Proceedings of the Standing Senate Committee on
Legal and Constitutional Affairs
Issue No. 12 - Evidence - September 29, 2016
SASKATOON, Thursday, September 29, 2016
The Standing Senate Committee on Legal and Constitutional Affairs met this day at 12:23 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: Good afternoon. Welcome colleagues and invited guests.
Members, earlier this year the Senate authorized the committee to examine and report on matters pertaining to delays in Canada's criminal justice system and to review the roles of the Government of Canada and Parliament in addressing such delays. This is our twenty-first meeting on this study.
For our first hour we are very pleased to have with us today from the Saskatoon Police Service, Chief Clive Weighill, and from the Saskatchewan Crown Attorneys Association, Kelly Kaip, President. Thank you both for being here today.
Clive Weighill, Chief, Saskatoon Police Service: I thank the committee for allowing me to provide testimony today.
I have read with great interest your interim report, Delaying Justice is Denying Justice — An Urgent Need to Address Lengthy court Delays in Canada. As the committee is well aware, lengthy court delays is an issue across Canada for both federal and provincial courts. In preparation we took a random sampling of three crime categories: break and enter; trafficking of cannabis, methamphetamine and cocaine; and robbery/armed robbery. We examined 90 files where the accused was arrested immediately after the offence to rule out any delay due to the investigation time.
In the break and enter category the average number of court appearances was nine with a high of 20. The average number of days between charge and conclusion was 174 with the highest at 470.
In the trafficking category the average number of appearances was 10 with 27 being the highest. The average number of days between charge and conclusion was 181 days with the highest at 775 days.
In the robbery/armed robbery category the average number of appearances was 11 with 26 appearances being the highest. The average number of days between charge and conclusion was 203 days with the highest at 646 days.
Although I have provided some statistics related to actual court appearances post charge it would appear to me that many of the solutions lay outside the mechanics of running courts. I draw your attention to the macrosocial issues facing the courts and the entire justice system that substantially increases the number of people appearing in Federal Court. If we could reduce the number of people appearing in court correspondingly the backlog and delays would also reduce.
If we do not reduce the usage of the courts we will not keep up with the demand. In this vein I will speak to three factors: (1) overrepresentation of Indigenous people in the criminal justice system, (2) reducing the entrance of young offenders into the criminal justice system at the point of the Youth Criminal Justice Act, and (3) rehabilitation and transition from correctional facilities to a non-custodial environment.
On the first point, preventing criminal activity, the committee previously noted an overrepresentation of the Indigenous population in the criminal justice system. I suggest to the committee that one of the important factors is the marginalization faced by the Indigenous population in our province. Unfortunately a significant percentage of the Indigenous population is living in poverty, poor housing, facing racism and the continued residual effects of colonialism, residential schools and a restrictive Indian Act. Indigenous people living in such conditions are a criminologist's textbook explanation regarding the linkage of criminal activity to marginalization and social determinants that may lead to crime.
I encourage the committee to make comment in its final report that the federal government invest further regarding Indigenous strategies to assist with better housing, education and job opportunities on First Nations and in urban settings.
I believe in Saskatchewan the prevalence of youth crime is primarily predicated on similar factors, which leads to my second point in relation to the Youth Criminal Justice Act. Although youth do not usually appear in Federal Court, if they are not assisted when first coming into the criminal justice system they may progress with criminality as an adult.
There are positive aspects of the current YCJA and correspondingly several problematic areas. Some people believe the YCJA does not have proper focus on deterrence and penalties. I would argue that position. The YCJA has several options for extrajudicial sanctions. The police can utilize warnings, official warnings, pre-charge diversion and post-charge diversion.
The downfall with this act is that there is little infrastructure for effective extrajudicial sanctions to be meaningful. We do not have youth addiction centres and only limited programming options or substantial social strategies to assist with youth escaping from marginalization. What inevitably happens is the youth ends up breaching conditions and is then forced back into the criminal justice system. In many cases placing a young offender in a youth facility only hardens the youth to further criminality, possibly leading to further criminal activity when they become an adult.
Intervention opportunities with youth can provide significant benefits to society and youth. The case study of a person in Saskatchewan who at the age of 24 committed a murder serves as an all too common occurrence. As one examines her life history leading up to the homicides there were approximately 24 points in her life where an intervention may have been significant: assistance at the age when her parents split, help when her stepfather was abusive, family assistance while her parents suffered from substance abuse issues, and counselling when she began drinking and using drugs at an early age, the several points of intervention as a young teen when she became involved with the criminal justice system, and a transition plan when she was convicted of aggravated assault as a young adult and then sent to a correctional facility.
The story goes on. At each of the above points if she had received a meaningful intervention, possibly the outcome would have been different.
I hope the committee takes notice of this dilemma and recommends that the federal and provincial governments recognize the value of extrajudicial sanctions and funds sorely needed addiction centres and substantive programming. This may greatly reduce the number of youth progressing through the criminal justice system even further.
My next point is rehabilitation and transition from the correctional facilities to a non-custodial environment. It is a known fact that correctional centres in Saskatchewan and many other provinces are filled and overcapacity. Much of this is the result of court delays and persons held on remand. This has put a huge strain on the ability of Corrections to provide the inmates with assistance for their mental health or addiction needs, education or trade opportunities, or a meaningful transition to reintegrate when released. The end result in some cases is the inmate serves time in remand, further serves time when sentenced and does not entirely receive the rehabilitation opportunities that Corrections could avail.
In many instances offenders spend time incarcerated, are released with no transition plan and simply go back into the same environment they came from. If they return to the same environment they came from, is it any wonder they are prone to revert to their previous lifestyle and end up before the courts again?
Lastly I encourage the committee to make recommendations that the federal and provincial government increase funding to provide services inmates require while incarcerated and provide them with a meaningful transition plan for their release. If this occurs it may reduce not only the number of people reoffending, thus reducing the strain on courts, but also may reduce the numbers of people that are incarcerated.
I firmly believe that if the three points I have highlighted receive significant attention the demand for federal courts could be reduced substantially. In turn lengthy delays in the system would be reduced. I realize these are complex and long-term issues to solve and possibly beyond the mandate of this committee. I do believe, however, they are important factors that if not resolved will continue to increase an ever-growing demand on the courts.
Once again I thank the committee for allowing me to provide input on this issue and I am open to any questions you may have.
Kelly Kaip, President, Saskatchewan Crown Attorneys Association: Mr. Chair, I am a senior Crown prosecutor with the Saskatchewan Department of Justice, Public Prosecutions, and I am the current President of the Saskatchewan Crown Attorneys Association.
I thank this committee on behalf of the Saskatchewan Crown Attorneys Association for the opportunity to appear before it to present on the issue of delays in the criminal justice system. I too have read the interim report and found it very useful in terms of my analysis of the particular issues that we face.
The criminal justice system in Saskatchewan is very much a team effort. As a result, prior to my attendance here I consulted with a number of individuals that provided me with some useful information. Those included Daryl Rayner, Assistant Deputy Attorney General for Public Prosecutions, and Tony Gerein, Director of Prosecutors for Public Prosecutions. Those two gentlemen provided me with statistics and insight into the issues which are present throughout the province.
In addition I thank members of the executive branch of SCAA as well as members at large who provided me with some anecdotal information about their experiences when prosecuting in the province. Elizabeth Hilts, Associate Regional Crown in Regina, provided insight into the issue of the treatment courts that we currently have in place.
Additionally I would like to thank David Belanger who is currently as we speak trying to provide French interpretation of my remarks despite his ridiculous court schedule this week. I would also like to thank Cara Haaf of Scharfstein Gibbings Walen & Fisher here in Saskatoon who provided technical support.
It is a long list of people. I should also include colleagues at Legal Aid in terms of who I consulted prior to my attendance here. What it really shows is that the criminal justice system as a whole is a team effort in this province. If we hope to tackle the complex and difficult issue of trial delay it will be necessary to have frank discussions like we are having here today.
I can say that there are few people in the criminal justice system who are more acutely aware of the impact of inordinate delays within the system than the Crown attorney, for it is the prosecutor who often has to explain to witnesses, victims, families of victims and the public at large why a criminal matter takes as long as it does to flow through the system. Certainly where there are judicial stays entered for delay, we wear those results very publicly.
Crown prosecutors in this province and indeed across the country are a collection of dedicated professionals. We are committed to holding those who commit crime accountable. We see firsthand the results of delay: witnesses move and are lost, memories fade, the will of witnesses and victims to participate in the process dwindles as time goes on, and where cases are judicially stayed they are dismissed without consideration on the merits of the case. These results are in contravention of the ultimate aim of the prosecutor, that of a safe and healthy community.
The area covered by Public Prosecutions in this province is mind-boggling. Our farthest northern court point is Fond du Lac, Saskatchewan. Our most southern point is Estevan, Saskatchewan. Then we go as far east as Moosomin and as far west as Lloydminster.
One of the reasons that I reached out to my colleagues in the department throughout the province is that some of the issues faced by a prosecutor serving a court point in our north is far different from those faced by prosecutors working in urban centres. We may certainly have some issues in common. I will try to briefly touch on, and I will say briefly, some of the more glaring issues that are faced by members of my organization.
The issue of delay is complex. It is important that we separate the issue of unnecessary delay from delay where the justice system participants may ultimately benefit from lengthy periods prior to the disposition of a charge. For instance, in various therapeutic courts such as drug treatment courts, domestic violence courts and mental health courts, offenders are given the opportunity to participate and complete programming to address issues specific to their offence cycles. Additionally post-charge mediation and alternative measures often use restorative justice approaches. While these matters may take longer to resolve they are helpful means to just resolutions in part through encouraging accountability of the accused.
In my written materials I have discussed the important role that therapeutic courts are beginning to play in taking matters out of the regular system. I will use the example of our mental health court which is currently being run in Regina. Currently the mental health court is unfunded at both the provincial and federal levels. To me, this is certainly a reflection of the current state of society where the mentally ill are not well served.
There are no dedicated psychologists or psychiatrists to provide assessments or reports with respect to recommendations for persons with mental health issues who participate in the court. The court is largely depending on opinions from a variety of existing community resources such as mental health workers, addictions workers and probation services, just to name a few.
The reality is that despite the presumption against custody for most offences under the Criminal Code those with mental health issues often lack safe residences, family and community support and the proper programming. As prosecutors we are then left with a decision. Can we safely agree to the release an offender? Jail is quite possibly one of the worst places for a person with profound mental illness. However the dearth of meaningful community resources often leaves courts with little choice but to remand the offender.
The issues of addiction and domestic violence are similarly complex and treatment an absolute necessity in the majority of cases before the courts if we are to have any hope of addressing recidivism of accused persons.
In my written materials I have listed some significant deficits in resources currently for both municipal and federal police despite a 10 per cent raise in the Crime Severity Index in Saskatchewan in 2015. With Saskatchewan having the highest CSI and crime rate among the provinces we have not experienced a corresponding influx of resources for police officers. We have more police officers on the streets but fewer investigative tools.
As I have indicated in my written materials the closing of police forensic labs, the lack of forensic pathologists and the challenges in obtaining proper disclosure all contribute to delay in the criminal justice system.
With respect to the defence side of things there are also delay issues that have arisen due to the defunding of the Legal Aid system, Aboriginal courtworkers and the participation of the private bar in the Legal Aid system. I am very encouraged to see that representatives from the Aboriginal Courtworker Program and Legal Aid are here today.
With the decrease in Legal Aid lawyers and the increase in Saskatchewan of crime, particularly violent crime, there are delays attributable to the lack of counsel availability. Where these might be mitigated to a certain extent by the Legal Aid farm-out system, private lawyers are often not attracted to the Legal Aid tariff system which has comparably low rates for services. There are also constraints on the amount of preparation time placed on private farm-out lawyers which often lead to frustration on the part of those lawyers.
