Proceedings of the Standing Senate Committee on
Legal and Constitutional Affairs
Issue No. 12 - Evidence - September 27, 2016
VANCOUVER, Tuesday, September 27, 2016
The Standing Senate Committee on Legal and Constitutional Affairs met this day at 1:47 p.m. to continue its study on matters pertaining to delays in Canada's criminal justice system.
Senator Bob Runciman (Chair) in the chair.
[English]
The Chair: 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 19th meeting on this study.
For our first hour we are pleased to have with us today from the Vancouver Police Department, Adam Palmer, Chief Constable; from the British Columbia Crown Counsel Association, Jennifer Lopes, Vice President; from the British Columbia Ministry of Public Safety and Solicitor General, Sam MacLeod, Superintendent of Motor Vehicles; and from the British Columbia Justice Reform Initiatives, Geoffrey Cowper, Chair and author of the report, A Criminal Justice System for the 21st Century, prepared for the Minister of Justice and Attorney General of British Columbia in 2012.
Thank you all for being here. The floor is yours, beginning with Mr. Cowper.
Geoffrey Cowper, Chair, BC Justice Reform Initiatives: Thank you, Senator Runciman and members of the committee, for inviting me to speak to the issues of delay in Canada's criminal justice system.
I thought by way of my opening remarks I would address four questions. First, what is the nature of the problem? Second, why should we believe we can solve it? Third, what solutions do we need to develop? Fourth, are we making progress?
With respect to the nature of the problem I would make the first observation that it is a very old problem. We need to understand that every criminal justice system in virtually every country for centuries has from time to time and quite regularly encountered the problem of delay in criminal justice. We have to realize it is a very common and very old problem, so any solution has to be framed with that in mind.
The second aspect of that is to at least have a general understanding about why a criminal justice system would regularly encounter problems and delay. If you make the observation that it has been common for centuries to occur in every country you would think there is some underlying commonality in the problem. There are at least a few commonalities.
For my purposes what I would highlight is the fact that in Canada's criminal justice system by constitutional necessity and constitutional value we grant to each of the participants a very substantial independence in the execution of their offices. Each of the investigative, prosecution, defence and courts enjoy a necessary and valuable autonomy from one another, but that from a systems analysis perspective raises an ever-ready risk, an ever common risk of delay.
The concomitant observation is that although they are independent they are interdependent as it relates to the timeliness of their own process, so prosecutors cannot get to work until the investigation is finished. The courts cannot be responsible for overall delay when their files do not get opened until the charge has been laid in the courts, and so you have each of the participants independent of one another but in terms of their own performance they are interdependent with each other's performance.
There are many other comments there but I will go with that from the nature of that problem to talk about why we should think we could solve this problem now. I have a few points there.
The title of the report I gave in 2012 on criminal justice for the 21st century. The 21st century gives us tools that we have not had in previous centuries and those tools give us reason to be optimistic that not only can we solve the delays which affect Canada's system today but we can produce enduring and durable solutions for the problem of timeliness.
In general the information systems, the computer systems, the systems analysis, business intelligence and management systems have transformed the rest of our lives. How we get a car at the airport, how we buy groceries, the receipt of our medical services, the way in which airplanes fly on time, all of those can be applied in my view to performance within the Canadian criminal justice system.
I will just hint at that now and you may want to follow up with questions.
My fundamental conviction is that we have solutions at hand that are being developed and applied that should give us reason to be optimistic. What types of solutions are those?
Firstly, we need to have solutions that work for each of the participants. They have to be solutions that will work for the professional purposes of the people involved and they have to be developed in a way that respects the independence of the participants.
A system which produces timeliness in one participant is not necessarily going to produce system performance. Ultimately Canadians are entitled to system performance not just performance by prosecutors or performance by judge but performance by all of the participants.
I will give you a hint on some of those things and then perhaps tell you what I think has been made by way of progress. Ultimately in my view we have to apply modern tools to these ancient problems.
Are we making progress? In the last couple of minutes I will just indicate where I think we are making progress and some hints of where we can go. Firstly, we are making progress in British Columbia. The backlogs that were experienced in the system in 2012 have been dramatically reduced. Timeliness is improving in the provincial court. The Supreme Court of Canada has revised its handling of major cases which I think is a significant improvement. The police have adapted their processes in many ways to ensuring timely investigation of cases and the prosecution services made significant changes in the way in which they assign files, manage files and pursue early resolution. Finally the Legal Aid system has actually developed an extended duty counsel system which also enhances early resolution.
In closing what I would say is that there is no single answer to this problem. There have to be answers which work for each of the participants. Then they have to be worked on and so that they come together in a collaborative fashion to produce an overall system performance that is more timely.
My final remark is to you as senators. I think there is a need for a Canadian solution. I do not know of any basis in which we would think that people in Newfoundland have less interest in a timely criminal justice system than people in British Columbia. To my knowledge there is no concerted effort to develop national performance standards for the performance of the criminal justice system.
I appreciate the division of powers but this is a matter over which the federal government has always had constitutional responsibility and in my respectful view is an area in which national leadership is needed and would be valued by Canadians.
Jennifer Lopes, Vice President, British Columbia Crown Counsel Association: I would like to thank the standing senate committee for inviting the British Columbia Crown Counsel Association to be a witness in these proceedings.
The association represents the 460 Crown counsel in the province and we are the exclusive bargaining agent for them. I am here in my capacity as the vice president of the association and my testimony today is not given as a representative or member of the criminal justice branch.
I have reviewed the August 2016 report of the committee and I am pleased to see that the concerns regularly expressed by my members are reflected in that report. Crown counsel and prosecutors acknowledge our role and our constitutional obligation in ensuring that criminal matters proceed in a timely way. We know the importance of mitigating delay firsthand. I would like to highlight four areas that cause our members concern and if addressed we believe would alleviate some of the causes of delay.
First is technology. Technology is critical to enhance our efficiency and productivity from the very beginning when the file comes from the police to the Crown and to the presentation of the file in court. An effective prosecution requires the proper tools. Our members express frustration that both hardware and software issues work to decrease our productivity and at times impede our ability to do our jobs.
As well the courtrooms need to have the capabilities to record and present evidence. Increasingly audio-video evidence is becoming the norm. In our courthouse it is not the norm to have access to that type of equipment on a regular basis and special precautions have to be made with the evidence.
When prosecutors and support staff have to spend time photocopying instead of being able to electronically display evidence or arguments, valuable resources are being used inefficiently. Disclosure is a daunting task when you do not have reliable, efficient, safe and fast technology.
Our ability to process charges and provide vetted, comprehensive disclosure depends on the appropriate technology being available. This aspect is a focus for our prosecution services and we are working very hard to achieve a level of effective technology in order to do the work more quickly and efficiently.
Second are personnel. The demand for prosecution services in this province is increasing every year. The number of reports to Crown counsel has increased 5.4 per cent in 2015-16 from the previous year. As well the number of accused persons with charges approved to court has increased 6.2 per cent from the previous year. The number of cases is increasing and without question the complexity of those cases is increasing.
Crown counsel has to deal with increasing workload while maintaining their obligations to the public, the Canadian Law Society and the courts in a fair and principled manner.
In order to do this the appropriate number of prosecutors and their support people has to be maintained. If the number of judges hearing criminal matters increases, so should the number of prosecutors to staff those courtrooms.
One example is the retention of senior level prosecutors which could be facilitated by establishing programming, both mentoring and alternatives to full retirement. Mentoring for junior levels provides assistance to the senior prosecutors and excellent learning opportunities for the junior. Allowing staggered retirement, which is not available to us, would provide the prosecution services access to the most experienced personnel when needed. This along with adequate support personnel would assist in effectively moving all types of files through the system.
Third is Legal Aid funding. An effective prosecution is assisted by a robust Legal Aid system. Dealing with unrepresented accused causes delays in the proceedings due to our inability to engage in resolution discussions, the additional proceedings to deal with issues such as the appointment of counsel to cross-examine, and our inability to obtain admissions of fact which clearly reduces trial time.
The effect of not being able to engage in resolution discussions with unrepresented accused is highlighted by the number of files disposed of before or at arraignment. In this province, in 2015-16, 73.4 per cent of the cases were dealt with before a trial date was even set. That number would be even higher and trial time would be freed up if the number of unrepresented accused were lower.
Lastly is a lack of court time. Crown counsel is responsible for scheduling our own court commitments. The lack of court time means that we are scheduling six to ten months in advance for trial time. Depending on the nature of the matter, for example, in-custody matters take priority. If it is a lengthier matter it is set longer down and the further away they schedule it. We the prosecutors are constrained by the systemic delay and have to work with the court time that is offered to us.
In the meantime continuations, sentencings, and pre-trial applications have to be set. Our members fit these appearances into their trial schedules thereby sacrificing their preparation time. The pressure to use up our own preparation time to fit matters in so that they move as quickly as possible through the system is tremendous. This means less time preparing victims and witnesses as well as legal arguments. This of course is untenable to prosecutors and the stress of making it all work is significant.
The most frustrating aspect of lack of court time is when a case is prepared and victims and witnesses are present and the matter gets adjourned due to lack of court time.
The Chair: Ms. Lopes, I have to ask you to wrap up. I am trying to be generous with witnesses.
Ms. Lopes: Adequate court time should be made available in order to assist on moving these matters through. These are but four aspects we wish to see addressed to mitigate court delays.
Adam Palmer, Chief Constable, Vancouver Police Department: Distinguished members of the committee, I thank you for today's invitation to discuss matters pertaining to delays in Canada's criminal justice system.
Over the past several decades police investigations have become increasing long and complex, providing challenges for both the police and the justice system. The three issues that I would like to speak to today are investigative complexity, challenges with technology and disclosure challenges.
The major events that were cited in the LeSage-Code report have transformed police investigations and increased the workload on the police. Even the simple tasks that are required for a routine investigation can involve multiple hours of work by both police officers and a support network of civilian personnel to meet police obligations to Crown and the courts.
For example, let's quickly examine a fundamental part of police investigations, the interview of witnesses. To provide best evidence to the courts interviews should be audio/video recorded and provided to Crown with a transcript. For a one-hour interview of a witness the following would need to occur:
One hour of a good audio recording takes approximately six hours to transcribe. A poor recording could take 1.5 days or more. Proofing of the interview by the police officer would come next, then vetting of the transcript for personal or sensitive information along with vetting of the audio/video recording by project assistants. Next would be organizing the interview into disclosure packages and preparing DVDs for disclosure. Interviews in another language would add significantly in both time and cost to this process.
Now consider that there may be multiple witnesses, victims and suspects involved in an investigation and that these interviews will vary in duration. The time and resources required to perform this basic police function compounds quickly. This example of increased complexity is not unique to witness statements but pervades almost every aspect of modern policing.
Second, changes in technology: The advancements in technology and the prolific use of electronic devices have evolved the way crimes are committed and has resulted in new types of crime. Cybercrime is a fast-growing and under- reported form of criminality that is creating new challenges for police and the criminal justice system. This can come in the form of technology as the target of crime or technology as the instrument for crime, the latter being the more prevalent.
We see technology as the target of crime in cases of computer hacking, botnets, malware, denial of service attacks, network intrusion, data theft, and other areas. Technology as the instrument for crime is increasingly seen in police investigations such as fraud, criminal harassment, uttering threats, child luring, distribution of child pornography, cyberbullying, identity theft, phishing, swatting, ransomware, drug trafficking, terrorism and national security investigations, and others.
