Proceedings of the Standing Senate Committee on
Legal and Constitutional Affairs
Issue No. 14 - Evidence - October 28, 2016
MONTREAL, Friday, October 28, 2016
The Standing Senate Committee on Legal and Constitutional Affairs met this day at 12:34 p.m., to continue its study on matters pertaining to delays in Canada's criminal justice system.
Senator Bob Runciman (Chair) in the chair.
The Chair: This is the twenty-sixth meeting of the Legal and Constitutional Affairs Committee on our study on matters pertaining to delays in Canada's Criminal Justice system. We thank our witnesses for being here this afternoon, beginning with, from the University of Montreal, Vincent Langlois, Legal Researcher in the Criminology Department; from the Montreal Police Service, Didier Deramond, Deputy Director, Operations Command; and from the Crime Victims Assistance Centre of Montreal for CAVAC Network, Jenny Charest, Executive Director.
I understand all of you have opening statements. Perhaps we can begin with Mr. Deramond. The floor is yours, sir.
[Translation]
Didier Deramond, Deputy Director, Operations Command, Montreal Police Service (SPVM): Greetings to everyone and thank you for the privilege of attending this Senate committee meeting.
I am very pleased to be here. With me is Ms. Hélène Des Parois, who is a lawyer with the legal affairs unit of the Montreal Police Service. If you have more technical questions, she will of course be pleased to reply.
Thank you once again. The SPVM is a large organization with about 4,600 police officers and 1,500 civilian employees. Our jurisdiction covers 500 square kilometers, and we serve roughly 1.9 million residents. We offer level 5 services, as prescribed by law, to police in Quebec, and carry out over 1 million interventions per year. That essentially describes our police service.
I am also the chair of Quebec's regional joint council of justice officials, and the national president of the national joint council of Public Safety Canada. This gives me a broader overview of Canada's criminal justice system. This unique forum was created in 1973 and includes all senior officials from the public service and law enforcement organizations.
I do not know how you wish to proceed, Mr. Chair, in terms of opening statements, or we could give a presentation later on?
[English]
The Chair: Yes, absolutely. You each have roughly five minutes to make your opening statements, and then we'll open the floor to questions.
[Translation]
Mr. Deramond: Very well. Since this is an opportunity for the Montreal Police Service, I will try to keep my comments brief and outline four stages. What we would like to suggest to you involves four stages.
The first of these themes is maximizing the use of courtrooms as regards delays. We know that when people talk about delays in the justice system, they often mean that it is not possible to obtain a hearing in a reasonable amount of time. There are three fundamental factors at play: the number of cases, the number of judges and the number of courtrooms.
We can draw a parallel to the health care system. It is a complex parallel, so I will simply give you a rough idea. If there are waiting lists for surgeries, it means that there are more patients than there are surgeons and operating rooms available. The first step we suggest therefore is to reorganize when judges take their vacations while increasing the number of judges. As we know very well, courtrooms are not used over the summer.
The second theme we would like to touch on quickly is updating criminal and penal procedure. This would serve, in the background, a single purpose: to clear up the backlog in the court system. To do so, of course, we have to look at trials. A tremendous amount of time could be saved before the trial begins.
The second theme pertains to criminal and penal procedure. It is important to ensure that we use the tools and means at our disposal to carry out justice in the 21st century. Here are some examples. I am talking of course about the use of the Contraventions Act. I believe you have already heard from Mr. Joe Oliver, who gave a presentation to the committee. All we are proposing is that the bill that was begun be amended. We could reduce the number of cases brought before the courts by eliminating the formalities of criminal procedure, specifically by using the Contraventions Act to deal with summary offences. This could eliminate delays. Judges would be available to deal with major cases, freeing up courtrooms at the same time.
We maintain that two-thirds of the criminal cases brought before the courts end in a guilty verdict. Ten types of offences accounted for 70 per cent of all court cases. We note that they were predominantly offences for driving while under the influence and for minor theft.
I also have a question that I would like us to answer: what will we do with cases of driving under the influence of drugs, with the new legislation that is expected soon?
In Quebec, the number of cases has dropped considerably, by about 15 per cent. So of course the complexity of the evidence reduces the number of cases. I believe this is also directly related to the decision in Jordan.
