices in terms of assigning judges and the other administrative things they're in charge of, but their role in working with others to come up with good administrative practices for the courts.

Let me just give you an example. In Ireland, the courts are run by a board composed of 15 or 16 people. Nine of them are judges, so they're in the majority. The others are representatives of lawyers, accountants and so on from Irish society. It's been very successful for improving the administration of the courts in Ireland.

It's something we can look at in Canada. Again, the CJC has hinted at that in terms of the different models of court administration.

Once again, the role of the judges, and particularly the chief, are absolutely crucial.

Senator McIntyre: My experience with the judicial system has been that some judges don't impose enough deadlines on the parties. That is the big problem, as far as I'm concerned. I practised criminal law for 35 years.

Mr. Greene: Yes. I think you're right about that. I remember Chief Justice Howland in Ontario created a practice directive whereby, when lawyers asked for delay, they would be denied it most of the time unless they had very good reasons. The lawyers who were denied the delay would use that as appeal, so it didn't seem to work in terms of speeding things up.

But there have been judges in different parts of Ontario who have been very strict, and it hasn't led to more appeals.

Senator McIntyre: I have a question to the Crown attorneys. Are the Crown attorneys in your association involved with the police in the pre-charge stage of investigations?

I ask you this question because my home province of New Brunswick and Quebec and British Columbia require a prosecutor to approve charges before they can be laid by a police officer. My question is this: Should this procedure be implemented in all jurisdictions?

Ms. Matthews: It does not exist in Ontario. I haven't given that a whole lot of thought, so I'm hesitant to answer.

Senator Baker: Good.

Ms. Matthews: Maybe I'll take that as my queue not to.

Anyone else have thoughts?

The Chair: I think we can move on.

Senator Baker: First, I want to congratulate the witnesses for being extraordinary witnesses and for their extraordinary presentations. I'd like to especially pay tribute to Mr. Woodburn, who we know has, all over the years, stood up for Crown attorneys and who has bettered their lot, especially in Nova Scotia but now, I think, nationally.

I'll put my question so the chair won't cut me off. I have just a couple of points for you to comment on, especially Mr. Woodburn. Preliminary inquiries are of value to the defence to discover Charter arguments, pretrial. That's their use today; wouldn't you agree? To take that away from the defence counsel would be to remove a considerable opportunity to gather their facts for their Charter arguments for a pretrial, if the matter is committed.

Second, would you agree to our suggesting putting a time limit on disclosure by the Crown? That is, put a time limit, pretrial, for the disclosure of everything to be used at trial that would normally be expected to be used at trial. In other words, officers' notes, continuation report, Crown attorney's case report, the key unsealing of warrants — put a time limit on them prior to trial, and not have to go through a procedure under the Criminal Code to unseal warrants. Why not unseal them? You know they're going to be used at trial anyway. Do your black-lining after they're unsealed.

Should the police be forced to keep, first, an agenda of all their police officers and their disciplinary proceedings for use under the McNeil applications of disclosure that you have to administer today and have it there in advance for you, so you don't have to ask for it?

Third, do you agree with having somebody other than the judge hearing pretrial arguments to cut down on court time and judges' time, as they do in the Federal Court?

Last, would you agree for us to suggest a change to the Criminal Code whereby if an accused elects, for example, to go to Superior Court without jury, and one of the many counts against that person is exclusive provincial jurisdiction — take theft — and it's proceeded with, as Ms. Matthews mentioned, summarily — it must now be referred to a provincial court, and you will hear all the Crown witnesses all over again, all the disclosure all over again, etcetera.

Would you agree with some of those discussions, Mr. Woodburn?

Mr. Woodburn: So how long do we have?

The Chair: That was a brief question.

Mr. Woodburn: Charter arguments under PI: Once again, we're not advocating to get rid of them. We'd like to know — I mean, if you have an issue and you tell us what the issue is, it will focus things, instead of just saying, "Look. Full answer in defence. Put it on. Committal's an issue.'' Because that's really what we're getting for focus.

If you say, "I have a Charter argument. I filed my notice. This is what we believe is going to be in issue.'' Call the police officers. That's fine. We don't have a problem with that. That's how it's supposed to work, because if there are things they don't know, they should be able to discover it. But should we have to go all the way through an entire mini- trial in order for that to happen? That's another thing.

Time limit on disclosure. I wrote, "Or what? What happens if we don't?'' Disclosure is ongoing; disclosure continues right up to the end of trial, believe it or not. There are always things being disclosed, so if you put a time limit on it — I don't mean that —

Senator Baker: It enables 11(b).

Mr. Woodburn: There are a lot of remedies they have in place for late disclosure and nondisclosure. I'm not talking about all the reports, DNA and everything like that. There's also disclosure of things we don't know about. I was going to say to take a recent trial here, but there are things that we don't know about that can come up. That's part of disclosure.