Aboriginal courtworkers have filled the gap where persons may not qualify for Legal Aid and cannot afford a lawyer or for those who wish to deal with their matters more expeditiously. However that program also experienced a defunding on both the provincial and federal levels which in turn has led to job cuts.
I recognize that I am running close to time.
The Chair: You are over actually.
Ms. Kaip: My apologies. There is much to talk about.
The Chair: There will be an opportunity for questions as well.
Ms. Kaip: Certainly we often need to look at the issue of tactical delays on the part of defence counsel. That is a reality in the system and I have provided a fair amount of information with respect to that in my written materials.
Ultimately in Saskatchewan we have 123 frontline prosecutors. We are doing fairly well in terms of our national statistics. In Saskatchewan the average time lapse between first appearance and final was 71 days which was far below the national average of 123 days.
On the challenges in terms of numbers we are doing fairly well. We are doing a fairly good job of vetting criminal matters and disposing of them in a timely fashion, and we are working on initiatives within the department.
Deputy Minister Kevin Fenwick actually testified at a previous proceeding with respect to this, so I will not go on with respect to those initiatives. The best way I can describe a typical prosecutor's day is triage. With file volume we have to be pragmatic as to where we apply our time and resources but we have to be cognizant of our duties to the public, our ethical responsibilities as lawyers and our roles as citizens.
I thank the committee for having SCAA attend and provide information to the committee today. I look forward to a process where we go forward and cooperatively try to solve some of the problems in the system. Thank you.
The Chair: We will move to questions now beginning with Senator Batters, a Saskatchewan senator.
Senator Batters: It is great to be in Saskatchewan today, my home. I went to law school in Saskatoon just across the river. Thank you very much for coming and for all the work that you have done on this issue.
Saskatchewan, as I have said many times in the media and at this particular committee study, is a real innovator on court delays. That is the reason for some of those good statistics you just talked about. It does not mean that there still are not issues and things to work on, but part of the reason I really wanted to come to Saskatchewan was to hear firsthand about some of these different things.
Chief Weighill until recently you were the head of the Canadian Association of Chiefs of Police? Am I getting this right?
Mr. Weighill: Yes.
Senator Batters: That is a real feather in your cap and one for Saskatchewan as well. In that vein and in all your years of service with the Saskatoon Police Service, could you tell us what you would say are the top two or three changes that you have helped institute with the Saskatoon Police Service to decrease Criminal Court delays?
Mr. Weighill: We worked very closely mainly with the provincial courts because we deal primarily with the preliminary hearings that all through the provincial courts first. We tried to streamline methods so that we could get people to court in a quicker period of time. We tried to do different kinds of show causes so that we could streamline having to go into further court appearances and bail reform. We have been very central in trying to keep violent offenders in jail and for the ones that do not need to be put in jail to be released to have their court dates set.
One of the biggest things that we have been spending a lot of money on is victim support. When we have a case where violence has been involved and there is intimidation and people are scared to participate in the court system, it puts a huge strain on our resources. Our major crime detectives spend probably 20 to 25 per cent of their time not investigating files but actually working with the victims and making sure that they are going to feel safe to go to court and will attend court. We have been spending that extra time with the victims so that they attend court. We do not want to end up with a court appearance and the star witness is not there. We do not want to adjourn the court case to another day and then move on from that. Those are probably a couple of the biggest things we have done.
Senator Batters: I wanted to ask you about dealing with victims, Ms. Kaip. Yesterday we had Sheldon Kennedy testify at our committee in Calgary, but I would like to hear from you because you have been a prosecutor for a long time and unfortunately have seen this much too frequently.
In the worst case scenario of a criminal court delay going on too long and the case being dismissed or stayed because of lengthy delay you have to speak to the victims about that. Could you please tell us the impact of criminal court delay on victims?
Ms. Kaip: I can certainly speak to a specific circumstance that gives a very good illustration of some of the things that victims of crime go through.
In the north oftentimes there are not adequate court facilities in place and it is a function of trying to make do with what we have. Unless victims are prepared to wait in the body of the courtroom, and there are issues with respect to that, oftentimes they are kept in locked police vehicles outside the courthouse.
Think of a child witness being locked in the back of a police vehicle waiting to testify about something that is absolutely horrible. Then throw into the mix the fact that in terms of security, if they are in the body of a courtroom, accused persons are often led into court in handcuffs and shackles and are kept in the body of the courtroom. Members of the accused's family often come especially in smaller centres and the victim has often, if not by that point then certainly at that point, suffered some retribution or some fear with respect to co-operation with the criminal justice system.
Then the facilities in place oftentimes do not allow for the protection that we have in place for victims in the Criminal Code to actually be utilized. I am thinking of screens in the case of child victims or support persons. This child victim attends with minimal preparation. When it comes time to prepare the victim oftentimes Crown prosecutors have no place to take them but to either the locked backseat of a police vehicle or perhaps an adjacent kitchen to the court room where the proceedings are carrying on which may or may not have a door. There is very little in the way of privacy.
Then once we have gone through this whole thing the offender might stand up in court and say, "I am firing my lawyer; I need an adjournment.'' That means a few months down the line we need to try to try to find and convince this victim to come and testify again.
The emotional impact on victims is something that is hard to describe. I was involved in one case where the victim was 13 when the proceedings started. There was delay attributed to the accused in an 11(b) application of 27 months and 23 days. That victim was 18 years old by the time that issue was resolved. Ultimately the accused did plead guilty and was sentenced to a custodial term, but the victim spent the entirety of her teen years under the cloud of the criminal law proceedings. It is difficult after a while to explain to victims why it is taking so long.
Senator Baker: I thank the witnesses for their excellent presentations.
We received a thorough briefing this morning from your provincial court on the procedures and so on followed by Crown counsel and to a certain extent the police services as well.
We are examining trial delays and the unfortunate part about trial delays is that sometimes it leads to an 11(b) question and the entire thing is thrown out. The recent Jordan case was accompanied by the Williamson case in which the person was convicted of sexual assault against children in the most outrageous period of time. Then it was entirely erased because it took too long for the courts to process the case.
In judging the delay, the delay only counts when it is the Crown. The Crown includes the prosecution service, which is you, and the police next to you. The defence delay is not counted. It is on your shoulders. What stands out in case law about Saskatchewan is that we do not see the cases thrown out that involve crimes like the ones the chief talked about: trafficking in cocaine, break and enter with intent to commit an indictable offence or armed robbery and so on.
You will notice the chief's figures were all under the 30-month guideline except the first one that was under the 18- month guideline. They were within the Jordan principles, but what stands out is that the only cases that have been thrown out in this province have involved impaired driving under 11(b). You had two this year but nothing compared to the other jurisdictions.
I put a similar question this morning to some officials. To what do you attribute the result that the system appears to be working in Saskatchewan as far as 11(b) is concerned and having cases thrown out, whereas in the other jurisdictions it is just not measuring up to your high standard?
Ms. Kaip: In the way that we have approached the issue of delay is necessarily complex. We actually had some unfortunate decisions in Saskatchewan with respect to 11(b) issues. One was called Pidskalny which I believe was in 2013. As well there was a child sexual assault case that was thrown out for delay, and that was the Dallas Poole case.
Because of those cases the director of prosecutions has been quite clear that in situations where it looks like there might be inordinate delay we need to be proactive and we need to work with our partners who are the police. In addition to delay being apportioned to the Crown, that is delay that involves perhaps the police, we also are tagged with systemic delay. If there is a lack of court resource or judges, for instance, oftentimes that is apportioned to the Crown as well.
What we have done differently here is that we have tried to be proactive with respect to some of those therapeutic courts. We are taking a large portion of what normally would clog the court system out of the court system. We are trying to provide resources to people to address recidivism so that we do not have frequent flyers coming back.
Another thing we have tried to do is that we have tried to be fairly cognizant of the limitations of our partners, the police. Police officers are dealing with shift work. They are dealing with leave. They are dealing with overtime issues. We are trying to bear in mind, and certainly we have being doing it in Regina of late, police schedules when scheduling trials so that we do not have unavailable witnesses and we do not need to ask for an adjournment.
We also work very closely with the trial coordinators in our urban centres and certainly in the outlying areas. We try as far as possible to use court resources wisely. Unfortunately that sometimes means not just triple booking courtrooms but quintuple booking courtrooms. We can have up to five or six matters scheduled in a day.
Now there is a gamble that not all of those matters will go ahead and oftentimes resolution happens on the day of trial. Instead of having empty court time and underutilized resources we have a courtroom running with at least one trial going on. It certainly creates an extra burden on the part of the Crown, on the police and on witnesses, but we are having a lot of downtime in those courthouses as well.
[Translation]
Senator Dagenais: Ms. Kaip, you raised an interesting point about having to bear in mind police officers' shifts. Is it the same situation in Saskatoon as in Quebec? I was a police officer in Quebec for 24 years. Police officers arrive at the courthouse in the morning and meet the Crown prosecutor, who is often overwhelmed. The Crown prosecutor takes five minutes with the police officer to present the case, whether it is domestic violence or driving while under the influence. The police officer sits in court. The judge enters the courtroom at ten o'clock, hears a few statements by the Crown and the defence attorneys, adjourns around noon, and the trial begins around two o'clock.
This is what I experienced for 24 years. I can see that you understand what I am saying and know where I am going. At about four o'clock, the Crown prosecutor has to tell the police officer that the case is not moving forward and that the officer's appearance will have to be postponed to a later date. There are police officers who wait, sometimes on overtime, as well as witnesses or victims, and then it is all postponed. The courthouse manager was often blamed since there were not enough courtrooms available. It must be said, however, that there were not a lot of Crown prosecutors. Do you experience the same thing in Saskatchewan?
[English]
Ms. Kaip: I can say that certainly we have those same situations as I said. Oftentimes our trial coordinators are putting forward more than one matter and certainly several matters. It really was true when I described the Crown prosecutor's role as being that of a triage person. We try to determine what is going to go ahead early in the morning. We try to talk to defence counsel as to whether or not a resolution is possible now that our witnesses have shown up. Sometimes defence counsel set matters to see if the witnesses are indeed invested in the process and sometimes it happens that they are not.
Ultimately we try when we work with police services to be cognizant of the fact that police officers are scheduled on days when they are off. They are coming in on their own time. It creates certainly a resource situation on the part of the police having to pay them overtime. When we walk into the courthouse on the particular day we are cognizant that we have to do a bit of air traffic control. Wherever possible we are sending police officers home early or we are sending them away from the courthouse if they are on duty and saying, "I can give you a half an hour to get back here; give me your cellphone number.''
Sometimes it is as simple as using some common sense on the part of the prosecutor to try to avoid witnesses, including police officer witnesses, sitting there the entire day only ultimately to be sent home. Sometimes it is unavoidable but we try as far as possible to be cognizant of those issues.
[Translation]
Senator Dagenais: Thank you very much for your reply.
My next question is for Mr. Weighill. With respect to delays at courthouses, in Quebec, as Ms. Kaip very clearly noted, police officers accumulate overtime because they often have to attend court during days off, and that is very expensive. There was an agreement between the Crown and the Sûreté du Québec so that police officers could attend court during their shift to avoid overtime, which was very expensive for the police force management at the time. This is still the case. The police force management or the station manager often informs the Crown that the police officer cannot appear on a certain date and requests that their appearance be scheduled during their working hours in order to limit overtime costs.
Do you have to manage similar situations in your police force? When police officers are scheduled to appear during their shift, it often means that they cannot appear when on scheduled days off or on vacation, which causes further delays. I would like to know if you have this problem also, which inflates your overtime budgets. I'm sure you have to manage this kind of thing, as a good manager.
