Past Session:

Proceedings of the Standing Senate Committee on
Legal and Constitutional Affairs

Issue No. 8 - Evidence - May 6, 2016 (Afternoon Meeting)

HALIFAX, Friday, May 6, 2016

The Standing Senate Committee on Legal and Constitutional Affairs met this day at 1:01 p.m. to study on matters pertaining to delays in Canada's criminal justice system.

Senator Bob Runciman (Chair) in the chair.

[English]

The Chair: Good afternoon, welcome colleagues and invited guests.

Members, earlier this year the Senate authorized the committee to examine and report on matters pertaining to delays in Canada's criminal justice system and to review the roles of the Government of Canada and Parliament in addressing such delays. This is our 17th meeting on this study.

For our first hour we are very pleased to have with us today the Honourable Pamela Williams, Chief Judge of the Provincial and Family Courts of Nova Scotia, and the dedicated judge of the Nova Scotia Mental Health Court in this province. As I mentioned earlier this is an unusual occasion for a sitting judge to appear as a witness before the committee, and so I have agreed to say a few words.

I did mention this earlier, but this is a more relevant time to provide this caution in terms of the parameters of Chief Judge Williams' appearance here today. She is here to speak about the restorative justice approach as used in the Mental Health Court and in Nova Scotia. As a sitting member of the judiciary it would not be appropriate for Chief Judge Williams to comment on the pros or cons of the adversarial system nor any potential reforms to the law. She respectfully asks that we acknowledge her role as an interpreter of the law and not a lawmaker. As such I ask my colleagues to respect these parameters when asking their questions. We will jump in if we think you are breaching that. In any event I appreciate your respecting it.

Also joining us on this panel is Jennifer Llewellyn, a professor at Schulich School of Law, Dalhousie University. Again thank you both for being here.

There is a prearranged agreement and, Ms. Llewellyn, you are going to start first.

Jennifer Llewellyn, Professor, Schulich School of Law, Dalhousie University, as an individual: Thank you very much, Mr. Chair, and the committee for the invitation to participate in your study of delay within the criminal justice system. It has represented a very important opportunity for us to share the development and implementation of a restorative approach and what we believe to be its implications for justice both within and outside the criminal justice system here in Nova Scotia.

You of course heard and saw many of the ways in which a restorative approach is being taken in Nova Scotia this morning. I think in order to fully appreciate the potential and the implications of these programs and practices it is important to be able to see beyond the particular models of practice that were shared with you to see the common approach that they reflect and that you heard some about this morning in the sharing circle.

In my submission this afternoon I thought that I would very briefly offer the committee a sense of this overarching approach so that you might be able to consider its potential to address the issues of delay in criminal justice.

This afternoon I want to make five key points with respect to restorative approach and its potential to address the issues of delay.

First, I think it is important to say that restorative justice does offer a range of alternative processes, policies and practices that seek to address and respond to harmful effects of crime on relationships and individuals, but restorative justice is about more than simply different mechanisms and ways of doing justice. I think it is at its core and the real potential it offers is as a different way of understanding what doing justice actually requires.

It starts from recognition of the fundamental importance of relationships and connection to our wellbeing and safety. This does not mean that all relationships have to be valued or promoted or protected as good things or that we should always sort of seek happy endings where everyone hugs and makes up. Rather it recognizes that relationships and connections simply are a vital fact of life. For good or for bad we are actually all in this together. We live bound up in different relationships at interpersonal and at systemic levels.

This starting point raises a central question: What qualities of relationship do we require in order to promote and protect individual wellbeing and safety? This is the goal of justice on a restorative approach. It is to achieve, protect and maintain just social relationships. That ought to be the orientation and work of our criminal justice system.

What is required exactly to secure and maintain just relationships in a particular circumstance then has to pay attention to context and to the needs of the parties involved in a given situation. It is this central question about what needs to be done that animates restorative processes and practices.

A restorative approach attends centrally to context and causes of criminal harms. It seeks to engage multiple stakeholders, those who are affected but also those who can positively affect and contribute to a positive outcome in a situation, and that they all work together in the process of figuring out a just way forward.

The development and use of a restorative approach here in Nova Scotia then is about much more than just a common set of tools. I want to assure you it means more than that Nova Scotia is just going around in circles all the time. There are many different promising models, processes and practices that I think are worthy of your attention in the work that you are about and that reflect a restorative approach, but it is essential to take a principled approach to assessing these models and to seeing that they are actually reflective of a restorative approach.

Not every circle is actually going to end up being restorative. There are no ready-made universal restorative models. It is paramount that if a restorative approach is to be developed and implemented within or alongside the criminal justice system it has to be appropriate to the context and sufficiently flexible to be adapted.

The Nova Scotia Restorative Justice Program has achieved this, for example, by creating a flexible framework within which program protocols allow for the design and use of different processes in different communities and for different circumstances. The program is animated by community agencies that are in a better position to know the context and the needs of various parties in a particular case.

This does not mean anything goes. There are several principles that guide a restorative approach. I have elaborated them for you in my written submission. Restorative processes are relationship focused. They do not only focus on the individual. They are comprehensive and holistic in terms of the look they take at the problem and its response. They are contextual and flexible. They are based on principles of inclusion and genuine participation trying to ensure that decisions are made as closely as possible to the citizens and members of the community who are affected. They are democratic. They are often dialogical based on conversation and on talking as we were urged by one of the senators to do more of this morning. They are forward focused and solution focused, so problem solving. They care about accountability for the past but for generating the conditions that we will be responsible to one another in the future.

Second, a restorative approach I think has significant potential to lessen the burden on the criminal justice system by addressing root causes which you heard about this morning. It is no coincidence that the growth and the use of a restorative approach in Nova Scotia developed out of its experience with the restorative justice program within the criminal justice system. The restorative justice program revealed through its operation that addressing the needs of victims, communities and offenders and ensuring accountability and public safety required a collaboration of many different systems and revealed that the root causes and precipitating factors required proactive attention.

Third, a restorative approach to justice has significant applications within the criminal justice system that could impact on backlog and delay within the system. I think it is important to recognize that while it is a very promising alternate practice through diversion measures and through taking things out of the system, it also has equal application within the system to thinking about how it is that system players can work together. As you saw in the Mental Health Court this morning and we will no doubt hear more about, it actually provides the mechanisms for partners to collaborate more deeply and more broadly across institutions and across siloed systems to address complex problems.

Finally, a restorative approach requires and supports more contextual and flexible, not one size fits all, policy programs and practice innovation. I will just say one last thing about this. I think this is where it has significant implications for the role of the federal government in supporting such innovation and developments.

It requires funding and support to be provided to local innovations in ways that invest in longer term development of collaboration rather than short-term niche pilot projects within the system. It also means that funding cannot only be dedicated and tied to the replication of models from other context. Careful attention must be paid to how success will be measured and evaluated in order to ensure incentive and support for innovations aimed at implementing a different approach rather than simply replicating different practice models within existing structures and the system.

Thank you very much. I will turn things over to Justice Williams.

Hon. Pamela Williams, Chief Judge, Provincial and Family Courts of Nova Scotia: Mr. Chairman and members of the committee. I want to thank you once again for your visit to the Mental Health Court and taking the time to meet with our team members this morning. It was certainly our pleasure.

We are here to talk about delay in the criminal justice system. I prefer to look at the issue of how we can provide better access to justice. Delay is one piece of that puzzle because when justice is delayed, as they say, justice is denied. I think we need to look at the criminal justice system in broader terms that reflect the wider range of issues we face in the provincial court: issues of mental health, issues of addiction, issues of poverty and homelessness.

The adjudicative system can simply not meet the needs of the various issues we are facing in the provincial court, so we need to think about new, innovative and streamlined approaches. Part of that requires collaboration among the system participants. It may seem odd for an adversarial system to collaborate but I think there certainly is room for collaboration among criminal justice stakeholders to provide a better service to the public and as well help reduce delays and free up court time.

The idea is off-ramping. You are going down the adversarial highway and there are off ramps. Off ramp diversion matters before they ever get before the courts, pre-charge off ramps. Find another way of dealing with some of those lower end matters.

Then there are other diversionary matters which need to go through the system but let's find a way where we can keep them out of the courtrooms and deal with them in more of a restorative approach. Early resolution matters, another off ramp. Deal with those matters. Get the pleas in, get the sentencings done, and then you are left with low and high complexity matters that need to go through the adversarial system. At least you can off-ramp the low complexity matters, deal with them, get offered a trial date within 30 to 60 days, and put the majority of the resources on the complex matters — the aggressive judicial pre-trials, resolution conferences, focus hearings and pre-trial motions — so that the majority of the resources in the system can really deal with those complicated cases or vulnerable cases involving children, the elderly, sexual offences and major serious violence.

The other opportunity of course is to take another body of work out of the adversarial system. I am talking now about Mental Health Courts, mental health diversion, wellness and addictions, and dealing with them in a more problem solving and therapeutic way. The court is still involved, yes, because the court helps monitor but the focus is on holding people accountable, establishing relationships, understanding what the root causes of the offending is, developing recovery or support plans, as you heard this morning, to help support those people, reconnect them and get them to better health thereby reducing their likelihood of being involved in the criminal justice system. Those matters take time. They are the types of matters that require the time to accomplish the results we want.

For all of those types of matters and all matters that are stymied in the criminal justice system were there bench warrants issued? Currently my understanding is that those are still being tracked by Statistics Canada. Some of the delay numbers we are seeing are taking into account bench warrants and specialty courts or diversion processes. In order for us to get a really good indicator of how much delay there is we need to at least remove those kinds of matters from our data to get an accurate picture.

As I indicated relationships are huge. The folks that we work with in the Mental Health Court often are very damaged people and it takes time to gain their trust. We are there to monitor their progress and to support them. We are focusing on the individual more than we are on the offence itself. We are focusing on the present and the future. We are not forgetting about the past and what took place but we are focusing on how to make things better and restoring relationships.

We are very interested in creating a space for victims, a voice for victims, so every victim that is attached to a file is contacted. Although we did not mention it this morning we have had several cases where we have used restorative practices. One was involving a son who reconnected with his mother. He had committed an offence against his mother, some threats and a common assault. Over a series of months we were able to get the two parties together, have a conversation which holds him accountable and put in some place some boundaries around which they can have contact with each other. She understands better what his mental illness is and she is not enabling that behaviour.

We have used restorative justice in a case of employer/employee fraud. The employer and the employee sat down. The employee of course was our client. Once the employer had an understanding of the mental health issues faced by that employee he looked at the crime in a completely different way. We were able to work out repayment for restitution. He was able to say how her behaviour had affected his business. She was able to say how badly she felt and what could she do to repair that harm.

Those are some very specific examples of how restorative justice can work in that kind of a setting. As you saw it is collaboration among different systems, health and justice. We are trying to draw in community services as well. We are trying to draw in education because all of those government agencies are pieces of the puzzle to helping someone move forward. The goal is positive outcomes that reduce and sometimes eliminate a return to the criminal justice system, but I would certainly say reduce them. I will stop here.

The Chair: We will open questions with Deputy Chair Jaffer.

Senator Jaffer: Thank you, Judge Williams and Jennifer Llewellyn for being here today.

You gave us an amazing experience this morning at the mental courts and how you have brought all the different parties together. I could use all my time praising you on that but suffice it to say it was an amazing experience. The same with the sharing circle this morning. I think we will go away with some very positive ways of working and certainly trying to share across the country what you both are doing. Thank you very much.

When I was listening this morning to you and all the different people you brought together I had this niggling feeling that you raised expectations by the number of people you brought on board. As resources are always limited, are you able to access more resources? For example, for me the psychiatric nurse and the load she carries are tremendous? Do you have room to expand? Will you get resources to expand?

Ms. Williams: The economic climate of this province is not ripe for that at the present time, but we can reach out to health more and perhaps look at other resources and the sharing of other resources. We are looking at, for example, partnering with the School of Occupational Therapy. We are looking at perhaps student placements of occupational therapists and rec therapists that will help out with the team. There are other projects underway which I am not at liberty to discuss at the moment. It will be another partnership with the Mental Health Court.