So if you put a time limit on it, there could be issues with that. It's safe to say that not too often do we set down trials until disclosure in the most part is full, or full to the point that they can make a decision, but a lot of that's already done.

Moving into unsealing warrants — that's a minefield. They're sealed for a reason, namely, to protect individuals for source information and where they get their information.

Senator Baker: You black-line that.

Mr. Woodburn: We do, but an original copy, unedited, remains with the court, and we have to make an application to unseal it.

Senator Baker: I know, but you have to do it anyway.

Mr. Woodburn: You do. What you'd be advocating, I guess, is prior to anything happening, having an application, because it's under the Criminal Code; you have to change that in order to unseal it under 182 or something like that.

The Chair: I have to move on.

Senator White: I have only a short question, not as long as Senator Baker's.

Just quickly on prelim. There was a suggestion a few years ago about preliminary inquiries including only witness evidence, not physical evidence. Have you given any consideration to that? That's really what the defence wants a hold of; they want to hear this witness speak to see if they're strong. Everything else is already in the file.

Mr. Woodburn: I thought a lot about this because, when you say, "I want to see if that person is strong,'' that's a credibility issue. Isn't that something you can discover at trial?

Senator White: I'm not arguing we should have prelims, by the way. I'm just trying to find a way to shorten them. That's all.

Mr. Woodburn: If committal remains an issue, we're still going to have to bring in that physical evidence because a lot of the time the physical evidence is what we're using to commit somebody on. Once again, if there is somebody that they want to hear from, they want to focus, and they have a reason, that's okay, but we're not finding there's a focus and reason.

Senator White: Research done a few years ago talked about proportionality, and I'll use Ontario because that's where we did the research. Of 200,000 cases in one year, 25 percent of the cases — a full 50,000 — ended up in suspended sentence or discharge. Fifty thousand cases, and yet we still end up with the exact same nine appearances to get to a conclusion of a shoplifter's case versus an attempted murder case. I would argue British Columbia has had great success with impaired driving, by going through a different process than the Criminal Code.

Would you support a process by which the police would have discretion to lay a charge provincially — a ticketing offence — versus criminally, under the Criminal Code?

Ms. Matthews: This is going to sound like a cop out, but it really isn't.

Senator White: Pardon the pun.

Ms. Matthews: We, as a matter of principle, don't like to comment on that kind of legislation.

Senator White: You're a lawyer; you have to have an opinion.

Ms. Matthews: I might have my own opinion. The problem is that the federal government has the authority, obviously, to legislate as they do. It is very important to us that we're not seen as supporting a political agenda one way or the other, which is why we don't typically comment on substantive legislation.

Senator White: In British Columbia, it's a British Columbia decision. It's not a federal decision at all. They've chosen, for the most part, to take about 80 percent of their impaired driving cases, as I understand, through a provincial process now. The province made that decision. Would Ontario consider that?

Ms. Matthews: You would definitely have to ask the province about that. I'm not in the policy branch.

Mr. Woodburn: I have lots to say. I think it talks a little bit to pragmatism over whether or not it's in the public interest. Pragmatically, is it in the public interest to give somebody the equivalent of a speeding ticket for drunk driving? Is it in the public interest when you tell a family whose child has been hit by a drunk driver that the reason they're on the road is that last week they got a ticket for drinking and driving?

Senator White: They get a six month suspension.

Mr. Woodburn: The penalty is a year under the Criminal Code. It is our respectful view, at least, that when you take away the big deterrent factor, people are going to treat it differently. That's really what it is.

It's hard to tell somebody that this person got a ticket last time, and I guess we'll go with the impaired charge this time. I've sat across the table from people whose children have been hit by somebody that was drinking and driving, and there is no consoling them. I'd hate to tell them that this is the person's second impaired, and that last time, they got pushed through the court system for expediency and pragmatism.

Senator Fraser: I appreciate that the Crown counsel worked hard not to comment on the merits of legislative changes, but you do mention effects.

The Government of Canada proposes to legalize marijuana. What will that do to the volume of cases before the courts?

My second question is to Professor Greene. What you say about local legal culture instinctively rings true to me. Institutions have cultures, but have you done any work on how to change local legal cultures?

Ms. Matthews: We don't prosecute the drug offences by and large, so I don't really have much perspective that I could offer you on that. That would be the Public Prosecution Service of Canada. We do sometimes get them. They are sometimes delegated to us when they are attached to a more serious Criminal Code offence. In our experience, from what we know in our world, we wouldn't see a big difference because we don't have carriage of those offences.

Mr. Woodburn: It's the same in our court system. For the possession of marijuana, I think they send something in the mail saying it's a $100 fine, that type of deal. You're still going to have the larger grow ops, because if the Government of Canada legalizes it, you can't grow marijuana in your backyard. It's going to be controlled. People who are still growing for their own use when they're not supposed to are still going to be prosecuted.