[English]
Mr. Weighill: The answer is that it is an issue whether they are working or they are being called in and paid overtime. We have a very good relationship with the courts for the scheduling system. Whenever anybody lays a charge the officers put in their dates of annual leave and when they are to be off so that the prosecutor can work with that to try to make it when they are working.
We have a system set up in the major cities that if court is to be cancelled the prosecutor will phone and cancel the officers within a 24-hour notification so they do not show up for court. We have a really good record in the province with witnesses. If a witness is not in court or the victim is not in court the prosecutor may adjourn it to the afternoon. They will phone us and we will drop everything we can to get that victim or that witness into court by the afternoon so you do not have to make a big adjournment of the case. We work very closely together on that. It seems to be a fairly good system. We have not seen our overtime rising in the province very much over the past decade.
I would say, though, it is different in the northern parts of the province. It is okay in the major cities where we can do things like that. For an RCMP detachment in Fond du Lac everything has to go together that day. If somebody is missing and the court case is adjourned it might be another month before it is heard again. In urban centres we certainly have a lot more luxuries than they do in the Far North.
[Translation]
Senator Dagenais: Thank you very much. That was an excellent answer.
[English]
Senator McIntyre: Thank you both for your presentations.
The witnesses that have appeared before us have talked a lot about the success stories in Saskatchewan. I have a feeling that success story is largely due to the combined effort of all the stakeholders.
There is no question that charter jurisprudence has placed on police and Crown prosecutors huge demands particularly in regards to disclosure. Could you elaborate a bit on how you were successful in managing those demands?
Ms. Kaip: The issue of disclosure is a never-ending quest on the part of the prosecution service and the police. There are varying levels of sophistication when it comes to disclosure. What we are seeing as we advance into a technological age is more and more electronic disclosure. Specifically with respect to major crimes where a murder has occurred, for instance, we now get our disclosure on a thumb drive or on an external hard drive device. It is searchable. It is indexed. It is wonderful and it gets updated from time to time.
Those are the most serious crimes we can possibly prosecute and those resources are definitely needed. In terms of other avenues of disclosure I can speak knowledgeably about the Regina Police Service for certain. Where we have multiple parties, let's say six people accused of a murder, they are all assigned what is called a C number. You will have six different streams of disclosure.
It is the same event. The same investigators are involved in it. Once that disclosure arrives at the prosecution office it comes in paper form. The prosecution is then tasked with making sure that the disclosure is consistent for all six, but we also have to redact it with respect to issues of third party witness privilege or certainly third party privacy concerns, personal information of victims or even confidential informant information. Obviously we want to keep a confidential informer safe.
It is still an unwieldy process. We are on a go-forward basis trying to manage it a bit more effectively. The prosecution services in Saskatchewan went to Ontario because of its SCOPE program. We watched how it worked and we learned. We are currently implementing our own version of that system called EPIC.
Hopefully as we go forward we will see more sophistication when it comes to the disclosure process, but one of the major issues surrounding prosecutorial delay is getting disclosure and getting it out to defence counsel. Once we have done that and there is a change in counsel oftentimes we have to go through the whole process again.
Certainly in terms of disclosure I have seen mention that perhaps we should put time limits on disclosure. It is most important that all parties in the litigation have as much information as possible and as fulsome an idea of what the investigation was. I do not know that limiting the time would help. Certainly allotting some resources to the police end of things would allow them to perhaps move more toward an electronic disclosure type of approach. That would be helpful in the future.
Senator McIntyre: Chief, under the Youth Criminal Justice Act police officers can divert young people from the criminal justice system. Would you recommend that police officers be given greater discretion to divert adult accused?
Mr. Weighill: Absolutely. I am a firm believer in diversion. It is helpful to expedite what happens in the court. It will certainly draw down the numbers of people that have to appear in court. We have pre-charge diversion and we have post-charge diversion. I am in favour of both of those. They are winners all the way around.
The Chair: I have a couple of questions
Chief, you were talking about the overcrowding in remand centres, the lack of programming opportunities and that sort of thing. You are making a distinction between what I call provincial jail where you have a sentenced inmate versus a remand situation.
One of the things that perplexes me is I am not sure if we have heard brief testimony, if any, on another option. Even for a sentenced inmate in a provincial jail the average stay is 60 days perhaps. It is something like that in Ontario.
I am not sure if a remand centre is an appropriate setting for programming to occur, but I am curious about what the feedback would be on the courts using another alternative, electronic monitoring. There could be a set condition tied to programming. It could also give that individual the opportunity to continue employment or treatment of some other nature.
The cost would be significantly lower than keeping someone incarcerated. I am curious as to what your views would be in terms of addressing that situation.
Mr. Weighill: I would have no opposition to people serving custody outside of the institution. My only concern is that usually what happens is there is complete devolution to the police. If somebody is released on electronic monitoring who will monitor that? Guess who it is going to be. It is all going to the police. We will have people who are not being held in custody and we will be getting calls that the electronic monitor is not working.
It expands and expands. It falls on the shoulders of the police. If the government and the province want to handle that we are all for it as long as it does not fall into the hands of the police to enforce it.
The Chair: To me, it would be Correctional Services that would be handling that. It is just transferring their accounts and saving them a lot of money, I would think.
I have a question for you, Ms. Kaip. Sheldon Kennedy's name was mentioned earlier. One of his very strong and passionate arguments was that we should be looking at doing away with preliminary inquiries with respect to child abuse charges.
Would your association have a view on that or an opinion on that or a position on that?
Ms. Kaip: The preliminary hearing provisions were enacted fairly recently with the Criminal Code. They allow a lot of us to do a lot of it by paper. They have actually been very useful in terms of child sexual assault cases in particular. Certainly under section 540(7) of the Criminal Code we can tender any evidence provided that it is trustworthy and credible. That threshold is quite low. It is the same standard that we use in bail hearings and sentencings rather than beyond a reasonable doubt which is the trial standard.
Judges are very loath to limit cross-examination because child sexual assault allegations are quite significant and quite serious. They often view the preliminary hearing procedure as a discovery opportunity where they can discover what is the Crown's case. They can test the credibility of the witnesses. Often we do get guilty pleas after a well-run preliminary hearing particularly if the evidence is quite compelling.
There are some wasted opportunities with respect to preliminary hearings. For instance, a lot of evidence could be done away with at the preliminary inquiry. It is necessary for the Crown to provide evidence on every element of the offence unless there is an admission.
I will give you the example of robbery with a firearm. This actually was something that happened in one of my cases. The preliminary hearing was set. The issue was not whether or not the .30-08 was brought into the convenience store by the accused. The issue was identity in that case, whether or not the civilian witnesses could say yes, that is the fellow who was holding the gun. Despite that defence counsel would not admit the weapon used was a firearm for the purposes of the prelim, which meant we had to lead evidence of continuity that the gun we seized was the gun that was used. Every police officer that handled that gun had to be produced as well as the armour for the RCMP that tested the gun and found that it was an operational firearm. That turned a one-day prelim into a two-day prelim.
Section 540(7) has helped in that respect because certainly we can short circuit some of the more tedious aspects of the evidence. If there were further limitations on the preliminary hearing process, ultimately it would be useful in shortening the time we need which in turn then shortens the time it takes to actually get the matter to Queen's Bench and disposed of one way or another.
The Chair: I appreciate that. Mr. Kennedy's concerns — and I think a lot of us would share them — are the traumatic impacts on some very young people.
Senator Batters: Ms. Kaip, in your opening remarks you referred to tactical delays by defence counsel. I think you were indicating that there is more detail about that in your submission. Since people are listening today we would like to hear just a few quick things on the particular issue because we have heard some evidence from defence counsel that it does not happen. Could you please give us your perspective on that?
Ms. Kaip: In Saskatchewan we try to agree on everything but sometimes we cannot. Certainly I have seen firsthand what appears to be tactical delay. Oftentimes it is certainly not defence counsel's design. Sometimes we are dealing with sophisticated litigants who are well aware of the system.
Once again I can speak from personal experience. Recently there was a gentleman in custody on a very violent sexual assault. It would have been his second if he was convicted of the offence. On the first preliminary hearing date we heard some evidence and then there was a late request for disclosure by defence counsel during that time. Keep in mind when we set a preliminary hearing we are advising the court on the form we use in Saskatchewan that we are ready to go and there are no disclosure issues outstanding. That being said, there was an adjournment.
On the second date once again the victim came to testify. He was sitting in the soft room waiting to go in with victim services when the accused fired his counsel. The reason he used was that he was housed in the provincial remand facility and he wasn't able to make calls until after nine o'clock.
I was curious so I asked the director of the remand facility to provide me with Telmate records, which are records of the telephone calls that inmates make. It was quite clear that he was making calls throughout the day and night, and that information was provided to the judge on the next return date. He had not yet retained a new lawyer. He wanted time to do that. He was given three more adjournments just to seek legal counsel.
We are now nine months after the first date of the preliminary inquiry. We are not complete and we have not set a new date yet. That victim will have attended court hopefully only three times before the preliminary inquiry is concluded, and then we will have to attend if there is a trial.
Obviously there may be tactical reasons for that. The hope of at least some accused individuals who are fairly savvy with respect to the court system is that victims will lose heart. They will not want to come and testify. Their memories will fade and they will be acquitted or something else might happen. The case will fall apart and the Crown will direct the stay proceedings or withdraw the charges.
The Chair: I have to jump in there. We have two minutes left, Senator Baker, and witnesses could keep that in mind as well.
Senator Baker: It is the Crown's responsibility to carry the evidence which if believed would lead to submission to trial. I was going to ask about your system of McNeil disclosure but when we were considering time limits on disclosure you said that you didn't agree with that.
I will put the question to you. What is wrong with providing a time limit on disclosure prior to trial just as there is a time limit on defence to provide applications for pre-trial arguments and applications for Charter arguments? They are required to do it. If we put the time limit on the Crown prior to trial, and the only exceptions would be that the Crown would have to prove the information was not available prior to trial or the Crown used due diligence and could not get it, what is your argument against that?
Ms. Kaip: I love to argue. The difficulty is that every case is obviously organic in a certain sense. Sometimes the investigation develops even after the charges are laid. A time limit and a requirement that the Crown justify further disclosure by using a test of some kind would create one more functional issue to deal with prior to actually getting to trial.
In terms of disclosure issues we deal with Stinchcombe applications by the defence. We deal with O'Connor applications which are applications for third party records. There are various and sundry motions including other Charter motions which are available to the accused prior to court. While there might be some guidelines in place in terms of requiring a time limit on disclosure, actually having a functional rule with respect to that is dangerous because we are just creating another layer of procedure in the circumstances.
The Chair: Thank you, Ms. Kaip and Chief Weighill. I very much appreciate your time here today. Your testimony is helpful to the committee in its deliberations.
For our second hour we have joining us from the Ministry of Justice, Government of Saskatchewan, Matt Gray, Director, Building Partnerships to Reduce Crime; from Community Mobilization Prince Albert, Markus Winterberger, Analyst, Strategic Intelligence, and Tamara Dunlop, Tactical Analyst; and from Global Network for Community Safety Canada Inc., Norman Taylor, President.
We are looking forward to your presentations. Of course we will have questions from senators following that.
Norman Taylor, President, Global Network for Community Safety Canada Inc.: Thank you, Mr. Chair and senators. We are delighted to have the opportunity to speak with you this afternoon.
This is a very good news story. It is one that we think will resonate well with your proceedings around delays in criminal justice and anything we can do to improve and streamline the criminal justice system, although I will say from the outset that we perhaps come at it from a slightly indirect point of view unlike the last panel we just heard talking very specifically about procedure. We are not lawyers, although Markus is, and we are coming at this from more of a community safety and wellbeing angle. I will explain what that means.