The Mental Health Court is just local so we are trying to spread out this concept around the province. We do have diversionary programs in Kentville and Amherst, a wellness court in Port Hawkesbury, a court monitored drug treatment in Kentville which is partially federally funded, but all the others are just a sharing of resources.

I suppose Nova Scotia is small enough but large enough to be able to come together and have this conversation. I am pleased to say that justice and health are both on board. They both believe by pooling resources, collaborating and working with the same client base, because we are working with the same client base, that we can do better work with the people we are serving. Discussions are underway to get something going in Cape Breton, something going in western Nova Scotia. I am hopeful. If there is a will there is a way.

Senator Jaffer: Ms. Llewellyn, I have a question for you. This morning in the sharing circle it was powerful to hear the different voices and how people from different experiences came together. We appreciate very much that you are sharing this with us, but I am curious to know how you are growing this across the country.

Ms. Llewellyn: We have taken some significant steps to invest in those different sectors in Nova Scotia having opportunities to actually come together, learn together, develop a common approach and be mutually supportive of one another at individual levels who are implementing it in their own jobs but also at system levels.

Some of those we have sort of created. One opportunity we had was a CURA partnership grant from SSHRC, the Social Sciences and Humanities Research Council, back in 2005. It was able to bring all the stakeholders in the restorative justice program together with other stakeholders to kind of develop a mutual understanding of one another and a plan for the things they would like to research and learn. We tried to create what we have called a local learning community so that they are not only invested in trading models and practices with one another but in really learning and supporting one another in ways that are harder within the mainstream systems. Sometimes we can host and we can bring mainstream systems across government and community into collaboration. The university has been a useful place for that in terms of our role of developing knowledge, mobilizing knowledge and being a place of learning.

As you saw this morning, on the strength of that experience we now have quite a strong reflective sense of connection across those systems. We have been participating with six other jurisdictions internationally that are also thinking cross sector about being restorative communities taking a restorative approach to governance and to their social and political institutions. We have been working collaboratively in exchange visits to learn from them and have them come and learn from us.

There are certainly opportunities for that nationally. Those include Canberra, Australia, New Zealand, Hull and Leeds in the U.K., and Vermont. There are some other learning jurisdictions of which B.C. is one with leadership from SFU, Brenda Morrison and others. We are gathering all those people together on June 27 and 28. We are very intentionally crafting the ability to collect data across international sites to see how this implementation is effective in multiple sites and in multiple contexts because that overcomes the data challenges of evaluating the success of short-term pilot projects or of short-term responses. We are trying to see if we do not have longitudinal data can we have data from a variety of different contexts to do that and can we be supportive learning partners?

[Translation]

Senator Dagenais: Since we are studying delays in the courts, I want to point out three things I've realized.

First, the complexity of cases can cause delays. For example, megatrials in Quebec caused delays. The behaviour of lawyers can also cause delays.

Part of the equation will always be the authorities' attitude toward implementing the necessary means to shorten delays. Quebec Superior Court Justice François Rolland told us that Quebec's justice system is up against a wall with the nearest court dates now in 2019. Apparently a reasonable delay is two or three years. Anything longer than three years is unreasonable.

I would like to hear your opinion today because our committee has to produce a report on this issue. What do you think the committee should include in the report in terms of recommendations to the government that would help you in your work?

[English]

The Chair: I am not sure if Senator Dagenais and others were here prior to the start, but the judge is here on the basis that she would be talking about the Mental Health Court and the approach and it would not be appropriate for her to comment on the pros or cons of the adversarial system nor any potential reform. Her colleague perhaps can comment.

Ms. Llewellyn: I am not similarly constrained so I can also say things about my experience of Judge Williams and what she does do and maybe what we could create more support for. I mentioned this morning that one of the ways we have seen space for change created within the justice system and within court processes has actually been the opportunity of leadership from the judiciary to use those opportunities in part.

Along the same lines Judge Williams and others who followed her in the Youth Court have begun to encourage collaboration across the various lawyers, other support teams and resources that work in courts. Judges are in a position to ask if there has been consultation.

Has there been discussion? Is there some way to have checked whether alternative processes have been considered or whether you have had conversation about things to seek that information back from counsel? What I have witnessed, particularly around the ways in which it has supported the space for a restorative approach, is that it really has created time and space in ways that judges can have those conversations in their courtrooms. Otherwise it has not been part of the process in very busy dockets and with overburdened lawyers and representatives to have those conversations, to consult with one another and to think about other possibilities which are very often in the interests of their clients, the public and the victims. There are ways within the existing system of encouraging the capacity of judges to create space and time as part of the judicial process for that kind of consultation and collaboration among the stakeholders and the administration of justice. It has been a very powerful model for us and it is then opened up through the building of those relationships among court teams. They are working differently outside of and in anticipation of going to court.

In terms of the behaviour of lawyers we have also seen it be really an important opportunity, as you heard a bit this morning, around legal regulation and the culture of the legal profession. The more there are opportunities in our courts, our Human Rights Commission and many of the processes where lawyers come to meet the public interest and the interests of their clients to work in this way, the more it is actually seen as a way to meet those interests and be good supportive counsel and advocates in a slightly different way. It is changing the climate and culture of what it means to be a lawyer and that the identity and the value of lawyering are not caught up only in the adversarial system. I think that has been quite significant.

Senator Baker: Thank you to the witnesses.

In the Mental Health Court versus the Provincial Court where somebody who has been off their medication for a short period of time is charged with six or seven counts of uttering threats to kill somebody, to burn somebody's house, to beat up their property and so on, you would have six or seven counts and then an additional three counts of breaking conditions of release, breaking orders to protect the victims, some of which are new ones. You have provincial and criminal code conditions of release from a previous charge.

Now there is the time period it takes to go through the normal court process of hearing witnesses and approving every element of the offence when you are dealing with eight or nine counts. Could you compare that to the Mental Health Court and give us an idea of the time saved if a matter is referred to the Mental Health Court and the advantages of the Mental Health Court versus going through the normal criminal code procedures that the offender and perhaps the victim would not receive because our main function is to try to save court time, to free up Provincial Court judges? Listening to you today, Your Honour, it struck me that having a Mental Health Court is an incredibly great idea. Am I correct in that? Would it be a substantial saving to taxpayers and our court system to have a vibrant Mental Health Court?

Ms. Williams: I will try to answer the many questions I heard in that commentary. I would start by saying it is very timely. It takes a lot of time to prosecute a matter. Unfortunately in our province at least maybe only 8 per cent ever go to trial. Trial time is set aside. We are facing often a full docket 8 to 12 months down the road but nothing happens on the day of and it collapses. It is a waste of resources and a waste of time.

Not everyone is eligible or will go through a mental health, a diversion or a wellness program, but when they do it saves the time of preparation for a trial. It saves the time of preparing a witness. It saves all the angst of the victim: What is going to happen? Am I going to have to testify? It saves time. The space in the courtroom can now be occupied with matters that need to be there because much of the work that is done with the folks in the Mental Health Court is done outside the courtroom.

In terms of savings a lot of the people we see appear before the courts again and again and again. Sometimes it starts with a substantive offence like a threats charge. But because it is going to be from 8 to 10 to 12 months before they get to trial often they find themselves breaching their release conditions that sometimes are quite onerous.

In the Mental Health Court we see them weekly or biweekly. It is not uncommon to see someone get their release order changed four, five or six times during the course that they are in the Mental Health Court. It may be they are doing well and no longer need to be on house arrest so it goes down to a curfew. It may be they no longer need a curfew and so the curfew is removed. It may be that they still do need stringent conditions put on them but we can make an exception to go to work or go to the gym and do things which are therapeutic for them.

In terms of other savings those folks are less likely when they are with us to find themselves in emergency rooms, hospitalized, involved with the police or in jail and all those four things are very costly. I hope I answered your questions.

Senator White: Thanks to both of you for being here.

Your Honour, my question actually is a follow-up on Senator Baker's and I will try to put this around cause and effect. You are really dealing with the causes of criminal behaviour and mainstream justice deals with the effect of criminal behaviour, right?

Ms. Williams: Bingo.

Senator White: It sounds good, thanks.

If I may turn to you, Jennifer, this morning folks were discussing restorative justice and where it comes from in Nova Scotia. Everyone knows it is light years ahead of most provinces, if not all. Can you tell us if any reviews have been done of the program, and I know they have, where they are and how we would gain access to the results of those reviews?

Ms. Llewellyn: Yes, there have been at least two reviews. One was a multi-year review. It started when it went province-wide in 1999 and was conducted five years by Professor Don Clairmont. It is not short. I can get you copies of it if you would like. We will forward those to the clerk. There was also a summary of that review. There was another review done subsequent to that which we can also provide.

There was a more recent review. I do not know if it is public but I will ask and put you in touch with the government folks who could provide it to you. It was of the pilot programs for adult restorative justice in both the sites in Truro and Cape Breton and was a very favourable review.

In fact it noted the incredible uptake, far outstripping what they expected by four or five times, the results and satisfaction levels from system stakeholders, from offenders and from those who are connected to those processes, and recommended the rollout as intended of adult RJ. If that is available we will certainly provide it to you.

Senator White: Thank you for that. That is really what I am looking for. Are you telling us that it covers recidivism rates and it covers client satisfaction?

Ms. Llewellyn: Right.

Senator White: Not just client as in offender/victim but client as in community involvement.

Ms. Llewellyn: Yes. Don Clairmont's reviews have been quite comprehensive in terms of trying to do exit surveys with those who have been involved.

I would caution you to know that it was done at the very early stages of the program. There have been subsequent developments responding directly to that report around issues of ensuring greater access for racialized young people. It turns out that the systemic racism and discrimination in the system were resulting in lower referrals. There were particular policy steps taken to address that within the system. Certainly he did exit interviews that looked at the satisfaction of all parties. He did a lot of direct conversation with key informants within the system and at all the entry points, police, crown, judges and agency staff. He looked to the extent he was able to do so at recidivism.

There is international evidence too that recidivism is at least as good and in most studies better and certainly compliance with orders is better. There is some dispute about whether high-count recidivism is every re-contact or whether you can see de-escalating behaviours. One of the things we see is that as we start to address the systemic issues underlying the root causes they may be re-engaged with the criminal justice system but at a much lower level.

Senator White: So administrative breaches versus returning to their old habits.

Ms. Llewellyn: That is right or lower level incidents, yes.

Senator White: Thanks very much to the both of you.

Senator Batters: Thanks very much and again thanks very much to both of you for this morning.

Judge Williams, I am wondering if you could tell us a few different things. Certainly correct me if any of these things intrudes into something that you are not able to talk about. I am wondering if you could tell us what the biggest challenges are that you face with the Mental Health Court. Maybe there have been some challenges you have already overcome, and how did you do that?

I am also wondering where else in Canada have Mental Health Courts, which particular provinces. Then I am wondering if you meet with your counterparts from those Mental Health Courts in other provinces to share some best practices. Then I have another question too.

Ms. Williams: The biggest challenge at the moment is being able to provide a service to everyone who wants to access our court.

It is a good problem. We did a press release when we had our five-year anniversary and then there was another one with a Mental Health Court evaluation. We are starting to get a little more press, if I can put it that way. People are becoming more aware of the court so the challenge now is being able to service the number of folks that want to become involved in the court.

An ongoing challenge is trying to figure out ways of getting around either roadblocks or difficulties. Again it is a fun challenge because what you have is people from various disciplines who are all in the same room. I will give you a prime example. People coming out of jail who have no means of assistance have to go to the income assistance office and apply for assistance. There is a period of time during which they have nothing. Should we be surprised that they reoffend?

We partnered with Burnside, the local jail. We had community service folks at the table and we said we had to get around this somehow. The idea was to provide a process where they can apply for employment assistance or income assistance before they ever get out of jail. The application is faxed to the office and when they are released they go directly to the income assistance office and they are connected.

We have different types of challenges that are more social justice in nature, but we are able to create processes that help not only our folks but people in mainstream as well.

In the provinces there is an organization called the Canadian Council of Chief Judges. I am part of that organization. We have a therapeutic justice committee. I am the chair of that. We have done recent studies. There are 62 what I would call therapeutic courts that I know of in the country. They are not all Mental Health Courts. Some are drug courts; some are considered wellness courts. About one-third of them are either fully or partially funded and the rest are operating as a result of partnerships among justice and health.