I don't see a lot of federal drug charges bogging down the court system. From our limited view, at least, I don't see it making a really big change, from what I observed.

Mr. Greene: To change the local legal culture, you need leadership. You need leaders who understand change management, and you need to involve all the stakeholders. You need to have some carrots. Why should we change the pattern of things we've been doing? Well, because it's going to be better for everyone, including you.

I think all of us sometimes get involved in activities where there's too much delay. We need to think, "What can we do to cut down on those delays, and how can we involve the other people this affects?'' It's leadership, understanding and analysis, and involving everyone.

Senator Fraser: Do the chief judges get the kind of training they need to become effective managers, or are they just tossed in after, maybe, a couple of days of basic instruction about, "Here is where the inbox is?''

Mr. Greene: There needs to be much more available. I've been teaching courses related to court organization and management for quite a few years now, and occasionally a judge who wants to become a chief judge will take one of these courses. They want to be able to do a better job.

I don't think the National Judicial Institute in Ottawa has training programs for judges, in terms of administration. That would be a great advantage. Much more needs to be done in this area.

[Translation]

Senator Dagenais: I want to thank our witnesses for joining us this afternoon. For your information, I frequented courtrooms for 25 years. I believe there are two types of victims in the courts: victims and Crown prosecutors. I will explain why, as I was a police officer. When we would meet with Crown prosecutors in the morning, they could barely give us five minutes of their time. They were overburdened. They had a shortage of personnel and did not have any support staff. They would ask us to explain the situation to the victims, as they did not have the time to meet with them.

As for defence lawyers, they would send an intern to inform the judge that the person in charge of the case was on sick leave, for example, or abroad, and they would ask for a postponement. You have probably seen that in the past. Any excuse was good enough to request postponements, and judges would grant postponement after postponement.

I can tell you that I had a great deal of sympathy for Crown prosecutors. Quebec courts have no services, they lack personnel, and they have small offices flooded with files.

That said, Ms. Matthews, I believe you said that the police had increased its staff in order to be able to acquire more technological evidence. I do not know whether you mentioned it, but I think the Crown has not gone through the same growth as the police owing to a lack of means. Are you expecting an improvement, or at least a better budget or assistance? The issue is that you are alone.

[English]

Ms. Matthews: Thank you very much. You have described what it is like in the Crown system. It is that way today. It has been that way for a long time.

One of the major mandates of our association is to push for those extra resources. Literally, on some days, we cannot find a Crown to go into a courtroom. We have to pull somebody on their very much needed one prep day — their one prep day when they have a major historical sexual assault that has just been assigned with no notice.

That is the reality of life in the Crown's office.

We have been pushing continuously to get more Crowns and more support staff, because that is a major problem. We have not met with any success on that front.

[Translation]

Senator Dagenais: I thank you and sympathize with you. I wish you well.

[English]

Senator Joyal: Thank you for your contribution. It has been very credible and based on such a wide range of experiences. Thank you, Professor Greene. I remember very well when you appeared on the issue of ethics many years ago.

There are two elements that I want you to expand on, because I think you were among the first witnesses to mention it to us. That is the fact that, in the disclosure, there is an increase in the nature of the evidence requested by the defence. You mentioned electronic data, cellular phone records, forensic evidence, investigative videos and the like.

How would you quantify the impact of those changes on the system? The societal reality of technology has changed a lot, and it is part of the proof now that any accused will want to use as much as possible to defend himself or herself.

What is in the system that would compensate for the additional weight that it brings into the system? Are we not more or less condemned to live with that? Is there any way to offset or compensate for that?

Mr. Woodburn: Everybody's looking at me. It's true. The funny thing is that to get the courts to catch up with the technology is part of the problem, because the courts — even the Criminal Code — are not really ready for all the massive changes that have taken place over the last even five years, with cellphones, Facebook and Twitter.

The issue that we find we're having is that the requests for disclosure are spiderwebbing out, so it's further and further out because of this technology. Now, not only do they want just a regular videotape of the crime; they want cellphone records, Twitter accounts and Facebook. They want to know everything about everybody, as far as it's out there. It's all under the guise of full answer and defence. "How are we supposed to know if this person is credible if we don't have everything we can possibly know about them — everything they've said on Twitter and Facebook, what they're texting their friends and who they called afterwards?''

It's spiderwebbed out, and it's going to continue. We're just dealing with it day by day in the best way we can, to be frank. We do the best we can to try to secure as much disclosure as we can.

I can't help but think of cases that have been in the media recently where Facebook messages —

Senator Joyal: Thousands of them. I was astounded when I read that in the paper, or heard it in the media, I don't remember. But when I read there were 5,000 emails that were looked into by the defence, I said to myself, "What a mountain of work.'' Hours, of course, because that is always translated in terms of time frame.