In 2015 we saw cybercrime make its way into 43 different categories of police files spanning more than 5,300 individual files in Vancouver alone. This number continues to grow every year. The challenges faced by police and the justice system related to this evolution are multi-faceted, some of which include addressing new types of crime committed with the use of this technology; the location of victims, suspects and computer servers in multiple jurisdictions throughout the world; navigating shifting laws of search and seizure related to electronic devices; overcoming barriers to searching devices such as password protection and encryption; obtaining information and data from service providers in a timely manner; the lack of standardization of information stored and retained by service providers; reviewing, analyzing and disclosing the enormous volume of information and evidence found on devices; and the need for additional financial, human and infrastructure resources to investigate, disclose and prosecute. These challenges add significantly to delays and police investigations and disclosure.
The overall result is that the difference between the police work and disclosure involved in major investigations and even average size files is narrowing. Generally what separates a major investigation from other investigations are the resources available and the number and type of investigative strategies that are applied. Each of these strategies generates information that will require large amounts of disclosure.
For example, investigations involving a Part VI wiretap, a traditional hallmark of a major investigation, require an enormous amount of work to prepare legal applications, intercept communications, transcribe and disclose thousands of intercepted private communications.
Now consider that many smaller investigations rely on similar common investigative techniques that have potential to generate large amounts of information, much of this due to advances in technology. This includes obtaining warrants to search and recover evidence stored on electronic devices that may involve viewing thousands of videos and photographs to determine evidentiary value and disclosure; and obtaining production orders for call detail records from cellphone service providers and records related to social media, resulting in hundreds or thousands of pages of information. Video surveillance is commonplace and an evidentiary component in many cases in an urban environment. Video canvassing alone may result in numerous hours of video in multiple sources that require conversion and disclosure.
It is easy to see from these three investigative strategies how time consuming and involved police investigations have become and the amount of disclosure they can generate.
As technology advances and the courts continue to widen the scope of what is relevant and considered investigative material, the amount of information required for disclosure will continue to increase. In addition the investigation, disclosure and prosecution of these matters will require varying levels of specialization and expertise on the prosecutorial side.
Adaptation to these challenges will require collaboration among all components of the justice system to identify and address gaps in the current law. Addressing some of these gaps could include standardized data storage and retention for telecommunication service providers and verification of subscriber information, standardized information sharing system between police and Crown, and technological resources and related training to the justice system with regard to receiving electronic disclosure that continues to grow in volume. The level of sophistication varies among police agencies and between police and Crown.
Established processes for early consultation between justice system participants to streamline the disclosure process and reduce delays is not usually an issue for specialized investigative areas but it can be an issue on more routine cases.
Research into all these areas, which includes an analysis of what other countries have done to address these areas of concern, should be encouraged. The Government of Canada should be encouraged to commission a study by way of committee and/or academic review of the evolution of crime due to technology; the impact on the public; and the capacity and capability of law enforcement agencies to protect the public, enforce the law and make recommendations for future action.
The Chair: Excuse me, but I will have to ask you to come to a conclusion.
Mr. Palmer: Although maybe slightly out of scope for the committee's mandate I would be remiss if I did not mention one final point. I know the focus of these meetings is to discuss the delays in Canada's criminal justice system. However it is important to recognize the value that comes from assisting people in a proactive manner before they become involved in the justice system. While alternative courts such as mental health courts, drug courts and the Downtown Community Court play a vital role, they all involve people who have become involved in the justice system.
Given the well-known nexus between drug addiction and fewer serious crimes such as property crime being used to supplement a drug habit, more needs to be done to support people trying to find treatment whether they have committed a crime or not. We need to look at other options such as treatment on demand whereby people are fast- tracked into detox and recovery when they come forward for help. This is not always the case today. Thank you.
Sam MacLeod, Superintendent of Motor Vehicles, Ministry of Public Safety and Solicitor General, Government of British Columbia: Senator Runciman and committee members, I appreciate the opportunity to come before you today and speak to you about the Immediate Roadside Prohibition program, which is B.C.'s response to drinking and driving.
I just want to give you a bit of background. Prior to the implementation of the IRP program in 2010, B.C. was much like any other jurisdiction. Police used Criminal Code charges, driving prohibitions and 24-hour prohibitions to deal with drinking and driving.
Criminal Code charges required the police officer to leave the roadside with the driver and take him back to the police agency. That took the police officer off the road for about four hours, which is an inordinate amount of time, and then a routine Criminal Code investigation would consume about 25 to 30 hours of time. The number of Criminal Code charges in B.C. during that time period was about 8,800 annually and that consumed approximately 30 per cent of the available provincial court time.
In the decade from 2000 to 2010 we witnessed in B.C. the drinking and driving fatality rate stagnate at about 113 deaths per year. The incidence of blood alcohol content in drivers remained static as well, so there was no downward trend in that. To respond to this problem and the overload in the court system the IRP was introduced in September 2010.
On how it works, the IRP program delivers immediate and significant sanctions under the Motor Vehicle Act. These include monetary penalties, immediate licence prohibitions, immediate vehicle impoundments, mandatory referrals to the remedial programs, and oftentimes a requirement for an ignition interlock. The IRP model is designed to be efficient for police to use. It is done at roadside. There is no requirement to go back to a detachment with a driver for further breath screening.
When you look at the warn range infractions between 0.05 and 0.08 blood alcohol content, the first infraction on a warn is a 3-day driving prohibition. The second infraction within five years is a 7-day and the third and subsequent infractions are 30-day driving prohibitions.
Fail range prohibitions or refuses to comply end up in a 90-day prohibition and a 30-day vehicle impoundment. The police have the opportunity to use the pre-existing tools of Criminal Code charges for more significant offences or a driver with multiple IRPs.
Just from a monetary sanction perspective the monetary sanctions are significant. A 3-day warning with the admin penalty, towing charges and licence reinstatement results in a total cost of about $600. As a 7-day it increases to about $780 and a 30-day is about $1,330 in total. The fail or refuse to comply costs are about $1,430 so they are significant and the remedial program costs are incremental.
There are two remedial programs in B.C.: the Responsible Driver Program, an 8-hour education session or a 16- hour counselling session, and the Ignition Interlock Program that I mentioned.
In February of this year the requirements to participate in the remedial programs became mandatory on a certain number of remedial points being assigned. We assign points based on the sanction. A 24-hour suspension is two points, a warn is three, and a fail is warn range. If a driver gets six points in a 5-year period they must participate in the Responsible Driver Program. If they get nine to ten in a 5-year period they must partake in the Ignition Interlock Program.
Just to talk about the administrative justice side one of the goals was to take these offences out of court. The appeal process is handled out of my office. If drivers want to appeal or dispute an IRP they have seven days to file a notice with my office. The appeal is either held in writing or orally depending on the length of the sanction. The important part is that police officers do not participate in these reviews. They submit a sworn report to my office and that is what is used in the adjudication process.
There are 13 grounds for review and they must submit under those 13 grounds. They really are about the screening device, whether or not the tests or the readings were reliable. The review must be carried out by my office within 21 days under the Motor Vehicle Act. I can extend those if required. In 2015 we extended about 22 per cent of all reviews. We expect that number to dramatically reduce in the coming year. We have increased the number of resources in that program area significantly.
On legal challenges to the model we have had constitutional challenges to the IRP. It has survived those challenges with a number of iterations, a number of versions of the IRP. We are on version 3, so currently it is lawful, it is operating and it is very effective.
As for the effectiveness of the IRP the significant issue for us was the number of alcohol-related fatalities we were having in this province with drinking and driving. As I have said it was about 113 a year. That is now down to 56 a year on average in the six years since inception of the program. That is about 300 lives saved in total. These benefits have been corroborated. We have independent studies acknowledging the reduction in fatalities, alcohol-related fatalities, injury collisions and property damage.
We do roadside surveys on a regular basis in B.C. We had one done in 2010 and one done in 2012, so it kind of book-ended the implementation of the IRP program. We looked at 2,500 drivers in each of those studies who were taken off the road and voluntarily submitted to an alcohol breath test. The numbers there have substantiated a reduction in fatalities: a 59 per cent reduction in over 0.08 blood alcohol content, a 21 per cent reduction in the warn range of drivers, and a 44 per cent reduction overall.
When we look at these numbers out of the courts we see a reduced number of cases going to court by about 73 Criminal Code charges a year. That is about an 83 per cent reduction in Criminal Code charges going to court and about 34,000 cases in total.
In conclusion, the benefit is the program is working incredibly well. It is incredibly successful in reducing the fatalities, taking those 7,300 charges out of court every year, and significantly reducing the blood alcohol content of drivers. Thank you.
The Chair: We will now move to questions beginning with the committee's deputy chair, Senator Baker.
Senator Baker: Thank you to the witnesses for their very excellent presentations. Having these presentations on the record will become part of our consideration for the report of the committee.
I would like to mention that Mr. Cowper's point of no national standards is a very relevant one and one that we are hearing a lot about. I would like to ask my question. It was a question that was in my mind as I listened to the Crown representative and the chief constable. Very complex trials, as the police constable said, involve complex disclosure issues. The investigations go on for long periods of time. Pre-charge delay and post-charge delay are covered by section 7 of the Constitution of Canada and by section 11(b) of the Charter of Rights and Freedoms, and cases are being thrown out.
In British Columbia the police are not permitted to lay charges; it is done by the Crown. You are not allowed to lay charges, even the Crown, for terrorism offences. An office in Ottawa eventually lays those charges.
What effect does this have on the morale of a police officer who has pursued a matter for four or five years, accumulated all of this evidence and so on, and then just have it thrown out? That is my question to the Chief Constable.
I have a major question for the Crown counsel. What would be your objections to including in our report a requirement that all disclosure must be presented prior to trial, and if you had disclosure during trial it would have to pass the normal test that you used due diligence to get it before trial or it was not available for you?
Those are my two questions: One to the police and one to the Crown.
Mr. Palmer: First off I will say generally to your comment with regard to morale that morale is good within the police force. However there are certain frustrations that officers feel, especially officers that work in specialized investigative areas involved in very lengthy and complex trials, major crime type files, homicides and things like that. There is a misunderstanding by the general public and probably even within the police department with some patrol officers and frontline officers how involved some of these complex files are for police.
Another part of your question talked about how the Crown lays charges in British Columbia. I am actually a fan of the system in British Columbia. I know it is different from other parts of Canada, but I think it actually makes us stronger because we go through the review process with Crown counsel. It is a good vetting process. It makes sure that we have all the information required for successful prosecutions. I am actually in favour of the model that we have in B.C.
The Chair: How about the main question on disclosure prior to trial?
Ms. Lopes: We conduct our prosecutions here with the goal of full and complete disclosure before a trial date is even set. We do that because scheduling frankly is an art more than a science in trial work. Once full disclosure is done both sides are able to analyze the case and provide the best estimate to the court about the issues the trial is going to cover.
Now that is not always possible or realistic. We know that. Absolutely no prosecutor would ever want to be in the middle of the trial and have late disclosure happen. It sends everything off the rails. If you are contemplating suggestions or directions that disclosure be complete before the trial date that is our goal and that would be a suggestion we would all heartily embrace.
With regard to what you do when disclosure does happen during the trial, there are remedies available anywhere from an adjournment for the defence to consider the main disclosure.
The Chair: That is the problem. It leads to delay.
Ms. Lopes: Correct. Any disincentive to late disclosure is very important. The Crown has the problem in that we do not control the flow of information to us at all times. We too do not want to see a trial go off because of late disclosure. We work very hard to try to get the information in.
Like I said the best foot forward is all disclosure completed at arraignment when the trial date is being set.
Senator Baker: You would have no objection.