We are looking at trying to learn best practices from each other. That is part of the role of the committee and maybe we will even come up with some type of standardized evaluation.

Senator Batters: You were mentioning the significant problem of court time being allocated and then trials falling through at the last minute either because someone pleads guilty or the crown stays the charges.

I was the justice chief of staff in Saskatchewan for five years. Fairly early into that in about 2008 or 2009 Saskatchewan came up with this initiative where they have what they call a shadow court. I don't know if you have heard about this before but they allocate court time. They almost overbook it like an airline or something like that. It works very well and it is a really good innovation. I thought when we started this study that might have been something that was being done everywhere in Canada by now, but in Ontario, for example, people from there hadn't even heard of it.

If that is not something you are doing here yet, it might be something to look at. I would suggest the Saskatchewan justice people are some excellent people to give you more information about that to try to help with that problem.

Senator White: Your Honour, Senator Baker spoke about the costs of A versus B. From a recidivism perspective have you folks done any research or has anybody done any research? I am sure you have connected to Dalhousie at least done research on the recidivism rates among those who go through Mental Health Court versus those who go through mainstream?

Ms. Williams: "Yes but'' is my answer. The province did commission an independent evaluation of the Mental Health Court. The difficulty with it is that it was looking at only a 12-month period. It was comparing a small group in the Mental Health Court and a small group that was not accepted into the Mental Health Court. We did get some good information from it, but we did not get perhaps as rich an outcome as we would have liked given the constraints of time and numbers. The rates of recidivism were not terribly different.

The report noted that the issues and problems of the folks in the Mental Health Court were more severe than those of the group that were not accepted into the program. So you are almost starting with groups that are apples and oranges. What the study determined was that although our group did reoffend they did not reoffend as quickly or as often or as substantively as the other group. We certainly need to go down that road as the States have done. Mental health courts in the United States have been there for many years. Many studies out there say that these types of problem solving courts do reduce recidivism rates.

Senator White: Are there any Canadian studies that you are aware of in other jurisdictions?

Ms. Williams: Not that I am aware of, no.

Senator Baker: Ms. Llewellyn, I have just one final question. I looked at the description of the Nova Scotia Restorative Justice Program. As I recall in 1997 it was brought in and divided up the province into eight areas. It applied to those persons who were between the ages of 12 and 17. They could be referred by the police prior to charge by the crown or by the judge even post-trial. The referral would be to the community but not just for the community. The person charged, the accused or the offender, as I recall the words were to make amends in some way. Could you describe that wording to us? What does that mean?

Ms. Llewellyn: Your description of the program is correct. Maybe the only difference is that it was piloted in a few communities in 1997 first, just in case you are reading about it, and then it was rolled out to the whole province in 1999. It was fully functional and anticipated those four phases of pilot youth, full youth, pilot adults, full adults. We have taken some time to be careful in our development.

One of the strengths of the Nova Scotia program and may be one of the reasons why we have been fortunate enough to grow and be able to be comprehensive is that all the entry points you noticed were very comprehensive. We have seen over the life of the program that initially almost all of the referrals were coming pre-charge from police and low end.

Senator Baker: Pre-charge?

Ms. Llewellyn: Pre-charge from police as a low end diversionary matter but then we have increasingly seen the numbers get larger coming from the crown with higher and more complex cases and coming from the judges or encouraged by the judges and by the crown. That has been a real, significant growth in terms of the trust and the use of that program by the system. When it says it is referred to the community one of the other keys to success, stability and growth has been that this is not a program that is government led and just operated by communities. From its very inception through to its management it has genuinely been a collaborative initiative. The government is responsible for facilitating and overseeing but for working collaboratively with these community-based justice agencies. They have separate boards. They are rooted in the community but they are very much partners with the government. That explains how the program has been stable over many changes of government and depoliticized.

What they mean in the program by making amends is the orientation, the focus in this program of actually addressing the needs and the harms to the victims and to the community.

Senator Baker: No, it says offender in the literature.

Ms. Llewellyn: Yes, to make amends.

Senator Baker: The offender, yes.

Ms. Llewellyn: Frequently the language is young person or young person in conflict with the law. There certainly is some literature that talks about offenders if they have pleaded guilty or if they are referred by the crown and part of it is going to be a plea.

Senator Baker: What do they mean by make amends, though?

Ms. Llewellyn: What they mean by make amends is actually that the focus of the process then is to figure out how they can contribute to setting things right.

Senator Baker: Like what?

Ms. Llewellyn: Part of that is actually often showing up and actually being honest and clear about what their intentions were or what their participation was. You can imagine how significant it is for many groups, communities and victims who are offended against to actually come to understand what the motive behind it was or whether they were targeted. There is an information deficit that happens in our adversarial processes. Part of that is to show up, to be honest and to fully participate. That sometimes contributes to making things right.

They also come in and work together with their supporters, the community representatives, the victims and their support communities, to figure out and to answer exactly the question of what in this circumstance is needed by the individual who caused the harm and maybe, with the support of the community, to address the needs of the victims and take responsibility to make things right in a way that they can enter back into the community and know they are not going to be a threat.

Senator Baker: Even after conviction?

Ms. Llewellyn: Sometimes that can be after conviction.

Senator Baker: Wouldn't that be regarded as double punishment?

Ms. Llewellyn: It can be. This is one of the challenges. If it is referred to at a sentencing stage we have seen really good outcomes when you can bring those who are actually impacted and affected together to work with an offender who has been found guilty to figure out what we should do about it.

The danger is that instead of accepting those recommendations from the restorative process sometimes judges feel they should accept them and then add something of their own.

Senator Baker: Which is a real obstacle?

Ms. Llewellyn: Yes. Sometimes that is because they think the system requires it or legitimacy requires it. Part of that is a change in expectations. Sometimes you have seen it work well where they have said to the group that they are worried about public safety. They do not have their questions answered about why you are all satisfied with this. Could you go back or could you come into the court and explain that? Then there is sort of a negotiation within the judges' discretion about what is appropriate for public safety and the public interest.

There is a worry that sometimes that can be an "I'll heap something else on.'' We have a notable historical example of that here in the province around a train derailment. We have also seen for the most part judges at the sentencing stage being able to rely on those processes and even in some cases bringing those kinds of processes into their courtrooms where they are facilitated by someone else but the judge participates.

The Chair: I am going to have to jump in here. We have other witnesses waiting. I thank our current witnesses for going above and beyond and being very generous with their time and especially to you, Your Honour, for wading into what could have been risky waters. It is very much appreciated by all of us. Thank you again.

Ms. Bain, I gather you are going to lead off with an opening statement. The floor is yours.

Tanya Bain, Director, Tri-County Restorative Justice Program: Thank you and thank you very much for the invitation to be here today.

Tri-County Restorative Justice is a community-based, not-for-profit agency funded by the Nova Scotia Department of Justice. We are located at the southern tip of our province in Yarmouth. Today I will be offering my own community perspective and highlighting the success of our work by using a restorative approach.

We have been delivering formalized restorative justice processes for the past 16 years along with our eight sister Nova Scotia restorative justice agencies, ensuring youth accountability, victim voice and community needs. Our case stories and practical experiences have proven to be instrumental in Nova Scotia. We have supported other organizations that have used our formalized restorative conferencing model and broadly adapted and applied the restorative approach we take and the processes we use in our work.

The Nova Scotia restorative justice agencies are designed to work alongside partners within the criminal justice system. We receive referrals to our agency for youth between the ages of 12 and 17 who are in conflict with the law. One of the minimum requirements is for youth to be willing to take responsibility for their actions. Within our processes we assist youth in beginning to understand their responsibilities and consequences for their actions. We also help them begin reflecting on who was affected and how their actions have impacted others.

There are three components to the RJ process: the pre-conference, the restorative conference and the post-conference follow-up to ensure agreements are honoured. Within a week of receiving a referral we contact the individuals affected by the incident to arrange a pre-conference.

The pre-conference is an essential component of our work which involves meeting individually with those who caused harm and then with those who were harmed. These conversations are a key component for caseworkers to explain the process, to listen to individual perspectives, to help identify root causes of the incident and begin to understand the web of relationships connected to each individual. Pre-conferences also provide an opportunity to begin identifying, describing and building connections with local resources that may be helpful in moving forward.

Throughout the restorative process we are very mindful of the support victims may need and safety concerns they may have. Victims decide how they may have input if they wish to be part of the process. Some victims want the opportunity to participate in person to share the impact of the crime and have a voice in determining what needs to happen to move forward. Some victims may choose a supportive friend or family member to represent them in the process.

Some victims may decide that they do not want participate in person but want to be updated on the conference. Victims decide what is right for them and their decision is well respected in restorative justice. Pre-conference work is important to understand the needs of everyone affected by the crime.

After the pre-conference work is complete a restorative justice conference is scheduled. It provides the opportunity to bring the individuals together in a facilitated voluntary process to discuss what has happened and what needs to happen to make things better for everyone affected by the incident. Everyone at the conference helps design an agreement on moving forward.

In 2005, as Jennifer Llewellyn mentioned, our agencies became connected to NSRJ-CURA. I believe this partnership between community organizations, government, university partners and researchers was a starting point in Nova Scotia for restorative justice agencies to really think more deeply about how we can strengthen our work.

Professor Llewellyn guided new conversations and opened our eyes regarding how a restorative approach could look in new contexts outside the criminal justice system. Exploring relational theory helped us focus on the importance of relationships as a starting point as we broadened our work and supported new restorative processes. We realized that a restorative approach is more than restorative justice practices and more than conducting restorative conferences to solve problems. It is about how we approach our justice work and intentionally establish and build better relationships.

Our thinking truly began to shift and we realized that our work could become so much more than responding when something goes wrong. We wanted to create better and more supportive relationships within our communities to ensure that things went right. It became clear that our work was about being proactive to build the relationships and connections required for public safety and to prevent crime. Our work in the restorative justice program with youth in conflict with the law presented clear opportunities and indeed required us to think more holistically about what justice required for offenders, victims and the community.

Over the years during our pre-conference work with referred youth we noticed many who were experiencing poor relationships within schools. Many youth were not in school or had poor attendance, a low interest in education, and negative relationships in the school community. Often behavioral problems led to suspensions and those suspensions led to conflict with the law.

Tri-County Restorative Justice became part of a team in the provincial dissemination of the restorative approaches in schools model. The outcome of this initiative has been the gradual spread of this approach to more than 100 schools in Nova Scotia with a growing commitment from government to further support this grassroots growth of a community building approach. For us we truly wanted to help support youth in our community by creating better connections in our schools to prevent youth from becoming in conflict with the criminal justice system and also from entering our restorative justice offices.

In terms of criminal justice work, when we reflect on the successes of addressing school based incidents it is very exciting to connect the implementation of a restorative approach in schools to the reduction of referrals to our restorative justice offices.

We tend to want to focus on how to respond when things go wrong but we now continue to recognize that the focus should be on daily interactions and intentionally thinking about creating better and more supportive relationships within our communities across sectors. To contribute to the well-being of our communities we have since supported various community groups, individuals and organizations as they adopt a restorative approach. Our position within crime prevention has allowed us to think more broadly about how we can respond to these community needs and become partners in proactive ways. We want to be a helpful resource and link for organizations, departments and individuals to share strategies with one another. In a cross-organizational approach building meaningful and stronger relationships while exploring and implementing solutions to issues of common concern is where we continue to see so much success.

HASA, the Healing Approaches to Senior Abuse, and RASS, Restorative Approaches to Senior Safety, consist of diverse groups of individuals within our community working together and thinking through some of the complex issues regarding our senior population. This group was established to begin thinking collaboratively about restorative ways to address senior issues and identify gaps in services. Issues are addressed by senior safety coordinators who are working directly with seniors and their families. We have regular meetings working together across sectors and systems to broaden our knowledge, share resources and brainstorm strategies to help seniors and their families and create deeper community partnerships.