Mr. Woodburn: And each email, text, and Twitter message goes somewhere else. So where do we follow that rabbit down the hole, and where do we stop? If I text somebody about something, did they text somebody else about the same thing?

It's very complicated, and it makes disclosure of some cases very hard.

Senator Joyal: Is there a way to frame that?

Ms. Gonet: I was going to add that even if we go beyond modern technology with Twitter, texting and all of that craziness, when we started, you didn't have videotaped statements. They were written in a police officer's notebook. Now everything is videotaped, which is a good thing, because there's no room for misunderstanding when watching a videotape, but there's no budget for a transcript. So as Crown attorneys and defence, we have to watch a three-hour video, which takes six hours, because you're constantly stopping, taking notes, playing and pausing.

When you get to court, you're now going to play this videotape, because it's the best evidence you've got. Whereas 15 years ago you were able to examine a witness in chief in about 15 minutes, you are now playing a three-hour videotape that takes three hours.

Even basic technology is causing an increase in disclosure and an increase in the amount of time it takes everybody to do everything.

Ms. Matthews: It's inevitable. I don't think that's going away; if anything, it will increase.

It is quite possible there will be something in there that is relevant to defence counsel, to an issue at trial and relevant to the Crown, as well. It's very difficult to see how you could shut that down, narrow it or exclude a category from evidence, because I think, realistically, there is always going to be the potential that something in there could be relevant.

Senator Joyal: My other question is about self-represented people — people who decide to represent themselves. Is it really a problem that you have seen increasing, or is it something that has always been there but we have to cope with it?

Mr. Woodburn: Even 10 years ago, self-represented accused would come in and they were left to their own devices. If you want to be your lawyer, be your lawyer. That's fine.

Now there are two lawyers for you: the Crown to protect your rights and the judge to protect your rights. We both bend over backward to make sure that person's rights are taken care of. It makes the trials very long.

Accused people know this, and they're very wily with regard to what they do. The flavour of the week now is to have a lawyer, legal aid or whatever right up to the date of trial, and then you fire them. We lose that. They don't go to trial there. They muddle around. They might get another lawyer. They'll fire them.

And if they eventually plead guilty, on their sentence date, they ask for their guilty plea to be withdrawn. They're very wily.

A brief example: I had a gentleman who fired seven lawyers. There were over 50 court appearances and 21 motions. It took four years. You can imagine. That was a serious matter, but it was very wily.

Senator Batters: Thank you for being here and for your service to Canadians. Such excellent points made.

I started practising law in the mid-1990s, and at that time, people didn't really even use email yet. That's not that long ago; that's only 20 years ago. Things have really changed. Thank you for bringing up all those points. Very interesting and compelling stuff.

I'm sure each of you has a personal anecdotal story of this, but I'm wondering if one or two of you Crown counsel can relate to me a brief personal experience you had dealing with a victim where the accused in the particular case you were dealing with had to have the serious charges dismissed because of delay application, and your personal experience as a Crown counsel in dealing with a victim in that case.

Ms. Matthews: It's devastating. It's one of the worst things you have to do, because, as I said earlier, there's no opportunity for that case to be decided on its merits. There's no sense of justice at all. They haven't had a chance to testify. They haven't had a chance to tell their experience.

It's always at the end, of course, of the proceedings, so they have been strung along all the way through it and, hopefully, in the best cases, have been able to meet with the Crown, prepare for trial, talk about the process and potentially talk about what the outcome is going to be.

At the end of that — and it could be two years down the road — you have to look that person in the eye and say, "I am very sorry, but this ends here.'' It's one of the worst feelings in the world.

Senator Batters: Do any of you have a personal anecdote you could relate about this situation?

Ms. Gonet: I have a strange one. It was a sexual assault trial, and the delay was actually the victim's fault. She had a significant heart condition that required her to have open heart surgery twice post-arrest. If I recall correctly — it was many years ago — we lost one preliminary hearing date because she had gone in for open heart surgery, and we lost one or two trial dates. Ultimately, it was well over four years by the time we got to a trial where she was well enough to testify. She was a very sympathetic person. She didn't have an axe to grind. She wasn't doing anything nefarious or wrong, but we lost it on the 11(b), and it was a strange one because it actually happened to be her "fault'' that we lost it, and she was devastated.

Senator Batters: I'm wondering if each of the Crown counsels very briefly could give us one of your top practical suggestions from Crown counsel as to how to reduce court delays.

Mr. Woodburn: You've heard mine. Streamlining the PI would be helpful.

Ms. Matthews: Streamlining the preliminary inquiry would certainly be helpful. In our jurisdiction, we actually have very few matters that go to Superior Court, on which we proceed by indictment. The number of preliminary inquiries that we actually have is not significant, so shortening, modifying, or abolishing them, or whatever the suggestion is, will have an impact on the time-to-trial of those cases, but I wouldn't expect to see a whole lot of an overall impact on the system, in our area.