Senator Jaffer: Thank you for all your very helpful presentations. I have many questions but I have limited time so I will start with Ms. Lopes on the criminal and the unrepresented.
I have heard from a number of witnesses in Ottawa and even from the Supreme Court. My understanding is that there are not many unrepresented people in the criminal court, but I have heard from you and from many other people outside of these hearings that many are unrepresented. What is your experience? Are there many unrepresented?
Ms. Lopes: I work in one of the busiest provincial courthouses in the country, the Surrey Provincial Court. We do have unrepresented accused because of the very large volume. There are duty counsel in the courthouses every day but our court lists run over 100 in three courtrooms alone so one person or two people cannot see everyone.
There are many people who do not meet the Legal Aid requirements. Any small income seems to disallow them from Legal Aid. I do not know the exact rules around that but yes, in provincial court it is an issue for us.
Senator Jaffer: This will take all my time but I think it is important for the committee to hear it. We were at 222 Main Street today and we saw how the community court and the drug court work. We heard about it.
In Surrey do you have anything like community courts or drug courts? Coming from British Columbia I would like my colleagues to know the challenges you face in Surrey. It is the busiest, that I know. What does it look like? Why is it so difficult? Why do court delays affect so much the courts where you work?
Ms. Lopes: Surrey Provincial Court is under an expansion project so I think things will change. We do not have a community court or a drug court. We have recently in the past year started a specialized court for domestic violence because that is a significant area of concern in Surrey. It is an increasing amount of our file load but that is our only specialized court.
Senator Jaffer: I would like both you and Chief Constable Palmer to comment on another thing we have been hearing from people. When there is a court delay and you have to stay a charge because of the delay the person that really is let down is the victim. We are re-victimizing them. Could you both say from what that looks like?
Ms. Lopes: The court process is extremely stressful for victims and witnesses. It is lengthy to begin with. To go through the process of getting ready for court and then being told that none of it will happen is extremely disappointing. They did nothing wrong. The police did nothing wrong. It was just because of time. When we deal with these people we can see that they feel we have utterly failed them.
Mr. Palmer: I would echo similar comments. From a victim's perspective of course we deal with victims all the time. We have specialized units that deal with victims. Our Victims Services Unit and specialized officers in domestic violence help navigate victims of crime through the court process.
In any type of crime, no matter what it is, we are dealing with a victim who goes through that long and arduous process. It can be very stressful. It is foreign to people. They do not understand how it works. People get nervous when they have to go to court. Finally they get to the point where they are willing to give evidence. If when they come to testify everything falls apart it is extremely frustrating and demoralizing. For anybody to get involved in the future in the court process it is a huge barrier because people think, "Why would I? This didn't work last time. I am just going to give up.''
Senator Batters: Thanks very much to all of you for coming today and helping us out with this important study.
I am from Saskatchewan and I found it interesting, Ms. Lopes, in your opening comments when you were talking about the senior level prosecutor idea. I was speaking with a senior Crown prosecutor in Saskatchewan this summer after we brought in our interim court delay study. He was reminding me of a good Saskatchewan example, something they did when court delays became a very significant issue at one particular point. They were running the risk of having a lot of red zone cases. What they did was they allocated two of the very most senior crowns and put them in docket court. I do not know if that is what you call it here or not. It was for a time, for a few months or something like that. They actually saw a dramatic difference in clearing up a backlog that existed at that point.
Could you give us some more detail about that idea and how senior level crowns with authority and experience make some really good decisions in those types of cases rather than having to go through other levels of authority? How can that really help in these kinds of cases? Maybe you could give us some more detail of what you are speaking about.
Ms. Lopes: Currently in British Columbia we have no alternative for Crown counsel except full retirement with a possibility of being hired back maybe as ad hoc prosecutors from time to time. When they leave they generally leave because there is no guarantee of any kind of work afterward.
In this province there is a senior judges program where senior judges can scale down the amount of work that they do but still be involved. We believe that if we had a similar program for prosecutors, for instance, we could call in that group of people when the need arises. We would have the most experienced people. They are able to do any level of work. We could utilize that great resource to deal with it.
When we have trials that come up and we are unable within our workforce to deal with them, similarly we would have a group of senior experienced people we could call in who know our policies, who know our role as Crown counsel and who can take over and do those trials. That is our idea with regard to a senior prosecutors program.
Senator Batters: I may have missed this, but did you indicate for how long you have been a prosecutor?
Ms. Lopes: It has been 16 years.
Senator Batters: You were a prosecutor for a considerable period of time before the administrative sanction provisions came into effect. Could you give us an on record account of what you found over the course of your career prior to these sanctions coming in?
I am a lawyer myself and I know when I first started to practice that impaired driving trials used to commonly take maybe a half a day and now you commonly hear of impaired driving trials taking two or three days of trial time. I am just wondering if you could give us some indication that is perhaps more accurate than what I just discussed.
Ms. Lopes: In our jurisdiction we were regularly scheduling two trial days for a standard impaired over 0.08 trial. That was without any more complex issues. That was just to get through the evidence and normal legal arguments that were being made.
When the program started in 2010, as you heard, a significant amount of trial time was taken out of our system and we saw an immediate reduction in delay in our courthouse.
We thought it would also translate into fewer files coming in. We deal mostly with the Royal Canadian Mounted Police in our jurisdiction so all that trial time was gone but interestingly the amount of reports to Crown counsel still increased. The work has been filled in for us in other areas, domestic violence being one of them with huge increases, administrative type offences and breaches of court orders have taken place. Prosecutors no longer have to deal with impaired trials and the setting of those trial dates.
Senator Batters: Thank you very much, Mr. MacLeod, for your information about these administrative sanctions. I knew we would hear some positive things about how this has transpired.
Perhaps, Ms. Lopes, you are the best one to tell me, or perhaps Mr. Palmer, whether there are any particular downsides we need to know about that administrative sanction system while we are looking at it.
Mr. Palmer: I am a big fan of the system. It has been a positive move for British Columbia. The Vancouver Police Department wholeheartedly supports it. It is a more streamlined process for officers. The proof is in the statistics, how it has reduced fatalities and saved lives in British Columbia. I do not see a lot of downside to it. I am a big fan of it.
[Translation]
Senator Dagenais: My first question is for Mr. Cowper. I see that your focus is on reforming the justice system. Correct me if I am wrong. When I served on the Superior Court judicial appointment committee, we had various files to consider. We had just three meetings per year to study a large number of applications. I do not know if that is the case in all the provinces.
Would you be in favour of us stating in our report that, when lawyers apply for to become a Superior Court judge, the appointment committee should meet more frequently in order to study files more quickly? I would point out that, in British Columbia, there are seven vacancies on the Superior Court. I would like to hear your views on that. Do you have the same problem in Quebec? These vacancies have to be filled. Is the problem that so few meetings are held to choose among the candidates?
[English]
Mr. Cowper: Firstly, well over 90 per cent of all criminal cases are heard and decided in the provincial courts in Canada so by far the most criminal work is done by judges who are provincially appointed.
In my report in 2012 I recommended that the government consider entering into a protocol where there would be an agreement about the number of judges required to process the cases. That has been covered by the enabling legislation but that has not been declared in force.
I still think at both the provincial and federal levels it would be of great assistance for everybody for governments to have a rough understanding of the needs of the courts for the appointments of judges to process the number of cases. I would contend it goes in both directions.
For example, the diversion of the over 0.08 cases did result in a very dramatic reduction in the overall criminal caseload in British Columbia and that would be a relevant factor in deciding whether or not to replace judges.
My contention would be that you need to have some view of complexity of cases and workloads. A number of the cases now deal with a breach of administration offences which are much more simple and straightforward than even the 0.08 cases. There needs to be an open and transparent communication to ensure that the judicial system has enough judges to decide the cases. I think that would be valuable.
With respect to the current situation of federally appointed judges, the most sensitive thing for the criminal justice system is that we have sufficient superior court judges with criminal training to process the complex criminal cases. That comes from not only recruiting the right type of people to be those judges but also training people who are appointed to superior court to handle complex cases.
I can say as a non-criminal lawyer the judicial management of a complex criminal prosecution today requires judges of the very best abilities in the criminal law. It is not something in the 21st century that we should depend upon learning on the job. We should have more than that. That is an additional thing that should be considered and that requires encouragement of applications and the timely processing of applications.
My final comment would be that I think the one unnoticed challenge to the current system is that a person who applies to superior court may wait two years to know whether or not they will be appointed. Most people we are trying to encourage to come are people in their forties and fifties. Asking someone, and they do not even know if they are on the list, to take two years of out their lives to decide whether or not they will have to completely change their lives on a phone call from the Minister of Justice is a mark and a tradition from a prior age that we would be better off leaving behind us.
[Translation]
Senator Dagenais: With your permission, Mr. Chair, I have a question for Ms. Lopes. I have heard that there are mega-trials in British Columbia, and we know that mega-trials require a lot of Crown prosecutors. They often face a series of defence lawyers, with as few as two or three lawyers representing the Crown.
Do you agree that there are insufficient resources, that the resources are underutilized or that they are not well enough trained to deal with this new reality? I hope there will not be any more mega-trials because, in Quebec, they have not been a success. I would like to hear your views on that.
[English]
Ms. Lopes: I can speak from experience because I was part of the prosecution team for the R. v. Pickton case. That was considered at its time to be a mega-case but certainly not in the construct of some of the very largest ones. It is important to know that those cases require an enormous amount of resources at the right time because the disclosure in them alone is probably the biggest part of it. It is also very important to make sure that you frontload the resources on those files so you can get through the disclosure as quickly as possible to avoid any delays.
They then get tied down. Pre-trial applications take a long time. There are always many contentious issues to go through. It is very important that we work to define what a mega-case is, to decide what the resources need to look like and at what time we will put them in, and to make sure that we do not concentrate on those and forget that actually every criminal charge is important.
If any of us were charged with even a simple offence it would be life altering for us. We need to remember that. We cannot sacrifice any level of charge in order to make mega prosecutions work.
Senator McIntyre: Thank you all for your presentations. In my home province of New Brunswick, as in the case of Nova Scotia and British Columbia, crown attorneys lay charges. As I understand there is good consultation between the police officers and the crown attorneys. Do you think this type of consultation should be encouraged in all provinces? If so, how would we deal with the need to have the investigation and prosecution of offences clearly independent of each other?
Ms. Lopes: The prosecution services have to be independent from the investigation, but I believe the Crown and the police can work together without sacrificing that independence.
In British Columbia we do a good job of providing legal advice without directing investigations. I would encourage that kind of collaboration. It assists in the investigation. It keeps the focus on not just what the investigation needs but also on how we collect admissible evidence that can then be used effectively in the prosecution of the file. Yes, you have to maintain the independent relationship of the Crown counsel.
Senator McIntyre: I want to thank Mr. MacLeod for bringing the IRP program to our attention. It is very obvious that on the issue of impaired driving charges B.C.'s approach differs from that of other Canadian provinces. In listening to you, Mr. MacLeod, it is obvious that police officers impose sanctions under the Motor Vehicle Act rather than the code. Officers, as I understand, have a certain discretionary authority in this regard.
My question is addressed to all four of you. Are there other criminal offences that could be regulated by provincial legislation in light of provincial jurisdiction?
Mr. MacLeod: I don't know if I am particularly qualified to answer that question on other schemes or other Criminal Code offences that could be taken out of court. In the province of B.C. we are looking at taking traffic tickets out of the provincial court system, but as far as other Criminal Code charges I couldn't say.
Senator McIntyre: Does anyone else wish to reply?