Everyone brings a unique perspective to the table. We see the benefits of intervening early and proactively with seniors who may be at risk. In similar ways we see the successes in youth referred to the Nova Scotia Restorative Justice Program at earlier stages and entry points.

Sharing knowledge and listening to partners in our communities and subsequently connecting to others provincially, nationally and internationally regarding personal experiences, policies, best practices, action plans, theory and research have shaped our agency significantly. These collaborative efforts have allowed us to support work outside a criminal justice context and think about community building much more holistically. We have so much to learn from one another which can only enhance our vision to explore new ways of collaborating and focus less on thinking that one organization can do all the work. When we have conversations and information exchanges regarding restorative work we allow our eyes to open wider to the possibility of broad collaboration and solving community issues.

Over the years, restorative justice processes have contributed to more meaningful outcomes for victims and referred clients but this work is more than just responding to restorative justice cases. The proactive work we now do contributes to the relationships that we have built over the years within restorative justice with individuals, groups and stakeholders.

We have noticed increased levels of community support in our traditional restorative justice conferences and our work has resulted in many new cross-organizational opportunities that are focused on crime prevention.

As the smallest rural restorative justice agency we have slowly shifted our focus. Not only do we think about the impact of crime on victims, offenders and community. We support organizations and institutions moving forward with a restorative approach. This does not mean that we are involved in the roll out of all restorative work in Nova Scotia. It means that we are much more connected across sectors than we ever have been. We are able to do this work under one of the Nova Scotia Restorative Justice Program goals of strengthening communities. Thank you.

Paula Marshall, Program Manager, Mi'kmaq Legal Support Network: I am very nervous but thank you for being here. Welcome to Mi'kmaq territory from the people of the dawn. Our territory is not just Nova Scotia. It also includes P.E.I., Newfoundland, parts of Quebec and Maine. Thank you very much for inviting me here today as well. I can even hear my voice shake.

I think part of it is my esteemed colleague told me she jotted some notes. This is jotting notes, Tanya; that is not jotting notes. I want to make sure that I am able to be as competent and thorough as her without having such wonderful notes to fall back on.

As you are aware Aboriginal people have been experiencing problems and challenges within the justice system in the country of Canada. Some of the statistics include not just here in Nova Scotia but as well as in Nova Scotia. Aboriginal accused are more likely to be denied bail. I know I only have 10 minutes but to give you an example of that.

Aboriginal people are more about the stories. We had two individuals going into court. They were not co-accused but they had similar criminal history. They had very similar charges which included a lot of breaches and failure to appear. When the first gentleman from the mainstream community went before the courts the crown advocated that he should be released on bail. When the Aboriginal person with the almost exact same charges went before the judge he was denied bail. We see that here in Nova Scotia as well.

Aboriginal people spend more time in pre-trial detention and that has to do with not being granted bail. We do not have a lot of surety and family members that are able to provide the monetary compensation to be released back into the community.

Aboriginal people are more likely to be accused with multiple offences. I remember one young woman had broken into three houses. It was her spree. She did a break and enter on three houses in one night. We had six pages of charges for her, six pages for three breaks and enters, which is extraordinary.

Aboriginal people are more likely not to have legal representation at court proceedings. That is something that we have been looking at and trying to help support and build upon.

Aboriginal people, especially in the northern or fly-in courts or even in the satellite courts such as the one we have in Eskasoni, do not have a lot of time to spend with their lawyers because when the lawyer comes into Eskasoni court he has maybe 20 or 30 cases ahead of him and he has not seen his client before so there is not a lot of time to go over his case.

Aboriginal offenders are twice as likely to be incarcerated. As we look through our province demographically the Mi'kmaq population is heavier in the Cape Breton area and we have smaller communities in the Yarmouth area. If you go to the correctional center in Yarmouth you might have a .2 to .5 percentage of Aboriginal people in jail. If you go to Cape Breton it is 25 per cent of Aboriginal people are in correctional jail. Within our province, even though we are a very small province and we only make up 3 per cent of the population, we are still overrepresented in the justice system.

The focus we talked about this afternoon with my colleagues had a lot to do with the restorative practices. They have done a wonderful job in explaining the restorative practices.

The Mi'kmaq Legal Support Network is a justice support services program for Aboriginal people in Nova Scotia who are in conflict with the law. We provide programs and support for people who are going through the criminal justice system. We also provide information and resources for the criminal courts so that they are aware of what is available for Aboriginal people.

We have several programs that I will just briefly mention. One is the victim support services program to help the victim go through the criminal justice process. Aboriginal people in Nova Scotia are less likely to testify in courts because it is not the responsibility of the victim to try to make things right within our cultural values. It is the responsibility of the community. Once the victim often makes that call to the police, culturally their job is done. It is now the responsibility of the community or families or whoever to try to make things right.

We have a lot of victims that are delaying the court process by not appearing. What we are hoping to do is by providing support through our victim support services program we will have fewer adjournments and fewer cases being thrown to the side.

We also have the court worker program. The majority of information that I will be providing to you is from the on-the-ground work of our court workers and their experiences in the courts in Nova Scotia working with Aboriginal people. We have four court workers that cover the entire province. It may not seem like such a big province but if there are only four people they spend a lot of time in their car.

We also have a program for federal offenders who are being released. The majority of Aboriginal people in our province do life on the instalment plan. We have more people doing provincial sentences than federal sentences.

We also have the Gladue reports. We provide reports to the sentencing judges on the special circumstances of Aboriginal offenders in Nova Scotia. These reports are typically for those offenders that are looking at a period of custody and those offenders that require more support. It would not typically because a Gladue report is about 15 to 20 pages. It documents three generations back and lists the resources available for the judge and the community. For some shoplifting charges it may be over-resourced to have something like that. We are typically looking at people who are going to be doing some serious time.

The other restorative program that we have is the Mi'kmaq Customary Law Program. This program began in 1995 as a result of looking at a better way to implement the Alternative Measures Program in the 1984 Young Offenders Act. When we started the pilot we recognized right away that trying to provide an equal service to Aboriginal people was not going to be effective because it did not fit. It was trying to put a square peg in a round hole.

Simultaneously parallel to what was happening across Canada and particularly in Nova Scotia was the restorative justice movement. A lot of the work we were doing from 1995 to 1999 was validated by some of the work that the restorative justice program was doing, like going out to other countries like New Zealand and Australia and asking them how this worked when we were doing it in our communities as well. It was good to have the validation from that research to show that this is a meaningful and culturally appropriate process that could be applied not just to Aboriginal people but to any community or society in a multitude of different applications whether it is human rights or in schools or within justice. That was ongoing.

We do have the restorative justice circles that we participate in with the restorative justice agencies. We also provide healing circles which are with or without prejudice to sentencing. We work with the courts to provide sentencing circles which is another tool for the judges to have more personal knowledge of the offender and the community when making sentences. We also do the post-conviction circles and support circles for offenders that are coming back into the community including section 84 under the CCRA.

Those are some of the circles and restorative practices within our communities. Particularly when we are looking at delays in the justice system from the perspective of the agency that is providing services to Aboriginal offenders, our experience in speaking with our clients is in the past as officially our court worker program has been ongoing for about 15 years now. Aboriginal people feel disconnected from the Canadian justice system. It is a very meaningful process but it is one that is very different. It is very punitive and very combative to the justice processes that we would typically have used within our communities.

Our Mi'kmaq word for making amends is an interesting word because you are asking for forgiveness but it is forgiveness from both. A victim cannot forgive an offender unless the offender forgives the victim as well. That is kind of where the circles are coming from. In working with our Aboriginal clients we have also seen that there is very limited knowledge of their individual rights. They do not have the experiences to understand the options that even may have available within the criminal justice system. They indicated that they have the least amount of knowledge of people going through the court system but they also have the most direct impact on the justice system.

We have also recognized that there is still discrimination within the Canadian court system as I explained with the young man going to bail. We also see the discrimination in jury selection. When you are looking for a jury of your peers the selection of Aboriginal people for the jury process is very challenging. There is a lack of understanding of the criminal courts in knowing the Aboriginal legacy of some of the historical trauma. They do not understand the impact of colonialism, residential schools and such.

Services are not available for Aboriginal people the way they are for the mainstream. For example, mental health services and addiction services are not as easy to come by within our First Nations communities.

I liked your idea of overbooking for the courts. We do have a satellite court in Eskasoni, the largest Mi'kmaq reservation in Atlantic Canada. They tried overbooking which did not go as well because they were there until seven o'clock or eight o'clock at night. They tried that but it was not working.

We also see delays in court where our people are very transient. They move from community to community. If something happens in the western end of the province we know about it at the eastern end of the province, and the people in the southern end of the province have already started telling the other side of the province what happened and their version of it. We have a lot of court delays with people transferring their charges. It takes a lot of time, causing more delays.

Last year the court worker program had 1,277 Aboriginal clients. By clients I mean each client we counted as an offence. It may not have been 1,200 separate people. It was probably a lot less because of the recidivism rates. It was probably more like the same 400 or 500 people getting in trouble over and over again, but 700 of those charges were systemic charges. They were failure to appear, breach of undertaking, breach of probation and not keeping the peace. A challenge for our people is how we address charges that are relatively minor but are taking up a lot of the time of the courts.

Another problem that we have is clients being away for treatment. That causes a lot of delays. Talking about high recidivism rates in our communities, we have people who have new charges. As their court process is going on here in Halifax they have new charges in Sydney so it is going to take time for them to consolidate their charges. That is causing delays for Aboriginal people as well.

Also the majority of courts except for Eskasoni have to travel out. A lot of people still do not have access to vehicles even in this modern age or even phones. It is difficult for them to get to court or even to get to go and meet their legal aid. Legal aid is a whole other area that causes delays. For example, in Eskasoni in the past two years we have had five different legal aid lawyers appointed. Each time they have to renew and get acquainted with the case causing more adjournments. This is even more difficult with private lawyers.

We as the agency are looking at some recommendations. We would like to see and support some of the work that Judge Williams is doing as well as Judge Laurie Halfpenny in mental health and wellness courts. If we are going to address the systemic factors and the special circumstances of Aboriginal offenders we need to look at ways that we can take those into account through the criminal justice process and a healing court seems to be the best way to go.

We would like to ask that government work with our chiefs and band councils to help make those changes because they may not be aware of some of those changes or know how to support them.

We also have a lack of education tools for First Nations people regarding the justice system. We would also like to request an increase in the number of Aboriginal people in the justice system.

In closing, one of the things to look at is perhaps developing a comprehensive mandatory training for justice personnel to help them understand the Aboriginal legacy of people in Canada.

Thank you very much, and I am sorry if I rambled on a little too much.

The Chair: Thank you. I don't think you missed having notes. You may have answered everyone's questions but in any event I think there are still a few remaining and we will begin with the committee's Deputy Chair, Senator Jaffer.

Senator Jaffer: Thanks to both of you for being here. Both of you covered a lot but one very interesting thing happened this morning. When we were in Mental Health Court we were told how a person is chosen to be in Mental Health Court. Ideally I would like to ask you how you choose youth, seniors and Aboriginals, but I do not think I will have that much time. So I will to keep it to how you chose when a senior becomes part of the restorative justice program and the same with Aboriginal or indigenous people. Perhaps we can start with you, Ms. Marshall.

Ms. Marshall: Within the formal process of the Nova Scotia Restorative Justice Program one thing that is required is that the persons take responsibility for their actions. This is something that we expand to all of our programs. Especially with mental health and wellness there may be reluctance at first to participate in a program where they are going to be held accountable and take into consideration some of the challenges they may not want to give up.

Our communities do hold people accountable in a way that matters so that with a little information and education they are more likely to accept the services, for example, of the mental health and wellness court.

Ms. Bain: Our communities are becoming better equipped to solve their own problems. Because we have a culture of sharing knowledge I feel like our communities are becoming better equipped to work through some of their issues and problems. The connection that we have in working with seniors is more of a supportive role in thinking through the relationships that are important. The relationships are so complex that the conversations are sometimes difficult when it comes to working with seniors. We offer the experience of working through some of the challenges that we have experienced in the criminal justice system with youth, with young people, and having difficult conversations with victims as well.

Senator McIntyre: Thank you both for your presentations.