I will only speak for a couple of minutes before I turn it over to Markus. He is to give you more of the foundational understanding of the model itself.
About eight years ago now I was asked to act as an adviser to police services, to governments and to the Canadian Chiefs of Police. I was asked to come out and conduct a future policing study in Saskatchewan in response to the continuing high levels of crime and violence in the province. The natural suspicion was that there might be something wrong with the policing system as a result of those numbers.
After about a year of study and consultation I was able to write a paper for the cabinet that said you do not have a policing issue but you have a marginalized people issue. The marginalized circumstances that put many people in situations of compound and elevated risk mean that you will never have enough police if you approach it from a criminal justice perspective. Instead we argued that we needed a whole of government solution and that we needed to mobilize all of the parts of the human service system designed to reduce those risks and serve the needs of individuals.
This was happening in the context of economics of policing discussions that were occurring nationally where people were looking at how we could reduce the cost of policing and the cost of criminal justice. I am happy to say that what we crafted over the past several years together really stands in my view as one of the only demand reduction strategies we have seen. We had lots of conversations in the economics of policing discussions about supply-side solutions. How many police do you have? How much do you pay them? How much does their equipment cost? Those are all supply conversations.
Ours is a demand-side conversation: How do you reduce those calls for service, those demands on the criminal justice system and those demands on policing that are not appropriately policing matters in the first place and owe their origins to other root causes?
Between 2010 and 2011 we conducted extensive global research to look at what others had learned about the social determinants of health, the precursors of criminogenic factors and a variety of examples of whole of government solutions such as public health undertaken by the World Health Organization. The result is we put together a chartered agreement among nine ministries of the Government of Saskatchewan and its police partners, the RCMP and the municipals. That charter committed everyone to moving forward to learn our way toward new ways of doing things.
In parallel, Dale McFee at that time was the chief of police in Prince Albert. He had been mobilizing his human service partners. He was part of the provincial initiative. We combined our efforts and took a field trip to Scotland where we had through research identified a number of promising practices. We recognized the opportunity to prove concept on a new approach using Prince Albert as the base but contributing from the provincial level as well.
In February 2011 the Prince Albert model was launched with the first Hub meeting literally eight weeks after we returned from Scotland. It has continued to thrive and I will talk later about the proliferations that resulted.
A few months later Premier Brad Wall visited the site and announced a provincial strategy to embrace the Prince Albert model and make this a way of doing business in the province under the charter known as Building Partnerships to Reduce Crime. We are in the process of actually changing that to Building Partnerships for Community Safety and Wellbeing because the crime angle was the origin but we learned that this is so much more and cuts at many other issues.
In 2012 Toronto was the first outside delegation to come and see what was going on in Prince Albert. That initiated an Ontario working group and I will talk more about that in my later comments. Over 30 delegations subsequently followed to visit Prince Albert and to learn from the profound experience that was happening.
Markus Winterberger, Analyst, Strategic Intelligence, Community Mobilization Prince Albert: I am going to speak about the Prince Albert Hub and COR models and how they work.
Community Mobilization Prince Albert is a strategic alliance between multiple community agencies aiming at improving community well-being through cross-sector collaboration.
CMPA carries out its mission through two key components, the Hub discussion and the Centre of Responsibility, the COR. The Hub discussion focuses on providing immediate responses to acutely elevated risk as expediently as possible and typically within 24 to 72 hours. The COR in support of the Hub is a full-time centre for research, analysis and long-term solutions to systemic issues and root causes of social problems.
What is the Prince Albert Hub? The Hub is a discussion between frontline workers from multiple agencies in the human service delivery sector taking place twice per week for an hour and a half on Tuesdays and Thursdays. It is a discussion and does not have any actual case management role or authority. The case management and actual service delivery fully remain within the agencies.
The Hub mitigates risk and connects individuals to services. The Hub discussion focuses on providing immediate, coordinated and integrated responses through mobilization of authority, coordinated and integrated responses through mobilization of existing resources to address individuals and families at acutely elevated risk.
How is acutely elevated risk defined? Acutely elevated risk describes a state where an individual is recognized to be in a position of risk to herself, himself and/or to others and that the risk is heightened to such a degree that a quick response is deemed necessary.
Four elements constitute acutely elevated risk: (1) significant interest is at stake, (2) probability of harm, (3) significant intensity of harm and (4) multi-agency nature of the risk.
The participating agencies at the Prince Albert Hub are Child Protection and Income Assistance, Mental Health and Addiction Services, Prince Albert Police Service, Bylaws, the Catholic and the Public School Divisions, Victim Services, the RCMP, the Prince Albert Fire Department, Mobile Crisis Unit and Community Corrections and the Prince Albert Grand Council.
What is the actual process at the Hub table? The situations addressed at the Hub discussion are brought forward by each of the individual agencies. If the issue passes the filter process at the Hub table, a door knock will occur. A door knock occurs typically within 24 to 48 hours, usually that same afternoon. All agencies that can offer assistance in regard to the identified risk factors will attempt the door knock to offer services to the clients. The idea is to offer services that the clients may need to get the individuals connected to the services in the community that may assist individuals with their needs.
After services are offered or the clients are connected the situation is closed at the Hub table, leaving the agencies that were connected through the process to the clients with management of the individual and individual's needs.
With regard to privacy the four-filter process was developed. Filter (1), the agencies have exhausted all options normally available to them and risk could not be mitigated due to its complexity. Each agency will have an internal referral process at this point.
Filter (2), the situation is presented to the Hub table in de-identified form. The table agrees whether it should be identified.
Filter (3), the situation is identified at the table. If the Hub finds that the individuals are already connected to services the discussion stops right there.
Filter (4), those that are relevant to an offer of service meet in a smaller group. More detailed, relevant information may be shared at this point, and an offer of services is made.
In summary, the Hub itself is not a corporation or government institution. The Hub is simply a multi-agency discussion, rapid intervention under a disciplined, safe environment, and a way to collaborate in getting health clients and their families the connection to services they may need.
Now let's get to the COR briefly. What are the primary services and structure of the COR? While the Hub is focused on rapid responses and short-term issues, the COR is a full-time dedicated operation focused on longer term systemic solutions and possible systemic recommendations formed through experience, research and analysis. The COR is working with agencies to promote best practices and identify gaps in the system.
Although the Hub and COR are under the same title of Community Mobilization Prince Albert, the two are separate bodies. This practice follows recommendations from the privacy assessment. All COR research is de-identified information.
What happens to the data that is collected in these processes and how is it used? Limited information is collected and de-identified on a Hub database. A report on the data is forwarded monthly to the Hub Steering Committee to review. The risk factors collected are put into risk categories to evaluate the top risks. The Hub Steering Committee can make recommendations to the COR to suggest areas of research or action projects that involve these risks.
What has the Prince Albert Hub achieved? The agencies at the Hub have brought forward 1,668 Hub discussions in the past five years. Some 1,498 of them were accepted for discussion and 170 were rejected. Out of the ones accepted 58 per cent were connected to services and 33 per cent were informed of services that they may not have known about before. Only 4 per cent rejected the offer of service.
That is it from Community Mobilization Prince Albert and I would like to hand it over to Norm Taylor again.
Mr. Taylor: Over the course of the five years since launching the Prince Albert Hub we have come to use the phrase community safety and well-being to embrace the focus and the social science that have begun to emerge around this. It is important for the committee to understand that in 2011 a phrase like community safety and well-being was not popular in Canada. There was no existing social science around multi-sector collaborative approaches. We tended to have most of our research based on what we refer to as an incident-driven approach. In other words something has to happen inside one sector or another. Someone is admitted to the emergency room, someone is arrested or someone is victimized. That becomes an incident and our system knows how to respond.
What is different about this model is that it is risk driven. It is based upon risk before there is an incident and the interventions are based upon the acutely elevated risk factors that Markus described.
This caused a tremendous amount of reaction in its early going. Particularly in the first year or so we saw a dramatic decrease in the violent criminal index in Prince Albert. Those decreases have continued although not as dramatically perhaps as in the first two years. We saw a 39 per cent decrease, I believe it was, on the violent crime severity index in some categories. We saw a reduction in calls for service in a police service that had only ever seen them go up. In fact they had doubled in the previous eight years.
This caught a lot of attention across the policing community but also began to draw a lot of attention among educators, health care professionals and social service professionals right across the country.
To date, to our knowledge, there are now over 75 replications of the Prince Albert model, closely modelled upon the disciplines and practices that we have experimented and proven in Prince Albert. Four replications have also begun in the U.S. I just learned in the last couple of days that Whitehorse in Yukon may be moving forward so that adds a territory. I think we have eight provinces that are heavily invested in this already.
Three provinces have adopted it as the central strategy, Saskatchewan under its building Partnerships model that Matt works in. The Province of Ontario has so many adopters that it has embraced this under its strategy for a safer Ontario that Minister Yasir Naqvi announced just a few months ago. There we are looking at going beyond the risk- driven approach of the Hub. The COR-type activities that Markus described are being characterized as community safety and well-being planning, again multi-sectoral in nature, focused at the regional local level and informed by the same type of risk-driven data.
The Hub model itself has undergone continual analysis, multiple evaluations and a lot of local refinement, but I am happy to say that one of the goals we set from the start was program fidelity to make sure that as much as possible we could have people do this in the same way whether they are in Charlottetown, Prince Edward Island, or Surrey, B.C. To a large degree we have been able to maintain that. We have developed, as have others, reliable training models to ensure that that occurs.
In 2015, just to kind of close the loop, Saskatchewan took this to the level of social science. With other partners the Government of Saskatchewan formed the Community Safety Knowledge Alliance, a first of its kind knowledge creation and knowledge transfer centre designed to advance research and learning in this area. Earlier this year the CSKA introduced the first multi-sector peer review journal on community safety and well-being known as the Journal of CSWB. I am very proud to be an editor-in-chief. We have just released our first issue in August and it draws in research, academic and practitioner information.
Practitioners and champions across Canada are enthusiastic in their embrace of this risk-driven CSWB approach for a lot of reasons including economic, operational and social outcome benefits. It is important to point out that the police have been consistent leaders in this proliferation. Among their reasons is the evident reduction in the crisis situations, the calls for service, the criminal events and ultimately those things that end up in the criminal justice system.
Senator Batters: Thank you very much for being here today and for all of your hard work in such an innovative solution to help make the people of my home province of Saskatchewan safer. That is really what it is all about.
I am not sure if you have read our interim report. If you have not, please take the time to do so. Our interim report that we released this summer referred to the PA Hub as a real model of innovation and something that many places should be considering.
Throughout our committee's hearings witnesses have made reference to this PA Hub. It was frequently cited as a success story, as we did, for bringing these multiple legal services and other types of issues into one institution and then diverting appropriate candidates to more suitable programming, limiting the risk as much as possible.
My first question, Mr. Taylor, is to you. You indicated Saskatchewan and Ontario. What was the third province?
Mr. Taylor: The Province of Prince Edward Island earlier this year committed to a province-wide strategy. Premier MacLauchlan introduced it and they just mobilized their table last month. They will move all the way through the whole CSWB analytics piece and everything else.
Senator Batters: Great. I was the justice minister's chief of staff in Saskatchewan when we were first looking at this with minister of corrections, public safety and policing. It was great to see this from the ground floor after Chief McFee instituted it in PA and to see it come to fruition on more of a provincial front.
Given the experience you have had on this matter, one of the recommendations in our interim report was about the increased use of technology. Have you seen in the PA Hub particular technological advances that you think could be integrated into various stages and aspects of criminal proceedings to improve inefficiencies and reduce court delay?
Mr. Taylor: Thank you for that, senator. I will take a stab and then I will ask Markus and Tamara to comment from a slightly different angle.