Mr. Cowper: The most obvious area that needs to be looked at and should be looked at is the handling of domestic violence offences. Restorative justice has been advocated for domestic violence offences which require the consent and agreement of the victim as well as the accused. It represents a diversion out of the system and ahead of the system in many circumstances. That and other alternative measures in respect of relationship offences have historically been found in my view to be more productive of civil peace than necessarily a purely punitive measure.
In recent years we have seen a dramatic increase in the prosecution and punishment of domestic violence cases without necessarily seeing a reduction in violence in the community.
What I would say in general is that diversion of appropriate cases early on out of the system into other measures which achieve the same public goals as the criminal justice system should be looked at carefully.
I know it is a very controversial area but it is an incredibly important area today because ultimately we are seeking to achieve safer homes and safer relationships. What works best is what is in the best interests of the public and everybody involved.
The Chair: I guess my question would be across the board with perhaps the exception of Mr. MacLeod. If you read our interim report you noticed that we highlighted as sort of A or No. 1 the case and caseflow management by the judiciary.
Although Ms. Lopes described scheduling as an art, we had a meeting earlier today where we were advised that in the British Columbia Provincial Court it had dramatically improved.
One of the references in our interim report was to a key to effective backlog and delay reduction in the criminal courts is the involvement and leadership of the judiciary in implementing principles of caseflow management.
I would like to start with Chief Palmer. I happen to have three members of my family who are frontline officers in Ontario, a different jurisdiction. I have heard their frustrations of cooling their heels and then being told something has happened and away they go, and then they are called back a week or two later. With a lot of frontline officers there is certainly frustration that caseflow management is not working as well as it could be or should be.
I am just wondering what you are seeing and what you might recommend in that respect. We have laid some of the responsibility clearly at the feet of the judiciary. I don't know whether or not that is a view you would share. You may not want to express an opinion on it but maybe we could move across and get your feedback on it.
Mr. Palmer: It is a complex question but I will just give you a few thoughts on it. It is different in British Columbia than in every other province in the country. On the police side of it we have an RMS or Records Management System that is unique to British Columbia. Every police agency, whether it is the municipal police or the RCMP anywhere in British Columbia, contributes to the same system which is called PRIME, the Police Records Information Management Environment. That then marries up with the JUSTIN system that the Crown counsel uses.
There have been a lot of hiccups with it over the years as far as marrying up the two systems which are quite different, but it is a mandated system in the province. Even though there were some growing pains I will say 15 years later the system has worked out very well for us.
It is helpful that we have a consistency in approach throughout the entire province to how those files are managed between police and Crown. The big part of it, though, comes down to relationships. I can only speak for Vancouver. I know senior management in Vancouver and senior management with the Crown.
You mentioned that you were at 222 Main Street earlier today. We meet with Crown counsel and with regional Crown on a regular basis to discuss issues that are holding up the system or anything we can do to streamline it, anything to improve the flow of information. We meet on a regular basis so I think that relationship is important.
For the frontline officer on the street definitely there is frustration at times. The regular workload of a frontline officer in Vancouver or a city like Surrey is quite substantial. Trying to manage files off the corner of your desk while you are continuing to take on more and more files every single day is very challenging.
The Chair: There is work to be done.
Mr. Palmer: Absolutely.
Ms. Lopes: I have two aspects of the caseflow management question that you asked, senator.
First, we are working to try to coordinate the JUSTIN system with the Crown scheduling system. Right now they are two independent ways of scheduling. We actually attend at the case manager's office with our diaries to try to pick out trial dates. Everyone in the system we are working on will be able to go in and see what our schedules are and put in those dates. It will be of great assistance.
The second part is that effective judicial management of cases is of great assistance to all participants. I see that more in my Supreme Court practice than I do in my provincial court practice. We have pre-trial conferences. We are always advising how the case is moving forward. We are accountable and dates are set when each side has to meet certain deadlines. That is very helpful and would be a good practice for all courts.
The Chair: It is far easier than the appeal court level.
Mr. Cowper: I would say really off the top three things. You have to look at the system as a whole. In Ontario the numbers of stays that are entered are twice as many as in British Columbia. That is a direct product of British Columbia's charge approval system where the cases are filtered out in an earlier stage.
A prosecutor can say, "Look, if you had the right to charge this case we wouldn't take it forward.'' In Ontario that is what happens. That just moves the frustration later in the system. I actually think our system is preferable.
There is a role for judicial caseload management but there is also a role for using technology to manage the system well. The attorney general's ministry is moving in that direction because ultimately at that point they are the party that is more or less in control of what goes to court and then the judges need to step in.
I would say in closing that the third thing is the use of technology. If you go to provincial courthouses quite often it looks like a police reunion meeting because the courthouse is filled with police officers and you sort of say why. Not so long ago and maybe even yesterday defence counsel would occasionally wonder whether or not the case is ready to proceed and the test was whether or not the police officers are present to testify.
We can and we need to move beyond that. There are all sorts of technology fixes available for people to be attending when they need to attend as opposed to having a gathering of everybody in the case at ten o'clock in the morning when we know that not everybody will be called that day.
The Chair: Who makes those decisions? Is that at the police administration level or through the courts themselves?
Mr. Cowper: The courts do not decide who turns up for the first morning of trial. That is a co-operative decision between the prosecution's office and the police.
There are systems that people are looking at. The new scheduling process asks a broader question of whether a case is ready to go to trial. Instead of being located outside of one particular courtroom it is given to the assignment judge and then the prosecutor can say, "If you call my case today I am ready to go to trial.''
Some of the previous sort of acid test of who is hanging around in the corridor has been done away with. It can be completely done away with, with the appropriate use of technology.
Senator Jaffer: When you spoke about domestic courts I cringed at first but then I listened to you. Actually you have a good idea with diversion and anger management, some of the things we heard that happened with community court. I would like you to expand a bit more on that idea.
After Mr. Cowper finishes, Ms. Lopes, could you tell us if having a domestic court in Surrey, if I understood, has made a difference in court delay? Has it taken many cases out of the court system and freed up the court to expand on Mr. Cowper's idea?
Mr. Cowper: Domestic cases, starting at the beginning, put a great premium on timeliness. We all know there have been studies that show two-thirds of the accused in a domestic violence case are actually living with the victim within 48 hours of the charge being laid. There is no doubt that many domestic violence cases are occurring within an ongoing relationship. For us to participate in that by just ignoring that is a reality contributes to rather than addresses the problem in my view.
Secondly, turning a blind eye to the idea that there is an ongoing relationship and treating it as a distinct offence similarly seems to contribute to the problem rather than to address the problem. We need to have sensitivity to the fact that we have victims who are experiencing different things. There are different opportunities for rehabilitation and reform. There are many situations where what is needed is a timely trial so that everybody knows what the result is. Distinguishing between those cases is fundamental.
Finally, Ms. Jaffer, I am sure you will agree with this point. I spoke at a meeting of a number of family counsellors from different cultural communities who said, "Look, if you people from other parts of the culture do not understand the dimension of a woman who does not speak English and will have to leave her family and perhaps her religious community behind if you continue with the prosecution, you are not addressing the reality of women in those circumstances.''
We need to pick up our game in relation to this. There has been a lot of effort but it is not completely contributive to reducing violence in relationships. That is what I think the focus has to be on.
Senator Baker: I have just one question. Mr. Cowper, congratulations on your 2012 report on British Columbia about what was needed as far as the justice system is concerned and for drawing our attention to the national standards. Perhaps you might comment on that.
I want to refer back to what you said a moment ago. You said that in British Columbia you have half as many people charged as you do in the province of Ontario. There are twice as many stays in Ontario as in British Columbia. You attributed that perhaps to the fact that the police do not lay the charges in British Columbia.
Balancing that out, wouldn't you agree that Ontario per capita has fewer violent crime cases in Canada than any other province and second lowest in property crimes. Couldn't the argument as well be maybe the police should be laying the charges and maybe there should be more charges laid to prevent violent crime and property crimes.
Those figures were released recently by the Laurier Institute, I think it was.
The Chair: Yes.
Senator Baker: Wouldn't you agree, though, that perhaps there is an argument there, the counterargument to what you suggested as far as the B.C. practice is concerned?
My original question to you was: What would you suggest should be the primary recommendation of this committee as far as national standards are concerned?
The Chair: I will have to ask you to be as brief as possible. We have one other senator and we are running overtime.
Mr. Cowper: Very quickly on the first question the point I was making in Ontario was that there was a hugely higher number of stays. Those charges do not proceed in in B.C. but they proceed halfway in Ontario and I do not think it is in anybody's interest to be charged with a crime that will not go anywhere.
Speaking purely as a citizen here, in terms of priority we are all Canadians. Under a common criminal justice system we ought to have common expectations. If we are charged with a crime by what period of time can we expect to come to trial and have that resolved across the country?
I do not think there can be a higher priority for your work. I would think that should have two parts to it. One of them is: What is it that you are seeking to achieve? Then leave to the courts what happens if you do not reach it because the Supreme Court of Canada in Jordan has now set outside time limits. To me those are not the time limits you should be striving for but rather what represents good performance.
Senator Baker: Could part of the difference between the number of stays in Ontario and B.C. be what B.C. has done on impaired driving charges? You still have thousands of 0.08 cases going through the Ontario criminal justice system but now not in B.C.
Mr. Cowper: That difference has been longstanding. It has been there for years and years and years and well before the 0.08 change.
The Chair: Thank you all again for appearing here today and giving us your input on what we think is a very important issue to all Canadians.
Senators, we now welcome on next panel of witnesses from the Native Courtworker and Counselling Association of British Columbia, Darlene Shackelly, Executive Director; from the Acumen Law Corporation, Paul Doroshenko, lawyer; from the Trial Lawyers Association of British Columbia, Richard Fowler of Fowler and Smith; and from Peck and Company, Eric Gottardi, partner.
Eric Gottardi, Partner, Peck and Company: Good afternoon, Mr. Chair, and senators. I am pleased to appear before this committee once again albeit not wearing my usual hat of the Canadian Bar Association but appearing in my personal capacity. Thank you for the opportunity to appear before you today.
I am a criminal lawyer by trade practising here in Vancouver. While I am predominantly identified as a defence counsel in private practice I have done a significant amount of Crown prosecution work over the past five to eight years.
As I understand it I have been invited to give testimony before you today due at least in part to the fact that I was counsel in a case before the Supreme Court of Canada called Jordan that was recently decided. Perhaps I will say a few words about the Jordan case itself and some key issues that in my view emerge from the case.
Almost eight years ago Mr. Jordan was charged with respect to a very straightforward undercover case involving 1.5 kilograms of cocaine. It took nearly four years to bring Mr. Jordan to trial, mostly because of a chronic lack of resources in the system. Mr. Jordan did not cause any meaningful periods of delay but suffered actual and inferred prejudice.
His application for a stay of proceedings was nonetheless dismissed at the trial level and again on appellate review. Ultimately the Supreme Court of Canada was unanimous in finding that the delay was unreasonable, in fact saying it was not even a close call.
In the years following the Supreme Court of Canada's decision in Morin and then in Askov it is my contention that access to timely justice eroded and institutional delay worsened in many jurisdictions. Despite the court's clear affirmation of the accused's right to be tried within a reasonable time and the Crown's duty to ensure that this occurs, resources remained inadequate in many places for many years.
Courts and the prosecution service became resigned to the fact that no further investment was going to be made in the criminal justice system and as such the rules were applied in a way that, "Allowed for tolerance of ever-increasing delay.''