I understand that Tri-County Restorative Justice is a partner with the Nova Scotia Department of Justice. Also as I understand not only are you a partner but you deliver the restorative justice program to every community in the three counties of Shelburne, Yarmouth and Digby, right?

Ms. Bain: That is correct.

Senator McIntyre: Are there any other counties?

Ms. Bain: We cover the entire province of Nova Scotia under the umbrella of the Nova Scotia Restorative Justice Program. However in my community we have the three counties of Yarmouth, Shelburne and Digby.

Senator McIntyre: Ms. Marshall, one thing is certain. If we are to improve the status of Aboriginals before the justice system I agree with you that we have to work with the chiefs and we have to work with band councils.

I live in a community where there are two Aboriginal communities. We get along very well with them. I know the chief and a lot of the band council. It is so important to work with them. You just don't go over their heads. It is like we say in French, ce n'est pas permis.

As I understand the Mi'kmaq Legal Support Network it acts as a justice support system for Aboriginal people involved in the criminal justice system in Nova Scotia. You have provided services through the Mi'kmaq court worker and Mi'kmaq customary law programs. How are those programs administered? Are they administered through the Confederacy of Mainland Mi'kmaq?

Ms. Marshall: No. When we began in 1995 we began as a project of Island Community Justice which is now one of the restorative justice agencies. Since then we have been transferred from different Aboriginal organizations and in 2010 we became our own organization autonomous from the different organizations in Nova Scotia. We represent all tribal organizations and off-reserve and on-reserve Aboriginal people.

Senator McIntyre: I understand from your presentation that you do not have a Mi'kmaq system of justice.

Ms. Marshall: No, we do not.

Senator McIntyre: But you have good programs and services that are oriented to make a non-Mi'kmaq system of justice better for Aboriginal people in the province. Am I correct in saying that?

Ms. Marshall: Yes.

Senator McIntyre: That is your aim. That is your goal.

Ms. Marshall: Well worded.

Senator McIntyre: Thank you.

[Translation]

Senator Dagenais: We have talked about restorative justice a lot since this morning. My understanding is that restorative justice helps heal wounds for victims, offenders, and communities.

Ms. Bain, you said that, among the services you offer, you provide assistance and you can even offer mediation services to communities. Do you think there are other ways that you can help resolve matters?

[English]

Ms. Marshall: Is that within the criminal justice system?

[Translation]

Senator Dagenais: Yes, to do restorative justice.

[English]

Ms. Marshall: The Mi'kmaq legal support program, our justice support services program such as the victim services program, the Gladue reports and sentencing circles, all provide recommendations to the sentencing court judge as to what an appropriate sentence may be or what is available within the community. They are a part of the resolution in that capacity.

In the customary law program we are not limited to just Aboriginal youth 12 to 17. We have been providing services to Aboriginal people from the age of 12 and over. Our highest population in Nova Scotia is between 6 to 18 or 21. We have a very high youth population so we are able to concentrate on working with those young people but providing those services as well to Aboriginal adults.

I think the biggest impact we have made is within providing opportunities for section 718 to be applied in the courts through sentencing circles and through the Gladue reports. We are now able to address in Nova Scotia, although there are always room for progress, some of those historical systemic factors within the Canadian justice system.

Ms. Bain: As a restorative approach expands throughout our province of Nova Scotia, as one of the smallest restorative justice agencies we have been invited to the table much more than we would have been back in 2001 when we were first implemented. The value that the restorative justice agencies can bring to community organizations is that relational lens, starting from a point of thinking more intentionally about the importance of relationships and the web of relationships connected to various organizations, individuals and institutions.

We love to be a resource in our own communities to think about: What does justice look like and how can we be working better together across sectors and across organizations to meet the needs of our communities and really think more strategically and more intentionally about what kind of things we can do together? A whole culture of sharing knowledge has become an integrated part of the work we are doing. We are learning from others, learning about the other community organizations in our area, and learning about what they do, and their learning about whom we are and what we do and how we can work better together to increase justice access.

Senator Baker: Thank you to the witnesses for their instructive presentations.

My question involves a point of clarification with Ms. Marshall. I got the impression when she was presenting that the numbers of persons she tries to assist through the legal support network were being dealt with unfairly as far as incarceration is concerned. That is the general impression I got.

Then you said a few moments ago that you believed section 718(e) of the Criminal Code and the Gladue principles were actually being applied. Which one is correct?

Ms. Marshall: I think they are both correct because it depends on the area of the province you are in.

Senator Baker: Okay.

Ms. Marshall: We cover the entire province from one end to the other. We have some jurisdictions like Port Hawkesbury with Judge Laurie Halfpenny. The majority of people going through her wellness court are Aboriginal people, not mainstream. We also have some judges that will not sentence an Aboriginal person without a Gladue report.

We have some areas of the province where crowns are unwilling to participate in a sentencing circle. We have some areas of the province where we have never received a referral for a sentencing circle.

This is very different from when we started in 1995 where those applications were non-existent at all. Now we have a venue or a vehicle for those courts to apply them but there is still a lot of work to be done in some areas of the province. It just depends on the champions and advocates that we have in specific regions.

Senator Baker: The law says about jail that incarceration is the last resort for Aboriginal persons.

Ms. Marshall: Yes.

Senator Baker: That is exactly what the law says upon sentencing. Are you satisfied that is being followed in the province of Nova Scotia?

Ms. Marshall: For example, in the youth detention centre here in Nova Scotia we had 100 beds that have now been reduced to probably about 50 beds. When we provided services and programming to the facility we had about 25 per cent to 30 per cent of people that self-identified as Aboriginal in the youth centre. No, we are not looking at other possibilities to incarceration just yet.

Senator White: Thank you very much.

Thanks for being here both of you. I am going to ask you Ms. Marshall, if you do not mind, have you utilized or are you utilizing CoSA in the province for offenders as a support?

Ms. Marshall: I am not sure what CoSA is.

Senator White: It is circles of support for sex offenders who are on release. I think it is utilized in the province but I am just wondering if it is being used for Aboriginal offenders.

Ms. Marshall: We provide support circles. It is not through CoSa but we provide circles of support to Aboriginal offenders that are being released from federal institutions. Some of them may be sexual offenders but it is not specific to.

Senator White: We had a presentation from CoSA a month and a half ago specifically for sex offenders. They are trying to get continued funding from the federal government. That is why I wondered.

Do you engage in victim offender reconciliation, offenders that are being released from prisons back to the communities, engaging victims and offenders in a restorative practice? Is that what you said?

Ms. Marshall: One of the challenges in Nova Scotia as well as across Canada is that many Aboriginal victims do not register. Unfortunately that is a statistic across the country. A lot of it goes back to the cultural values of the victim not having that responsibility. It should be the community's responsibility.

Part of the work of our Aboriginal victim services program is to help Aboriginal victims understand the meaningfulness of being registered as a victim and even filling out victim impact statements that were not being utilized. We are trying to increase their capacity as well in participating meaningfully as a victim. We cannot change the system but as you said we are trying to make changes to provide a better experience for the Aboriginal person in the system, yes.

Senator White: Thanks for the information. I have one quick follow-up. The statistics for Nova Scotia are probably very similar to every province in Canada. Do you see a difference between those Mi'kmaq communities where economic development isn't more successful? I know Membertou has greater success than some others. Are you seeing lower numbers, lower offending rates in those communities where it appears at least that they are doing better economically?

Ms. Marshall: This is very challenging considering I am on the record. With prosperity comes a cost. Many times we have seen, for example in Millbrook and in Membertou, that the prosperity of those communities in providing programs and economic benefits and better jobs to the communities has led to a community that is unprepared for better economics. We now have people that have better incomes but still do not have the skills to be able to appropriately manage their income and we still have our high addiction rates.

Senator White: They are the same foundational problems.

Ms. Marshall: Yes. We see increased violence and more serious violence in those communities, whereas in the communities that are not as prosperous we see more common assaults. In the communities that have more prosperity we are seeing more serious charges.

Senator Jaffer: I asked this question earlier but I am going to ask it again maybe in a different way. Who do you choose to go into the restorative process? Is it for property crimes or for violence or for all? How do you identify which go to the normal criminal justice system and which you will do in restorative, especially with young people?

Ms. Bain: I think that is a great question. It really comes down to how I talked about the pre-conference work. That is the most important piece.

The majority of the referrals that our agency receives come from the police at a pre-charge level or from the crown at a post-charge level. When we receive those referrals the first thing that we do is we sit down with the young person to talk to them about not just about what happened but the root causes. What is their family situation like? What is their relationship with school? Who are they hanging out with in their spare time? What kind of things are they involved in and what are their interests?

That leads to the questions around how your relationships impacted how you became involved with this criminal incident. Then from there we talk about being held accountable in more meaningful ways, coming face to face with victims and those who the young person has harmed, being accountable in a way and coming up with more meaningful resolutions in moving forward. The young person at that pre-conference level actually identifies people who they feel may be an important part of the process. At the same time when we have the pre-conference work with the victim, the victim has a voice in determining the right people to be there. Everyone that has been affected by the incident has a voice in determining what the process can look like. So much work is being done at a pre-conference level prior to bringing people together in a room. The hardest part of the work that we do is the pre-conference work in determining who are those right people. It is not us as the agency facilitators of these processes but it is those who have been most impacted by the crime that get to decide.

Ms. Marshall: Can I add to that?

Senator Jaffer: Sure.

Ms. Marshall: In Nova Scotia it is very specific. Through the Nova Scotia protocols it is presumptive that any young person before the courts or has an upcoming possibility of charges has to be considered for the Nova Scotia Restorative Justice Program. They must be considered. It is based on mandatory factors which include accepting responsibility, considerations for public safety, how the victim wants to participate as well as discretionary factors. That is how the selection is made specific to the restorative justice program.

In our programs through the customary law program, the court worker, the sentencing circles, the healing circles and support circles selection is done by the community. We take every referral we get to our justice community panels and our chief in councils. We ask them: Do they accept responsibility for this person in reintegrating them and supporting them in becoming better citizens in our community?

Within the Nova Scotia restorative justice programs there are levels of offences so offences can come in at different points of the justice system. Within our sentencing circles we have received referrals for manslaughter, serious violence offences and high fraud offences. Again that is based on whether the community is willing to accept responsibility. If the community is not willing to take responsibility and help this person, regardless if they accept responsibility they will be returned back to the community and the regular mainstream courts.

Senator Baker: I take you back for a moment, Ms. Marshall, to the portion of your presentation regarding trial delay. You outlined, as I recall, four or five specific instances of reasons why trials take so long in certain circumstances. Could you turn your mind for a second to causes that are not related to the alleged offender? Even in the case of transient people, as you have mentioned, people who move, is there anything you can think of that would shorten the trials? Is there anything you can think of that we could suggest to shorten the period of time from the moment somebody is changed until they are sentenced? Can you think of anything apart from the delay caused by the defence in their pursuit of justice?

Ms. Marshall: Without being facetious complete autonomy of the criminal justice system would work. That is a goal that we are looking to. There are courts in the United States where they are completely run by the Aboriginal communities. We would like to have an opportunity to model something like that here in Nova Scotia.

I do not think we are ready. I do not think our communities are ready yet to take on that responsibility. I believe with education, proper tools and training our communities may be able to take more responsibility within the justice system.

Right now a solution would be to perhaps encourage the judiciary or courts to make more referrals for sentencing circles because we are able to do things a bit faster within the community than through the court process.

Senator Baker: Without going through the court process, without having an arraignment, a plea and then a trial?

Ms. Marshall: It depends. We have done cases where there was a stay in prosecution while the person was diverted to a community justice process. Upon completion of the process or their responsibilities to the process it went back to the courts and the courts could either, as Jennifer said, heap on or accept what was done.

Senator Baker: What would be your most important suggestion to us in our report on how to prevent trial delay?

Ms. Marshall: More community referrals and more opportunities to work with our people in holding them accountable.

Senator Baker: And that can be done right now.

Ms. Marshall: That can be done right now.

Senator McIntyre: I agree, Ms. Marshall, with what you said. My experience is that eventually it is okay to have more reference for sentencing circles and more community referrals. Eventually we should have an Aboriginal system of justice. I have been talking about that for quite some time. That is exactly the way to go in the 21st century. Thank you.

