Proceedings of the Standing Senate Committee on
Legal and Constitutional Affairs
Issue No. 7 - Evidence - April 21, 2016
OTTAWA, Thursday, April 21, 2016
The Standing Senate Committee on Legal and Constitutional Affairs met this day at 10:31 a.m., in public, to study matters pertaining to delays in Canada's criminal justice system; and in camera for the consideration of a draft agenda (future business).
Senator Bob Runciman (Chair) in the chair.
[English]
The Chair: Come to order, please. 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.
Earlier this year, the Senate authorized the committee to examine and report on matters pertaining to delays in Canada's criminal justice system and to review the roles of the Government of Canada and Parliament in addressing such delays.
This is our fourteenth meeting on the study.
With us today to speak about how the federal and provincial governments coordinate their efforts regarding Canada's criminal justice system, are, from the Department of Justice Canada, Donald Piragoff, Senior Assistant Deputy Minister, Policy Sector; and Lucie Angers, General Counsel, Criminal Law Policy Section.
From Public Safety Canada, Gina Wilson, Associate Deputy Minister; and Angela Connidis, Director General, Corrections and Criminal Justice Directorate.
From the Government of Saskatchewan, Dale McFee, Deputy Minister, Corrections and Policing, with the Ministry of Justice in that province.
Last but not least, also joining us today is Elizabeth Strange, who is the Chair of the Uniform Law Conference of Canada.
Thank you all for being with us today. We're looking look forward to your presentations. I understand, Mr. Piragoff, you're going to lead off. The floor is yours, sir.
Donald Piragoff, Senior Assistant Deputy Minister, Policy Sector, Department of Justice Canada: Thank you, senators. Thank you for the opportunity to appear again before the committee. As you recall, I testified in early February.
As requested, I will focus my remarks on how the federal government works with the provinces and territories in ensuring that Canada's criminal justice system is operating as efficiently as possible.
As I explained during my February 4 appearance, criminal justice is an area of shared jurisdiction, and the federal- provincial-territorial structure in which we collaborate is informed by this constitutional imperative of cooperation.
It is fair to note that the federal, provincial and territorial public servants working in the area of criminal justice and public safety generally see their role as in all FPT — federal-provincial-territorial — matters as stewards of the criminal justice system and recognize the responsibilities that each of us holds in our respective areas of jurisdiction.
Let me say a few words about the federal-provincial-territorial process from a Justice Canada perspective. My colleagues from Public Safety Canada will talk about their work in FPT in a few minutes, and Mr. Dale McFee will give the perspective from the provinces and territories.
With respect to ministers, at the top of the structure is the table of federal-provincial-territorial ministers who are responsible for justice and public safety. They meet about once a year, usually in the fall.
While discussions at the table are confidential in nature, an agreed-upon press release is released after each ministers' meeting, highlighting the issues that were discussed. I invite the Senate to consult the website of the Canadian Intergovernmental Conference Secretariat with regard to the communiqués. For example, public reports that have been released by ministers in the last few years have included reports dealing with subject matter such as violence against indigenous women and girls, missing women, cyberbullying and trafficking in persons.
Below ministers is another level of committee structure, the federal-provincial-territorial deputy ministers. Under the guidance of ministers, the deputy minister-level table usually meets twice a year, and they can also meet on special issues as required, either in person or by teleconference.
Dale McFee, as I've mentioned already, is the deputy minister for corrections and policing in Saskatchewan, and he is one of the co-chairs of this forum. It is co-chaired by two federal co-chairs, one from the Department of Justice, one from Public Safety; and then provincial co-chairs, either one or two individuals. Currently, Saskatchewan holds the seat of the provincial co-chair.
In practice, the priorities of the ministers cascade down to the deputies and then the deputies cascade their work down to the various working levels below them. The priorities are essentially set by ministers, usually once a year, as to what their priorities are. This last meeting in January, in Quebec City, was again a very fruitful meeting, because a new government had been elected in Ottawa, and it was an opportunity for a resetting of the relationship. There was a very good discussion between all of the ministers with respect to what were the priorities both at the federal level and provincial level, and there was significant common agreement with respect to those. I think Mr. McFee will address some of those common priorities and themes that came out of discussion from ministers.
The entire structure, both ministers and deputy ministers, are supported by a secretariat run out of Justice Canada together with the support of Public Safety. They are managed by the deputy minister co-chairs. As I mentioned, Justice, Public Safety and, currently, Saskatchewan.
I would like to invite my colleague Lucie Angers to say a few words about the Coordinating Committee of Senior Officials in Criminal Justice, which is a committee co-chaired together with Justice Canada — Lucie Angers — and Hélène Mathieu of the Province of Quebec. This is the working level and really the workhorse of the federal-provincial- territorial structure network.
[Translation]
Lucie Angers, General Counsel, Criminal Law Policy Section, Department of Justice Canada: The core mandate of the Coordinating Committee of Senior Officials, or CSSO, responsible for criminal justice, is to support the deputy ministers and ministers of justice and public safety and to suggest potential solutions regarding issues raised in our study. At the same time, the CCSO also helps the deputy ministers and ministers identify issues that warrant more detailed examination.
The CCSO also provides legal and strategic advice to the deputy ministers and ministers, and provides a forum to foster discussion of each administration's policies and practices. This is why its work is confidential, as mentioned in your invitation letter.
In order to support the four components of its mandate, the CCSO determines whether files should be assigned to an existing working group or whether a new one should be created. In addition to its work by teleconference and email throughout the year, the CCSO and some of the working groups meet twice per year to examine the most pressing issues. Regular reports are sent to the deputy ministers for their approval or information in order to keep them abreast of progress in the CCSO's work. The deputy ministers then decide whether to forward the reports to the ministers or to a committee for closer consideration.
If a document is to be released to the public or to be the subject of consultations outside government or outside the CCSO, deputy minister or ministerial approval is required, given the confidential nature of the work, as I have already mentioned. The challenges facing the CCSO are the same as those facing all other FPT forums: fiscal restraint and limited time to carry out complex work.
To be sure, the CCSO's work serves to gather various points of view from all regions of Canada, which is essential to making progress on complex criminal law files. I will give the floor to Mr. Piragoff again, as he would like to talk about another important FPT forum, the Steering Committee on Justice Effectiveness and Access to Justice, which has been mentioned during your proceedings.
[English]
Mr. Piragoff: In 2003, the ministers realized that they needed to expand their network outside of the government structure of simply the federal-provincial-territorial network. Ministers and the judiciary agreed that some of the major participants of the justice system should actually work together to recommend practical solutions to problems relating to the efficient and effective operation of the system without compromising its fundamental values, nor the fundamental values of the participants.
As a result, a committee was established to examine issues related to justice efficiencies and access to the criminal justice system that are systemic in nature, national in scope, and that may affect the justice system in a significant manner.
A steering committee on justice efficiencies was created. It meets usually two or three times a year and is composed of 17 members, including six federal-provincial-territorial deputy ministers, six representatives of the judiciary — three from the Canadian Council of Chief Judges and three from the chief judges of the provincial courts — three members of the defence bar, and two representatives from the police community.
The reports prepared by the committee are submitted for the consideration of federal-provincial-territorial deputy ministers and ministers for their consideration and for them to take whatever action they feel is appropriate with respect to those reports.