There was discussion about the use and powers of case management. I believe it was the Honourable François Rolland who appeared before you in this regard. I will not repeat his remarks since we agree with his view.
Still under the second theme, it is also important to use new information technology. It is time to modernize and use new information technology so that appearances and the disclosure of evidence are carried out electronically. We could also set trial dates electronically within a fixed timeframe, as argued by the Supreme Court in Jordan, by agreeing on the availability of the judge, the accused, the witnesses, the counsel and the courtroom, by electronic means of course. We are talking about the disclosure of evidence, complex evidence. I think those of you who were police officers in an earlier life can also speak to this. We are constantly increasing the complexity of this disclosure and the complexity of methods.
[English]
The Chair: I'm going to have to ask you to wrap up.
[Translation]
Mr. Deramond: Very well.
The third topic, quickly, pertains to preliminary inquiry. I know that Mr. Jean-Michel Blais appeared before your committee. We share his view. We have to consider preliminary inquiry and the need to keep it.
Finally, the fourth theme deals with the federal Victims Bill of Rights, that is the right to information, to protection, to participation, and so forth, which we will discuss.
This briefly is what the SPVM is suggesting to you today: simplify and streamline the operation of the criminal justice system, bring it up to date with advances in technology, and humanize it so that victims are also taken into consideration. All of this of course is related to delays, the decision in Jordan, and public trust in the justice system.
Thank you, Mr. Chair.
The Chair: Thank you.
Vincent Langlois, Researcher, Criminology Department, University of Montreal, as an individual: Hello. Thank you very much for inviting me. Thank you also to Mr. Maxime Charron-Tousignant, Ms. Jessica Richardson and Ms. Chantal Cardinal, with whom I had the pleasure of speaking before my appearance here.
My name is Vincent Langlois. My training is in three areas. I hold a bachelor of business administration and will complete my bachelor of law this session. So I will be eligible to be called to the bar in the winter of 2017. At the same time, I am completing a master's in criminology.
I represent the University of Montreal as a researcher. We have developed a study which, I believe, is relevant to your work as regards the increase in motions for a stay of proceedings based on the right to be tried within a reasonable time. I carried out this study out with Ms. Chloé Leclerc, a professor at the University of Montreal and specialist on legal matters in the criminology department.
We are interested in this because there was a lack of information. The justice system does of course seek maximum transparency, but no data had been compiled to show the extent of the phenomenon. For your convenience, I have provided an executive summary, in English and in French. Among other things, it includes figures showing the surge in the number of motions for a stay of proceedings.
We have identified six main areas with conclusions that are at the core of our research. The first is the increase in motions for a stay of proceedings in cases of impaired driving. This is in keeping with what Mr. Deramond said earlier. We have also seen a significant increase in this kind of motion. The result can be that justice is denied. A stay in proceedings means that the accused does not appear in court. In that sense, I think this is relevant.
There is also an increase in the length of the delays. With the benchmarks we used, we noted a discrepancy between what the Supreme Court called for in its recent decisions and what is happening on the ground. Attorneys do not use unreasonable delays motions the same way as they used to. Around the year 2000 — and this is quite telling — delays of more than four years were considered marginal. Now they represent approximately 35 per cent of all motions pleaded in court. This is significant in our view. According to our analysis, defence attorneys position themselves favourably in order to be able to plead an unreasonable delay and prejudice to the accused. We note a major increase in this type of motion. Moreover, even the benchmarks we want to reduce are increasing in practice.
There is also an increase in the number of motions granted. When a stay of proceedings is requested, a number of things must be proved, as you know. One is prejudice to the accused, but there are also other factors, such as responsibility for the delay. Is the defence or the crown to blame for the delay? Often it is both sides. In those cases, our legal system often represents the interests of the accused. It is also possible, however, for the system to give the defence the benefit of the doubt since both sides are responsible for the delay. Thus the crown is often blamed for the delays, even if both sides are responsible, even if the delays are caused by both parties.
We found that the number of motions granted has increased. I am referring to the absolute number because the rate of motions granted has not changed since the start of our analysis, from 1990 until now. About 40 per cent of stays of proceedings are granted by the court without going any further in the case, while 60 per cent are refused. This therefore represents a good defence strategy for those seeking to avoid court. I have already described this practice as a legal loophole, although that might be an exaggeration given that the longer the delay, the greater the chance of the motion being granted.