The Chair: Thank you both for very informative and helpful contribution to our deliberations. They are much appreciated.

Ms. Marshall: Thank you.

The Chair: For our final panel of the day we have joining us from the Halifax Regional Police Jean-Michel Blais, the Chief of Police. He is joined by Inspector James Butler.

We were also planning to have Darrel Pink, executive director of the Nova Scotia Barristers' Society, but he is unable to be with us today for significant reasons. He is undergoing a long-scheduled surgery, as I understand it, so he cannot be with us but he is going to submit his views in writing to the committee with respect to the issue we are studying.

As well, we are joined by Michelle Williams, Director of IB&M Initiative, Schulich School of Law, Dalhousie University.

Thank you all for being with us today.

Chief, the floor is yours.

Jean-Michel Blais, Chief of Police, Halifax Regional Police: Thank you very much. I will give a few comments in French, followed by English for the majority of my presentation.

First off, thank you very much and welcome to Halifax. Particularly to Senators McIntyre and Baker, welcome almost home. It is great to be here.

[Translation]

I am pleased to address you as a police chief and as a police officer who has had the opportunity to work in four Canadians provinces: Quebec, Manitoba, Ontario, and Nova Scotia. During my career as an investigator, I prepared several dozen judicial authorizations and was involved in the disclosure of evidence for a megatrial in Quebec. I also served as an adjudicator and disciplinary prosecutor for the RCMP Adjudication Board.

I would like to start by noting that I am not familiar with any procedural regime other than the one governed by the Canadian Charter of Rights and Freedoms. In fact, I can tell you that, today, only seven of the Halifax Regional Police's 530 officers were working when the Charter was created in 1982.

I have no intention of advocating for the partial or total elimination of Charter provisions that have a major impact on Canadian criminal law. Like all my police colleagues today, I accept the Charter's supremacy. However, I do want to highlight three important issues that pertain to delays in criminal trials and even to all criminal procedures that are subject to the Charter.

[English]

These three issues are a recognition that policing and the accompanying judicial process have become and will continue to become increasingly complex. This is for many reasons, most notably because of the globalization of crime, the proliferation of cybercrime and the continued use of social media platforms to effect crime. This increasing complexity requires police agencies to enhance their footprint and conduct investigations across geographic boundaries.

As we know since 1992 crime rates have decreased. With the decrease in crime we should have expected a crime reduction dividend akin to the peace dividend in the 1990s that resulted from the fall of the Soviet Union. However what we have seen has been a significant increase in police costs. Some of the main drivers of this have been the accountability measures at play and proper governance structures to our financial overseers. In Halifax Regional Police's case, it is the Regional Council and the Board of Police Commissioners. As well there have been operational accountabilities to the Nova Scotia Police Review Board and the Serious Incident Response Team which is Nova Scotia's version of what is the SIU in Ontario, deontological accountabilities through legislated professional standards, and probably the most important legal and constitutional responsibilities to the courts.

We also know that as a result of the evolution of both Canadian and American criminal law the accused's actions are no longer on trial but the police investigation is. This is a direct result of the confrontational system we have as opposed to the inquisitional system.

My testimony will focus on three key areas where we feel that delays could be mitigated, the first one being procedural changes, victimization and diversion.

With regard to procedural changes, in this area we can place the challenges of international legal requirements, disclosure and the limited usefulness of the preliminary inquiry in today's trial structure.

The advent and widespread usage of social media has resulted in some advantages for law enforcement in terms of obtaining specific elements of both mens rea and actus reus of various offences. When the information is stored on a server in another country we are subject to the Mutual Legal Assistance Treaty or the MLAT process in order to access that information. In several high profile local matters that has resulted in significant delays in both the investigation and the judicial process.

In my time as a police officer the most significant Charter decision was that of Stinchcombe. No other decision, not Hunter v. Southam, not Askov, not Collins, not Feeney, not even McNeil, can come close to Stinchcombe in terms of the added burdens placed not only on police and the crown but on the entire judicial apparatus. That also includes the courts and of course defence.

As stated previously I am not asking for an abrogation of the Charter but perhaps for an enhancement such as in the case of positive disclosure on the defence to level the playing field and to avoid unnecessary delays as is currently done in the United Kingdom.

When I worked in Quebec even in cases that were complex the preliminary inquiry was very preliminary. It was and is intended to determine if there existed sufficient evidence to cite an accused for their trial. I was shocked when I started working in Manitoba and then Nova Scotia where the preliminary inquiry had morphed into the trial before the trial. In the Supreme Court of Canada matter R. v. Hynes it was described as being an ''expeditious charge- screening mechanism''. The question I have for you today is whether or not this mechanism is still expeditious and if it is still pertinent considering today's requirement of complete disclosure for the crown and the protection that the Charter provides.

The second point is victimization. Our system is offender centric and for good reason as we wish to avoid wrongful convictions and wrongful acquittals which can in both cases result in re-victimization for many parties. However we must recognize that our process is not kind to victims.

Secondary victimization is poor treatment following the crime or tragedy. Inadequate responses to the victimization and the needs of the victims add to the distress that victims and their families are suffering. There are two categories of secondary victimization: injustice and indignity.

Injustice includes fear of reprisal, lack of basic information about the judicial process, perceived lack of interest by the police, courts and/or correctional system, delays in the court process, lack of contact and response from appropriate players in the criminal justice system, and even loss of income or job resulting from court attendance and preparation.

Indignity includes inability to pay funeral expenses for departed loved one, physical sexual assault examination, police investigation and questioning and societal inferences of blame on the victim. Furthermore there is an institutional lack of support for victims from victim service workers to testimonial aids, CCTVs, screens, and accommodating court scheduling.

The third and final point I would like to raise is the issue of diversion. We all know the benefits to diverting cases from the courts. This could be achieved by providing different options for summary and some dual offences versus indictable offences. Some dual offences would go to court and others simply wouldn't. This would require a stringent vetting process and result in criminal court being reserved for the most serious offences and greatest public safety concerns. As police, we know that prison tends to simply create better criminals instead of rehabilitating individuals. The American experience speaks volumes in those terms.

[Translation]

I think I have described the key issues that I wanted to cover with you today. I would be happy to take your questions.

[English]

Michelle Williams, Director, IB&M Initiative, Schulich School of Law, Dalhousie University, as an individual: Good afternoon, honorable senators, and thank you for having me here today to speak with you. I am going to start with a point that I believe your first witness made, the Honourable Mr. Justice Lesage when he appeared before you, which was I think that when starting your review you must look and consider whether the criminal justice system is really structured to handle much of what it receives. There he was talking about concerns that you have heard about today and during your visit of mental health issues, addictions, economic vulnerabilities and so on that affect communities which may be better dealt with outside the criminal justice system altogether. That was echoed in part by Judge Williams today.

I would submit that the most important part of the criminal justice system as in any area of law is the concept of justice. With all due respect, if governments fix the delay problem while ignoring broader justice issues then we may be left with a faster track to injustice. I just wanted to put on the table that we keep in mind the broader issues.

That brings me to my focus today which is a topic that I think causes some discomfort in discussion of these issues, and that is to talk about race, racism and racial discrimination both in the society more broadly but also how it may manifest within the criminal justice system and contribute to delays and other challenges.

I note briefly that I am not talking here about individual malicious intent on the part of state actors although that does exist at times, but I am talking more broadly about systemic problems that may arise and that have been recognized as existing both in terms of official reports in this country including the Royal Commission on the Donald Marshall Jr. Prosecution in Nova Scotia as well as by the courts themselves including the Supreme Court of Canada.

It is important to start with contextualizing that we come from an oppressive history of colonialism, slavery and segregation. I should have said at the outset that I also want to echo Ms. Marshall's comments and note that we are in Mi'kmaq territory and are very grateful at the way they have stewarded this part of the region.

Our history of colonialism, slavery and segregation including the operation of residential schools has directly contributed to contemporary racialized conditions of economic vulnerability, unemployment, exclusion from meaningful education, mental health and addictions issues. In turn these conditions that our communities experience can result in greater state surveillance and increased interaction with the criminal justice system for indigenous peoples and for African Canadians.

It has been noted across various reports that direct and systemic racism can certainly arise at all stages of the criminal justice process. The United Nations various treaty bodies have recognized and called upon Canada to address the needs and concerns of indigenous peoples, and more recently of African Canadians in the criminal justice system, and have actually called upon the Canadian government more than once to engage in an investigation of the overrepresentation and root causes affecting African Canadians in the criminal justice system.

You are likely already aware of the statistics on this matter but certainly in the past 10 years we have seen a 75 per cent increase in the incarceration of African Canadians in this country and the disproportionate incarceration of indigenous peoples continues most notably with an increase in indigenous women of late.

These trends are happening notably when we have decrease in crime overall. Certainly when it comes to the province of Nova Scotia we have a decrease, for example, in young offenders being incarcerated overall and yet a significant increase of African Nova Scotians being incarcerated.

I note that overrepresentation itself can contribute to delay in a couple of ways at least. Certainly if there are people in the system who would be better served in another place, as has already been discussed, then keeping them out of the system will limit delays. Furthermore, if there are people who are in the system unfortunately by virtue of perhaps illegal acts by state actors that may include racial profiling, then having them in the system can also cause unnecessary delays. The delays can also increase or exacerbate the problem of injustice in the system. I have noted one example here. There are intersecting issues in terms of people who are unable to afford surety for bail, as Ms. Marshall has indicated and so on, but there may be pressures as a result of delays that cause people to engage in guilty pleas that they would not otherwise take and not fully flesh out some of the justice issues that may have arisen in the context of the situation that brought them into the court.

I have provided you with a detailed academic piece on restorative justice in the African Nova Scotian context. I do not have time to go over here but my research has indicated that restorative justice at least in theory can make room for consideration of root causes of injustice including racial discrimination and has the potential to be transformative in terms of the racial hierarchies and other oppressions in this country. However it can also replicate racial injustice if it is not properly resourced and undertaken with a race conscious approach.

There are few recommendations I would be happy to speak to you further in questioning but I do think that there needs to be a developed mechanism that will monitor and expunge direct and systemic racism in the criminal justice system particularly as it impacts indigenous peoples and African Canadians as has been called upon by UN bodies. That would include implementing the TRC calls for action, particularly recommendations 25 to 42, facilitating the development of indigenous justice systems, as was talked about in the prior panel and culturally specific restorative programs that can help address the overrepresentation, increase legal aid funding and reduce the volume of administrative offences.

Just by way of example in both African Nova Scotian and Mi'kmaq communities you may certainly have people who know each other. We have geographically specific communities here. Having what might appear to be an innocuous condition like stay away from so-and-so may be extremely difficult if you go to the same church and you are otherwise in the community. Paying attention to the cultural overlay of some of those conditions is a very specific example.

I would recommend addressing mandatory minimums, the bail system, and amending the section of the code that requires restraint in the use of incarceration to specifically acknowledge African Canadians as Aboriginal peoples are acknowledged in that section in light of our overrepresentation and unique history.

Thank you. Those are my remarks.

The Chair: We are going to begin questions now with the committee's Deputy Chair Senator Jaffer.

Senator Jaffer: Thanks to all of you. We certainly appreciate your input.

I will start with you, Chief Blais. You heard from Ms. Williams and that is not the first time I have come across the issues that she was discussing. I am a refugee to this country. When I first came my first contact was with the RCMP and I have never forgotten how much they were involved in understanding the challenges of the community in my province of B.C.

I know you do a lot of work around systemic issues and I was wondering how you would address the issues that Ms. Williams has raised. What are you doing as a force? There is no doubt there are systemic issues. Nobody denies that and it is not all on your shoulders either. Everybody has their responsibility, but I am wondering if you could address some of the things that she has said.

Mr. Blais: Certainly. It is rather timely. As you may or may not be aware here in Halifax we have had a recent uptake in very serious and violent crime that has resulted in the deaths of four young African Nova Scotian boys, for all intents and purpose young men. There has been a lot of frustration within the community and a lot of soul searching that has gone on. In fact yesterday I attended a meeting held by the pastors in Halifax to address and look at some of the issues that are there.