Some of the reports that the steering committee has addressed in the past few years are very relevant to the mandate of the Senate committee with respect to trial delays. In 2005 there was a report on mega-trials. Also in 2005 there was a report on the management of cases going to trial. In 2006 there was a report on early case consideration. And in 2009 there was a report on jury reform.
There are some other reports that the committee is currently in the process of getting ready for publication, and they will soon be published on the website of the International Centre for Criminal Law Reform and Criminal Justice Policy, which has its website hosted at the law school at the University of British Columbia.
I urge the committee to take a look at some of that work, because it's the work of judges, government officials at the senior and deputy minister level, the bar, police, working together cooperatively to find solutions to common problems, and essentially in a forum where people are not advocating positions but actually looking for solutions.
In conclusion, Mr. Chair, these are essentially the FPT and the structure. Included in that structure — not directly included but as part of the FPT structure and, of course, as part of the Canadian Bar Association, where it originated — is the Uniform Law Conference of Canada. Elizabeth Strange will talk to you about that today. In addition, there are the heads of prosecution, and I believe you heard from Brian Saunders last month with respect to the Federal/ Provincial/Territorial Heads of Prosecution, which he co-chairs.
That is the overall structure of the federal-provincial-territorial network. We remain at your disposal, senators, if you wish more information with respect to any of these bodies.
Let me conclude my remarks by reiterating once again that the federal government recognizes the pivotal role that the provinces and territories play in Canada's criminal justice system. They actually implement the great bulk of the criminal justice system, whether it be at the policing or the prosecution level. They are essentially the front line of the criminal justice system.
It is, I believe, a shared objective of all of us — federal, provincial and territorial — to increase the confidence of Canadians in their justice system and to find ways to strengthen it in a way that will ensure a fair, relevant and accessible criminal justice system for all Canadians. Thank you, senators.
Dale McFee, Deputy Minister, Corrections and Policing, Ministry of Justice, Government of Saskatchewan: Good morning, senators. Certainly as Donald has alluded, I'm Dale McFee. I'm one of the PT co-chairs of the Deputy Ministers of Justice and Public Safety table.
I want to thank you for the invitation to speak to the Standing Senate Committee on Legal and Constitutional Affairs regarding the issue of delays in the justice system and the importance of federal, provincial and territorial governments working collaboratively for a fair system that's efficient for all Canadians.
As Don has mentioned, I will not get into particulars of certain groups — they will be addressed individually — but I want to highlight some of the priorities from the deputy minister table.
I have canvassed my DM colleagues for their perspective on improvements to a fair and efficient justice system in relation to the respective province or territory. I will re-emphasize some of the information that Deputy Minister Fenwick gave approximately a month ago as well from the Justice side.
I want to emphasize that we currently have a real opportunity here. We have a new federal government. We have a lot of new PT governments. As we establish new relationships, we would like to re-examine our priorities rather than assume that the current priorities remain unchanged. We need to work together to begin to shape a new pathway forward for innovative justice practices that are evidence informed.
We recognize that the justice system needs to evolve substantially and become more efficient.
Over the years, some of the items at the FPT table have become stagnant and have not seen any significant movement, change or impact, as Lucie said, due to a number of reasons: financial, budgetary, monetary constraints, human resource constraints, or simply the inability to move the items that can impact change.
As the FTP table shapes the path forward, the deputy ministers have identified the priorities to work on. Each one of these priorities will have streams and measurable outcomes, and I want to highlight those seven priorities now. They're not in particular order of importance, but they're all important issues: indigenous issues, such as work in the area of missing and murdered indigenous women and girls, and the work associated with the Truth and Reconciliation Commission recommendations.
Second is mental health and addictions. Obviously that is a huge issue across the country and one that needs a lot of attention and work. Third is access to justice; fourth, crime prevention; fifth, data and information management; sixth, radicalization and counterterrorism; and seventh, cybercrime.
As new ideas and initiatives come up at the FTP table, it would be our intent to continue to see some of this work being done through the CCSO, with the expectation that the work being done is reported back to the deputies in a timely fashion.
I will now speak briefly to a few innovative ideas that we hope will make improvements to the justice system.
One area where we need some innovation is basically demand reduction. Simply, we need to reduce the overall demand on our system. This is obviously inclusive of policing, courts and corrections.
In the past, criminal justice has been focused on supply, asking for more resources, looking at building more jails. There is a wide realization that governments cannot continue to ask for more money to deliver the same services in the same way or build more infrastructure in the form of correctional facilities.
I will give you this example. I'm a bit of a practical person. My dad passed away about two years ago and I'm the only child. Picture this: All my mom's valuables are in the backyard and her garden hose is stuck wide open. What does she do? She calls her only son. And what do I do? I run over there and I grab that garden hose and I start drinking and drinking. I can't take on any more water so I call my federal colleague Gina over because I know she can handle her share of water. So she starts taking on some water and drinking and drinking. Then we get my good colleague and former police chief Senator White to come over and he takes on his share of water, because I know he can take on his share of water. To make a long story short, then a bright university student walks by and looks at us three old people laying on the deck — you're the exception to that — and they turn down the tap. Well, we need to turn down the tap so the justice system can actually deal with what it was supposed to deal with.
One area to improve the efficiency that I'll talk about is the use of remand. I'll use some Saskatchewan data on bail and remand, but it's eerily similar in all the provinces.
Our adult custody counts in Saskatchewan have grown by 25 per cent in 25 years, yet crime has gone down. Since 1998, sentenced inmates have grown only by 3 per cent. Remand has grown by 97 per cent. Our population count on any given day is represented by 40 per cent of our entire custody count that is on remand and in some provinces it's over 70 per cent. In Saskatchewan — and this is where, when you start to dig into remand, you wonder what the value is — 58 per cent of people on remand serve 1 to 14 days; 70 per cent of them serve 30 days or less; and only 13 per cent of them ever get sentenced to any kind of time in custody. So they get out anyway.
The question that I would ask is: How are they any more at risk in day 3 or day 10? The answer is they're not. It's a system process.
Remand in Saskatchewan is a short-term cost of babysitting due to a bad process. Picture this, namely that you're in Ottawa on the windiest day of the year and you're driving to the closest suburb. You have $2 to $22 million in the back of your truck — and, as I said, it's the windiest day of the year and you're heading down the road. That's $2 to $22 million blowing off the back of the truck without any return.
The purpose of remand is essentially to put the right people that we need to protect ourselves from those we are afraid of and not the ones we're mad at. The way we use it needs to be rethought.
In fact, independent analysis has shown us that keeping people in remand really does not increase the risk of community safety. In Saskatchewan, we did a study that tells us there's no correlation between increased custody and crime reduction. If we were to let 12 per cent of the people out, we could actually expect a percentage drop in crime if we let the right ones out. That tells us we're running trade schools and universities versus rehabilitation centres, and it's because our system is clogged.
There is another group of individuals who spend considerably longer in remand. In Saskatchewan we had 94 accused that were on remand for over two years. Thirty of those are remanded in custody for almost three years and the longest one is for six years. Think about what we can do in six years rather than having somebody sitting where they are getting no programming.
Regarding potential solutions for dealing with long-term remand, individuals are unique and must not be confused with the short-term remand initiatives discussed above. These cases are delayed by court process, as Don has mentioned, and we'll look at changing that. Saskatchewan and Ontario have agreed to collaborate and examine remand practices from a practical component and across justice partners with the intent of reducing needless and unnecessary time on remand.