For example, in Surrey, British Columbia, where much of this case took place delays of up to 18 months in provincial court were commonplace for simple trials. Judges in that jurisdiction and others around this province described the situation as a crisis and cases, initially most low-level ones, were starting to be stayed.
Prior to Jordan, the jurisprudence surrounding section 11(b) of the Charter of Rights and Freedoms became more and more confusing and difficult to apply. Justice Moldaver in Jordan described it as the bane of most trial judges' existence, and that is consistent with my experience.
It was a system that allowed the Crown in Jordan to argue that out of the 49 months that it took to get the case to trial only five months was attributable to the Crown and to institutional delay. That kind of discrepancy of 49 versus 5 in an adversarial system is a symptom that something is not working correctly.
In Jordan the majority of the court purported to throw out the old system of micro counting days, weeks and months and attempting to assign blame to various parties. The court established presumptive ceilings after which any delay would be viewed as unreasonable unless the Crown could justify it.
The minority decision in Jordan criticized the majority and its benchmarks as being arbitrary and not based on a sufficient evidentiary record and they called for legislative action.
Two issues in my view emerge from Jordan. First, courts need the resources necessary to end the practice of double- booking trials. They also need the resources to prioritize cases which have exceeded their estimated time and need continuation dates. Using Jordan as an example the length between continuation dates was staggering. Yes, the estimates of counsel needed to be more accurate and perhaps scrutinized more closely, but the case flow system needs to be more nimble to deal with cases before they become lost causes.
Second, the collection, preparation and management of disclosure, the investigative material that will form the first party Stinchcombe package, needs a greater level of standardization across the country and perhaps needs to be completed before charges are approved. Perhaps we need to move to a charge approval approach in every provincial jurisdiction.
Third, replacing repetitive, costly and unproductive court appearances through the use of technology, FaceTime, Skype, video link and ordinary telephone calls should be standardized and encouraged.
In closing I say the precise implications of Jordan will not be known for years. It is a seminal decision that calls for cultural change in all aspects of the justice system. We have already seen some early cases out of British Columbia and Ontario that seem to fall in the same trap of examining on a micro level the conduct of defence counsel.
Such a focus is in my submission the low-hanging fruit. It is much easier to single out a lone defence lawyer than to suggest or recommend cultural change in Crown prosecution services, law enforcement agencies and in the court itself, but that in my respectful submission is where the most meaningful avenue for change exists. Thank you.
Richard Fowler, Fowler and Smith, Trial Lawyers Association of British Columbia: Thank you, honourable Chair and honourable senators, for the invitation.
I am here today representing the Trial Lawyers Association of British Columbia, an organization of approximately 1,400 lawyers of which approximately 300 are criminal defence lawyers. I have been a defence lawyer for more than 20 years and conducted trials and appeals throughout British Columbia and Yukon. I have been counsel on a number of mega-trials including Air India.
One of the stated values of the Trial Lawyers Association is to improve professionalism and standards of trial lawyers and to enhance access to justice, each of which is relevant to the issue you are considering, that is delays in the justice system. Delays impact access to justice as you have indicated in your first report and professionalism and high standards of advocacy can help reduce delays.
I want to focus my remarks on advocacy. Experienced skilful advocacy helps control the trial process and makes complex trials manageable and prevents trials from becoming unduly long. Good lawyers must learn to exercise good judgment. We have to analyze an ever-increasing amount of information and complex legal issues and decide on an approach to a case. We must decide what legal issues to argue and what legal issues are without significant merit. These analytical skills and good judgment are learned. They are learned through years of mentoring from experienced trial counsel, a relationship often referred to as junioring.
You heard Ms. Lopes this afternoon speaking on behalf the prosecution service mention the benefits of retaining senior counsel. Many studies on complex critical trials reference the need for experienced counsel to be involved. The LeSage-Code report on complex criminal trials highlighted the problem of inexperienced or lawyers with poor judgment conducting complex cases and recommended financial incentives through Legal Aid to ensure that senior lawyers became involved.
The Canadian Institute for the Administration of Justice Roundtable Report on Complex Criminal Trials which was held in British Columbia in 2014 identified funding of defence counsel as an issue which impacts on the conduct of mega-trials.
The issue or the problem I would like you all to think about is this: The best way to train young lawyers is by having them attend in court with senior counsel to be mentored in the old traditional sense. The significant cuts to Legal Aid have greatly impacted the ability of senior counsel to take junior counsel to court.
Whereas in the first years of my practice where I was fortunate enough to be junior counsel on many complex cases, it is now relatively rare for junior counsel to be funded by Legal Aid to appear even on the most serious cases.
For the criminal justice system to work we need to invest in training this and the next generation of young defence lawyers to be the best advocates. We need to invest in teaching them the best skills, the best judgment, and the best use of courtroom technologies.
The police invest millions in training. We invest millions in training and educating prosecutors. We must recognize the need to invest in defence counsel, and that requires all governments to recognize the overwhelming importance of proper funding for Legal Aid, again as Ms. Lopes for the prosecution mentioned this afternoon.
Cuts to Legal Aid do not just impact access to justice. They impact significantly on the development and maintenance of a highly skilled, experienced defence bar which is absolutely essential to the proper orderly and efficient functioning of our justice system.
Because I sat through the earlier session I just want to end with five comments based on other things that I have heard today.
We need to avoid the continuation of trials. They are extraordinarily inefficient. They are inefficient for the judges who have to put away their notes and maybe pick up the trial in six months' time. They are extraordinarily inefficient for counsel who has to put that case out of their mind and then revisit it in six months' time.
On diversion and alternative measures, diversion out of the criminal justice system as Mr. Cowper talked about this afternoon works. Restorative justice works. We need to take those cases out of the criminal justice system that do not need to be there. We have a desperate need for drug and alcohol rehabilitation. If we can get people into drug and alcohol rehabilitation they will not be in the courthouse. It is just simple reality that they will not be in the courthouse. We can remove an awful lot of users of the criminal justice system if we put them into drug and rehabilitation.
On national standards for delay may be a laudable goal but let's think of how diverse the communities are in Canada. I have worked in Yukon. How will we have national standards in Watson Lake where the court sits once a month and the judge and counsel fly in but they may not be able to make it that day because the weather is so bad? National standards in my respectful submission are not something worthy of this committee's attention. It just does not represent the geographic variety of Canada. Thank you very much.
Darlene Shackelly, Executive Director, Native Courtworker and Counselling Association of BC: Good afternoon, honourable chair and to the Senate. Thank you very much for the invitation you have extended to me and to my organization.
I would like to acknowledge the Coast Salish people on whose traditional lands we are meeting here today, specifically the Musqueam, Squamish and Tsleil-Waututh nations.
I am here to speak on behalf of the 43-year-old organization that I represent. We are a provincial organization from a national mandate. There are Aboriginal courtworker programs across Canada in every province and territories and Nunavut. We probably all have the same issue regarding the administration of justice defences before the courts. As the organization I represent we have over 8,000 direct services of which 2,300 are administration offences.
It is very likely that an Aboriginal person or an indigenous person facing the system will try to plead guilty because of the foreign system of justice they are facing. Since the formation of the organization in the 1960s the indigenous people who face the courts want to get out as quickly as possible. It is up to our workers to ensure that they fully understand their rights and responsibilities before the courts, that they know what their charges are and that they know what their options are. That is probably the number one issue regarding our organization.
Another one is the legislation that actually hinders what we are actually trying to move forward with, and that is legislation such as the 20-year-old Gladue decision under the Criminal Code of Canada. It originated in the province of British Columbia and it is our opinion that in British Columbia it is highly underutilized. The Legal Services Society provides that in a very short matter. I know they run out of money fairly quickly when they provide that service. They are funded through the law foundation. It is not funded through the province. This is an uphill battle regarding the issue of Gladue.
Another one is the initiative the First Nations leadership has moved forward on to try to implement within British Columbia the First Nations courts. There are four of them right now located around the province of B.C. It is our hope that a lot of First Nations groups are actually putting pressure on the province to implement more of them. These are the types of initiatives around First Nations courts that actually can be quite supportive of the justice system in British Columbia.
I also believe that there needs to be a true picture of what is truth and reconciliation in Canada. The TRC had 94 recommendations regarding truth and reconciliation of which 16 are justice-focused. If anything, the Province of British Columbia and Canada have to look at the priorities set out by us in general through the First Nations leadership: reducing an overrepresentation of Aboriginal children in care, reducing the overrepresentation of Aboriginal people in custody, eliminating the overrepresentation of youth in custody, and addressing and preventing fetal alcohol spectrum disorder. Those priorities are set by the First Nations leadership.
Another one is the connection of health justice. In the province of B.C. the First Nations have control over their own health services through the First Nations Health Authority. They have identified that the issue of health justice is paramount to helping support people going through the justice system because they are facing the issues of mental health, addiction and FASD.
Those are the priorities of health, and I think that health and justice need to look at a partnership within the judicial system. Thank you.
Paul Doroshenko, Lawyer, Acumen Law Corporation: Thank you to the Chair and the committee for inviting me to speak to you today about these important issues.
I am a criminal defence lawyer practising in Vancouver, British Columbia. I handle cases in British Columbia and Alberta. I have been a lawyer since 2000. The focus of my practice is impaired driving cases. Since the introduction of the Immediate Roadside Prohibition scheme in British Columbia in 2010 I have been outspoken concerning the rights of those accused of drinking and driving.
I am speaking to you today about delays in criminal trials, how impaired driving trials have changed in recent years, and the B.C. approach to controlling impaired driving. I hope to make it clear for you those recent changes in the process have had a significant impact on delay.
Until 2008 the average impaired driving trial took one day for many impaired driving lawyers. Generally there were one or two police witnesses and occasionally a civilian witness to some driving evidence. Defence lawyers with busy impaired driving practices like me would schedule two to three trials of this nature a week. It was also common for many of these trials not to proceed on the day of trial.
Since 2010 the length of these trials has more than doubled. In my own experience in my discussions with defence counsel and Crown prosecutors two days, as Ms. Lopes said, is now normal. It is the new norm for an impaired driving trial. How did we double the length of a trial in just a few years?
On July 1, 2008, a significant change to the Criminal Code of Canada came into effect with respect to presumptions in over 80 milligram cases. Before the change defence lawyers could present evidence that their client's blood alcohol level would not have been what was reflected in the breath test readings. This was known as evidence to the contrary. The change implemented in 2008 modified the Criminal Code to replace the absence of evidence to the contrary with a presumption of conclusive proof in absence of evidence showing three things: the test was performed improperly, the improper analysis is what put the reading over 80 milligrams in 100 milliliters, and the accused's blood alcohol concentration did not exceed the legal limit.
There was nothing in the legislative change with respect to cases already before the court. This appears to have been an oversight. This issue took several years to resolve, causing delays in countless cases that were already in the system.
In 2012 the Supreme Court of Canada ruled on the constitutional validity of these changes in R. v. St-Onge Lamoureux. The court narrowed the amendments to require only that the accused demonstrate that the test was performed improperly or that the improper operation of the approved instrument could cause an unreliable reading.
This raised interesting concerns and issues for defence counsel. Previously very little disclosure was provided from Crown to defence regarding the operation and maintenance of the instrument. It was not something that anyone had really seriously considered. Now defence lawyers had to consider what would be necessary to show that the breath tests were not performed properly.
Tests need to be performed on a properly maintained and properly functioning instrument. The technician must conduct a proper breath test. Defence lawyers now had to establish that the instrument was not properly maintained, or appeared not to function as intended for some reason, or that the technician failed to follow the procedure to the letter, in order to defeat the new presumptions under Section 258 of the Criminal Code.