The first thing I will tell you is that we have a project under the CSKA, the Community Safety Knowledge Alliance that I mentioned. There is a research project underway right now into tech-enabled hubs. We have learned that the Hub, as efficacious as it is as a model, requires those human service partners at the table. In some of the smaller communities it has been a challenge when we get into more remote locations that they may not have those human service professionals onsite.
We are looking at tech-enabled hubs in much the way that we have done ebriefs or ehealth-type connections where we could both triage the situations and possibly plan the interventions using technology-enabled dialogue to bring all those partners together.
Another area where I see tremendous opportunity is in the data analytics. I will ask Markus and Tamara to talk a bit about the risk-tracking database and the nature of the data we are able to mine that we would not have had before we adopted a risk-driven approach.
Mr. Winterberger: The database we are using at the Hub discussion is probably an example of how technology can be used in the larger scheme. We have 12 hubs running in Saskatchewan. They are all using the same database. The data gets put in realtime during the Hub discussion via the Internet. The database is hosted by the Minister of Justice in Regina, so all the data from the different locations comes together and forms that pool of Hub data.
That is one aspect for sure. It is an example of creating the opportunity to make the data also available. Oftentimes I find that there are many data systems and they do not talk to each other. Health data from one health region may be completely different from that of another health region. The data will not talk to each other. It is not available. It is maybe available within the health region, if at all.
In that sense I could see that court data availability and collection could be improved using technology and down the road would lead by analysis to more efficient court processes. That is kind of just an input.
Mr. Taylor: If I could, I want to loop that back to the specific focus. I know in your report and in your deliberations you have looked at mental health courts. You have looked at domestic violence courts and specialty courts. I had conversations with one provincial judge that I know quite well. He has often said that mental health courts were terrific but they only served a very small number of people who meet a certain threshold.
He has seen in the Hub the ability to take the type of data that Markus just described and make it much more widely available. Imagine if correction workers or crowns or anyone associated with the criminal justice process had available the same type of rich data that you use in the mental health court situation for more people and more situations.
We can divert young people from the criminal justice system by providing the right types of supports. There is no reason we could not be doing the same thing with a much wider array of individuals. On the victim side, the levels of victim support could also be enhanced with the risk data. We learned that many of the situations we deal with at the Hub are really more focused on potential victimization than on the offender. I would just offer that.
Senator McIntyre: Thank all of you for your presentations. I am pleased to see that you are promoting the Hub not only within the province but outside the province as well.
Are you aware of any other successful models to manage criminal proceedings and limit delays that have been employed by foreign jurisdictions and that Canadian governments should consider studying?
Mr. Taylor: Senator, I will have to parse your question down if I could. I do not think I am qualified to comment on matters that relate specifically to the procedures of criminal prosecution. What I can identify, though, is the foundation of the work that we have been doing on not just the Hub but our broader approach to risk-driven community safety and well-being. We modelled it on experiences we have seen in Scotland, the Netherlands, Colombia and even South Africa. If I take Colombia, for example, making local cuadrantes in the city of Bogota responsible under their municipal officials to form collaborative strategies to improve safety and well-being have contributed to dramatic reductions in crime and victimization. Scotland is also well documented in that regard.
I have the privilege of serving as a program director for the Canadian Chiefs of Police global studies program. Over the past 14 years I have sent 150 police leaders to 35 countries. Consistently what we have learned is the collaboration or the ability to mobilize the other parts of the system is about the only way to deal with the growing economic impacts of policing in criminal justice. We have to reduce the demand and we do that by addressing the risk factors. It is often referred to as the public health model.
Senator McIntyre: Does anyone else wish to comment?
Matt Gray, Director, Building Partnerships to Reduce Crime, Ministry of Justice, Government of Saskatchewan: Yes, thank you, senator.
Just to confirm Norm's point, at the heart of collaboration and mobilization in any type of program or endeavor, be it criminal, be it health or be it education, information sharing the proper information to the right people at the right time is critical. Foundationally any type of collaborative work, any type of mobilization of services, or indeed any type of collaborative case management requires that the right information be shared with the right people at the right time.
I know that does not answer your question but I believe it is pertinent to your question.
Tamara Dunlop, Tactical Analyst, Community Mobilization Prince Albert: I have a comment too. In referring to the database this is special data. We have the ability throughout the province with the 12 hubs we have running through here now for each hub to have its own portal. The data extracted from the database and then analyzed is community specific.
What is going on in Moose Jaw, Saskatchewan, as far as risk factors and risk categories is quite different from what would be going on in La Ronge. We are able to drill down and look at the specific risks that are popping up in each community because they can be quite different from one another.
Mr. Winterberger: If I may, I see a connection between limiting delays and the work we do. Maybe it is a bit of an indirect one. If I remember correctly, the first recommendation of your interim report said that improving case management should be looked at. That is something we identified through the Hub data. Through that data collection we realized there are situations out there, particularly when it is complex case situations, where our services do not do individuals justice. We see them come back and we see them marked as systemic issues in the database.
In that way and through that recognition at the local level in our work at the COR we can identify that case management piece is not in place currently and that those individuals are out there cycling through the services over and over and getting involved with the criminal justice system on a regular basis. Everybody knows about it, but they are cycling in there and filling the court dockets. That increases delays within the court system because efforts have to be put into those situations that could be dealt with in a much more preventative way by better case management and better client-centered services.
Senator McIntyre: In other words gaps in the data could cause delays in the criminal proceedings.
Mr. Winterberger: I am not following you.
Senator McIntyre: You were talking about data and that gaps in the data could be causing problems. Is that what you were saying?
Mr. Winterberger: I guess the more accurate and the more complete the data is, the better we are able to analyze the situation.
Senator McIntyre: Thank you.
The Chair: Senator Dagenais.
[Translation]
Senator Dagenais: My question is for Mr. Taylor. I would like to know if you have experienced this in Saskatchewan. In Quebec, the government has decided to close a number of institutions in order to save money. Individuals with psychological problems are often put out on the streets and commit a variety of crimes that the Montreal police officers have had to deal with. There are unfortunate events. It must be acknowledged that police officers today serve more as social workers than police officers. In other words, they have to consider the mental health of individuals, and some police force divisions have decided to train their staff for this role.
This morning, we met people from the provincial court. Everyone has to work together. Defence lawyers, the Crown and police services have to work together to find a solution. Would you have a recommendation that we could include in our report? What would your main recommendation be to solve this problem which causes court delays?
[English]
Mr. Taylor: Senator, thank you very much for bringing up this issue.
You heard Markus mention that we have had over 1,000 situations at the Prince Albert Hub. When you put together the replications across the country we are well over 5,000 situations of acutely elevated risk that we have now triaged and come to understand. I can tell you that consistently right across every jurisdiction individuals with mental health issues compounded with other risk factors stand out as either number one or number two in the number of risk factors that we see, particularly among young people.
This is a huge issue for the country and part of what took us in the direction of the Hub model. We learned early on that many things were contributing to victimization, high violence and crime levels even in Prince Albert that related to mental health compounded with addictions, housing and homelessness issues, et cetera.
I am not a clinician so it is not within my purview to comment on the decisions to deinstitutionalize across the country in Quebec and Ontario where I live and here in Saskatchewan. I am sure there are a lot of good reasons for that. I have heard many professionals tell me that it is still a better way to treat people. Where we failed is that we did not recognize the need for support those individuals would have and we put them into a system that operates in isolated silos.
We have studied this one considerably and what ends up happening under the Hub model is that for the first time the individuals facing compound risk factors are able to be addressed through these interventions that bring all the players together. Mental health issues are in and of themselves not an indicator of criminality. They are more an indicator of victimizations, quite frankly, but when compounded with addiction, homelessness, violence in the home and other factors we know that it creates a perfect storm.
We tracked some anecdotal outcomes. We are doing a lot to look at the people that have been helped. One of the best quotes I have is from the City of Brandon in Manitoba where a young woman with mental health issues was helped by the Hub referred to what she called a 300-pound backpack. That was what she felt she was carrying on her back, the compounding factors that were weighing her down and leading her into a life of crime and victimization. The Hub was able to come and offer her the wraparound services instantly to help her remove that and she had put that in her own words.
As far as recommendations for your work are concerned, unless we adopt and continue to advance our work at getting involved not after the fact but at the risk level and in a collaborative way we will just continue to see the same problem and it will get worse.
The flip side of that is we have now tremendous empirical evidence of how effectively it does work. When you can bring all the pieces of the system together these individuals do not go into crisis. They come out of the acute risk state.
You heard Markus say that only 4 per cent of the individuals that have been approached by Hub interventions have said no. Some 96 per cent of them say thank you and are able now to receive the necessary intervention that helps put them on the right track.
Not all their life issues are solved. We are not unrealistic about that. We know they still have issues but we take them from the acute level that leads to those dramatic interventions which harm them, harm police officers and really disturb society.
The Chair: Mr. Taylor, you are talking about tremendous empirical evidence. I am just trying to tie it into the committee's overriding mandate to look at court delays. I think your quote was that you studied tracking considerably. Is there an effort as part of that tracking process to tie this in?
There is no question that there is significant social benefit to a number of things. We have been to mental health courts, domestic abuse courts and drug treatment courts, but trying to tie that into the impact on the courts has been a challenge, to say the least. Is that something you are attempting to track?
I just asked our analyst and the only figures we have are for 2011-12 and 2010-11 where the median length of cases completed in adult courts in Saskatchewan has declined slightly from 75 to 72 in 2010 to 72 in 2011-12.
Is there something in that empirical evidence you have gathered that we could incorporate in our final report?
Mr. Taylor: That is an excellent question. With regard to tracking and evaluation and all the variety of outcomes that you mentioned, senator, there are a number of studies. We are quite prepared to make those available to your committee as part of the resource base. There have been 12 evaluations documented or studies published on the Hub or situation table model as it is called in Ontario. There are also data analytic reports on several of them as well as a number of research documents to make available.
I wish I could point to one that says here is a direct analysis of the impact of reducing risk and the reduction of criminal proceedings. I do not think I can. There are a lot of reasons for that. This is all still so new. It is really only about three to five years since we have been getting it. For the benefit of this committee, if you were to put your sights on anything it would go back to the point that Matt was making.
One of the reasons we do not have that information is the system does not share very well. When we have tried to conduct studies about the impact on reduced emergency room admissions, we cannot get the match between the hospital data and the Hub data because current practice limits people's ability to share that information.
The same is true with our strongest champion and leader, Deputy Minister McFee with the Ministry of Justice and his partner ministry, the Attorney General. Even in those circumstances we often cannot get data sets to talk to one another and find those connections.
To the bigger questions that you are dealing with as a committee, anything that can help us improve those data connections and move us toward the level of analytics that allow us to cut across different sectors is what we will need.
Right now there is a study under way jointly between Saskatchewan and Ontario to look at remand and sentencing practices. It will reveal some insights but it has been difficult to get to a point where we can get the right types of information and the right types of conversations happening.
The Chair: Data collection challenges are certainly not confined to Saskatchewan. Even with StatsCan and the whole justice field we have bumped into some areas where we leave frustrated with respect to the lack of information available in some important areas.
Does any member have an additional question in the bit of time left? If not, would anyone on the panel of witnesses like to add something before we conclude?
Mr. Gray: My previous career prior to my employment with the Government of Saskatchewan was in law enforcement. I was a police officer for 18 years. I was just sitting here thinking about your question regarding relief for the court system as it pertains to mental health issues.
Many times a small incident or a relatively minor crime committed by somebody suffering from a mental health episode will initiate the court process. Due to either compounding mental health factors or lack of case management, something keeps bringing these people back to court through bail violations or judicial breaches and therefore plugging them into the system. As was mentioned with your previous panel some other alternative methods of diversion might be beneficial. Unfortunately we are sometimes guilty of being a little too content in letting the justice system manage mental health issues.