The processes involved in remand court operations are numerous and complex. Finding ways to reduce these time decisions can be made to improve the overall effectiveness and efficiency of the justice system. In addition to this, such areas as remote video courts, improved communication between the Crown, legal representation, the courts and police have led to reduced delays and improved the efficiency of courts.
We also believe there is an opportunity to use video technology to improve mental health services in northern communities. We are aware that the federal government is looking at post-traumatic stress disorder as an important mental health issue in the justice field. With the recent school shooting in northern Saskatchewan and my home province, to the impact on police officers and front line workers and the impact of victims of crime, particularly violent crime, we believe we can better use technology to deliver mental health services and provide better resources to the communities.
There is work being done with the Canadian Centre for Justice Statistics on a re-contact study. By linking police, courts and corrections, this initiative will better target programming that could decrease future demand on the system.
It's time to change the conversation, folks from debating soft on crime or hard on crime — "hard on crime'' being arrested and incarcerated; "soft on crime'' being prevention and intervention — to one that is smart on community safety. We need a balanced approach that uses elements of suppression, prevention and intervention both upstream and downstream in dealing with justice issues.
There is a culture in the legal profession that needs to be addressed. We can make cultural changes in the criminal justice system, but the issue of delay is largely related to a legal profession culture that accepts multiple adjournments on each criminal file. We need to change the culture in Canada and make progress on the efficiency of criminal prosecutions.
Manitoba's domestic violence court strategy that Judge Wyant told you about a week or two ago, when he appeared here, is an example of how change can be effective. Court appearances need to be meaningful, not just a rubber stamp and adjournment.
My colleague Kevin Fenwick says you look at the criminal justice system as a football game. If you watch a football game from start to stop, you watch each time a play commences and stops. If it's a three-hour game, there may be 60 minutes of actual playing time. Similarly, in pursuing a criminal prosecution from the first appearance through to the final restitution there is little time spent working on the file. There is activity on the file in-between court appearances and time lapses can be lengthy.
We believe it also is useful for provinces and territories to work on ensuring the parameters for funding are flexible and robust. This would allow the application of funds to be directed toward initiatives to improve existing court frameworks meaningfully reduce pressure points in the criminal justice system like New Brunswick has.
The bottom line is we owe it to do a better job for our customers, in particular for victims, as Sue O'Sullivan testified in front of you a few weeks ago. We must be more effective. She shared with you previously on your justice system that we must make sure that victims are heard and that they're not put through prolonged activities because of the process.
Overall, effective change can be made and a number of examples of these have been provided for you. Part of ensuring that this can be done is how we make these changes.
This engagement can take place on different levels. There is one level where criminal justice partners, ranging from investigators, prosecutors, defence council, the judiciary and, more importantly, victims are actively discussing reform options.
In conclusion, the FPT DMs are committed to establishing collaborative partnerships for new initiatives that may lead to reducing delays and efficiencies in the system.
We look forward to working with Canada to explore innovative options for change. I would be pleased to answer any questions. Thank you for your time.
Gina Wilson, Associate Deputy Minister, Public Safety Canada: Good morning. Thank you, Mr. Chair and distinguished members. It's a pleasure to be here before this committee. I want to acknowledge that we are on traditional territory of the Algonquin people. As a member of the Algonquin nation, I feel I have some authority to say welcome while I also thank you for the opportunity to speak on such an important topic.
Let me begin by briefly outlining the role of Public Safety Canada in regard to the Canadian criminal justice system and our collaboration with our provincial and territorial partners, which is today's topic.
While we also work with our justice colleagues, we do have some distinct differences in our responsibilities.
[Translation]
Public Safety Canada and its portfolio agencies serve lead roles in crime prevention, law enforcement, and correctional services. In this context, the Department of Public Safety performs a coordinating, advisory and program evaluation role, and leads the development of policies and strategies to address crime and criminal justice in Canada.
[English]
In addition, Public Safety Canada conducts in-depth evidence-based research on a wide range of issues to support policy development in the priority areas of crime prevention, corrections and criminal justice. By providing decision makers with the best information to guide the choice and implementation of policies and programs in Canada, communities benefit from initiatives that are more efficient and effective and that lead to reduced crime and safer communities.
In fulfilling this mandate, the department works in close collaboration with our other federal departments, colleagues and agencies, provinces and territories, non-governmental organizations, the private sector, communities and international partners to ensure the public safety of all Canadians.
To this end, we have established three senior-level FPT committees. Of course, my colleagues have spoken about this to some degree. They include ministers, deputy ministers and assistant deputy ministers from all jurisdictions. Our Minister, Ralph Goodale, participates in an annual meeting of FPT Ministers Responsible for Justice and Public Safety. My colleague mentioned there was a meeting in January in Quebec City and ministers have asked that they meet again in October of this year.
In general, the mandate of these bodies is to provide government leadership on crime prevention and policing policy across Canadian jurisdictions, to share best practices and other information, and to examine and discuss solutions to key issues of common interest.
[Translation]
Many subcommittees flow from these key upper management forums, and they are often established to address ongoing or emerging issues.
As you may know, the Coordinating Committee of Senior Officials is an important body that oversees a number of such working groups. Public Safety is a member of most of the groups and co-chairs some of them, such as the high- risk offenders working group.
[English]
Public Safety Canada also leads on a number of FPT groups with a more defined focus on public safety responsibilities. For example, we are an active participant on the National Joint Committee of Senior Criminal Justice Officials, which is a unique forum that promotes mutual understanding, information sharing and cooperation among major criminal justice organizations across Canada, both governmental and non-governmental.
In addition, the work of the ADM-level FPT Crime Prevention and Policing Committee is supported by the National Coordinating Committee, NCC, on Organized Crime.
The NCC is also co-chaired by Public Safety and brings together five Regional/Provincial Coordinating Committees to create a link between FPT enforcement law agencies and public policy-makers to identify key issues, develop national strategies and coordinate innovative responses to combat organized crime.
It also provides information and advice to the FPT deputy ministers' steering committee on organized crime.
Beyond these committees and working groups, Public Safety plays a lead role in strengthening FPT relations through something called the Economics of Policing and Community Safety Initiative. This is a pan-Canadian cross- jurisdictional forum aimed at sharing information and seeking innovative approaches to policing efficiency and effectiveness and to community safety across Canada.
We also play a leadership role in addressing the growing threat of human trafficking, and actively engage provincial, territorial and municipal government, as well as non-governmental organizations, to combat this heinous crime.
Within the context of FPT collaboration on crime prevention, I'd like to speak briefly about the National Crime Prevention Centre, which is housed in Public Safety. The National Crime Prevention Centre, or NCPC, provides national leadership on cost-effective ways to prevent and reduce crime by identifying and addressing risk factors, especially in high-risk populations and locations, and by supporting targeted interventions and building and sharing practical knowledge.
[Translation]
Since its inception in 1998, the NCPC has collaborated with key partners at the local, provincial, territorial and international levels to address the factors that put individuals at risk, and it is continually seeking to strengthen partnerships across all sectors and to systematically integrate crime prevention with enforcement, corrections, and other relevant interventions. The centre's priorities are established in partnership with key stakeholders and based on key crime trends.
[English]
Although the strategy is administered by the NCPC, its implementation is managed in collaboration with the provinces and territories, since they are in the best position to identify the groups, issues and places of highest priority for crime prevention investments within their jurisdictions, and to add expertise on the development of effective projects and the integration of crime prevention efforts.