I agree that there are some administrative procedures or practices that just make you want to tear your hair out sometimes. You just think, "How can it be like this? It needn't be like this,'' but they are administrative changes.

Senator Batters: What are the worst ones you can think of?

Ms. Matthews: We do have problems with disclosure. This is a technical issue for us. Electronic disclosure has come to Ontario. The idea is that it makes it more efficient. We used to literally send the brief back and forth, from the police division to the Crown's office. It should be better. That was meant to address a problem, but it's actually caused all kinds of problems because the computer systems can't talk to each other. There are several frustrations like that that are administrative.

To your point about the set date procedures and why we cannot just do this online, I think there's room for that as well, but I'm a little cynical about how much that can actually affect the problems we have. As I say, these trials are not getting simpler. They are going to become more complex, if anything, and we just do not have the human resources or physical infrastructure to address it.

The Chair: I have a quick question primarily focusing on bail courts. A study was done for the federal government, which was just released I think a couple of weeks ago, and I'm going to quote from that:

To encourage greater case processing efficiency during the bail process, ensuring that an accused's case is dealt with at the first appearance, the provisions in the Criminal Code should be altered to make it more difficult for the Crown or the defence to ask for an adjournment. At present under S.516(1) a case can be adjourned on application of either party for 3 days (or more, with the accused's consent). This could be strengthened by, first of all, stating that adjournments should be allowed only in exceptional circumstances where there is clear evidence that to proceed would cause a miscarriage of justice.

This is a recommendation with respect to a change in the Criminal Code, which is the sort of thing this committee would want to take a look at. Do you have any reaction to that particular recommendation?

Mr. Woodburn: I don't think anybody would agree we should remove the three days. It's relied on fairly heavily by the Crown. When we first get a file, a lot of times it's more serious, and we have to look into a lot of different things. That would mean we would have to make our decisions even more quickly, which is not necessarily something we want to be doing, and I don't think the public wants us to be doing that, either. The three days have been built in for that reason. It's not the type of thing that, when we look into the future, those three days turn into a delay and a delay argument. It's important for the Crown to have those three days and the ability to set over a matter if we need to.

The Chair: What about building some accountability into the regime? They are also saying that the party making the adjournment could be required, at the beginning of the adjourned hearing, to report on the matter that was the justification for the adjournment. Do you have any trouble with that?

Mr. Woodburn: We do that anyway.

Ms. Matthews: Yes.

Mr. Woodburn: It's important that we also don't just remand somebody holus-bolus. Whether they're out on the street or in jail, we still feel a responsibility for them. If something happens to them and we have just remanded them for no reason or without cause, we're going to wear that. I would personally be worried about that person going to the correctional centre.

The Chair: Does the defence bar have the same — is it a moral obligation? No.

Mr. Woodburn: I didn't say yes or no.

Ms. Gonet: I wanted to add, if I could — I'm not trying to place blame, but I recall when that statistic or allegation, if you will, first raised its head. I know in the city of Toronto, at least in my courthouse, which is on the west side of Toronto, we were asked to keep statistics for a number of months about how many adjournments there were and what the reasons for them were. I was in that bail court for three months taking those statistics, and the vast majority of adjournments were actually not requested by the Crown. I'm not trying to say it was the fault of the defence, or duty counsel, or the justice of the peace, but the vast majority were not the Crown's fault. In the vast majority of cases, we are ready to go, on day one, at nine o'clock in the morning when the court opens.

The Chair: I should say that the report also says that the immediate cause of these delays seemingly resides predominantly with defence counsel.

You talked about computers not talking to each other. We had a witness here a week or two ago from the Attorney General's office, criminal justice modernization. It was nice having some front-line people here. I was involved some years ago with something called "integrated justice'' which was a schmozzle costing millions of dollars.

Ms. Matthews: I'm glad you said it.

The Chair: Is that something that's helping you or hindering you? What's happening on the front lines with respect to dealing with modern technology and how it may assist you in reducing delays?

Ms. Matthews: It cuts both ways. We have a new program in Ontario called Scope. It's fairly new, so I don't know if you are familiar with it. It's an electronic brief. The idea is that you can access everything online, you put all your pretrial notes online, and the disclosure is all online. It's a very good tool in many ways because you have immediate access to information when you're standing in the courtroom, or when you're at your desk, where in the past it was very hard to track down information. We can see what's going on with the same accused in another jurisdiction. There are lots of good things about it, but it's very labour-intensive, and that is falling on the Crowns, largely. It was a lot easier just to scribble your note on the brief and throw it in. It takes a long time to fill out those JPT forms on that program.

Some of that might be a learning curve, but I think we've had it in Toronto for over two years, so I think we're past the learning curve. It really should be done by support staff. It shouldn't be taking up all the time of the Crowns, because we should be focusing on the prosecution and preparation of our case, not on data entry. It has both benefits and drawbacks.