To Norm's point about information sharing abilities with our health partners, greater partnerships would provide some considerable relief in the context of people with mental health issues committing very minor crimes. They are not being resolved. There is no therapy for them. They keep coming back. They probably did not even need to be in court in the first place if there had been some type of diversionary program to a health facility.
The Chair: I have a personal concern with respect to all of the available agencies, organizations and programs. I am focused on the mandate of the committee with respect to the issue of court delays. We have dealt with the mental health treatment court and domestic abuse today. When we look at the prison system, the jails and the offences committed by people who have some degree of mental illness, especially in the Aboriginal community on the female side, we see the available statistics and the bigger issue of the most effective use of scarce resources.
As I mentioned earlier this morning when we were dealing with the mental health court in Saskatoon, a number of years ago there were assurances that we would have the community services to cope with the challenges as a result of the closure of institutions that all of these folks relied upon in the past.
From a personal perspective, as this committee proceeds I will be encouraging testimony from those in the mental health field who can talk about the merits of what they and others are doing in terms of the health sector and what I would describe as failing to meet the commitments that were made when all of those institutions were closed.
Mr. Taylor: I couldn't agree more with what you just said and I think it is a greater priority. I want to go to the dialogue you had with Matt and link it to something Senator Batters brought up earlier about technology and Senator McIntyre's question about other jurisdictions.
I would hate for the committee to get the impression that folks are not trying to merge data and improve data, but one thing that I think holds a lot of promise in this area is that CCJS is doing a great job with things like the recontact study it has just done. There are a number of ongoing efforts to do that.
There is no question what we demonstrate through the Hub when we bring individuals together like Markus described every Tuesday and Thursday morning. We are able to do something at the human level of sharing ideas and perspectives. There is no reason we should not be able to achieve that same effect with all of the available data. We have found that much of the data does exist.
In other jurisdictions things like rules-driven analytic systems are becoming quite common. The U.S. has done a lot of work in this area. The U.K. has done a lot of work in this area. We are moving down that path. If you were to look at how could technology really contributes to these gains, it would be to take the comments you just made, sir, and ask why we aren't letting the data do that for us.
There are methods now whereby we can de-identify and anonymize that data. We can protect people's privacy. We can also let the data talk to itself and help us understand the patterns and the needs for supports and the ways in which we can re-gear the system to provide the supports that keep people out of trouble.
To me, that is our next horizon. That is where we are going with the whole community safety and well-being field. We are going beyond the human interaction of the Hub to the level of data analytics and really letting the data help us understand risk. We are approaching it the same way as World Health Organization is targeting hunger or targeting disease. We know that the issues of crime and victimization follow many of the same patterns.
I want to leave that with you as a recommendation to do anything we can do to advance those types of systems and encourage the administrative bodies that own the data to begin to move further and faster in sharing that data.
The Chair: I thank all of you for being here and giving up your time today to contribute to our hearings process. It is very much appreciated.
We are now on the final panel of the day. We have with us from Legal Aid Saskatchewan, Craig Goebel, Chief Executive Officer, and Joanne Khan, Legal Director; from the Saskatchewan Aboriginal Courtworker Program, Annette Ermine, Program Manager, Kathleen Makela, Manager, Program of Legal Studies for Native People, Native Law Centre, College of Law, University of Saskatchewan, and Carol Lafonde, Aboriginal Courtworker; and from the Saskatoon Criminal Defence Lawyers Association Inc., Michael Owens, Vice-President, and Andrew Mason, President.
Kathleen Makela, Manager, Program of Legal Studies for Native People, Native Law Centre, College of Law, University of Saskatchewan, Saskatchewan Aboriginal Courtworker Program: Thank you. I will be presenting very briefly on the Saskatchewan Aboriginal Courtworker Program and its role in the context of delays within court proceedings.
I am the Chairperson of the Advisory Board with the Saskatchewan Aboriginal Courtworker Program and I am accompanied with two of my colleagues. One is Annette Ermine, the program manager, and the second is Carol Lafonde, an Aboriginal courtworker. I will be mindful of the time and then we will also split the questions between us.
First I thank you for allowing us to come and speak. If you bear with me, we have included three documents for you to review probably tonight or tomorrow as you go through your deliberations on the matters. One is an actual presentation from the courtworker program about what we would like you to think about. I am going to highlight that right now.
We also included an Appendix A, the background paper on the Saskatchewan Aboriginal Courtworker Program from February 2013. It is quite a current document. It will help you understand better the courtworker program. Appendix B is the Aboriginal courtworker program evaluation. It is a national report that was put out in March 2013. It looks at Saskatchewan and all the Aboriginal courtworker programs across the county.
I have some notes that I am going to refer to so I do apologize. First I will explain that the Saskatchewan Aboriginal Courtworker Program was first created in 1969 by the PA Friendship Centre. The current program we have today was actually created in 1994. It has been providing services in a very similar setup since 1995.
The Federation of Saskatchewan Indian Nations, which is now the Federation of Sovereign Indigenous Nations, and the Metis Nation of Saskatchewan were instrumental in the program being reformed in 1994 and remain partners to date.
There are two components that are critical to the Saskatchewan Aboriginal Courtworker Program. First of all the program is delivered by Aboriginal people within Saskatchewan. The carriers that actually deliver the programming are Aboriginal and community based and the courtworkers themselves are Aboriginal. As well, the program is status blind. The courtworkers do not require clients to provide ID. As long as they self-identify as being Aboriginal they are able to access the services provided by the courtworkers.
The courtworker program has always been aimed at addressing the unique challenges faced by Aboriginal people within the court system. They spend the bulk of their time within the courts. Their job is to help Aboriginal people understand what is happening, literally what charges they are facing and how the court process will run. They also explain to the justice personnel how an Aboriginal person is situated within not only the court proceeding but also within Saskatchewan.
The courtworker program therefore consists of trying to make sure that Aboriginal people are dealt with in a fair, just and culturally sensitive manner within our criminal justice system. It has now expanded to include work within family justice and some work within youth justice but primarily on criminal justice matters.
As you probably are aware Aboriginal people face very unique challenges when dealing with the court system in Saskatchewan and Canada. Annette will probably speak to this during questions. We believe that the history and the legacy of residential schools and the colonization that Aboriginal people have gone through still impact today on how Aboriginal people are treated and how they are represented within the justice system. We can talk more on that and you can also read about it in the reports I have provided.
It is fair to say that most judicial and court officials agree that courtworkers provide a valuable service. They help to expedite legal matters and processes by increasing the understanding and communication between themselves and the Aboriginal people appearing before and interacting with the courts.
The program in Saskatchewan is based upon a unique model. We have carrier agencies which hire and supervise courtworkers. They are based in the communities. They provide office space, telephone, email access and audits. They do not pay for the salaries or the benefits. That is provided by the province through the coworker program.
We have one component which is the carrier agency that delivers the program. We have a second component to the program which is the program manager Annette Ermine. She is actually responsible for the day-to-day administration of the courtworker program across the province. She reports to the province. She monitors compliance with funding agreements. She does the long-term planning, training and designation of coworkers. She is also responsible for program development and working with an advisory board.
The third component of the program is that it is managed by an advisory board of which I am the chair. The advisory board includes representatives from the FSIN, the Federation of Sovereign Indigenous Nations, as well as the Metis Nation of Saskatchewan and the Ministry of Justice.
The important message we want to share with you today is that the courtworker program is a valuable resource. Unfortunately, though, we have been under a federal funding cap since 2002. For 14 years the amount of money spent nationally is $5.5 million for a cost share program. Half of the money spent in Saskatchewan, which is $620,000, comes from the federal government. That money has not changed since 2002.
We have a growing Aboriginal population in Saskatchewan. Because a high number of Aboriginal people come into conflict with the judicial system, criminal, family and youth, Saskatchewan had to streamline its services and make them extremely, extremely lean. Saskatchewan has a 50-50 cost share program and up until last year was paying over 70 per cent of the costs of the program.
You will see in the handout I gave you that the Province of Saskatchewan has disproportionally funded the program. This stopped in the last budget year. The provincial government reduced funding to the Saskatchewan Aboriginal Courtworker Program by over $700,000, which took our court services from providing services within 85 per cent of the court points in the province to 55 per cent.
We are actually back to the funding of 1995 so our courtworker numbers have gone down from 35 throughout the Province of Saskatchewan to 19 and for the last couple of years we have had five Aboriginal family courtworkers in place.
We are open and available for questions, but it is important for you to understand that because of the cap in funding and the recent cutbacks in provincial funding the courtworker program is under extreme stress. Our courtworkers are dedicated to their jobs. The carriers deliver and oversee the courtworkers are under a lot of pressure as well. They are community-based organizations that do not have a lot of extra money. We would like to see re-examined the commitment to the courtworker program nationally and provincially as well as the possibility of increasing funding. That is my message in a nutshell.
Craig Goebel, Chief Executive Officer, Legal Aid Saskatchewan: I have two or three things to mention that are not specifically noted in the submission we provided today, and I apologize for the tardiness of it.
The first is that there is no lack of goodwill in the partnerships and in the relationships of those in Saskatchewan for sure in terms of the criminal justice system. Without any hesitation I can say that the value of the native courtworkers program is immeasurable. Its having been cut back is a blow to everyone in the system: clients, Crown, judges and defence counsel. There is no question about that. The relationships with Crown counsel are good throughout the province with Legal Aid staff, lawyers and defence counsel. Mostly the relationships with judges such as you can establish them are good.
In my observations and in my estimations the goodwill in the province would allow for a much greater degree of co- operation than there is if we could all sort of take off our cloak of doing good works and examine the fact that we may or may not have clothes underneath. The sense of it is that we need to be more timely and to provide a much greater degree of work within the system to make the system work better.
The commentary from this committee in its interim report is instructive. I have been in other places and have done other work. I had other conversations in which everyone agreed that the manufactured or unintended delay in the system is bogging everything down. There is no question that it could be and should be sped up.
We need to be much more gracious with one another in how it is that we reflect on our participation and our faults. When I get the opportunity I say that Legal Aid Saskatchewan and defence counsel can certainly always do better. They can always be more efficient and more productive. It is just a matter of how everybody can work toward that goal.
Joanne Khan, Legal Director, Legal Aid Saskatchewan: I echo Mr. Goebel's words about supporting the partners we work with in the courts. The courtworkers and the mediation workers are invaluable. We all work together. We are very, very supportive of them. It is difficult to see that they have been cut back quite a bit.
You had an opportunity to speak with people this morning at provincial court. I also spoke a bit on mental health strategy for them. There are some positive things to work toward stopping or shortening the delay. One is early resolutions in Courtroom No. 1, which is the bail court. That is where the defence and the Crown meet before court to discuss possible resolutions. In that way we would deal with the matter before there is any delay at all.
As Mr. Goebel says we have very good relationships. We are very happy to work together with our partners. We are distressed at the number and the increase of our clients in custody and on remand. We are struggling to deal with that. We are figuring out best ways, best practices, and how to put our resources into that.
[Translation]
Andrew Mason, President, Saskatoon Criminal Defence Lawyers Association Inc.: Thank you for inviting me to make a presentation to the committee.
[English]
We want to talk about delay but we really want to talk about delay in the context of the quality of justice that is delivered. We are an association that represents about 50 members of the local defence bar in Saskatoon. We have been in existence since 1979 and collectively have a great deal of understanding of some of the causes of delay from a defence perspective that we would like to share.
The quality of justice is undermined by excessive delays in the courts in many ways. Causes that are not necessarily just those of the prosecution or the courts contribute to the burden on the courts. This contributes to the delays that the courts have in scheduling matters and contributes to institutional delay.