The final item I want to address here, very briefly, is challenges. I can't overstate the challenges, and I believe my colleague articulated that very well — Dale, thank you — as well as the importance of engaging and collaborating with key partners and stakeholders across multiple time zones and jurisdictions, especially in instances where timelines are tight, needs and priorities might differ and the capacities of law enforcement and prosecutions to pursue complex or large-scale crime cases are stretched.
In the face of these challenges, I want to emphasize the importance of having good mechanisms and protocols for broad collaboration, communication and information sharing, which are all critical.
To conclude, our role with regard to crime and criminal justice is significant. Public Safety Canada acknowledges the strong support and expertise from its provincial and territorial partners and will continue to foster collaborative networks and relations to develop efficient and effective initiatives and measures to deliver a safe and secure Canada.
Thank you very much. I'd be pleased to answer any questions you may have.
The Chair: Thank you. For our final opening statement, Ms. Strange.
Elizabeth Strange, Chair, Uniform Law Conference of Canada: Thank you for the invitation and the opportunity to be here to talk about the Uniform Law Conference of Canada. Given the time constraints, I'll refer to it as the ULCC. The ULCC is Canada's oldest and most well-established law reform organization. It was founded in 1918 with the goal of improving and harmonizing laws across Canada. In 1944, the ULCC was expanded to include a Criminal Law Section to make recommendations for reform and improvement of the criminal law.
The ULCC is supported by all governments across Canada and annual government assessments are the ULCC's sole source of revenue and crucial to its continued success.
One of the aspects that is unique to the Uniform Law Conference is that it brings together a range of practitioners and experts, both within government and outside government across the country, to review and improve our laws. The diversity of the ULCC is reflected in the resolutions, reports and uniform acts adopted.
The work of the two sections in the ULCC, each of which I'll speak to — the Civil Law Section and the Criminal Law Section — culminates in an annual meeting chaired by the president of the ULCC. The presidency rotates between the Criminal Law Section and the Civil Law Section.
The annual meeting is our sole get-together for the year and is hosted by a different jurisdiction each year. In 2016 I'll be happy to be hosting in my home jurisdiction of New Brunswick, followed by 2017 in Saskatchewan and we'll be celebrating our one hundredth anniversary in 2018 in Quebec City.
I'll briefly touch on the Civil Law Section before I spend the remainder of my time speaking about the work of the Criminal Law Section.
The Civil Law Section is made up of government lawyers, private practitioners, representatives from the Canadian Bar Association, legislative counsel, law reformers from law reform commissions and academics. The section works on projects that come to us through various means, sometimes through government, deputy ministers, the private sector and, on occasion, from an academic. The work is generally done in working groups which produce policy papers that culminate in a uniform act, generally, after a three- to four-year cycle. We get interim reports, a final report and then a uniform act.
Work is also carried out to assist in the implementation of international conventions. We work closely with delegates from the federal government to work on uniform implementation legislation for international conventions, and we also have a very collegial relationship with our colleagues from the Uniform Law Commission of the U.S. We sometimes work on joint projects with them, as well as observing on their working groups, and they also observe on some of ours.
On occasion, the Civil Law Section works with government entities at their request. For example, we've worked with CCSO Family Justice on a Uniform Child Status Act and we are currently working with vital statistics registrars on a new Uniform Vital Statistics Act.
I'll now turn to the Criminal Law Section, the workings of which I think you're most interested in hearing about. I thought I'd start by discussing the delegates of that group. Again, I was asked by colleagues in the Criminal Law Section to stress that the ULCC is uniquely constituted and qualified to assist with a comprehensive review of the criminal law.
The ULCC delegates include prosecutors, defence counsel, members of the judiciary, policy counsel, CBA representatives and, on occasion, academics and all have the opportunity to give their best independent assessment of the merits of proposed reforms.
Many of the recommendations that come for resolution come from the front lines of the system. The fact that the recommendations are assessed by those who work in the system from across the country, from rural and urban centres, large and small centres, measures both the national impact and the local viability of the suggestions.
There are three core functions carried out by the Criminal Law Section. Those relate to resolutions, working groups and consultations.
The core base of the work is resolutions. Resolutions are put forward by delegations that propose changes to the Criminal Code or other related statutes.
Delegates from each of the 14 delegations — so the federal government and all jurisdictions across the country are represented — vote on resolutions that seek to enhance and strengthen Canada's criminal law and the administration of justice.
On average, there are approximately 20 to 25 resolutions each year being brought forward by different jurisdictions, which are explained, then deliberated. They can be adopted. They can be amended and then adopted. They can be rejected or withdrawn.
I have sat in occasionally, because I am from the civil law section, and I would say, as someone said to me: They're rigorous, yet collegial and respectful discussions. Not everything is carried unanimously, so there's some good debate.
Resolutions have a significant impact on the federal legislative agenda. They have been incorporated into the Criminal Code, as well as amendments in other acts, including the Canada Evidence Act and the Youth Criminal Justice Act.
The secondary function would be working groups. The Criminal Law Section forms working groups to examine a wide range of issues, preparing detailed reports. For example, decisions of the Supreme Court of Canada may lead to working group reports.
Reports are generally done on an interim and then a final report basis, so usually on a two-year cycle. Reports have attracted unanimous support of the Criminal Law Section. When they do, that is significant, again given the various views and experiences represented by the delegates. The 2013 report on statutory exemptions to mandatory minimum penalties is a good example of a timely and unanimously approved final report.
From time to time, the two sections of the ULCC work together on joint projects. These are projects that would benefit from both civil law and criminal law expertise. One such recent project was the Uniform Missing Persons Act, in which case we had both sections represented to come up with a final product.
Lastly, consultations on law reform proposals or emerging issues are also discussed. Those are generally brought forward by the federal Department of Justice as a form of consultation on law reform proposals, which allows policy- makers to obtain a national perspective from those on the front lines, as well as others in the justice system. One such example was the consultation on Canadian Victims Bill of Rights.
I have nothing in particular to discuss relating to delays, but I would say from leafing through some of the information that, for example, in the Canadian Victims Bill of Rights there was discussion relating to delays, and there would obviously be other discussions that would relate to that topic.
So those are the core functions of the Criminal Law Section, as well as a ULCC 101 overview.
I want to thank you for the opportunity to come and share some information with you. I'm happy to take questions. I will say that I may defer to my colleague Lucie Angers, who is also the senior federal delegate who attends the ULCC meetings, so she may be able to give you more insight into the workings of the Criminal Law Section.
The Chair: Thank you. All those opening statements went well beyond our usual guidelines in terms of time, but I thought it was important to get your views on the record.
We have a tight timeline ourselves today, and we hope to have a brief in camera meeting as well before our normal adjournment. I could encourage you to try as best you can to keep your questions as concise as possible and our witnesses the same. It would be much appreciated.
We will begin with the Deputy Chair, Senator Jaffer.
Senator Jaffer: Thank you to all of you. The information you have given will certainly help us with our work. I certainly appreciate your presentations.
I would like to ask Mr. McFee a question. I have so many, but I know I can only ask a few.
I was very interested in your talking about culture in the legal profession that needs to be addressed and that we need to make structural changes to the criminal justice system when it comes to the issue of delay and adjournments.