Motions for a stay of proceedings are filed in 40 per cent of cases, on the basis of sections 7, 24(1) and 11b) of the Canadian Charter of Rights and Freedoms. These stays are granted in 40 per cent of cases, which is a significant proportion. In absolute numbers, these motions are being filed more and more often.
To keep it brief, you have our other conclusions before you. What we also see, and which is most striking in my opinion, is shown in figure 1. This is the exponential increase in the number of motions. The courts have not changed the way they analyze these matters. They have, however, in our opinion, certainly seen a major increase owing to the surge in the number and volume of motions.
Why? Because it is strategically helpful to the defence to file such motions given that the system is not able to work as quickly as it should. That concludes my presentation.
The Chair: Thank you.
Jenny Charest, Executive Director, Crime Victims' Assistance Centre of Montreal, for the CAVAC Network: Hello. Thank you, it is an honour to appear before you today to talk about the network of Crime Victims' Assistance Centres (CAVAC).
The network of Crime Victims' Assistance Centres was created in 1988 and is made up of 17 CAVACs throughout Quebec, in each of the province's regions. CAVAC's mission is to offer front-line services to victims, their loved ones and witnesses. Every day, we meet victims of crime. We guide them through the court system and offer them a range of other services.
We try to address problems as early as possible to ensure that victims know their rights, what recourse they have, and that they have access to complete information.
In the past 27 years, CAVAC workers have helped hundreds of thousands of people. These workers are members of professional boards who every day stand up for the needs of victims, both in the court system and in general in all respects.
In our work, what we see regularly in the court system as regards delays is how this impacts victims. Although they have the right to participate and to be heard, under the Charter of Rights and the victims of crime assistance act, they regularly have the feeling that they are not heard. Moreover, even if they are heard, various measures are taken to which they have no access and they do not even have information.
We are with these persons in court, and at courthouses throughout Quebec. We have teams that are specifically set up at courthouses. We work hard to support them and give them information. If we are not involved in a case on a regular basis, however, we find that people are often left to their own devices and do not have complete information.
With respect to delays and length of proceedings, I must say that we face a unique situation in Montreal: proceedings that last several years are not the exception but rather the reality that we are dealing with. When proceedings last several years, this means that victims, who have summoned all their courage to denounce their aggressor, have to put their lives on hold for several years.
On the one hand, we ask him to remember all of the details of what happened in view of an eventual testimony. So as long as proceedings are not over, this person has to try to remember, and not move on. We work to help the person try to regain a certain balance. What we observe, however, is that the legal proceedings can make it far too long for the person to regain that balance.
Sometimes there are very long delays that have a direct impact, if you think of the Crime Victims Compensation Act. There are prescribed periods to submit applications, and I would say that all of the services that have been put into effect are always upstream operations.
We now have a police reference program everywhere in Quebec. CAVAC workers go to police stations, or investigation centres, to try to be present very early on, immediately after the police charge, so that people know that resources exist. In spite of that we see that many people are not aware of us. Every day at the Montreal courthouse — and I am sure my colleagues elsewhere would say the same thing — people come to testify who have never heard of any support resources.
Sometimes delays are very long, and so the victim is not called on to testify right away, at every stage. It has happened, unfortunately and too often, that people have gone beyond the prescribed period for the compensation of victims of criminal acts, and we have not been able to apply. So they did not have access to all of the information, all of the psychological support and all of the compensation for their rehabilitation.
Earlier I was explaining that the victim's memory has to remain intact, because he or she has to testify. When victims are children, the impacts are even greater, because children's memories are particular. They evolve. So the delays, particularly in cases where children are involved, can have serious repercussions. Children may not be able to testify in the way the judicial system expects, with all of the necessary facts.
And so we have put in place certain programs to help and guide children. Also, on a daily basis, we see that some testimony is not considered valid, because the child is no longer able to explain what happened.
We also see within the justice system that there is a willingness to adapt, and to take the child's level of development into account. However, there is still work to be done in this regard. As to the delays, when children are involved, cases should receive special treatment and be given priority.