We would like to deal with a number of the factors that we have outlined in our written submission which I have circulated. I am going to be dealing with three of them and Vice-President Michael Owens will be dealing with another three.
The first one I would like to address follows nicely on the submissions we have just heard. It is the bottlenecks in the system created by the lack of resources for Legal Aid and courtworker programs. If an accused person before the court is not able to retain and instruct effective counsel within a reasonable time, a number of court appearances are caused as a result of that. These court appearances have to be administered by the court, by the prosecution. There are stacks of files. Legal Aid has to go in with stacks of files and say that they have an appointment in six weeks to see him. There are all these burdens that are placed.
You can have all the goodwill and effective resources committed to the courts and the prosecution, but if you do not give it also to Legal Aid you will have a waste of resources. You will unnecessarily burden those resources by a lack of funding for Legal Aid. Legal Aid is in a crisis. It has been in a crisis for a while but it is particularly in a crisis in this province right now.
The courtworker program offloaded a lot of that burden by having courtworkers go in and talk with the accused in custody when they were arrested. They would get addresses and they would make a good case for their being released. There is a huge glut of remand because we lack the resources to deal with it. A lot of people on remand probably could be released but did not have the resources at the time of their bail hearing. That is not the only reason but there are problems like that which cause a burden on Legal Aid because going out to the correctional centre to meet your client is a lot less cost effective than having the client come to your office.
There are some things like since the Gladue case and its accompanying Ladue case out of the Supreme Court. There has been a need in the sentencing process to focus on having these Gladue factors recognized by the courts. In order to do that we must have a methodical way of presenting it and in essence delve into the history of the accused and the factors that have influenced or affected their criminal behaviour. It would be nice to have a system in place that would speed up the court process immensely and ease the burden on the court.
There was a system in place for doing it. It was something like a pre-sentence report. Right now in places like Toronto, Calgary and Vancouver defence counsel have to go to places to get these reports done. It is very time consuming.
I will address the issue of recidivism that was addressed by the Chief of Police earlier today. We have a revolving door to some extent. We have people who have great long histories of criminal justice cases that unnecessarily clog up the system because they are not treated. There is virtually no treatment in the provincial correctional system. When they are released they do not have interventions in a timely fashion. If they are on probation there is such a burden on the probation officers that they do not necessarily get the kind of attention they need.
A study was done a few years ago by a University of Saskatchewan master's student who drew a very interesting link in his thesis between the effect of timely interventions and the rate of recidivism. I can give you the site if you want, but there is a very strong correlation if we are able to intervene at the appropriate time in these high-risk cases. There is a great deal of reduction in the rate of recidivism. If we can ease the burden on the courts in that way, we are going to help solve this intractable problem of delay in the courts.
Delay for a person in custody is not a good thing. For a person charged with an offence it creates a great deal of social stigma to be saddled with that. If they have a defence they are waiting to present to the court, being in that particular situation for a long period of time is not a happy thing. Very few of my clients who have worthy defences wish extra delay, but it is true that if you wait a little longer in a hopeless case maybe something will happen that will add to the likelihood of acquittal. Generally speaking people who are charged want to get it over with and it is important that the system as constitutionally required does that.
I will turn it over to Mike Owens, who is going to address three of the other factors.
[Translation]
Michael W. Owens, Vice-President, Saskatoon Criminal Defence Lawyers Association Inc.: Thank you, Mr. Chair and honourable senators.
[English]
Welcome to Saskatoon. Thank you for being here.
I want to talk in a little more detail about some of the aspects that Andrew was just chatting about, one of which is the delays with police and Crown disclosure.
The concern about disclosure is that when you request it you not only have to make one disclosure request but you have to make two and three disclosure requests. Oftentimes in spite of that you get disclosure at trial which causes a delay. It is like a video recording of the accused or there is some witness they have called that you haven't even a can- say from in terms of what the witness is actually going to say.
When I heard Senator Baker talk about putting a time limit on the disclosure process for the Crown, I liked that idea because it will force the Crown to look at the file. Oftentimes what happens is you will have a file looked at three or four times by three or four different prosecutors. The first prosecutor is basically deciding whether they are going to proceed. I do not think it quite gets the attention that it deserves and I will tell you why. Until there is a prosecutor assigned to the trial itself, no prosecutor has had to think: "I am going to have to stand up in front of a judge and argue this case. I am going to be on the line. Therefore I had better look at this.''
British Columbia has that system. I have run trials all the way from B.C. through to Manitoba and Alberta, and I have run a couple in Toronto. Each place has a little different system. In the British Columbia system they assign a trial prosecutor before a plea is even entered. I would say this has caused me in half of my cases before a trial date is set to suggest to a client that he plead guilty. We make a plea arrangement in terms of what would be a fit sentence and I do not even have to travel to BC.
The one that comes to mind is where I was corresponding with the Crown. She had obviously looked at it. She said she was a trial prosecutor and we would resolve this matter of essentially one step removed domestic violence. The idea of having to be responsible for a file makes a big difference in speeding the matter through rather than three or four people redundantly looking at the matter over and over.
In any event the delay in the disclosure process is problematic because oftentimes you do not have somebody going to the police and saying, "Here is the letter of 22 things the defence wants. Can you look it over and see if you have got it?'' The response you will get inevitably get when that does not happen is the Crown prosecutor will say, "You have everything I have,'' but they have not checked probably because they are very busy with too many files on the fly. That has to be remedied because that causes trial delay in itself.
In terms of the delay created by courts and the prosecution due to the lack of resources, we see that all the time because we just do not have enough people to look at each file independently. That what forces is counsel to say, "I might as well set it down for trial and finally get somebody assigned to it two or three weeks hence.'' There has been this notion of even getting defence to enter pleas of not guilty in hopes that disclosure will come about. Unfortunately until there is a deadline that runs close to the actual date of the trial oftentimes you do not get disclosure or you get disclosure that requires you to call an expert which requires 30 days' notice under the code. Everything gets kicked over again and that is the problem in that respect.
That causes high volume. High volume means that in the nine courtrooms we have in Saskatoon you do not get a trial date for months and months and months. That is a problem.
Probably half my practice is going to places in rural Saskatchewan. I am not talking North Battleford. I am talking about Assiniboia. I am talking about Blaine Lake. I am talking about Unity. In those places you will have court once a month. If disclosure doesn't get to you two or three days in advance of the actual plea date then it is adjourned another month.
Instead of the court having an adjudicative function becomes the administrator. That is a problem because it is another month down the road. Victims do not want those things to be a month down the road. They want to get it resolved too. The accused wants to know the case against him so that he can make an informed decision, but you cannot do that where you do not have disclosure or disclosure arrives on the day of court.
Last week I got a 214-page fax from the RCMP in Nipawin, Saskatchewan, the day before we were supposed to present the plea. It does not work real well when that happens.
The one last issue I want to talk about is what we refer to as the overcharging issue, particularly breaches against persons with substance abuse and mental health problems. Those are things that can be ferreted out. I heard Chief Weighill talk about the police diverting matters. He said he was all for it. That is a good philosophy but unfortunately with respect I do not see it being put into practice. I do not see people that are supposed to have a bail hearing being released as the Criminal Code authorizes an officer in charge to do.
I understand from the deputy sheriff's office which handles everybody at the courthouse that ever since they expanded the facility at the city police station they have more people coming over to have bail hearings. It used to be that when they ran out of space at the city police station they would deal with it there because they were overflowing. Now it is a matter of putting it into court and we have extended days now just dealing with people being remanded or bailed.
With respect to criminal laws that discourage early resolution minimum penalties is a problem because some people have nothing to lose. I am of the view as are others —and I know many judges share this view — that we should have some faith in judges to look at the facts and dole out a penalty appropriate to the circumstance and the offence. You find guilt, as one judge has told me, based on the offence. You sentence for the offender. It makes sense to me that if we adopt that philosophy we should have a situation where early resolution can happen, but minimum penalties force people to go to trial. I appreciate the law and order aspect of minimum penalties. That is a philosophy that certainly rings with a lot of people.
The Chair: Mr. Owens, I am going to have to ask you to sum up. You all had five minutes and you are currently clocking in at 14.
Mr. Owens: My apologies.
The Chair: I want to give the others opportunities to respond to questions so you have 30 seconds.
Mr. Owens: We need early resolution with a penalty system that works for judges, works for the accused and works for victims as well. That is less than 30 seconds. Thank you very much for hearing me.
Senator Batters: Thanks very much. It is great to be in Saskatchewan. I appreciate all of you being here and all of your hard work on behalf of the people of Saskatchewan.
I have a brief area of questioning. Saskatchewan is a province that has a lot of challenges. We have a sparse population of 1.1 million people over a very vast area. We have a lot of vulnerable people in Saskatchewan and we have a high crime rate. Yet our criminal court delay numbers are actually fairly good compared to a lot of other jurisdictions in Canada. That is actually a credit to people like you who work hard on behalf of the people of Saskatchewan every single day.
You were telling us, Ms. Makela, a bit about the Saskatchewan Aboriginal Courtworker Program. I have seen the benefits of that particular program. Could you tell us the top two or three ways that you have seen the Saskatchewan Aboriginal Courtworker Program help reduce criminal court delays in Saskatchewan?
Ms. Makela: I did promise my colleagues I would let them also speak so, Annette, do you want to answer this one?
Senator Batters: If they can address that question because I have a very limited time here.
Ms. Makela: Sure.
Annette Ermine, Program Manager, Saskatchewan Aboriginal Courtworker Program: Just to specifically address that question, courtworkers work the frontline in the criminal and family courtrooms. The evaluation report that was done in 2013 definitely spoke to that. My colleagues at this table spoke to that as well.
In terms of reducing that delay they are the ones that speak with mostly our people in those courtrooms. Those are our people and criminal and family courtworkers are able to speak with them. They clarify whatever the situation may be. Whether it be the charge, whether it be understanding the court process or whether it be speaking with the lawyers, Legal Aid or judges to come up with some sort of a resolution, specifically that is how they deal with them. Carol Lafonde, a 20-year courtworker, will add to that as well. Thank you.
Carol Lafonde, Aboriginal Courtworker, Saskatchewan Aboriginal Courtworker Program: The courtworker can step in when clients are denied Legal Aid for various reasons, whether it be financial reasons or range of service. We have had training. We are able to get disclosure from the Crown, review the disclosure with our client and assist with speaking to sentence in the court.
With the cutbacks there are now two of us left in Saskatoon. We are still trying to maintain our best with assisting these people who are basically falling through the cracks, if you want to call it that. They still need help. They might not understand exactly what is going on. They feel intimidated by the court process so that is where the courtworkers step in. We also have CLASSIC, but these legal services are limited as to how they can assist clients.
A lot of the people fall into the service of the Aboriginal courtworker and more so in Saskatoon, the busiest court point unfortunately in the province of Saskatchewan.
Senator Batters: From your point of view would you say then that communication with the people dealing with the court system is a key reason that has helped in court delays?
Ms. Lafonde: It is a key reason, yes. We are able to explain so that they understand.
Senator Batters: Could you maybe just briefly tell us a bit about CLASSIC, the legal program that operates in Saskatoon? I know that is also a good success story.
Ms. Lafonde: They are a group of students that are on their way to becoming lawyers. They are able to provide advice to people who are in conflict with the law. They do not assist everyone. I know they do not do first-time 0.08's. They do not deal with indictable matters. Again a lot of it comes back to the courtworkers.
Senator Batters: But they do provide an outlet?
Ms. Lafonde: They do.
Senator Batters: Do they help many people who are dealing with these kinds of charges?
Ms. Lafonde: They do. I believe their resources are starting to get stretched to the limit too because we have so many people who get adjournments to go and see CLASSIC for that special reason.