Evidence from the accused would almost never reveal this information. The evidence now needed to make full answer and defence was in the hands of the Crown, suppliers of the instruments, and the companies that maintain the instruments. As a result there have been increasing demands from defence lawyers like me for disclosure related to those issues.
The more I investigated this issue and turned up relevant evidence, the more I learned about what I needed to request and what could go wrong. I can tell you we are at the early stage in learning about problems with approved instruments.
What has been surprising to defence lawyers in the impaired driving bar is the number and types of problems with breath testing instruments. We had all been taught to believe that the breath goes into this essentially infallible box and what came out was reliable evidence. We forgot the lessons from The Wizard of Oz. Once we looked behind the curtain we started to get closer to the truth.
When St-Onge Lamoureux was before the court we were not yet focused on the functioning of the instrument and instrument operation, but by that point in my career had already taken a note of enough problems with instruments. I knew the amendments to the presumptions in the Criminal Code were dangerous in that some innocent people would be convicted of driving while over the legal limit.
In 2008 I obtained documents pursuant to the Access to Information Act concerning tests performed in RCMP labs on one model of instrument. During the previous year the RCMP Forensic Science and Identification Services was investigating a problem I had identified with a BAC Datamaster C instrument. Among the material I received in response to my request was an email from Benny Wong at the RCMP forensic laboratory in Vancouver discussing the problem I had identified Mr. Wong wondered how many innocent souls had been convicted as a result of this problem. I have provided that email and material to the committee here.
The RCMP Forensic Science Services are relied on to provide unbiased information. Nevertheless this is a government organization where there are consequences for not towing the party line. The party line included that instruments are near to infallible and the only information that is relevant about the breath test is that which is recorded on the breath test tickets. Some members of the RCMP Forensic Science Services have privately confided in me that they are not comfortable with this position.
We now see that this previously undisclosed information is necessary to prevent wrongful convictions. Moreover, even with access to this evidence about the instruments, the safeguard provided by the old evidence to the contrary provision remains necessary to avoid wrongful convictions.
It is impossible to put the genie back in the bottle. Now that we are aware of the problems with approved instruments Parliament cannot write a constitutionally valid law that renders the instruments infallible. This increased demand for disclosure increases the demand on the trial system. Not only are pre-trial disclosure applications often necessary but delays in obtaining the disclosure have also taxed the system.
Until very recently Crown did not have a proper system to obtain or provide information concerning the instrument. It is only in the last few years that this has become routine in British Columbia and Alberta.
Even that is not enough. Earlier this year in Alberta, hundreds of impaired driving cases were withdrawn because proper maintenance records could not be produced. Trial dates were set but charges were not withdrawn until the trial, leaving that time unavailable for other bookings. These disclosure issues and this poor management of them by Crown counsel have contributed to court delays. This was one of the factors discussed in the Jordan decision mentioned earlier.
I would like to discuss changes to Charter litigation which have added delay. Another factor that has contributed to the delay in cases concerning coming to court is how Charter litigation has changed over the past few years. This is particularly evident in impaired driving trials but has been an issue in all types of criminal trials.
Previously defence lawyers needed only to show one meaningful Charter breach to have breath test results excluded from evidence. This was due to the Supreme Court of Canada decision in Stillman from 1997 that evidence was conscripted from an accused flowing from a Charter breach should be automatically excluded. This made the inquiry under Section 24(2) of the Charter relatively simple. Breath tests were automatically excluded because they were conscripted by virtue of the Criminal Code demand and the threat of a refusal charge.
The trial process was straightforward using the Stillman approach. Defence lawyers could argue the Charter breach and the Section 24(2) analysis at the same time. The outcome was predictable: If you could establish a Charter breach you knew where the matter was headed. Cross-examination could be streamlined to deal with obvious Charter breaches rather than explore potential breaches as we have to do now.
Since the Supreme Court of Canada decision in Grant this process has become much more complex. Now defence lawyers need to focus on any possible areas of breach and to do a more thorough cross-examination to show that a breach was particularly serious or to elicit evidence about the impact of the breach on the accused. This takes longer with witnesses. It takes longer in argument. Defence and Crown counsels now shy away from arguing Section 24(2) at the same time, as they argue the breaches due to the fact that the number of breaches and the seriousness of the breaches are now more significant in the consideration of whether or not evidence will be excluded.
This has had impact not only on impaired driving prosecutions but on all manner of criminal trials where Charter issues arise. It takes longer and it causes greater delays. Judges have also been more reluctant to rule off the bench, wishing to give more thorough reasons which can be dealt with at the later dates when the Section 24(2) application is made.
If I still have time I would like to talk about B.C.'s Immediate Roadside Prohibition scheme. The B.C. government considered this problem: How to eliminate court delays, eliminate Charter arguments and eliminate disclosure requests.
In British Columbia we saw our government reduce court delays by almost eliminating impaired driving prosecutions. The government essentially replaced impaired driving prosecutions with Immediate Roadside Prohibition based on approved screening device results. By creating this administrative scheme the government essentially opted out of the Charter and Charter rights, opted out of any meaningful disclosure process and opted out of any meaningful test of police evidence.
This has been a blow to our justice system. Punishment on the basis of ASD results is dangerous and without precedent. In the package of material I have given you a sample of ASD maintenance records, none of which were ever brought to an accused's attention.
There is nothing constitutionally valid about conducting a bodily search on the basis of a suspicion without use immunity. Here we have no mechanism to challenging the validity of the demand if the driver provides a sample. ASDs are also far more fallible than the instruments in the detachment. Routine maintenance is performed by officers and significant issues with this process have been a common occurrence.
The Chair: Can you wrap up, Mr. Doroshenko, please?
Mr. Doroshenko: The delays in our justice system as a result of the Immediate Roadside Prohibition scheme have been pushed off to another venue. We now see up to three-year delays before people get a decision in their 90-day Immediate Roadside Prohibition.
Up until a few months ago we had 1,000 people in British Columbia who were on hold waiting for a decision. The reason for this is because the adjudicators are not legally trained. They go to the government and say that they want advice from the government about how to decide these cases. As a result they sit in limbo waiting for Supreme Court of Canada cases to come. You can appeal your Immediate Roadside Prohibition scheme to B.C. Supreme Court too. We now see a flood of those cases heading to B.C. Supreme Court.
We have also had a big problem with the fact that it is an administrative scheme that the government can essentially influence from the other end if you take a look at the AG v. Lee case.
The Chair: You will have a chance to expand on that in questions and we will begin with our deputy chair, Senator Baker.
Senator Baker: Thank you, Mr. Chair. It would take me about an hour to even question him about the ASD demand. It is a complex area of law, the most litigated area of law the sections on impaired driving.
What happens is that the authorities always try to close every possible defence and in closing the defence they open up other defences. You are down to the point now of proving that the instrument malfunctioned or that it was not administered properly by the officer, that 20 minutes prior somebody burped, was chewing gum and all these sorts of things.
It is a very complex area. By the way, without saying where we are heard the evidence, we have heard some evidence that you are correct there is an excessive number of appeals now that tie up the courts because of the new system.
I want to ask just a general question. Mr. Gottardi, on Section 11(b) you mentioned that you believed disclosure probably or possibly prior to trial. I forget what your conditional word was. You as a defence lawyer have to present your Charter arguments prior to trial. You have to present all your pre-trial arguments prior to trial, so what is wrong with the Crown having to present all of their disclosure prior to trial?
Is that what you were getting at? I imagine that halfway through a trial if you decided you were going to enter into a Charter argument on something that had been presented during trial you would have difficulty getting the permission of the court to do so.
Would you support a recommendation from this committee that all disclosure should be made prior to trial if in fact the disclosure could have been available prior to trial?
Mr. Gottardi: What I was suggesting was that disclosure should be provided prior to charge, not trial.
Senator Baker: All disclosure?
Mr. Gottardi: Not all disclosure.
Senator Baker: You don't need all disclosure.
Mr. Gottardi: No, we do not. We need the core disclosure. The suggestion is not in every case because there will be cases of violence. There will be exigent cases where there has to be an arrest and the person will not get out on bail. There is also an equal number, if not more cases, where there is a very long police investigation, all sorts of wiretaps and huge amounts of electronic. In child porn cases computers are seized. You have all heard testimony from people about how backed up the RCMP electronic services are in terms of getting through these kinds of cases.
The clock does not start running in terms of delay until the charge is laid. In a charge-approval jurisdiction where there are no exigent circumstances that necessitate the charge being laid immediately there is no public risk. It is a very long, slow-burning investigation. My suggestion is that we need to take disclosure and its management seriously. There is just an ongoing fight between police and Crown about who pays for what. We will pay for it until charges are laid and then the Crown pays for it. It is about whose budget it comes out of.
We need to come up with a better system to collect and manage disclosure at the investigative stage, right from day one of the investigation. That is a police cultural change. It is ongoing. I am not saying it is not ongoing. We have seen different case management systems that different police forces have tried to implement, but collectively we needed to do a better job of that. We need to think outside the box.
I know other bodies like the Steering Committee on Justice Efficiencies and Access to the Justice System have talked about having disclosure centres where you would have Crown, police representatives and even a defence lawyer. This is not the defence lawyer in the investigation but a defence lawyer looking at the disclosure in the materials that is coming in and saying, "Yes, that has to go into the first-party packet'' and "No, that is a third party.''
We need some kind of input into what the disclosure package should look like before charges are laid or shortly after charges are laid so that we are not in the scenario where I am now. I am two weeks out of a six-month mega-trial and I am missing huge amounts of disclosure. That case will get adjourned and there is nothing I can do about it and there is nothing I could have done to make the process go faster.
It is not to suggest the Crown were not working diligently either. I just think disclosure and its management is probably the fundamental challenge facing our justice system in terms of delay. One of the key causes of delays and adjournments is late disclosure.
We can do a better job of collecting information, perhaps even collecting less of it, managing it and getting it out. Then we will have fewer adjournments and less delay. That is the idea I was trying to communicate.
Senator Baker: As a supplementary question concerning the impaired driving provisions, we have always had the Grant provisions of where the judge adjudicates whether or not the evidence will be excluded. We have always had the list of things that the judge had to consider prior to. I could be wrong but I don't think that it has changed substantially on that adjudication under Section 24(2).
Why did you bring that up? It would lengthen trials. There is no doubt about it. Your point is that our trials now are being lengthened incredibly because of this new system in British Columbia and the change in the law in St-Onge Lamoureux. Why did you bring up Section 24(2)?
Mr. Doroshenko: The change to the law in St-Onge Lamoureux was a change that Parliament made to the Criminal Code to change the evidence to the contrary provisions. As a result now we have to look at the actual functioning of the approved instrument. I am not talking about the roadside breath tester. It is the approved instrument back at the detachment. Now we have to get all of that disclosure and look at it. That has expanded the disclosure process and has lengthened trials because now we have to call technicians and other people from the companies. We are digging through this material. That has added to that.
When you come to the Charter arguments in an impaired driving case the courts have to consider much more than they used to. It used to be —
The Chair: Automatic.
Mr. Doroshenko: Not automatic but almost automatic exclusion. On a Section 10(b) violation or something like they would say the readings came after that and the readings are out. That is the end of the Section 24(2) analysis.
You do it altogether in one argument. Because of Grant judges are saying they cannot really do this because of one argument. Actually you are having this discussion with the judge: "Because I have to consider all these factors and you need to know what factors I have come to conclusions on before you can make your argument on Section 24(2), let's come back next week and I will give you a long decision about how I am going to find this Charter violation and what the considerations are.''