The length of proceedings, where victims are concerned —
[English]
The Chair: I'm afraid I'm going to have to ask you to wrap up.
[Translation]
Ms. Charest: I will conclude by talking about the relatives or loved ones of homicide victims in particular. They undergo a post-trauma grieving process that cannot be resolved as long as legal proceedings have not ended. So delays in those situations are terrible. Thank you.
[English]
The Chair: Thank you.
We will begin questions with the deputy chair, Senator Baker.
Senator Baker: Thank you to the witnesses for their very excellent and informative presentations.
I'd like to ask my question of Mr. Deramond, and first of all to congratulate him on the great contribution he has made over time to this particular question, in trying to solve the problem of court delays.
First, I would ask for further explanation on his reference to summary convictions, of separating it somehow. Whether or not something is prosecuted summarily or indictably is the decision of the Crown in hybrid cases. Sometimes that decision is made arbitrarily if, for example, the event took place outside of six months. Six months is your charge time for summary conviction offenses.
Hybrid offenses, some of which are fairly simple and others more complicated, sometimes depend upon the period of time and not upon the complexity or the seriousness of the issues. I'd like for you to answer what your point is on summary conviction offences.
My main question is this, and I will put it very simply. We have heard a lot of evidence concerning disclosure. Disclosure is one of the biggest problems we have. The suggestion has been made to us, time and time again, that there should be a requirement for disclosure to be made prior to trial of all evidence to be used at trial. That includes, unfortunately, McNeil disclosure, which you may wish to comment on; very unfair to certain police officers. But you say electronic disclosure, searchable, vetted by the Crown, black-lined. Is it reasonable for this committee to suggest that all disclosure be made prior to trial, and if there is new disclosure during trial, that there be an application made to the judge that the substance of this evidence was not available prior to trial?
[Translation]
Mr. Deramond: That is a fairly complex question. I'm going to try to answer as clearly as possible.
As far as using the Contraventions Act for summary convictions, as I was saying earlier, we also examined the objective of all that, of course. We looked at what was done in the field. There are many things that are litigated and take enormous time for situations that do not really require that. When we talk about streamlining the justice system, those are precisely the types of situations that need to be examined. I am speaking strictly about statistics, and not law. If you want to talk about points of law, my colleague Hélène Des Parois can speak to you on that topic more precisely.
There is one situation that clogs up the penal justice system where we could apply a solution through an adapted, integrated and evolving justice system. At this time all offences are handled the same way. However, we know very well that in most summary conviction cases, the defendant will in the end plead guilty. But we extend the proceedings and the delays, and cases are adjourned, of course.
The criminal record is also often material to the guilty plea. Sometimes there are people who have to work outside the country, and this requires passports. As I was saying earlier, there are many points that deserve to be reconsidered.
The bill that was tabled to amend the Contraventions Act should be reviewed in order to include certain offences in an optimal way. I was talking about summary convictions. Yes, prescribed periods are a concern, of course. There is a six-month prescribed period for summary convictions. As you were saying earlier, those convictions are authorized in any case by a Crown prosecutor. However, changing the way things are done will also require changes to the legislation. I will give the floor to Hélène Des Parois.
Hélène Des Parois, Lawyer, Legal Services, Montreal Police Service (SPVM): In fact, a bill was introduced some time ago stating that we could define the possession of a small quantity of cannabis as a minor offence pursuant to the Contraventions Act. At that point, rather than having to lay charges and hold a trial, it became a minor offence and was tried, here in Quebec, under the Code of Penal Procedure.
A federal legislator could designate certain offences as minor offences. There are courts at this time, such as municipal courts, where three-day trials are sometimes held for the theft of a $200 item. Why? Because the defendant will ask for his trial, especially because of the stigma of having a criminal record; he will ask because he needs to avoid having a record in order to keep a job or to be able to travel abroad.
But if small thefts were made minor offences, this would expedite things in the criminal justice system, as Mr. Deramond said. That is one possibility. Of course, it will be up to the legislator to choose the offences concerned.
In Quebec there are diversion programs, as there probably are elsewhere. Theft, for instance, is handled through a diversion process, in the case of defendants who have no prior offences or have never participated in such a program.