Senator Batters: Kudos to the University of Saskatchewan College of Law, my alma mater, for that great program.
Ms. Lafonde: Yes.
Senator Baker: Mr. Chairman, these presentations are on record. They are very valuable to us. We will be considering them during our deliberations on our recommendations. When we do recommend to the Government of Canada it has have to respond to this committee.
A special thanks to the Saskatoon Criminal Defence Lawyers Association for pointing out as one of their most important things the cutbacks in Legal Aid and the courtworkers program.
I also thank Joanne Khan on record for her presentation this morning and being with us to deal with all of this.
All of that to say I totally agree especially with the recommendations made concerning disclosure and so on that we will be dealing with in our committee report. Thank you very much and we will be sending you a copy of our recommendations.
Senator McIntyre: Thank you all for your presentations.
There is no question the Canadian criminal justice system could be better adapted to Aboriginal realities, traditions and cultures. When she appeared before our committee Paula Marshall of the Mi'kmaq Legal Support Network in Halifax, a person I am sure you are very familiar with, confirmed all of this.
Would you say that there is consensus across the country among Aboriginal communities regarding this new approach?
Ms. Ermine: If I can just maybe speak to some of that, I am an Indigenous person from Treaty 4 territory in the south. I will answer that question, Senator McIntyre, by specifically referring to the Truth and Reconciliation Commission report, which I am sure we all know about. It calls to action and speaks to everything that has been happening in Saskatchewan.
According to Statistics Canada the crime rates in Saskatchewan and Alberta are the highest per capita. If you look at the number of residential schools that were built in Saskatchewan and Alberta those crime rates speak to what has happened.
With the reduction in the courtworker program budget right now we have 19 criminal courtworkers for the province, compared to the 35 that we had prior, and five family courtworkers. The 19 courtworkers that are working throughout the province to deliver to 44 court points, only eight of them are full time.
I can speak as a First Nations treaty woman to the work many of us are doing. A lot of our people just want to be heard. They want to know that they are a part of the process. There is a lot of consensus in terms of an approach that needs to happen. I hope I was able to answer the question.
Senator McIntyre: Yes, you have.
Mr. Mason and Mr. Owens, in Jordan the Supreme Court of Canada established a new legal framework and ceilings of 18 months for summary convicted offences and 30 months for indictable offences. It also proposed a transitional regime. In your opinion do you think the new ceilings may be too difficult to apply?
Mr. Mason: I do not know if they would be too difficult to apply. Most cases get resolved within those timelines. It is only extraordinary cases and only Crown or institutional delays apply, not defence delays. I do not know how they would treat a delay in Legal Aid if it were an institutional or a defence delay. That is one issue.
There are delays caused by things like only having one forensic pathologist in Saskatchewan. We did, but I guess he now has an associate or a helper. I just did a murder prelim. There was an eight-month delay in getting the pathologist report on a very complex head injury case. It was unknown what the cause of the head injury was. It was a crucial part of the evidence and that was a month before the preliminary inquiry. It was very difficult for the defence to retain an expert to review it.
These things cause delays. It is not necessarily the Crown's fault. It is not necessarily the police's fault. It is a resource fault. We simply do not have enough pathologists to deal with it I do not know how you simply create deadlines and solve that problem. You have to put resources into the system at all of the bottlenecks in order to make it work.
Fundamentally there should not be any reason. That is not an ideal. That is the worst case scenario. The court has said 18 months and 30 months for a Queen's Bench or Superior Court matter is all you should have. There is a lot of unfair and troublesome delay within that but does not exceed the constitutional limit. In my view I do not think there should be any difficulty whatsoever in meeting those with a properly resourced criminal justice system.
Senator McIntyre: The reason I was asking you this question is that the opinion of the majority was not shared by the minority in the Jordan decision.
Mr. Owens: I spent the entirety of last Friday for the first time arguing Jordan and its application in Saskatchewan. That was a case where there was 34 months on a summary conviction matter. There was delay caused by both sides. I can tell you that it will cause people to sit up and do what needs to be done when it should be done. I do not think it is going to do anything more than put some discipline in the system. It is not an unrealistic situation.
Some of the cases in Saskatchewan have indicated that for a summary conviction matter, taking into account all the statistics and everything else you need to know, is 8 to 10 months, so 18 months would be lots of time for that to happen. It will go the first time or even if there is a one-time adjournment it will go the second time. Let's remember the 18 months is Crown caused delay and does not take into account the defence caused delay. The summary conviction matters should not be a problem.
The 30 months for indictable matters should be lots of time as well especially with a pre-trial certain and there being more court points. Usually two to three months before the trial you sit down with a judge that takes an administrative function and says, "Do we have all the disclosure? Who is on your list of witnesses?'' to make sure it can go at the first opportunity so that there are not any last-minute preparations going on.
Some court points require counsel for the Crown and defence that are actually going to conduct the trial to attend, not somebody else who is just picking up the file for the moment. I like that idea as well.
There was some discussion earlier about Mr. Kennedy's proposition not to have preliminary inquiries. I do not know how far this committee has looked into them, but preliminary inquiries are a good thing in minimizing court time and delays to trial. The Crown finally gets to see their case and they are required to look at it prior to it being presented in court. I would not want to lose the opportunity. In fact many have argued preliminary inquiries should be expanded to get rid of the delay to the point of being able to consider Charter motions instead of waiting for a trial 28 months down the road instead of 12.
Senator McIntyre: I can understand the holding of a preliminary inquiry with respect to a large number of criminal offences. However I would disagree with you in the case of sexual assault involving children.
Mr. Owens: I have no problem with that.
Senator McIntyre: How can a four-year-old or a six-year-old be subject to cross-examination by experienced criminal defence lawyers? That to me is unacceptable.
Mr. Owens: I agree with you and nobody would disagree with you. What the Criminal Code allows the prosecution to do on the discretion of the Attorney General is go by way of direct indictment, which gets rid of the holding of a preliminary inquiry. That is already in the Criminal Code and can be used. It is at the discretion of the attorney general in those situations.
I do not think we need to change the Criminal Code to say no preliminary inquiries. The power is already there.
Mr. Mason: Could I just add a comment on that?
The Chair: No, I am sorry. I want to give others an opportunity.
Senator Dagenais.
[Translation]
Senator Dagenais: My question is for all our guests. Thank you for your presentations. I would like to go back to the issue of legal aid, which some of you have talked about. In some cases, individuals are not eligible and they decide to represent themselves. We know that defending oneself in court can result in procedural delays, in both civil and criminal matters. We have also experienced this in Quebec. Following the assassination attempt on Pauline Marois during the elections, Richard Bain decided to represent himself. He then changed lawyers three or four times. Are there additional services that could be provided to someone who is not eligible for legal aid and who decides to defend himself? Could we provide another kind of assistance? I invite all of you to answer the question, but not at the same time.
Mr. Mason: There are many lawyers who offer pro bono services to the public. I have clients who cannot afford a lawyer. The Law Society of Saskatchewan encourages this kind of volunteer work. It is necessary because the legal aid system is not intended for accused persons who are not at risk of going to jail. There are all kinds of offences that are not eligible for legal aid. It is up to us as defence lawyers to find a solution to this problem and we are working on it.
Senator Dagenais: Thank you very much.
Does anyone else have something to add?
[English]
Mr. Goebel: The Saskatchewan Legal Aid plan has both a scope of service provision and a financial eligibility provision. Both of them are legislated but the financial eligibility is connected to eligibility for social assistance. When my friend is talking about those who are not eligible for Legal Aid it may be as a result of a case or charges that do not necessarily result in a risk of jail, or it may be that someone is above a level that would be related to social assistance.
We are bound to serve people who are on social assistance or Indian band assistance for those whose incomes are in that range for the purposes of providing full and complete service. We also do duty counsel service for anyone as an assistance to the court.
We meet our mandate with respect to the financial eligibility criteria. Those who qualify are entitled to and do get a delay, but there is a large segment above that where the cost of acquiring legal services from the private bar would reduce people to potentially social assistance levels. We have no real way to measure that, so when it is said that Legal Aid needs more resources it is really to try and capture that level of people.
We are meeting our financial mandate. To the extent that we have a scope that is controlled by legislation. Summary conviction offences or first drunk driving offences where there is no likelihood of jail are outside our scope. That can be re-legislated but then you would have to deal with the issues of resourcing because it would increase the number of eligible people.
What is the answer? The simple answer is that Legal Aid in Saskatchewan generally meets its mandate but there is a political consideration as to how much more you could do. That would on the criminal side require a greater infusion of resources and funding from the federal government.
The Chair: I will ask a follow-up question on the scope of services. Does that vary from provincial jurisdiction to jurisdiction or is it pretty much standardized across the country?
Mr. Goebel: It would be pretty much standardized across the country. That is primarily because as you may know there is the federal funding agreement which requires a minimum level of Crown service.
The Chair: But you can build on that.
Mr. Goebel: Certainly, for sure.
The Chair: Are there stark differences in jurisdictions across the country?
Mr. Goebel: No.
The Chair: Not that you are aware of.
Mr. Goebel: No.
The Chair: There was a comment that I do not have with me. I think it was a roundtable study in British Columbia on dealing with complex cases in a more timely way. The defence was talking about Legal Aid mandates and, without getting into specifics, the terms of certain activities and responsibilities for which lawyers can be compensated under Legal Aid that are not beneficial to moving trials along and others that are not compensated. I do not know if you have any response to that.
They did not get into detail and give us any specifics with the roundtable report that they had provided to us. It just jumped into my head now that we have you here as a witness whether you have any comment or whether that is a view you would share.
Mr. Goebel: I think you are talking about two things. One is the large and complex case. In most instances Legal Aid plans have managed to actualize and would submit a segregated funding agreement with their provinces. If you looked at the sub-elements of Legal Aid's mandate in Saskatchewan, for instance, the amount of money that Legal Aid is responsible for spending on any given case would be that which a man or woman of modest means would pay to defend themselves.
Without arguing how much we should depart from that, the colloquially described guns and gangs cases I would argue are actually outside of Legal Aid's mandate. When it was envisioned as a Legal Aid program to help low-income people to balance the scales of justice and that sort of thing, nobody was thinking of guns and gangs and organized crime.
We are working to move some funding or get some different funding. There is that, but then as you have indicated a number of defence counsel may specialize in those kinds of cases and they get a higher rate than a Legal Aid tariff. There is no incentive for any of the private bar who do Legal Aid work to extend anything because Legal Aid here presently is paying $88 an hour. That is probably no better than one-third of what it is that they could charge at $300 or $400 an hour for other clients. They have incentive to look at the case, advise the client and resolve the matter at that level.
The Chair: We have a couple of minutes left. Mr. Mason, you were anxious to get in on the preliminary inquiry issue.
Mr. Mason: As a follow-up to what Senator McIntyre was saying about the preliminary inquiry and the potential abuse for young victims, particularly in sexual assault cases, I recently had a case where there was a nine-year-old witness. It was a preliminary inquiry on a murder case. She had given a very good statement to a police officer who was skilled in interviewing children. I had applied to cross-examine the child as a witness because there were some very critical aspects but it was denied.
Under section 540 of the Criminal Code now the Crown can put in those statements if they are properly taken. They have to be credible to meet the criteria for section 540(7). They have to be trustworthy. If they are done the right way you can minimize the risk of very difficult testimony from a child having to be given twice. It will be given at the statement stage and also at the trial.
Senator McIntyre: I was referring specifically to sexual assaults, not murder.
Mr. Mason: Yes, but the same thing would apply to a sexual assault and probably more so because it would be much more difficult for the child to do it more than once.
The Chair: I appreciate your attendance, your testimony and your assistance in our deliberations. Thank you very much.
(The committee adjourned.)