The Chair: The witnesses have agreed to stay for another 10 minutes, so if other members have quick questions and timely responses as well, we'll start with Senator Jaffer.

Senator Jaffer: I have a very quick question for you. At the beginning of our hearings on this issue, we had, I think, two federal Crowns, and I asked about people not being represented. They left the impression, and my colleagues will correct me if my impression is wrong, that that was not really an issue because legal aid definitely covered criminal cases. That has not been my experience when I speak to others or judges in my own province. There are a lot of unrepresented.

I was just wondering, percentage-wise, roughly, out of a day, how many could you see? Can you say?

Mr. Woodburn: I couldn't give you a number.

Senator Jaffer: But are there many unrepresented?

Mr. Woodburn: There are enough that we notice, and it's one of those things that you really notice.

Senator Jaffer: Doesn't legal aid cover everybody?

Ms. Matthews: No.

Mr. Woodburn: They can. Some people choose not to. This is for legal aid when we talk about resources, too. When you look at the pile of all the notes on the desk and all the jurisdictions where there is legal aid, they are equally as busy as we are — stacked files — working harder in some respects than even we are. There are some people who make too much money who don't get represented by legal aid; they fall in that in-between where they don't make enough money to get private counsel, but they don't get into legal aid. I find some of the legal aid lawyers will take them on, anyway.

But some people choose to remain self-represented, and it really sticks a wrench into the gears, as it were.

Senator White: On the access issue, we ran a pilot project in the Yukon when I was there with the RCMP where we allowed the Crown to have access to our records management system. It never went beyond a pilot project. The Crown, federally, weren't comfortable with it.

I didn't understand what the issue was. Records management systems that were developed in the mid-1990s rolling up to 2007 meant for the Crown at some point in time to have access to every investigation — not to the system, but to every investigative file. You have physical access when they send it to you, anyway, so why wouldn't you be able to access it from your office rather than calling constable so-and-so who's on night-shift, asking the question and hoping he gets back to you during his next four days on?

Mr. Woodburn: I would endorse having access to it.

Senator White: Make it so.

Mr. Woodburn: Even if you look at it this way, and in each of the major Crown offices you have somebody from the police there who can access it. Sometimes we do. Our youth court person, for example, has the ability to get on the system and so forth and run things off. It's extremely valuable to have that at your fingertips. Even if we said, "Okay, look. If we have the resources, we at least put one of those individuals in your office who are able to run CPIC checks on people and get into the system in order to get into the RCMP system.'' It would be extremely valuable.

Senator Baker: I have one question. I asked the question previously, so you know what the question is. I'd like to have an answer. I've been trying to get an answer to this question.

Before I do, Senator Batters asked whether you have had a memorable experience on an 11(b). Mr. Woodburn didn't want to brag, but he's had cases where he defeated an 11(b) argument where the trial had gone on for three and a half years, and he said, "No. Trial on its merits,'' and he won the case. I have it right here.

Mr. Woodburn: It's on appeal.

Senator Baker: My question is this: You have multiple counts against an individual. The individual elected to go to supreme, indictable. You have some of those counts that are exclusive provincial jurisdiction, and you have decided, Ms. Matthews, to go summarily. So you have two trials taking place on the same facts, tying up the same people, tying up the same courtroom.

Would you not agree that we could make a recommendation that says that where the election is made, that's where all counts will be tried, whether summary or indictable?

Ms. Matthews: On the face of it, I can't see why — any time you have duplication of proceedings and duplication of evidence, it doesn't make any sense. We have the same argument when talking about litigating an issue at prelim and then re-litigating it. It doesn't make any sense.

It's very small. I can actually only think of once in my practice—

Senator Baker: Oh, I've read a lot of case law on this. With your experience, you probably opt to go indictable on the hybrid offence.

Ms. Matthews: Yes, I think that's how we did it.

Senator Baker: That's not the proper way to do things.

Ms. Matthews: But we kept it all —

Senator Baker: So you wouldn't disagree with us making that recommendation?

Ms. Matthews: I'm going with the caveat that I haven't given it a whole lot of thought. But on the face of it, I think that any time you can reduce the duplication of proceedings, it makes sense.

Senator Batters: Thanks very much. In previous witnesses' testimony, we've heard about how impaired driving charges seem to be a significant clog in the system. I'm sure this is something you find, as well, because we've seen nationwide that there are lengthy delay time frames for impaired charges. Of course, there are so many such charges that it's just a multiple of that.

Specifically dealing with impaired driving charges, could each of the Crown counsel tell us briefly what you would suggest as a top practical solution to decrease delays on impaired driving charges?

Mr. Woodburn: Stop serving alcohol downtown. I live downtown; I can walk.

Senator Batters: Just in Halifax?