I have no statistics, but regarding the volume of cases, there are a lot of shoplifting cases. Obviously, it is a choice. But there are not 36,000 solutions: either there will be fewer cases in the courthouses, or more courtrooms and more judges, or the procedure needs to be simplified.
In fact, that is a suggestion.
[English]
Senator Batters: Mr. Deramond, you mentioned briefly in your opening statement that the judicial calendar in Quebec does not function during the summertime. I'm wondering if you could tell us a bit about that. Is that for all types of criminal trials or just in the Superior Court? Is it the lower level Provincial Court ones too? And about how many weeks, in your experience, does that affect?
[Translation]
Mr. Deramond: According to my experience of a few years, the criminal courts always recess, that is certain. During the summer months, those courts do not sit. There are other courts that continue to function, somewhat more slowly, in most jurisdictions, either at the municipal or provincial levels.
[English]
Senator Batters: Would that be for July and August?
[Translation]
Mr. Deramond: Yes, in the summer months of July and August.
[English]
Senator Batters: Eight weeks?
[Translation]
Mr. Deramond: Yes, eight weeks, eight weeks that could be used profitably in the context of a year.
Ms. Des Parois: In fact, in the summer, to my knowledge, only inmates are entitled to a trial. The trials of persons who have been released are adjourned till the fall. I believe the exact period where the courts do not sit as they do the rest of the year is set out in the Courts of Justice Act.
[English]
Senator Batters: Thank you for telling us that very helpful information.
Ms. Charest, you didn't have much of a chance in your opening statement to talk about this, so I wanted to give you more of a chance to tell us more about homicide victims. The area of victims is extremely important, but we haven't heard too much from the perspective of victims. A few different witnesses have talked to us about this, but I know that court delays have such an impact on victims. Could you please tell us more about that?
[Translation]
Ms. Charest: Thank you for letting me speak a bit longer.
Yes, concerning the relatives of homicide victims, the legal system is a very difficult experience that often becomes a part of their grieving process. They require intense supportive care and attention. In fact, I am tempted to say that we do not have the necessary resources to support them as much as they need to be supported, even though we do it.
They do not, for one thing, understand the delays. I am thinking for example of a case where the delays were absolutely normal, in quotes, to us. They were due to a change in lawyers, which we often see in criminal court, because the defendant changes lawyers, which causes further delays.
We are not involved in the organization of justice, but in the way in which it is delivered; but the relatives or other people close to the victim are not necessarily informed of the reasons why things proceed as they do. When we have to tell someone close to a homicide victim that a three-month delay is not a long delay, it is really terrible. It means we have to work very hard with those people, because to their minds, the relative who was murdered should be an integral part of the judicial process, whereas that is not the case most of the time.
So these delays for the relatives are very difficult. The post-trauma grieving means that these people cannot move on until this has been done. In cases that take three or four years, this means that a whole family has to wait three or four years to get answers, answers that we do not always get, and, in fact, rarely do.
But the relatives can be supported or at least be considered. What we see is that from the moment when the relatives who are present are taken into account, this changes things. They are taken into account when we wonder if the delays have been justified to these people so that they can understand their impact.
I'm tempted to make a link with one of the elements we would like to put forward. Under the Victims Bill of Rights, the actors in the judicial system must explain certain points to the victims. The delays should be considered from the perspective of their impacts on the victims, before an adjournment date is granted. It would really help these people if they were consulted, if only to hear about the impacts. We see victims come to court and wait almost all day before they hear that the case has been adjourned. Every day we witness extreme anger and a great deal of suffering.
[English]
The Chair: Sorry. We have a very involved committee. Everyone wants to ask questions and we have limited time.
Senator Jaffer.
[Translation]
Senator Jaffer: Thank you very much for your presentation. I appreciated all of the presentations very much. Unfortunately, our time is really limited.
I will begin with you, Ms. Charest. I know that Senator Batters asked you to talk about the impact on victims. I would like to continue in that vein. What is the impact of unreasonable delays on the victims of sexual assault, for instance? Also, do you have tools to help the victims?
Ms. Charest: Do we have tools? Yes, the tools that we have are to ensure that the people concerned have a good understanding of the organization of the justice system so that their expectations are realistic. That can make a difference.