There are two sides, and I should be fair and put both to you. Defence counsel sometimes cause many adjournments, as we've heard that sometimes defence counsel have to go many times to get disclosure, and disclosure is an issue. I think it was my colleague Senator Baker, the other day, who asked if should we have deadlines by which disclosure has to be provided.
It's true that adjournments are an issue, and it's true that, having been a defence lawyer, the number of times you go to court and nothing happens, it costs on both sides. It's cost for the person who is accused as well, every time you go to court.
How do we deal with this issue of structural change? One thing you did say was that judges take more control. I'm not a fan of judges taking too much control, because they still need to be neutral, but I do get what you're saying about judges taking control. I'd like you to give some specific examples on how you think we can deal with the issue of structural change.
Mr. McFee: Sure. First of all, I agree with what you've mentioned in relation to the delays. It's all about meaningful contacts. We have too many contacts within the court system that aren't meaningful.
The other part of that is that everybody plays a role in this. You have to remember that the police put every single issue into the system.
I think that we need to slow down that tap as well. There are a lot of things that are going into the system, if we actually take out of the system, and for some of the work in Saskatchewan, the hubs and the cores and all of the multi- agency issues, trying to pull stuff out of the system so you can free up time. The key premise that I'd answer that on is we need to focus on demand reduction and allow the courts to do what they were designed to do.
Right now, we've put everything into the court system. We basically wait until they're in the court system and we tell people how we're going to fix them.
The reality is my wife is a schoolteacher. She teaches Grades 4, 5 and 6. She can predict the future criminals better than any police officer who ever worked for me for 30 years.
So it's not just the judges. There are meaningful contacts on one side. There's the slowing down, the reduction in demand. It's the process in which it goes.
Do people all of a sudden need to be on remand? We need to build a tool based on evidence, based on science, to actually be more effective in predicting who needs to sit in a jail cell and be on remand and how we can expedite that.
If you deal with one of those streams that you mentioned, you'll get 10 per cent return, but if everybody improves 5 per cent, you'll get 35.
Senator Jaffer: Let's talk about the structural changes you addressed, the culture in the legal profession.
Mr. McFee: Talking to my colleague Kevin Fenwick on the Attorney General's side, too many times we wait, delay for whatever purposes. We use it as time served. For somebody to sit on remand for six years just isn't right.
To your point, could there be time that's put in there that actually could address structure? I think there probably could. Time can address structure. Then make it meaningful.
I don't think we can put it all on the judges to sort this out, because it's the prosecutions, the judges and the police that put everything there. When you're talking about structure, our system in Canada is actually pretty good overall for delivering justice, but that doesn't mean we're great. Great and getting better addresses time to trial, addresses time on remand, addresses fairness, addresses all of that. I think it goes back to structure in place can work if every contact is meaningful. If every contact with the system is meaningful and everybody plays by the same rules, it will shorten the process, absolutely.
Senator Batters: Thank you very much to all of you for being here and for the hard work that you do probably most days on a lot of these types of issues.
Mr. McFee, I'm happy to have you here from Saskatchewan today. Saskatchewan has consistently been getting great kudos, which I always love to hear, as everyone knows on this committee. Justice Wyant, when he testified before this committee recently, from Manitoba, indicated that Saskatchewan is a national leader in this particular area in terms of coming up with innovative solutions for court delays.
We've heard from a number of witnesses, and you referenced it briefly, but I'd like for you to be able to tell us because you're the person to tell us about the hub in Prince Albert, which has been frequently cited as a success story for bringing multiple legal services into one institution and then diverting people successfully into more suitable programming.
Could you tell us briefly about the hub and the work it does and how that provides a success story? If you have a tiny bit of time, could you also tell us about one or two other practical solutions that are used in Saskatchewan to decrease court delays, resulting in Saskatchewan being a national leader on this? Thank you.
Mr. McFee: The hub is all about demand reduction, so putting agencies, health, social services, education, all under one roof, using risk factors to determine how we best address those individuals and those families. There are 13 hubs operating in Saskatchewan. There are 58 hubs operating in Canada and 3 in the U.S. They've all originated with the same framework. They deal with privacy and information sharing.
In particular, what we're seeing out of those hubs is that the top five things that are driving criminal justice, which seem to be related, are mental health and addictions, absenteeism in school, literacy, believe it or not, and domestic violence. The fifth one slips my mind right now. It will come to me as I speak.
We can take that stuff off the plate very easily when we use professionals from other agencies. We're seeing a lot of it based on demand reduction. We have all the partners at the table. It's signed off by all the ministries. Putting our titles and our roles behind and actually putting the individual and the troubled family in the middle to solve it is paying dividends on the demand reduction side. We expect we can reduce the demand by 30 to 40 per cent.
As far as other innovative things, between us and the Province of Ontario, in order to deal with system delays, we've hired Ray Wyant, whom you just mentioned, and Cal Corley, former head of the Canadian Police College. They're looking at bail remand for practical solutions. One, can we build a tool based on science so that police can do better evaluations on who should go on remand? Can we look at a third party, rather than put people in jails, where we know that can actually help? Can we actually deal with practical solutions in relation to delays? The answer for all three of those — and they're meeting with every faction of the community, including victims — is that absolutely we can change that, without a doubt. Within six months we should be able to focus on practical changes.
Senator Batters: If you have some sort of a handout or something like that about the Prince Albert hub and some of the success that's come out of that particular project, it would be helpful for our committee to have.
Mr. McFee: Yes, we certainly can forward that. I could speak to it, but rather than take up the time, I'll just send you the information.
Senator Batters: Thank you very much. I appreciate it.
Senator Fraser: Thank you very much, all of you. It's important information that you're bringing us.
I have a question for Mr. McFee. Sir, I do take your point about change needing to come across a spectrum of things, but there's just one element that I'd like to focus on for right now, and that's these horrible statistics about the increase in the numbers of people on remand. I wonder if you have any statistical or even anecdotal breakdown on how much of that increase is due to the fact that it's taking longer for people who are on remand to get their cases disposed of. And how much, if any, would be due to a tendency to put people on remand that we didn't used to put on remand, if you see where I'm driving at?
Mr. McFee: I do. You're right on both cases. I could get you that data from my province. For Ontario, we're just looking at that now. As I stated, though, 58 per cent of remand is one to fourteen days. That's the second part of it. Seventy per cent of it is less than 30 days. All but 13 per cent of them get out. That's short-term remand, a huge problem.
In Saskatchewan we have 94 people who have been remanded for two years or more, and one for six years; and four and five is not uncommon. You're right on both cases, but they're different solutions, as you know. Short term is practical. That's based on saying: Why are we putting some of these things on remand when they get out anyway? The second thing is 100 per cent process. The reality is that if you take that in a business model, those all equate to bed days in correctional facilities. When you have people on remand, in most provinces you do not get programmed on remand.
What happens in a practical solution is that you jam up the system, you shut down programming, where 50 per cent of re-contact with police comes from serious violent offenders. If they don't get the programming, what happens? It's a perpetual cycle. So you're bang on. Both need to, but they have different solutions. The long-term solution is more complex in its process, but the other one is more practical and we should be able to do it in a reasonable time frame.
Senator Fraser: You had a great line about not putting people on remand just because they make us mad. You put them on remand because they're bad, not because they make us mad. Has there been a shift in that?
Mr. McFee: Jail the ones we're afraid of, not the ones we're mad at. We're starting to look that way, but I would say we're on step one of a seven-step stepladder and we have a long way to go. If there's one thing to deal with, it's that. What we do know, to your other point, is that there's no relationship between crime reduction and increased incarceration. But when we actually mix them, we know it's making them worse.