Now I have to cross-examine witnesses for a day and a half to get out every tiny little Charter violation that is there. We have all these other seven or eight Charter violations. We have a Section 10(a) violation. By the time you have done all of that argument and the judge rules on it then you go back and argue Section 24(2).
The Chair: We will have to move on to Senator Batters.
Senator Batters: Thanks to all of you for being here and helping us with this important study. Mr. Doroshenko, you had a lot of information to convey in your opening remarks. I want to hear a bit more about the problems that you see with the B.C. administrative scheme. I know you did not have time to get into all of that so I want to give you a bit more of an opportunity to briefly set out a few more of your points on some of the downsides that you see because it is important that we get the full picture on that.
Mr. Doroshenko: There are downsides for an accused and there are downsides for a society. One of the downsides that we have noticed is the police are deskilled in conducting impaired driving investigations. They are only supposed to conduct an Immediate Roadside Prohibition investigation if the person has no previous impaired driving conviction or there is no accident.
Now we are seeing police officers who show up at accident scenes where sometimes somebody is badly injured and they do not know how to conduct an impaired driving investigation anymore because all they have been doing is handing out IRPs all the time. That is a big concern.
The second concern is that police discretion is not in my view being used appropriately. We see lots of people who end up with multiple IRPs.
Another thing about the IRPs is that it happened quickly. I have to tell you one of the upsides about the delay of one year before having an impaired driving trial is that you have one year of a client who is terrified about going to court. During that one year many people turn themselves around. Win or lose when you come to court, that person has usually spent a year so scared of going before a judge that they have not been drinking and they have not been driving.
Now we see people get an IRP. It is handed to them that night. The car is gone. They are back in the bar the next day. They are back in my office four months later and they have another IRP because they just do not feel that same sort of pressure with it.
Also people are deeply suspicious of the roadside breath testers. There is very good reason for that. I have given just a sample. I cannot give you disclosure from actual cases because I am not allowed to. I can only give you disclosure that I have from Freedom of Information. Roadside breath testers are screeners. They are called approved screening devices. They were intended to screen people, not to punish people. They were never intended to be relied upon for punishment. They were supposed to elevate a police officer's opinion to reasonable and probable grounds.
They do not even have the equipment to determine whether or not it is a reliable sample. If the instrument back at the detachment is functioning properly and everything is working, it should detect if it is detecting alcohol from your mouth or alcohol from your breath. That is the burp issue.
The roadside breath testers have nothing for that feature and they do not even give you a numeric reading for you to be able to compare. If you had a subject with a numeric reading and they blow 240 and then the next reading is 100, you know one or both are wrong but you do not get that with an approved screening device at the roadside.
I should speak a bit about the Immediate Roadside Prohibition scheme and the claim that the B.C. government has made that it has saved a lot of lives. The very interesting thing that is always omitted is that ICBC, the government insurance company in British Columbia, investigated whether or not that claim could be made. They had an internal draft report that was never released. It only came out through a Freedom of Information request that said they could not make the claim that it has been made.
A bunch of other things are taking place. One is trends in society where drinking and driving goes down when you have got an aging society. Another is that they introduced at the same time as the IRP scheme an excessive speeding scheme where they seize your car for seven days. For six months we did not have an IRP scheme when the law was struck down. We had fewer deaths in the province during that six-month period when there was no IRP scheme. It turns out the one thing that is effective in deterring people from drinking and driving is the discussion. We had nothing but discussion because the law was found unconstitutional. It was introduced. It was controversial. We had discussion about drinking and driving all the time in our society here in B.C. for an extended period. No doubt that reduced the number of people who were drinking and driving on our roads.
Senator Batters: Could you provide us with a copy of that report?
Mr. Doroshenko: It is available. I can get it for you through Freedom of Information.
Senator Jaffer: Thank you for all your presentations. They certainly raised a lot of issues. I am going to start with you, Mr. Fowler. You belong to an organization that has been in the forefront of training and taking on the issues of victims.
I listened to you very carefully about defence counsel. The Trial Lawyers Association has certainly done a lot of work. When I was a young lawyer my senior partner always used to say that lawyers do not have the commitment that doctors have to train young doctors, that we just don't have it in us to train young people. He always used to say that if we trained young people we would have a much better bar.
When I hear you I can see there being individual lawyers training. We need to do something. Your group certainly does a lot of training of lawyers and protecting victims' rights. There is no doubt about that.
I am wondering if you and the Law Society with whom you work very closely could find a way in which you would have the kind of training for defence counsel with the help of the government and perhaps with Legal Aid. Have you given some thought to that?
Mr. Fowler: The difficulty is in the people who go to court. Trial lawyers are a very small subgroup of all of the people who come out of law school. I could not give you a percentage but it is a pretty small percentage of people who become barristers in the traditional sense and go to court on a regular basis.
The economics of the criminal law profession have changed immensely. I always like to give the example of when I first started in 1995 it cost $3.50 to park in the supreme courthouse. It now costs $16. Yet the hourly rate paid by Legal Aid has remained the same. Overhead in Vancouver has gone up immensely. Everybody in your office needs an office. They have overhead. The prosecutors do not have an overhead. Their training is paid for. Any training that we do has to come out of money that we make.
If we want to take a course put on by the Trial Lawyers Association or put on by the Continuing Legal Education Society it is $500 or $600, plus it is a day out of court. It is a net loss essentially on that day because we bill by the day in our businesses or by the hour. It is expensive for defence lawyers to do training.
The biggest change, and even the Crown is suffering from this, is that junior counsel do not get taken to court as much. That is where you learn how to be a lawyer. That is how you learn how to cross-examine. That is how you learn that a good cross-examination is half an hour, not 3.5 hours. That is how you learn this application is not worth making and this application is worth making.
LeSage-Code wrote about in Ontario years ago because mega-trials were going on for months and years. They determined two principal drivers of that: inexperienced counsel or experienced counsel with poor judgment. How do you get rid of that? You get rid of that by training people properly.
In Ontario they said that Legal Aid had to pay more so that lawyers with 15 years or 20 years of experience will take on these murder cases. I have done nearly 50 murder cases. Many people are going to court and they have never done one and they have never juniored one. That is a problem.
Senator Jaffer: I have to say to you that I have practised in Watson Lake in lower postings. I agree with your argument that you cannot have national standards. I feel many places in B.C. are very different.
Now, Ms. Shackelly, I have been working on this study and looking at the issue of separate Aboriginal courts. This morning we heard presentations and I listened to you. I have a question for you. If you do not have an answer now you can provide it to the committee later. You do not need to feel pressed today. Do you think the time has come, especially around 222 Main Street, to have separate Aboriginal courts exactly because of the things you set out?
Ms. Shackelly: Actually that is a good alternative. The First Nations population and leadership in British Columbia are looking at what is happening to their members in the judicial system.
We know that First Nations courts are sentencing courts. This means that they are responsible for the structures of those courts, whether they are elder committees or sentencing where they have to develop healing plans.
Through the regular justice system individuals are going there based on their charges and then they are out and quite often you will see them again. We understand that. Whereas First Nations courts are looking more at what exactly is bringing the individuals to the system and at how they can address those issues.
There is a lot of movement in British Columbia around the issue of trauma. Alcohol and drug addiction is not the number one issue anymore that you always go to. It is a symptom and they recognize that. What is it that First Nations courts could actually offer? They could support the foundation of a family and not just the individual. They could look at productive lifestyle versus just looking at what it was they were charged with. Also it is good that they have to report back to the courts on a regular basis.
Senator Jaffer: When I first practised here in B.C. we did not see as many Aboriginal women in the court system as we see now, and sadly we know what the figures are in the prison system. What especially needs to be in place to help Aboriginal women and to deal with the issue of court delays?
Ms. Shackelly: We know what the records show because of the age of our organization. It used to be that men were always the highest number of people being charged with an offence. We now see that the numbers for Aboriginal women are growing. What is even more disturbing is that they are more violent in nature.
What is happening is growing it out into the correctional system as well. The design around women in general must be holistic, much the same as men. We do put a lot of emphasis around men because it is usually men who are charged with offences. We have to look at the whole population of youth, women and men, the whole family unit from a community focus level.
What solutions are based on will derive from the community. That was probably the premise of Vancouver Community Court. The court itself was another sentencing court where the community was engaged to come and support that court. The Vancouver Community Court is there but the community engagement is not there anymore.
In the strategic planning they are looking to push that forward again. I actually think that the foundation of those courts needs to stay with what the community can offer the court system.
Senator McIntyre: Ms. Shackelly, I want to follow up on Senator Jaffer's question. Thank you for describing the specific problems that Aboriginal persons face when dealing with the criminal justice system.
When she appeared before our committee, Paula Marshall of the Mi'kmaq Legal Support Network in Halifax said that Aboriginal people had been experiencing problems and challenges with the Canadian justice system. I will not echo everything she said, but bearing that in mind are you satisfied that so far we are moving in the right direction?
I have always believed in First Nation courts. I can tell you that right now because I have practised criminal law for 35 years in New Brunswick. We have First Nations communities as well. To me First Nations courts are the answer. Are you satisfied that so far we are moving in the right direction?
Ms. Shackelly: Yes, I agree. Also I would like to thank Paula Marshall for bringing that forward. The Mi'kmaq Legal Services has a relationship with the Province of Nova Scotia to do Gladue. They have a contract specifically for Gladue writers. They actually have a formal relationship with the province that when they do Gladue they bill the province and the province pays. Unfortunately that is not the case here in British Columbia which to me is a real flaw in the system.
The Criminal Code is 20 years old. By now the Province of British Columbia should have had a plan rather than it being piecemeal and fragmented as it is now. I do agree, though, on your statement of First Nations courts. The more of them where communities are engaged to help support indigenous people going through the system has a better chance of success.
Senator McIntyre: Mr. Fowler, I enjoyed what you had to say. Defence lawyers win trials on cross-examination. That is where the expertise comes from. As a defence lawyer you do not win a trial on direct examination but on cross- examination. You have to be good at it and it takes a lot of experience. The old bucks teach the young bucks on that issue.
I have a simple question for you, Mr. Gottardi. In Jordan the Supreme Court of Canada established a new legal framework and new ceilings of 18 and 30 months. The majority proposed a transitional regime and that opinion was not shared by the minority.
Could this ruling result in numerous cases being delayed? Do you think these new presumptive ceilings may be too difficult to apply?
Mr. Gottardi: I do not. First, do I think that the majority has expressed concern or even the minority has expressed concern that thousands of cases are at risk of being stayed? I do not agree with that. The majority really bent over backward in its judgment to make it clear that they do not want a repeat of what happened following their decision in Askov. They created this transitional regime to help bridge the gap between the old system and the new system.
Second, the bit of evidence that was before the court in terms of court delays came from our province. It came from reports that our courts had put together. Those reports actually showed by the time that Jordan was argued that even in our busiest jurisdictions like Vancouver and Surrey the numbers were actually coming down pretty close to the targets that were set by the Supreme Court of Canada years ago in Morin and Askov. The evidentiary record actually showed that we were kind of past the crisis point so I do not think that we are really at risk of seeing thousands of cases stayed.
I have no idea how effective the ceilings will be, as Mr. Fowler pointed out. A 30-month ceiling will be utterly meaningless in Prince Edward Island where you can get to trial within four weeks.
That was one of the questions the court had. Specifically Justice Cromwell who wrote the minority dissent asked about the application of these standards across Canada. We will have to see how Jordan plays out, but there could be room for Parliament to do something a bit more targeted. We need to make sure that every Canadian has access to timely justice. It certainly would not be timely justice if someone, as I say, in Prince Edward Island had to wait 30 months for a Supreme Court of Canada trial. I suppose we will have to wait and see.