Mr. Woodburn: Just in Halifax.

It's very hard to give you something that in itself will shorten the delay on drinking and driving, because they have a right to full answer and defence, and there's a lot of material there.

Senator Batters: True. What about the technical defence, though, like the two-beer defence and things like that?

Mr. Woodburn: They removed the Carter defence a couple of years ago, and it didn't slow things down at all, and that was a major defence. Being creative, they found some new ones.

One of the reasons drinking and driving is so prolific is because it happens to middle-class people, also. You have all the law out there because the middle-class person and above — I'm just going to say — have the money to fight these things. If people who shoplifted had as much money as people with impaired driving, we'd have the same amount of case law for shoplifting.

That's where the issue is. People don't want a criminal conviction, and they don't want to lose their licence for a year. But that's the deterrent; that is the thing that keeps people from getting in their car. We have a lot of people still getting in their car, but that's what's keeping everybody else who would possibly get in a car from getting in. "I'm not getting in my car. I lose my licence; I get a fine and a criminal record.''

The Chair: I'm going to give Senator Joyal an opportunity for a very brief question.

Senator Joyal: Is there large a turnover among Crown attorneys in terms of the workforce?

Ms. Matthews: No, there isn't in our jurisdiction.

Mr. Woodburn: Don't tell our bosses we love our job.

Ms. Matthews: I was going to say that this is more of a labour issue, but we are frequently faced with that: Well, nobody leaves, so how bad can it be? The truth is, the people who do this kind of work do it because they really believe in it. There isn't anywhere else, aside from the PPSC. If you want to be a prosecutor and work in the public interest in this area, this is the job. It's the only place to be, and we really love it. We're dedicated to it, and we stick with it.

But I wouldn't equate the two; I wouldn't equate the lack of turnover with ideal working conditions.

The Chair: Thank you all very much. I appreciate your being here and waiting a little extra time because of the delay in getting the meeting under way. We very much appreciate your helpful testimony.

Mr. Woodburn: Thank you very much for having us.

Ms. Matthews: Thank you very much.

The Chair: Colleagues, you all have some material that was circulated to you with respect to a work plan, if you will, for travel and a budget that goes with it. We are going to have a general discussion about this. Hopefully you've all had an opportunity to take a look at it.

I'll open it up for discussion. Senator Batters or Senator Jaffer, do either of you want to lead off?

Senator Jaffer: We have worked on this. Of course, the clerk has worked on the numbers, and we have worked on a travel plan from what we'd heard from you with us wanting to go to Toronto at a separate time, Montreal at a separate time and then to Vancouver, Calgary and Saskatoon. Calgary is something we can discuss here. Then Halifax.

I have to tell you my bias. I have been talking to the chief justices in my province; I have been speaking to people in my province, and there is great enthusiasm. If we go to Vancouver, what is planned is that we would see a drug court and a community court remand, and we would also hear from the people who work in those systems. I think we would get first-hand experience of what we are hearing.

Senator Batters: My bias is Saskatchewan. But they actually have some really innovative things that we heard a little bit about from the Deputy Minister of Justice when he testified by video conference. He talked about that shadow court innovation that Saskatchewan came up with, which I remember hearing about when I was chief of staff to the Minister of Justice four or five years ago. I assumed that was something they were doing across the country. Then I heard, no, Ontario people don't know about it; other people don't seem to know about it. I think that could be an innovative thing this committee could report and let other jurisdictions of this country know about.

There are many of those other types of innovations, and that's where we'll find out about these innovations — by going to these courtrooms and meeting with these front-line people directly. I think it's a valuable exercise and a relatively constrained time frame, too, since we can do Montreal and Toronto as day trips, and then just a bit longer one for out West.

The Chair: Anyone wish to participate?

Senator Baker: I noticed on the list that we're not going out East, are we?

The Chair: No.

Senator White: I think we do need to spend a day around restorative justice in Halifax. Hearing from a witness or two by video conference or in person is nice, but if you see the work they've done — even meeting with the police chief, Mr. Blais, in Halifax, which has really adopted it, I think would be helpful for us to see that there is another way.

The Chair: It's not built into this budget.

Senator White: I know. I'd like to replace Saskatchewan.

Hon. Senators: Oh, oh!

Senator McIntyre: And we could move to Moncton.

The Chair: We might be able to pull Calgary. We've had some discussion surrounding that.

Senator White: It would give us an East Coast piece. It's not just geography, right?

Senator Joyal: I don't want to play the devil's advocate here, but I have some difficulty to figure out fact-finding in Montreal — the bar of Montreal, a young bar, and the Montreal Defence Lawyers Association. Which one of those can we invite to appear, either through video or in person?

It seems to me that fact-finding on those is not — we're not looking for the conditions of detention. If we would be investigating prisons, I would say that I want to see the place, but this is not the same level of fact-finding. It's more an analysis of the system.