We have to do a better job sorting out what we use remand for. I don't want anyone to think that remand is not important. We have bad people who need to go to jail, and that's what remand is for, but we need to differentiate the ones we're putting in.
Senator McIntyre: Thank you all for your presentations.
It's very important for us to learn more about the work performed by federal-provincial-territorial working groups in justice matters. As I understand, Justice Canada, Justice Saskatchewan and Public Safety form the Coordinating Committee of Senior Officials. The committee reviews justice matters, which are subsequently dealt with by working groups, and then of course we have the Steering Committee on Justice and the Uniform Law Conference, of which, Ms. Strange, you are chair.
As you know, our study is focused on court delays. That said, what work is your committee and these various bodies currently engaged in with regard to those delays? What I'm driving at, and I would like you to be a little more specific: What research projects, policy development or legal reform initiatives is the federal government undertaking to address delays in the criminal justice system? Mr. Piragoff.
Mr. Piragoff: Thank you, senator. Let me follow up on the bail issue, for example. As indicated, 60 per cent of those people who are arrested by police are released by police. That means 40 per cent go before a Justice of the Peace or a judge. Of that number, as Dale indicated, 14 per cent — excuse me — of the total number, 14 per cent. That means of those who go before a judge or justice, another two thirds are released, leaving about 14 per cent of the entire 100 per cent who were first arrested being in the system.
As Dale indicated, if you should have been released on day 2, why are you released on day 14 or day 10? You're not any less danger. In fact, if you're released on day 10, you're probably more dangerous than if you were there for two days because you've been in crime school for ten days. Actually, quicker release is probably better than a long release.
Both the Coordinating Committee of Senior Officials and the Steering Committee on Justice Efficiencies — that's the multidisciplinary groups composed of judges, police and the bar — are looking at the issue of: Can we reduce that remand time? Can we get these people out sooner? Can we delegate decisions down to the police so that that 60 per cent clearance rate by the police could actually be increased? If judges are releasing two thirds of the people in front of them, why couldn't some of those two thirds be released earlier by the police? They're looking at ways of giving the police more power to possibly release at the police station as opposed to having to take it before a judge. That's one practical example that senior officials and also the steering committee are looking at. Other issues that they're looking at are case management and the mega-trials. How do you manage complex trials so you don't have these long periods of delay where nothing is happening? Well, nothing appears to be happening, but there are things happening behind the scenes. It may not all be in the courtroom.
We've looked at things like creating special trial coordinating judges to actually coordinate the management of the case before it gets to trial. So those are innovations that some courts are looking at to try and reduce the time. We need to look for more innovative ways to resolve cases outside of court, for example, diversion or things in the juvenile justice system. Do a lot of these cases need to go through a trial to the end? Could they not be diverted out?
If the underlying cause of the criminality is addictions or something else, maybe we should divert these people right at the front door and give them the help they need rather than convict them and then give them the help they need. Those are the things I'm looking at. Restorative justice, things like that.
Senator Baker: It's hard to be here because Mr. Piragoff is an interesting witness, as always. He has a lot of interesting information.
You mentioned 60 per cent are released by the police on arrest. When the police officer gets the information and writes out the charge, according to that section of the Criminal Code, it says that the person must be released unless they cannot meet certain criteria. So what you're suggesting is that consideration is being given in various places to expanding that section of the Criminal Code which assesses the requirements for police officers to release a person. That's a very interesting proposition and something that we've got to look at.
I'd like to go into a big dissertation about remand, in defence of what judges do, but I won't. The chairman will cut me off.
We have discovered that the rules of court are different in every part of Canada. We have discovered that the use of justices of the peace, for example, in Ontario, they're allowed to have bail hearings. They're allowed to issue warrants for a search. You can't do that in most provinces. The Criminal Code says a justice can do it. You can't do that in Newfoundland and Labrador. You can't even issue a search warrant by a JP. That's what I suggested before, you use the protonotary as we do in the federal courts. Why does there continue to be this great difference in the provinces regarding court time and court delays in different areas?
Second, why are Crown policy manuals different in every province? In Ontario, the previous record of an impaired driver is not introduced to the judge if it's beyond five years. That's not the case in a many other provinces. Why is it that Crown policy manuals are different in every province in Canada? You're going to say they're quite similar. I know that.
Why is it that each province is using different mechanisms to shorten court time? Why hasn't this been straightened out with the provinces in all of these negotiations that you've been having? It appears to me there hasn't been much success in having a uniform system of law in all of Canada.
Mr. Piragoff: Senator Baker, I know that you and Senator Joyal are constitutional law experts, so the answer actually goes back to the Constitution. The framers of our Constitution decided that the enactment of the criminal law, including criminal procedure, should be a federal responsibility. So we have a national criminal law. However, the constitution framers also realized that administration of justice is a local matter. That is why under Section 92 of the Constitution, the responsibility for administration of justice, including the creation of the courts, is a responsibility of the province. Each province has their own Attorney General who is responsible for prosecuting not only provincial laws but also the federal Criminal Code because that has been delegated by way of the Constitution as well as by the Criminal Code.
If you respect that there needs to be a balance between some national standards but also a need to respect a local custom and local ways of doing things, you have a situation where you have differences at the local level.
That is the reason why organizations such as CCSO, the coordinating committee of justice officials, and the heads of prosecution try to talk about the differences amongst the provinces. They identify what are the best practices. In some ways, having a little bit of difference is good because it actually breeds innovation. Saskatchewan came up with the idea of a hub approach. That was something developed at the local level and then spread. It wasn't the federal government that said we should have hubs, for example. Sometimes a little bit of flexibility is good because even though it's not uniformity, it breeds innovation.
Senator White: Thank you for being here. I could ask 25 questions. I sometimes think we're trying to fix a flat tire on a wreck. Crime rates continue to go down, and our court system is full. What causes full remand centres and jails and corrections while crime continues to go down? Who is actually ending up in the system? In Ontario we did research in 2009. In all, 25 per cent of cases that went to court ended up in suspended sentence or a discharge. There were, on average, nine appearances per case. What the heck are they doing in court in the first place?
Are you developing an alternative system in Saskatchewan that allows us to take those cases that should not be there in the first place so we can focus energy on the cases we should be focusing on?
Mr. McFee: First of all, I'm aware you did a lot of that good work. The short answer is yes. We have to look at things differently. Here is a prime example. We may never get there. One of things we're looking at right now is impaired driving and the court delays on impaired driving. Think outside the box. We need to think differently.
In every impaired driving case, there is a driver, a variable of alcohol or drugs on the increase, and there is a vehicle. What do we do? We try to educate the intoxicated person. Guess what? That doesn't work.
Then what do? We legislate. Guess what? As a person who's been in the business, I can tell you it has very limited impact. Then we legislate and enforce. We tie it together and get to what B.C. and Alberta are doing and we start to have an impact. The technology exists for under $1,000 to fix impaired driving. We can put that in every vehicle tomorrow and stop impaired driving by 80 or 90 per cent. We would solve all this stuff and we could deal with the addictions differently. We want to put it into the criminal justice system, but the reality is it is an addiction issue.
If you were looking at public health and you took out acute care, community safety and enforcement, are they not the same thing? If they are, why the heck are they not talking together?