But there are some real impacts. When a victim of sexual assault has to go to court, where intimate things that they experienced are discussed, there are a lot of impacts, and these people are often in a state of post-traumatic stress. So they have a hard time. The fact of having to return to court can sometimes cause them to have to relive their trauma. That is where we do a lot of work. Preparing victims for court means that people have to be supported in a very specific way. This is not something that can be done in a single day. This means that we have to provide support before and during the proceedings, and predict reactions, as they are important.
I spoke of the Victims of Crime Initiative a bit earlier. The support can be somewhat delayed. For instance, people have the right to one year of psychological treatment. We at the CAVAC Network believe that when a person has to go to court she should be able to receive psychological support specific to post-traumatic stress, because all of the symptoms of post-traumatic stress reappear when they must return to court. For instance, during the week that precedes the court appearance, victims do not sleep. Sometimes they do not sleep in the week after the court appearance either. They imagine all kinds of things, and experience a lot of anxiety.
When I was talking about the importance of support, I think that the support organizations really should be made an integral part of any situation that will be brought before the court, to ensure that victims will at least have access to the services they are entitled to.
[English]
Senator Jaffer: I have a question for you, Mr. Langlois. I'm very interested in your study concerning stays of proceedings. If I understood your study well, you were talking about a growing number of motions for stays of proceedings. Can you give us one or two recommendations as to how we deal with this?
[Translation]
Mr. Langlois: That is a very good question. In fact it is somewhat related to Senator Baker's question regarding hybrid offences.
Also, is it reasonable for a committee like yours to ask that all of the evidence be disclosed, de facto?
There are many stakeholders in the judicial process, and one of the problems is that there are certain parties who, for whatever reason — often, they are strategic — hold back information, either because it was arbitrarily deemed irrelevant, or of no interest to the cause. This then opens the door for the defence to claim that they did not receive all of the information, and that the accused is entitled to a full and complete defence, which is a recognized and inalienable right. So when this is submitted to the court, the judge is very attentive and grants delays for the study and analysis of documents.
A first recommendation would be in the same vein as Senator Baker's question regarding hybrid offences; we could ask that all of the evidence be disclosed and that this be mandatory. If there is additional evidence that cannot be disclosed, the court could be informed of that from the outset.
That would be one of the first things. We have several other recommendations. But what I have observed is that sometimes the Crown is right to delay the proceedings, and other times it is in the interest of the defence to do so. Generally speaking, it is in the interest of the defence, because if I am a defence attorney no one will blame me for trying to get my client, the accused, off without a trial. Of course this is a denial of justice for the victims, as we said.
So from that perspective, the idea is to frame professional practices to make sure that everyone is accountable and of good will in practices and procedures. In this regard, I think that the disclosure of evidence is important. But there are several other recommendations I could send you in writing later.
[English]
The Chair: Senator Dagenais.
Senator Dagenais: Thank you, senator.
The Chair: Two police officers.
Senator Dagenais: Yes. Thank you so much, senator. I appreciate it.
[Translation]
My question is for Mr. Didier Deramond. I have a question about administrative issues that may cause delays.
When I was at the Sûreté du Québec, there was a guideline according to which, when police officers had to testify in court while they were on holidays, they had to call the Crown prosecutor and have the case adjourned, because this meant double overtime costs. I know that the same policy applies at the Montreal Police Service. I put the question to the Calgary police chief. He replied that yes, overtime budgets had to be managed.
Of course there are many cases that require the presence of police officers as witnesses, and indeed, overtime budgets have to be managed.
You know as I do that we cannot always control these things. Do you have the same problem at the Montreal Police Service?
Mr. Deramond: To be honest with you, yes, we do have that problem. It is no different here than elsewhere. We do have to manage our budgets at the Montreal Police Service.
We have, however, put certain measures in place. We have software that allows us to adjust certain things; with the Crown prosecutor we can identify the best date for a case in light of everyone's best interests, and try to avoid adjournments. So that measure has been implemented.
Yes, we have directives. However, this type of situation can be authorized on an individual basis, and we must analyze each situation. If there is an important trial, even though the person is on vacation, we'll still authorize the overtime and give the police officer permission to attend court on the prescribed dates.
Senator Dagenais: With your permission, Mr. Chair, I'd like to ask a quick question.