[Translation]
Senator Dagenais: Mr. Doroshenko, I have to say you gave me a start. I am a police officer with 39 years of service. I was a breathalyzer technician. I did over 200 breathalyzer tests. I am very familiar with the device, which was calibrated every week. We received training every year. You know all the prior test procedures that are required to ensure that the device is working correctly.
I also worked with the Alert system, which was not a test as such but rather provided additional evidence so we could take individuals to the police station for a breathalyzer test. You did not talk about symptomatic indicators, such as a coated tongue, red eyes and erratic driving. I am not sure I agree with you, but I do not want to discuss it today.
Yet there are defence lawyers who are experts in delaying tactics: "Pardon me, your honour, but I am on vacation next week, or in two weeks I will be in Superior Court, or my client is sick.'' A reasonable delay often gives the client a way out. We will not agree about this today, but that's okay. We each have our opinions.
Mr. Fowler, you talked about mega-trials. I would like to hear more about that. In Quebec, there were two mega- trials that were so long that the all the Hells Angels were acquitted and the funds seized were returned to them. No one was ready for a mega-trial. Can we say that the judges were not prepared for those trials or that Crown counsel was overwhelmed? Imagine the three poor Crown counsel facing twenty or so defence counsel. Moreover, the government often had to provide legal aid services as well. This all cost millions of dollars to taxpayers, and now there are members of the Hells Angels who roam the streets freely and are in good shape again. I would like to hear your views on this. In my opinion, we should no longer work that way. We should simply have separate trials for accused persons.
[English]
Mr. Fowler: I have read a bit about some of the studies that have been done after the problems with mega-trials in Quebec. A number of comments have been made about the lack of liaison of the police with the Crown in advance of a massive number of arrests, in other words the inability to anticipate in advance that there will be a particular operation on a particular day to round up 100 people. That liaison between the Crown and the police is important.
A study was done or the roundtable took place sponsored by the Canadian Institute for the Administration of Justice in Vancouver in 2014. I sent the report to the committee. The CIAJ website has the report in which one of the recommendations was that there be greater liaison between the police and the Crown in advance and even with the courts so that the courts know in advance that 20 people or 30 people will be arrested.
The trials in Quebec were just unmanageable because they were charging 20 people in a single trial. I do not know whether it is a lack of experience with doing these kinds of trials but you cannot put on trial 20 people. You just have to think about it in numbers. You have 20 people on trial. You have 20 lawyers, each of whom will do a cross- examination. Even if it is a very efficient cross-examination of 15 minutes that is five hours of cross-examination. They were just unwieldy. They were too big. They were poorly planned. They were poorly executed. You have to plan for a mega-trial. That is what I would say.
The Chair: I have a question for you as well, Mr. Fowler. It deals with a 2014 report for the Canadian Institute for the Administration of Justice and the contribution from defence counsel who attended that roundtable. I know this dealt with complex cases but I think it has some applicability more broadly.
The quote was that the current Legal Aid funding model can be problematic in respect of behaviors and actions that are rewarded financially and those which are not. I know you referenced the funding for juniors to attend court, but I am wondering if you could perhaps speak to that comment in the context of reducing delay.
I would be interested in the recommendations that you could make to the committee relative to the funding model and how it could be adjusted to assist us.
Mr. Fowler: I was at the roundtable so I am familiar with those discussions. There are different ways to fund Legal Aid. There is an hourly rate model. There is a half-day or day in court model. In other words it is a fixed fee model for however many half-days or days. Then there is sort of a lump sum model for the completion of a trial. All of those models are used by the private bar as well. I bill some clients by the hour. I bill some clients by how many days it will take in court. I bill some clients a fixed fee.
The problem in criminal law is that early resolutions are not necessarily cheaper in terms of what it costs the client because you still have to analyze the case. You still have to read all of the disclosure and make recommendations to your client as to how to proceed. There are a lot of frontend costs to properly preparing a case either for early resolution with discussions with the Crown or for going to trial.
The problem with the Legal Aid model was that much of the funding funded people for going to trial because there was a half-day or a full-day trial fee, whereas if you resolved the file early on with a plea and a sentencing you might get $100. For a plea and sentence in a summary conviction matter in B.C. you get $100, whereas if you go to do a half-day trial you get $500.
The Chair: There is no incentive.
Mr. Fowler: It is not that people are necessarily being unethical about it, but at the end of the day subconsciously that will weigh on some lawyers inevitably.
We have to recognize that resolving cases before trial can be as expensive as resolving them at trial. We need to incentivize early resolution by paying lawyers properly to analyze a case and to have meaningful discussions with the prosecutor early on. The only way to do that is through a model of Legal Aid funding that recognizes that lawyers have to put in a lot of work at the front end.
The Chair: I am assuming that you have put that kind of case forward.
Mr. Fowler: I have been beating this drum in B.C. for 10 years.
The Chair: Are you getting responses?
Mr. Fowler: The bottom line is that in any province that is trying to balance its budget it does not get votes to say we will put another $20 million into Legal Aid. It just does not. The problem is, and I mean this respectfully, politicians do not connect the dots if you are not funding defence counsel.
We have a tripartite system. We have a judge. We have a defence lawyer. We have a prosecutor. If any of those people in our adversarial system is a weak link, either because the judge is not trained in criminal law or the prosecutor is not properly resourced or the defence lawyer is not properly trained, you will have an inefficient system. You have to recognize that inefficiency means an expense somewhere.
It is either in sheriff's time or court administrator's time moving prisoners because you will have a continuation for the next three days. If you start putting money into Legal Aid, training defence lawyers better and expecting more from them as payback essentially, then the system will work better. You cannot just tinker with the judges, with the court administrators and with the Crown and forget about the defence counsel. You just cannot.
The Chair: You cannot make a financial argument that will stand up to scrutiny.
Mr. Fowler: I think you can but it really does come down to: Do we put money into schools? Do we put money into cutting taxes? Do we put money into health care?
The Chair: It seems to me on the surface you are not talking additional resources. You are talking about a shifting of resources.
Mr. Fowler: With great respect the problem is the cost of delays does not show up in a very visual way unless there is a stay. Financially it does not show up. People do not say we have to put another $50 million into prosecutors because of delays. It does not show up in a visual way that way.
Senator Batters: Mr. Fowler, when you were talking just now about connecting the dots that is what the Senate is for. I would submit it is sober second thought. I am glad you had the opportunity to make that argument which you will now have on record and to hopefully assist you.
You made a comment in your opening remarks, Mr. Gottardi, that I wanted to make sure I got correct. I think you said you did not think that the courts should double-book trials. I am just wondering what you think about the huge fall-through rate, though.
I am from Saskatchewan. In our interim report we commented in the shadow court system that Saskatchewan is utilizing to try to decrease the amount of precious trial time that falls through at the last minute and to try to actually use that trial time.
I am wondering if you entirely disagree with that type of overbooking approach. They use a relatively conservative estimate on their overbooking. They use a system like the one an airline uses for overbooking seats. They anticipate that a certain percentage will fall through at the last minute because of guilty pleas and because of increased adjournments and that sort of thing.
Do you think the courts should use a more conservative estimate in their overbooking practices that you are personally seeing? I just wondered what your impression was of that.
Mr. Gottardi: There is no easy solution to the problem. It is a problem again that flows from an under-resourced system. If you do not have enough judges in courtrooms to hear all the cases then you need to overbook and you need to figure out which ones will go ahead. If you are not getting a lot of cooperation from counsel then you might not know what is going ahead until the morning of.
That brings me back to a comment Mr. Fowler made. If counsel is properly incentivized to pursue early resolution it will remove some of those cases that are resolved on the courthouse steps. One of the risks in doing that is that if you make it equally palatable as going to court the concern is that you will have a bunch of individuals pleading people guilty all the time and pressuring people to resolve as quickly as possible. That is not a particularly palatable prospect when people cannot afford their own lawyers and they are looking to the state for legal assistance.
Senator Batters: I would like an answer, though. Do you disagree with the practice entirely or do you acknowledge that there is a certain conservative estimate amount?
I practised law for many years. I know how many trials fall through at the last minute because someone looks at the evidence right at the end and decides, "I am guilty of this.''
Mr. Gottardi: It is a system that is there to deal with the worst practices possible. It is a reality that has come about because of necessity, but it is not an aspirational model. It is not a best practices model.
We are all aware of lawyers who practise that way but that is not the way that any of us should practice.
Senator Batters: But it happens. Do you agree with it?
Mr. Gottardi: It sure it does. It happens when I show up to court in Richmond Provincial Court for a two-day trial. Where do you go if my witness has flown in from China and their matter gets bumped? They have to the fly back to China and come back six months later. That is inexcusable. There is literally no excuse that I can give to the client for why that should happen in our system. It is shameful that it happens.
There are ways to deal with that to make sure that it does not happen. The fact that it does happen is inexcusable. There is overbooking. There probably will be always some level of overbooking. Defence counsel is just as bad with booking multiple things on the same day. It is very far from a best practices model about how we should go about our work and how the system should accept the work that we put forward.
Senator Baker: I certainly will show deference to your opinion on this issue because you have won the Section 11(b) argument on Jordan. You were defence counsel and you have on occasion been Crown counsel in which you defeated the argument on Section 11(b). If I remember correctly, Bentley was one of those cases years ago. Am I correct in that?
Mr. Gottardi: Yes.
Senator Baker: You know the subject inside out. You made a statement a moment ago. You said that you did not believe there would be a lot of cases thrown out of court. The transitional provisions really protected those cases in areas where there was an extensive delay in court time.
Without changes to the court mentality, if you want to put it that way, the court procedures, the court rules or the Criminal Code to reduce those delays, you are going to have thousands of cases thrown out in those areas which today are protected by the transitional provisions. Wouldn't you agree?
Mr. Gottardi: I do not know that I would. It is difficult to know. Every case is different. Every province is different. Every court backlog is different. We have seen courts do an excellent job dealing with their court backlog.
The Ontario Court of Appeal in the late 1990s had a horrific backlog which they essentially got rid of in the span of three years. There are ways for courts to deal with their court backlogs. Obviously one of them is to have a full complement of judges to deal with cases. Where there are open posts there should be judges filling those posts. Where we have courtrooms that are closed and empty and not working on a daily basis, those should be open and manned by a judge or staffed by a judge and hearing cases.
I think that Jordan calls for a cultural change. You are seeing cases now where defence counsel had approached a case under the old regime. It was a case called Gandhi out of Ontario with Justice Code writing it who took apart the conduct of defence counsel for about eight pages. I am told by colleagues in Ontario that will happen more and more. People will get the message. I am sure the same will happen with Crown counsel having multiple accused trials and these things falling apart.
That will take time. It may take too much time. In that interim period you may have some cases that fall within that danger zone. What is really important is if there is any room for Parliament to legislate it is that the 30 months and the shorter guideline for one-stage trials are aspirational goals. If you get to 30 months something has gone horribly wrong. It was not where we will start to be concerned. That is the end goal.
To get to where the whole system needs to get to we all need to change the way that we do business. It will not be pretty. It will be easy. There is no one fix.
Whether law enforcement, the prosecution, the defence or the courts, every actor has to look at themselves in the mirror and decide what are the core things they need to do our jobs and how can they change it so that they do it faster and better?
The Chair: All right. That wraps it up. I want to thank you all for your testimony and your contributions to our deliberations. It is very much appreciated.
(The committee adjourned.)