Senator White: Thank you very much for that, Dale. I know you get it. I've had a judge in Ottawa tell me 70 or 80 per cent of young offenders appearing in her courtroom have mental health issues, addictions or both. Why is it we can get them in a courtroom overnight but I can't get them in treatment for nine months? Is Saskatchewan doing something to increase accessibility to both mental health and addictions treatment so that we don't fill up our courtroom over and over again with people who have one or both?
Mr. McFee: Yes. Those with mental health and addictions are five times more likely to have three contacts with the police and represent up to 40 per cent of the police calls for service in some jurisdictions. They are the most vulnerable population to offend and to reoffend if they have offended already. Reality is what we're trying to do in Saskatchewan. In 2018, a psychiatric hospital will be connected to a forensic correctional facility which is being built as we speak. Hopefully, it will be connected to a step-down in practice and the continuum will be connected to the university so that mental health is looked at as a continuum when it's identified as to whether or not they're in a criminal process so that we can get some services to them because if you don't get services to them, the costs compound tenfold. The reality is we know where they end up. You're right; most of these people don't belong in jail.
Senator Joyal: My question would be first for Mr. Piragoff. When there are decisions in Canada based on 11(b) of the Charter and the cases are dismissed because there was unreasonable delay in the mind of the court, does that ring a bell at the department? Do you monitor those decisions as being clear signals that there is something wrong in the system?
Mr. Piragoff: There's no structured monitoring of each case across the country in terms of 11(b). However, there have been examinations. In the 1980s, for example, we looked at the possibility of enacting legislation, the speedy trial act, to impose deadlines as was suggested earlier. The United States, for example, has a Speedy Trial Act where they impose certain deadlines by statute.
At the time the provinces and many others did not want us to move forward with legislation to —
Senator Joyal: That was in 1984.
Mr. Piragoff: Yes, it was the mid to late 1980s. They didn't want us to move forward with it on the basis that the Charter was still new; that this was an area that could be regulated by judges and by Charter jurisprudence and that if Parliament were to start setting rigid deadlines, then that might actually cause more problems.
There hasn't been any push for the federal government to impose any kind of rigid deadlines. Instead, more emphasis has been focused on giving the participants the tools necessary to move the cases through the system more quickly as opposed to the federal government saying, "These are the deadlines. You must make these deadlines.'' Instead, they're looking at us to say can you change the system to make it more flexible in some ways and give us more tools so we can shorten some of the delays and move things more quickly.
Senator Joyal: But with the piling up of jurisprudence and the scope of the delays that are acceptable within 11(b), don't you think there are now enough parameters for the federal government to propose to the territorial and provincial governments an approach that would take that into account? I ask you this question because when there was a decision in Quebec that was covered a lot by the press, which is a decision involving Justice Donohue who imposed deadlines at certain levels in the management of the case, that was hailed and applauded by people who saw that there are opportunities to strengthen the delays.
I think the mere fact that having a statute that would frame the parameters would signal in the system that the delays at various levels are too stretched. Although some of them don't reach the level of 2.5 years and unreasonable delays, some of them take close to 2 years, 2.5 years. It's like being 18. If you suffer before 18, you're not covered. If you suffer one day after 18, your sufferance is acknowledged by the system. You know what I have in mind.
Don't you think that at this stage there is an opening for the federal government to propose legislation in relation to that?
Mr. Piragoff: As I said, the focus that we've been asked for is to give the tools to the judge, for example, to actually have the power to be able to impose those kinds of deadlines. At one point there were no case management judges. Between the time of the bail hearing and the trial nothing was happening. There was no judge involved. Parliament includes this body, and the Senate has enacted the tools for the creation of trial management judges or case management judges. This is a tool that has helped judges.
As you recall, when I testified on February 4 together with the Canadian Centre for Justice Statistics, I think there was a chart which actually showed the trial delays. It varied across the country. Quebec was having significant problems, but other provinces were doing quite well in terms of their trial delays. It varies across the province. Again, I think most people say people need the tools to do the job as opposed to someone setting arbitrary deadlines. Let the judges set the deadlines because they can determine how complex is this case and if more time is needed for the police and the Crown to provide disclosure, for example. That's something that a statute can't determine. That's something that an experienced judge can determine, namely setting deadlines. I agree that deadlines should be set, but it makes more sense that they are imposed on a case-by-case basis so the judge can assess what is required.
[Translation]
Senator Dagenais: My question is for Ms. Wilson. Since our work began, we have heard from several government officials regarding the justice system. We have talked a lot about the need for cooperation among the various services in order to find solutions. We note, however, that the situation has not improved. I would even describe it as mission impossible. In your opinion, who should we call upon to provide leadership in order to effect change and to avoid hitting a wall, as the former Quebec Superior Court justice, Mr. Rolland, said?
Ms. Wilson: With respect to leadership?
Senator Dagenais: In other words, someone is going to have to take charge. There are many stakeholders and many services, but the situation in Quebec is dismal, unfortunately. Justice Rolland stated that trial dates are not available before 2019. This is at the Superior Court, of course.
Ms. Wilson: I think my colleague from the Justice Department would be in a better position to respond to that question than someone from Public Safety.
Senator Dagenais: The floor is open to anyone who wishes to reply.
[English]
Mr. Piragoff: I believe I answered that question in my reply to Senator Joyal. It really depends on the complexity of the case. Some cases can move quite quickly through the system; other cases have more complexity. There may be significant wiretap evidence that has to be determined in terms of its admissibility. There may be a significant amount of disclosure. Sometimes in the course of a trial, the police determine new evidence, new witnesses. This then has to be given to the Crown. The Crown then has to disclose that to the defence. The defence is entitled to have time to look at the new evidence. It is really done on a case-by-case basis. There are cases where, as Dale indicated, people are on remand for two or three years awaiting trial, but that is usually the exception as opposed to the rule.
The point is you really have to take a look at where the bulk of the case is and how they are being treated. There are always going to be exceptions that are outliers. That's always part of any kind of system. The real question is where are the bulk of the cases, the median, in terms of trial delay. That's in terms of looking at the charts that the Centre for Justice Statistics presented. It's important to see where the medium is exactly in terms of number of days and not look at the outliers. With the outliers, you will always have some reason. Either things went wrong or, justifiably, it is taking longer.
Mr. McFee: In regard to your question on who, we've undertaken this work in Saskatchewan and Ontario. We started with the front end of the system and the back end of the system. We took a long-time police officer who used to head the Canadian Police College and the former chief judge of Manitoba — a still-sitting judge — to actually look at it. It is not a simple answer and I don't think it's fair to put it all on either the front or the back ends. But when you put the back on the front and bring the others together I think you'll get a bunch of solutions, so I would suggest that.
The Chair: I want to ask a question of Mr. McFee. You heard Mr. Piragoff's comments with respect to case management and judges, but you've commented on the legal culture. We had a gentleman here with respect to the bail court in Ottawa and what a circus it is. And I'm wondering what your views might be with respect to the appropriate management of the courts. Where do you see the problem lying, and how do we address it?
Mr. McFee: It's a good question. Culture is the overlying thing. Let's just do it as we've always done it, because we think we have the perfect system, right? But when we look in the mirror and we look internally, we realize that although we have a good system, it could be better. I don't want to think it's 100 per cent the part of the courts. We put too many things from the police in front of the courts that should never be there, and I think the courts are in a problematic position of trying to sort that out.