Just by chance in the last few weeks I have started reading a decision by the adjudicator Philip Gerard in the decision on Kirk Johnson who you may remember was a boxer who had an unfortunate run-in with one of our police officers in the early 2000s resulting in a human rights complaint. That really forced us to take a look very strongly at what is going on with the question of systemic and what is within the system.

Senator Jaffer: Let me interrupt you. The issue is huge.

Mr. Blais: Yes.

Senator Jaffer: I did not clarify this but it is my perspective from what we have heard from the witnesses in Ottawa. We have heard that it is the poor who stay in jail because they cannot make bail. It is the most vulnerable who stay in jail. Earlier on, and I do not think you heard that, Ms. Marshall spoke about who ends up in jail. I am talking from my point of view of court delay and systemic racism.

Mr. Blais: Obviously the inability to find suitable representation is always a challenge. I am sure you have heard before that the number of self-represented litigants is on the rise. That is not because people enjoy practising law. It is because they are forced to do so. They are unable to do this. This isn't just those people who cannot afford it. These are individuals who are of fairly limited means or even within the middle class.

As you indicated before it is a large issue. Within the decision I referenced before the arbitrator said the best way to deal with the whole issue of systemic racism is to keep on working at it.

You asked earlier on what we do. Obviously as a result of that and many other decisions that have come out of inquiries in the public realm, there has been a lot of work on awareness training. There has been a lot of work on the proper hiring of individuals. I can say that for Halifax Regional Police when it comes to the representation of visible minorities we have — I don't like to say it —overrepresentation if you will. That being said does that mean that we stop and say we have to cut off? No, not whatsoever. There is also the whole issue of invisible minorities, if you will, the LGBTQ individuals from other countries who normally look like the mainstream white. As you all know here in Halifax and having worked internationally I find that this is a very predominantly white if not lily white province. It is certainly not nearly as culturally diverse as Toronto or Montreal or I would even say Winnipeg where I worked before. It is a work in progress. Significant work is to be done and there will be more significant work to be done in the future.

Senator Jaffer: Ms. Williams, thank you also for your presentation. What relationship does critical race theory and critical race feminism have to do with the restorative justice model?

Ms. Williams: I will try to answer that succinctly. There is an elaboration of that in my work as you have seen there. Critical race theory is an approach to the understanding of law that examines the impact essentially of race not just in the outcomes that may happen in a legal system but also in the structure of the rules themselves and how our legal reasoning has developed over time.

The second part of your question was the relationship to restorative justice. My approach to studying restorative justice was to understand its impact in practice on the African Nova Scotian community but also to understand how conceptually it may enhance or undermine racial equality. Theoretically restorative justice has the potential to enhance equality because it allows for a robust notion of justice to be introduced. It is not contained by our sort of retributive approaches or utilitarian approaches that we have developed over time but it allows for more creativity and participatory conceptualizing of justice. If we think about the indigenous traditions by way of example, it would allow an integration of indigenous legal traditions that may not have been contemplated by our justice system as it has developed over time.

Senator Batters: Thanks very much all of you for being here.

Chief Blais, I was wondering if you could tell us a bit about your city's experience with impaired driving charges. As we have been undergoing the last two or three months of hearings on this court delay study, it seems to me from the statistics we have been provided that these are a major problem in the system generally across Canada because there are so many of them. Some of the technical defences could be one reason for this issue. The time to trial is very lengthy so when we multiply the number of impaired driving charges times the average time to trial it seems to be quite a glut on the system. I am wondering if you could comment on that from your particular region's point of view.

Mr. Blais: It is a plague essentially that affects all of Canada unfortunately. Obviously as a sidebar one of the biggest concerns we have with the impending legislation brought forth by the government is we take into consideration the whole notion of impaired driving, impaired through drugs.

Senator Batters: You are talking about the legalization of marijuana legislation.

Mr. Blais: Exactly.

Senator Batters: Yes.

Mr. Blais: That is something that has some great concerns as well. In this province we have between 80 and 95 people who die every year on the roads. Some of those are a result of drunk drivers. Many of them are a result of simply people not even wearing their seatbelts.

Senator Batters: Yes.

Mr. Blais: That could be dealt with. We also have almost as many people die every single year in this province as a result of overconsumption and mixing of illicit drugs, so opiates of all types and concerns.

I am sure any one of the police officers who are behind me and those of you who are on this panel here could attest to this. With regard to delays in the criminal process let's say back in the early 1990s the time it would take to process a 253 or as per the code a drunk driver could be upwards of two to three hours. I was talking to a frontline police officer recently who had one case where it took him eight hours. The chances of conviction are fairly limited as well.

When it comes down to that I was saying yesterday in a community meeting that I had that as police officers we are intensely interested in the process that gets us to the final decision. When we get to the final decision, that is to say the criminal process, we have to be disinterested. It is not for us to criticize the court's decision.

I do not think we are that much different from other parts of the country which are having a tough time with this. I am sure that Mothers Against Drunk Drivers and organizations like that would have more poignant answers to your question.

Senator Batters: Right. The Conservative government with Peter MacKay as Minister of Justice right before Parliament rose in June brought forward a pretty substantive bill which would increase penalties in some respects for impaired driving charges and limited these certain technical defences that have been some of the reason that these trials have been getting strung out from two or three hours like it used to be to sometimes two or three days of trial time.

I am just wondering if you could comment on whether you would like to see the federal government bring back those types of provisions limiting those types of technical defences for impaired driving charges.

Mr. Blais: To be honest with you I have only prosecuted or been involved in prosecution of one drunk driving case in all my career of policing.

Senator Batters: Okay.

Mr. Blais: I am not familiar with the legislation that you referenced even though I have heard of it. Obviously there would be some advantages. The key is our loyalty as police officers lies with the law. There is not a loyalty to the organization. There is not a loyalty to me as the chief. It has to be to the law and whatever the legislator decides upon then obviously we have to live with it.

Senator Batters: Sure.

Mr. Blais: By the same token, and I studied in the Soviet Union, I would not want to live in a society that would turn around and automatically presume somebody guilty by virtue of that.

Yes, if things could be properly done in such a way as to guarantee the rights of the individuals who are there then I could see some advantages there. Especially in light of the eventual it seems to be not necessarily a fait accompli but eventually we have to look closely at what the legalization of marijuana will mean for us in terms of impaired driving.

Senator Batters: Right, because you are concerned that there may not be the proper roadside testing and that sort of thing.

Mr. Blais: There is that. We do have testing now through drug recognition experts but that is far from being a simple machine that you can blow into and that gives you a quantity that is there.

Senator Batters: Thank you. We appreciate you being here.

Senator Baker: I do not think I could pass some of those tests you give at the roadside for impaired driving. I cannot stand on one leg and hop around in a straight line. Give me a break.

I welcome Officer Blais. I saw the form. I have gone over the form many times in cases. You have made a remarkable presentation to us regarding trial delay. You referred to Stinchcombe. You have laid it down. You said that is more important than McNeil.

Now that is incredible, chair, because you know what McNeil is. It forces police officers or anybody involved in a trial to expose their entire history to the court and to the defence. I will get back to that in a second, but on the Stinchcombe disclosure you made a remarkable statement. I believe I am correct here. You said positive disclosure by the defence. Did you say that?

Mr. Blais: That is correct.

Senator Baker: Did you hear that, Sûreté and RCMP deputy commissioner? Did you hear that? That is something we actually discussed because in civil law there is complete disclosure but in criminal law there is no responsibility to disclose.

Are you suggesting a positive disclosure on what the defence has prior to trial as the crown is required to do? I had better put my entire question in the first question because the Chair will cut me off. Here is what I am asking you. Could we put a time limit on disclosure by the crown which would then put a requirement on the police to provide the basic disclosure in every case within a time period prior to trial?

Could we also demand that the police provide certain basic disclosure to the defence prior to plea, officers' notes, continuation reports and the ITO? Have you sworn ITOs?

Mr. Blais: Yes.

Senator Baker: That is very important. The other suggestion that has been made is that the sealed ITOs that involve a procedure before the court, an application to unseal. Would you object to our suggesting that this unsealing be done anyway by the crown? They are going to have to be unsealed. You have to disclose those and black mark them out or vet them. All that would be done prior to trial.

We also suggest that there be complete disclosure by the defence of any evidence that they intend to use at trial prior to trial and only police officers who are being examined as witnesses at trial need provide McNeil disclosure. Right now for every officer involved in a case there has to be complete disclosure of their entire history, according to McNeil.

Those are three suggestions. What do you think of those three suggestions?

Mr. Blais: I will have to go back to the issue of positive disclosure by the defence. Allow me to be very specific on that. First it is the witnesses that people tend to bring forth. Second, it is the fact that agreed statement of facts that can be presented by both the crown and the defence that is there.

I do not mean by saying a positive disclosure that absolutely everything by the defence has to be there, because this is the nature of our confrontational system as opposed to the continental inquisitional system which is directed and led by the judges.

The whole idea is that you have to allow somebody to mount a proper and equitable defence, but there have to be some rules around timelines and what you can and what you cannot expect. We do have expectation that within six weeks of a charge being laid we will have almost all the disclosure. That being said, as indicated before, we have had several high profile cases here but we have had to get information coming from Internet providers from the United States, Google, Facebook and what have you. Because the inline process is a very slow process it takes us absolutely months and months and months and this just delays the whole system. This is not the fault of the defendant. This is not the fault of the crown. Then you start getting the whole issue of does Askov kick in.

The issue of McNeil is an interesting one, the very positive disclosure of disciplinary defaults by the police officers. It is problematic. The police, overall from my prior experience in the RCMP and my present experience, have a very good handle on it and are able to present it as such. Where it causes issues is when you have these huge operations in drug cases, a very good example, or gangsterism you have hundreds of police officers involved. Those police officers have to be vetted before they can even be told that they are going to be working on these investigations. If somebody has a McNeil disclosure that could compromise their credibility then they are just put aside. They could be the best investigator or the best writer possible.

Senator Baker: Do you agree with our suggestion, though?

Senator Jaffer: It is not ours. It is yours.

Senator Baker: Oh, it is not our suggestion. She wants to distance herself from me on this.

Senator Jaffer: Yes.

Senator Baker: But not Senator White or Dagenais. They agree.

Do you agree, though, that we could shorten it to just the officers who are being examined that will bring the case? In other words, if you are the person who swears the ITO, the sworn information to obtain, then you may be called upon to be cross-examined and not the sub-affiant in your ITO who is not being called as a witness.

Would you agree to restrict it to just the McNeil disclosure, just to those who will be used by the crown in the prosecution of the case? Do you agree with putting a timeline on disclosure? Do you agree with the defence having to disclose what you said they should disclose prior to trial?

Mr. Blais: Going backward, I agree that the defence should disclose.

Senator Baker: That will shorten time.

Mr. Blais: Yes. With regard to the McNeil I am not too worried about the amount of time that would have to be there. The problem occurs when the defence says they want everybody. It ends up being that we bring all these police officers to testify.

Senator Baker: Why not restrict it?

Mr. Blais: That could be a possible restriction.

With regard to timelines it is a bit more problematic. You have to look at disclosure as being done in waves and depending on how much information is there. I absolutely agree and think it is a fundamental principle of our legal system that when the police come across any type of inculpatory and exculpatory information we owe to the rule of law to present that. If we were to set an amount of time we would be cutting off our noses despite ourselves because we would cause issues for that.

Senator White: Thanks very much, all three of you.

Professor Williams, some of the discussions have been around alternative management systems for criminal cases. I am not sure if you are familiar with the impaired driving in British Columbia that was referred to earlier where administrative penalties are being used more for impaired driving charges than criminal penalties. If you blow over a 1.10 traditionally you would have been charged with over .08 and you would have gone through the criminal program. Instead your licence is removed for six months. You receive a $500 fine and you. If you wish as the driver you can appeal that but you are not convicted criminally of a criminal offence. In fact you have two lines of appeal.