Again, I don't want to play the devil's advocate, but the Crime Victims Assistance Centre — we have heard victim representatives around this table for I don't know how many years. We can invite them here to testify. I don't see how 20 of us arriving there — what more will we learn than if we invite those people here, or if we organize something through video?

Again, I don't want to play the devil's advocate, but I don't have the conviction that we will get more by being 12 — or I don't know how many — of us there than listening to them here and having a discussion around this table.

The Chair: I share your skepticism, but we may be outnumbered.

Senator Batters: Just on that point, I think that our clerk and analysts have found in arranging witnesses for this committee — haven't we found on numerous occasions where witnesses from Quebec have not been willing to come Ottawa to testify?

Jessica Richardson, Clerk of the Committee: Just the provincial government witnesses. We don't even get a response. The sitting judge — it's deemed not appropriate.

I'm still waiting to hear back from invitations out to private individuals and private organizations. So far, the only declining private person is a lawyer. He's in the Court of Appeal that day, and I haven't had the chance to follow up with him if he's available another day.

So far, the only outright "they won't give us an answer'' is the government.

Senator Batters: My perspective of this as a committee — I've been on it for three years, since I started, and we haven't had any opportunity for even a study since I've been on it. A big part of our job as senators is to represent the regions of our country, and I think that it's valuable, especially on something like this that affects every region of the country; and there are all these places that have either different problems or solutions or both. I think it's really helpful to get out there, to experience that, to go to a couple of courtrooms, go to some of these places and see what is actually happening rather than just hear about it from somebody maybe at the top level of a Canadian organization.

Senator Baker: Chair, we're doing this in one group of trips, and we produce an interim report. What is barring us from continuing this later in the fall and visiting other provinces, and producing a final report next spring? Then we would be able to say we attended each province. It's a great thing to be able to say, because each province has different rules. They all have the same problem; not one province is excluded from the 11(b) in recent case law in the past six months. Not one province is excluded. Every province has had cases thrown out. So there is no ideal system, but they have different rules in the courts, and the police have different rules. We could have this as the first portion, do our interim report, and then do the final report and go to each province.

Senator White: To be fair, I haven't travelled with a committee in four years, so I'm not sure how it works. Is there anything that stops us from splitting the committee in half and doing east versus west, rather than everybody going everywhere?

The Chair: I'll have to ask the clerk. I haven't travelled since I've been here, so I have to look to the clerk for advice on that.

Ms. Richardson: Not if you're doing public hearings, because it procedurally becomes difficult. If you're only doing fact-finding, there have been committees in the past — I'm talking a decade ago — that have done that. It's hard, logistically, for me as the clerk making all the arrangements. Who do I travel with? If you're doing public hearings, then no, it would be impossible.

Senator White: Okay. Then I revert back to everybody going everywhere.

[Translation]

Senator Boisvenu: To follow up on what Senator Joyal said, when I sat on the steering committee, we had a hard time getting people from Quebec to come to our committee, especially officials from the Quebec justice department.

The other element that justifies our presence in Montreal is that Quebec is the province with the longest delays. If we were to appear in Montreal, without sounding too critical, I believe it would be a bit embarrassing for them not to testify before our committee. I think this case has a strategic importance for Quebec.

When we see that delays are five times shorter in the Maritimes than in Quebec, I think that is a particularity that warrants our presence in Montreal.

[English]

Senator Jaffer: To respond to what Senator Joyal was saying, we can get witnesses to come here. In all the years that I've been here, we almost always get the same kind of people who come here. It's almost like they are professional witnesses who appear before us.

I'm a visual person, and I believe that if we went to a place, we would get to see first-hand what's happening. People take in information from listening and from seeing, and I believe it would be very helpful to go out and meet with people who can't normally come here and get a point of view as to what is happening across the country.

I support what Senator Baker is saying. We don't have to do everything. We can do smaller trips. We can do, say, Toronto and Montreal, this session, and then go to Vancouver. We don't have to do everything, but we should look at this as a long-term study and, as we said before, have a number of interim reports as our study goes on.

The Chair: Is there anything else on this?

Senator McIntyre: I would echo the remarks made by Senators Baker and Jaffer. I agree with Senator Joyal to some extent, but we don't have to everything now during this session. I think we could do some of it now, and then some later in the fall. I think that would be an idea. Maybe we could put Montreal on hold and then do Toronto and Vancouver for the time being, and then if we decide that we're going to do Montreal, we'll do it later.

The Chair: Okay. I think there seems to be agreement to move ahead with this, with the one change with respect to including Halifax as part of budget that we take to Internal Economy. The clerk advises me we're not going to have any budget approvals to allow us to travel in April, so the earliest we would be looking at for any travel would be May.

We'll have a revised budget come back at the next meeting with the changes that have been discussed here today.

(The committee adjourned.)