I think to anyone in this room who has listened to many witnesses, it almost becomes a form of gamesmanship in relation to how we hold somebody, decide who we put them in front of, find out where the delay is and what's being done on the trial. I think some of those things, as Mr. Piragoff and others were discussing about timelines, give the judges an ability to impose some timelines but we also must make sure we do something on the front end, with the police, so they police aren't automatically pushing everything into the justice system for decisions.
A lot of our delays in Saskatchewan are very specific to prosecutions. It's risk-averse. No one moves, no one gets hurt, right? I think that when we start talking about that culture, the culture starts and goes right down the continuum and we end up pointing fingers at each other and realizing and recognizing that the real solution is try to get to the same place. We play different roles in the justice system to get there. It's okay to be adversarial, but at the same time we've got a client, we've got an individual and, more importantly, we have a victim who's following most of these cases and to think that we can't do it more quickly is craziness.
The Chair: I guess I have a bit of time for another quick question.
We had a renowned forensic psychiatrist appear here yesterday, and one of his recommendations in dealing with the remand issue — and I wonder if it was discussed at FPT — is the use of electronic monitoring where the individuals, rather than being locked up indefinitely, can get into treatment or they can keep their jobs. There is a whole range of things that can be done through the use of electronic monitoring, but it seems to be very limited in its use across the country. I think Calgary and Edmonton are using it for those kinds of purposes, as well as many others. I'm wondering if anyone here has a response to that. If it's being looked at, why is it not being utilized more frequently?
Angela Connidis, Director General, Corrections & Criminal Justice Directorate, Public Safety Canada: I can respond to that, Mr. Chair. Electronic monitoring is being examined and tested across the country, in Correctional Service Canada. It's not widely used yet because there are some technological problems with being able to track people properly and some concerns that it could stigmatize offenders that are on release, because people won't allow them to reintegrate properly if they see that they're an offender. It won't help them on parole, but it is being used precisely for the reasons you're saying: It may allow more people to go out on parole — on conditional release — and help their reintegration.
The Chair: I was looking more at the remand issue.
Ms. Connidis: There are similar technological issues that I think would apply there, but I'll let Dale speak to that.
Mr. McFee: That's a great point. We're actually studying that right now. The other mechanism goes hand-in-hand with whether we could get a third party, external to a facility, actually doing some of this monitoring at a fractional cost, and actually going to people rather than holding them. We use it now, as several other provinces do, and with the new technology that's coming into play I could see it obviously being used a lot more effectively. Some of those new technologies, as it has been said here, are still being tested but it is absolutely one of the paths forward.
Senator Batters: In dealing with the joint examination that you're doing, Mr. McFee, of Saskatchewan and Ontario's remand systems, I wanted to bring to your attention something we heard yesterday that was really kind of shocking, actually from a defence lawyer who does a lot of mental health cases in Ontario. She was telling us that in Ontario, her recollection was that, for the last three to five years, the Ontario government has made a change so that if somebody is receiving the services of a court-appointed lawyer, they're limited to just a two-hour payment. That would be about $200, and she said that has resulted in the private bar basically not taking those cases on any more and that is producing an awful result. I bring that to your attention so that when you're dealing with your colleagues in Ontario, you can tell them that that was expressed to us as a problematic area.
A little earlier, Senator Jaffer talked about costs on both sides with numerous adjournments, for the accused and the Crown, and I wanted to point out that if the accused is not paying for his or her own lawyer — if it was a legal aid counsel or there was court appointment involved, as it would be in a large number of cases — then there wouldn't be a cost to the accused. I wanted to point that out for the record.
Finally, I had a question for Mr. Piragoff. There is a private member's bill before the House of Commons brought forward by Steven Blaney, who was the Minister of Public Safety under the Conservative government. That bill deals with impaired driving charges and a number of the technical offences that tend to lead to impaired driving cases taking a long time to make their way through the courts. He is trying to circumvent that so that those cases can go forward more quickly. Does the government have a position yet on that particular private member's bill?
Mr. Piragoff: With respect to Mr. Blaney's Bill C-226 in the other place, the government is still examining it. I understand there are conversations taking place between members of the government and Mr. Blaney, and I can't really talk about what stage they are at, but there is consideration ongoing between Mr. Blaney and members of the government.
With respect to the legal aid issue, you may recall that in the budget, the government announced an investment of $88 million over the next five years to increase the federal contribution to legal aid. That should have a significant impact on the provinces with respect to the provision of legal aid. How that money is actually allocated in the provinces in terms of the example that you gave, Senator Batters, is a provincial or territorial responsibility, but clearly the federal government has indicated that it will increase resources. The existing contribution, which has been about the same for about the last 10 years, has been about $112 million. That is a significant increase if you take the $88 million and divide it even by five.
Mr. McFee: On the first issue, I'll definitely take that back and we'll have a look at it. Just so you know, we have prepared the numbers on the costs of bail and remand. A remanded offender costs $80,000 a year in Saskatchewan, and a sentenced offender costs $43,000, so we have the most money and the most expensive resources going into the smallest return.
Senator Batters: Mr. Piragoff, I'm not certain that the example that the lawyer was giving yesterday was something that the legal aid funding increase would assist. It didn't seem to me to necessarily be the case, but that would be a good issue to look into. Thank you.
Senator White: Thanks again to everyone for being here.
Mr. McFee, you discussed the administration process being used and I think you referred to Alberta and British Columbia on impaired driving charges. Do you see an opportunity for expanding the administration type of process for other charges beyond impaired driving, some of the ones that we see such as shoplifting and prolific offender charges where we have to find an alternative to the system we're using? That's instead of not just indictable, summary conviction, but actually having an offence that instead is driven down into the province and let them manage it from a provincial perspective since they're responsible anyway.
Mr. McFee: Senator, you make a great point. Some of these things have been successful. I think you would be the first to understand this. We don't use our evidence and our data well enough and that's why it's actually one of the seven priorities. When the data and the evidence, which we clearly can articulate and study, could possibly work in some of these cases and yet have no detrimental effect we have to look at it. Before we make decisions like that we need to do a lot of work around what that data says.
For instance, in our province — I just heard this the other day — 180,000 Criminal Code charges a year and 60,000 of them are breach, fail to appear, administration of justice, yada yada yada, to your point.
Senator White: To that point, actually, would it not make sense that administrative charges only become relevant if convicted of a substantive offence and used for sentencing purposes instead?
Mr. McFee: As you know, that has to be examined at some point. Again, we need to study that more fulsomely to make sure we're making the right decisions on that. It comes down to the thing where this no risk, nobody moves, nobody gets hurt going throughout the system I think lends us the ability and opportunities to actually make some tweaks without changing the system to be more effective. I don't think we're talking about overhaul; I think we're talking about innovation.
Senator McIntyre: Are you satisfied that judges and other personnel involved in courtroom operations are receiving enough support and training in order to ensure case management?
Mr. Piragoff: There's never enough support in any system. It's hard to answer that question across the board because there's significant variation, not only from province to province but even within provinces there is significant variation with respect to the amount of support that various courts have and the amount of training.
Clearly, all levels of government are working on improving training for police officers and training for court staff. The National Judicial Institute, for example, exists to train judges. There can always be more training. I'd never say that training is always sufficient. There's always room for improvement.
The Chair: Thank you all, witnesses. We very much appreciate your attendance and your contribution to our deliberations on this very important study.
(The committee continued in camera.)