The result in British Columbia has been a dramatic decrease in the number of trials for impaired driving. I think every jurisdiction in this country would welcome a 70 per cent or 80 per cent reduction in trials. You look at this from the other end of this than I look at this. My perspective is certainly from a policing perspective. Do you see any problems with that system from a community or a client perspective?

Ms. Williams: Just as a point of clarification, I try to look at it from a broad perspective as possible.

Senator White: That is perfect. I will take that.

Ms. Williams: I certainly recognize and would like to see more African Canadians and indigenous peoples across all aspects of the criminal justice system in terms of personnel. In terms of thinking creatively about the criminal justice system, what is it that we are trying to achieve through the criminal justice system, sort of going back to first principles. I would certainly be open to considering alternative forms of penalty if we have done sufficient assessment about what the harm is in question, whether it is appropriate to take that into an administrative context, or whether it is within the realm of a true crime and something that we want to continue to have a heightened level of societal sanction about. It sounds like that process was thought through in B.C. As long as there is not a division of powers issue or so on, as impaired driving is an area where we do overlap that is constitutionally legitimate, then I think that would be fine.

Senator White: By the way they are also doing it in Alberta now as well for impaired driving. In Canada we have summary conviction, indictable and dual procedure. Unlike Australia which has offences that can be state offences, for us it would be provincial and/or it could be federal. We do not have that capacity for the most part.

Ms. Williams: Right.

Senator White: Do you see a value in Canada of moving a number of our crimes that are bogging down our system into the provincial realm where typically you have fewer appearances? On average in Ontario there are nine appearances for your average shoplifter and common assault. It does not matter but the gravity of the offence almost has no indication on how many appearances there will be. Would that be helpful?

Ms. Williams: I have a couple of points on that. I guess we are bracketing our federal system that actually would not allow for something we term to be criminal to then be within the jurisdiction of the provincial government.

Senator White: That is what impaired driving is in B.C. now. It is actually under provincial legislation, just so you know.

Ms. Williams: No, I understand that. If we are talking about something that we have deemed, I am aware that there is allowed to be overlap in our federal system in terms of categories where we might have provincial involvement for one reason, but our criminal matters are reserved for the federal government and as part of federalist system. Short of a constitutional amendment but I think on principle if we are as a federation deciding that there are certain things that rise to the level of being criminal then that should remain within federal jurisdiction.

It takes me back to my original point of what is the point of addressing delay. We want efficiency in the system but to what end? We always have to step back and say we might be able to tinker over here and make this all move faster, but what do we get at the other end? If we want to step back and say we have determined that shoplifting is such that we really do not think it is criminal anymore as it is just not that much of an impact on our system, then let's talk about that, remove it from the code and maybe put it somewhere else.

We know that what we define as harmful at the criminal level changes over time. Texting and driving and drinking and driving did not used to be criminalized but we found that they had risen to the level of criminal harm that we as a society abhor and so we put it in the code. We have to have that type of conversation.

Senator McIntyre: Thank you for your presentations.

Professor Williams, congratulations on the good work that you are doing both as a lawyer and as a researcher. In listening to your presentation and in reading your reference notes I note that you have made seven recommendations to the federal and provincial governments.

You have already gone over those seven recommendations but if you had to make one recommendation that both levels of government should enforce within the next 30 days which one would you choose of all seven? I know you would say all seven but just choose one.

Ms. Williams: You are only giving me one.

Senator McIntyre: Just one, yes.

Ms. Williams: I absolutely would choose the first one.

Senator McIntyre: The first one, the truth and reconciliation.

Ms. Williams: Right. It is broader than that. It is that the respective federal and provincial governments take account of the reports, the judicial pronouncements and other legal sources that already exist about the nature of injustice in the current system and design a mechanism to respond to those.

Senator McIntyre: Chief, are you satisfied that police officers are making full use of their statutory release powers?

Mr. Blais: No, it is one of the powers as indicated in the code that has caused us some challenges with regard to who really has the powers in there. This is something that has forced us to spend a lot of time on the policy end of things to ensure that it is properly taken care of. I am always at odds as to wondering what is the best way and what is a better way to be able to improve that and unfortunately I do not have an answer to that.

Senator McIntyre: In other words, more summons, more appearance notices, more promises to appear, more recognizance or undertakings, otherwise the accused remains in jail.

Mr. Blais: And remains in our prisoner care facility. We want to be able to clear them out as much as possible. Actually it is interesting point that we see on any Friday or Saturday night we have about 45 to 50 individuals in our care at any given time. It could be upwards of 100 people depending on what they are in for. Very often it is for provincial offences and it is for public intoxication.

Senator McIntyre: In three other provinces including my home province of New Brunswick, crown attorneys are involved in screening charges before they are laid. In the other provinces police lay the charges.

Do you think that charge-screening should be introduced in Nova Scotia? The reason I am asking you this question is that I have always felt that there should be good co-operation between crown attorneys and police officers. Crown attorneys need police officers and police officers need crown attorneys. Both have to work as a team. The reason for that is because the onus of proof is on the crown. The crown must prove its case beyond a reasonable doubt. Otherwise it is like a house and everything falls down. In light of this I think screening charges are important. Could I have your views on that?

Mr. Blais: The references earlier to federalism and sections 91 and 92 of the Constitution Act, 1867 are interesting. This is an area of provincial jurisdiction. I have worked in investigations whereby crowns have worked very closely with us. I have also worked in investigations where we did not really need a crown until it was time to go for the prosecution.

To answer your question, I don't think pre-charge screening is something that I could see having particular advantages for here, but I do see the absolute critical importance of the police working hand in hand with crowns to be able to determine what is the best way to go during the investigation and not just after all the information has been obtained and the evidence has been sorted out. It is on a case-by-case basis.

Senator McIntyre: Generally speaking in Nova Scotia is there good co-operation between crown attorneys and police officers?

Mr. Blais: Yes, very good co-operation.

Senator McIntyre: You get along well.

Mr. Blais: Yes.

Senator McIntyre: That is important.

Mr. Blais: Yes.

Senator McIntyre: If you want a conviction that is the way to go.

Mr. Blais: If I may just say one thing I am not looking for convictions. As Professor Williams indicated we have to take a look. We can be as six sigma and as kaiser lean as anything in the terms of justice but to what end?

[Translation]

Senator Dagenais: I would like to thank the witnesses. When one is the last to ask a question, one is likely to touch on the same subjects again.

You know that the police officer is the first to intervene, the one who runs the investigation, and, following the investigation, the one who decides whether to lay charges. The officer forwards the case to the crown prosecutor. You also know that there were megatrials in Quebec with such long and unreasonable delays that the trials were aborted. In conclusion, we have to look at whether we should still have megatrials or whether the accused should be separated under certain circumstances.

Should one of the solutions be to have more prosecutors? I know that some investigators were very disappointed in the attitude of the Director of Criminal and Penal Prosecutions because there were undue delays. The big disappointment when it comes to investigations is that investigators work so incredibly hard. This is not necessarily the prosecutors' fault, but still, trials are aborted, and all the work that was done is wasted because of undue delays.

I'm sure you are aware of the Charbonneau commission in Quebec, which was very high profile. The permanent anti-corruption squad ± UPAC ± was created, and to provide just one example, the mayor of Laval is going to be on trial, which might happen in four years. Who knows whether he will last another four or five years. That's why I want to ask you, as a police officer, what you see as the solution to these delays. The interminable delays are responsible for so many police investigations being dropped.

Without lobbing accusations, we know that defence lawyers do an excellent job of delaying trials, requesting postponements for any number of reasons, calling more experts, and so on. We saw that with the trial of a doctor in Quebec. As a police officer, how do you think you can work with crown prosecutors to shorten those delays?

Mr. Blais: It is interesting, particularly in the case of UPAC, to see the problems they are having right now with the prosecutor and to see that the number of prosecutors is shrinking.

One component is obviously making sure people are better trained, and I'm referring to the police side of things. It's important for police officers to understand how the judicial process works. I'm fortunate, having graduated from Université Laval's law program. When I prepared my judicial authorizations, I had the knowledge to understand all the inner workings and intricacies associated with a case. Increasing the number of prosecutors is certainly another component. If you recall, the period from 1987 to 2000 in Quebec was especially tough for police from a justice standpoint; I know, as I worked there during that time. It had to do with more than just the crime. The Rock Machine and the Hells Angels were active in Quebec City and Montreal. I'm also referring to the Poitier commission. You know which case I mean, don't you?

Senator Dagenais: Yes.

Mr. Blais: So it was absolutely critical. I also worked on the Matticks brothers case. It wasn't easy, far from it. We're talking about organized crime, full-on organized crime. These people are organized, let me tell you. They are organized in every way, from their financial resources and clout in just about every area of society, including politics — as you just mentioned in the case of Laval's mayor, Mr. Vaillancourt, if I'm not mistaken — to their ability to not play by the rules.

But we — the police, prosecutors and judges — have no choice but to play by the rules. So when one side doesn't play fairly, it's clearly an uneven playing field. It comes down to training and standards; it comes down to assigning resources to these cases. It also comes down to society, however. It comes down to choices.

So what are our priorities at the municipal level? We always have to work within the confines of our budget. Someone asked me yesterday why more officers weren't assigned to society-based prevention, in other words, community-based policing. The answer is that I have other requirements, other public safety needs, ranging from sexual crimes and child abuse to speeding. That means we have to make choices, tough choices for the years ahead. That gives rise to this question: Are we really going to be able to afford to go high end in terms of a model to address timelines and delays? What is the price tag we are paying now? Unfortunately, I don't have the answer to that. Even though it's an extremely complex issue, people always look for an easy solution, and I don't think that's the right approach.

Senator Dagenais: Thank you, Mr. Blais.

Mr. Blais: My pleasure.

[English]

Senator Jaffer: I understand that you now have a law about passing safely when there are emergency vehicles and apparently there have been many court cases. Is that administrative or is it under the code?

Mr. Blais: It is provincial.

Senator Jaffer: It is provincial.

Mr. Blais: Yes, very simply.

Senator Baker: You say that you do not know if you agree with our putting a time limit on disclosure because you say that in some cases you have to wait months and months and months for some information on some wiretaps in some foreign nation. That is precisely why those 10(b) arguments are successful. It is because the trial cannot be completed because of disclosure. I mean surely we should not allow these crooks to get off as often as we do on an 11(b) argument. Wouldn't you agree that your choice as a police officer is if you don't have the evidence you don't lay the charge. Wouldn't it be better for you to wait until you get the information to lay the charge and allow us to put somewhere in the law that all disclosure must be given prior to trial or a certain number of days prior to the set trial and foreclose the 11(b) argument? I mean you cannot have it both ways. I can understand your point about complicated trials, but do you see our point? We have to stop these 11(b) arguments from going through and setting off all these crooks. They go off free.

Mr. Blais: I can understand the issues that you are saying there, but let's not forget that a very important actor in this whole process is the public. More and more with the whole issue of social media there is the judicial trial and then there is the ongoing public trial. We have seen it recently in Toronto with the Ghomeshi issue. We have seen it certainly among your peers, but we have also seen it here in this province with the Rehtaeh Parsons issue. This is where we had to wait on information. Yet anonymous people were out there in other countries lambasting us and the judicial system by saying, "We have all the information.'' No, you they don't have all the information. That is the reality we have to live today.

That being said, this is not something new. I refer you back to Professor MacFarlane from the University of Manitoba who wrote the book Convicting the Innocent, a very important text. He talked about issues in the 1920s and 1930s with the Baby Lindbergh case for one and Sam Shepard for the other and how the regular media at the time, not even social media, was putting out there: "When will Sam Shepard be arrested?''

We had the same thing here. The same day in front of our police service we had people who wanted the arrest of these four boys. Eventually there were only really two who were there. Then two hours later we had a counter- demonstration of people in support of the four boys. How do you deal with that? That is why we have to be very careful when it comes down to those issues.

The Chair: I thank you all for being here and contributing to our study. It is very much appreciate it.

(The committee adjourned.)

Legal and Constitutional Affairs

Proceedings of the Standing Senate Committee on Legal and Constitutional Affairs

Issue No. 8 - Evidence - May 6, 2016 (Afternoon Meeting)

Proceedings of the Standing Senate Committee on
Legal and Constitutional Affairs