We know that in both Ontario and Montreal, many cases involve mental disabilities and we can transfer these cases to another court. In Ontario, there is a court of sorts that handles this type of case.
Has this measure been studied in Montreal? You handle many cases involving people who suffer from mental disorders.
Mr. Deramond: Yes, we've also studied the measure. However, in Montreal, we're leaders to a certain extent. We have different ways of handling mental health cases. We have established crisis response teams. We also have hybrid patrols that include social workers.
Many solutions are being examined to avoid bringing people to court who shouldn't be brought to court and who are really looking for some form of assistance.
We direct people to the right places. Obviously, there will always be cases in which we must charge people because they have committed a crime. At that point, we charge people. However, we've been trying to decrease or unclog the courts using other solutions.
Senator Dagenais: Thank you.
Senator Joyal: My first question is for Mr. Langlois. Obviously, I listened very closely to the presentation of your table.
Would I be straying too far from your conclusion if I said that it's in the interest of the defence to obtain as many postponements as possible?
Mr. Langlois: I'm happy that you're the one asking the question, to be honest. Of course, we can't make assumptions on intentions, but all the facts we presented show that it's in the interest of the defence.
My colleague, Chloé Leclerc, conducted a specific study of the issue, and 53 per cent of accused individuals acknowledged that their lawyer purposely prolonged proceedings in the interest of their defence. That was 53 per cent of the people surveyed, and 13 per cent said they didn't know. Therefore, likely in most cases, it's in the defence's interest to prolong proceedings.
Obviously, the defence is the easiest to explain. Basically, the only things that must be demonstrated are hardship and the fact the deadline was too tight in relation to a reasonable standard. Since the Supreme Court has strengthened this standard, it's even more accessible, because the system is unable to achieve the ideal that the Supreme Court established recently.
Senator Joyal: Have you published these statistics and this study? The data shows that it was conducted recently, namely, in 2015.
Did you share the findings with the Conseil de la magistrature or the chief justices of various courts to make sure they know that, when they manage cases, they're dealing with a type of perversion of the system? Because that's what it is. The ability to benefit from postponements to facilitate the release of the accused individual is not a means of defence recognized by the Criminal Code or the charter.
Mr. Langlois: You're right. That's why I spoke about a legal loophole. We've shared the information with the Quebec justice minister's office. We've shared the information with a group of legal stakeholders, but we haven't received many responses. Of course, we also published an article in La Presse. We submitted a text to the Journal du Barreau, which wasn't keen on the idea of publishing it. It's not necessarily an editorial priority.
However, for jurists, I think it's certainly relevant to make this information known. It's particularly relevant for the judges you mentioned, because they are the ones who must assess that type of plea.
Moreover, we can also say that it affects plea bargaining. It may also result in a perversion of justice, given that when we're negotiating a sentence that technically, based on the evidence available, should have been easily established, we water down or dilute the judicial approach. There are issues, because we reduce the charges to obtain a guilty plea. To that end, when we use this type of process, obviously justice isn't served either.
Senator Joyal: Mr. Deramond, I was surprised to see that, based on the action plan released by Quebec's justice minister in early October and the six proposed areas that require action, neither the Sûreté du Québec nor any police force seems to have participated in the Table Justice-Québec. The police forces are essential stakeholders in the judicial process because you're the ones who collect the evidence. As my colleague, Senator Dagenais, said earlier, you're also the ones who make yourselves available for hearings and preliminary investigations.
Why weren't you involved in establishing the department's action plan?
Mr. Deramond: We're often involved in establishing action programs for issues such as sexual assault or for other issues, as well as policies and government directions.
In this case, we weren't invited to the consultation table. I can't tell you exactly why we weren't invited. I have no idea. However, the work was published.
Senator Joyal: For example, we've raised the issue of mega-trials. You're obviously involved in mega-trial proceedings. You're involved in the culture of delays and postponements.
A number of subjects taken into consideration by the Table Justice-Québec seem to apply directly to you. As stakeholders who implement the Table Justice-Québec's recommendations, you should be involved.
Mr. Deramond: Yes, and we've made demands as well. Next Wednesday, we'll be sitting down to talk about mega- trials.
Senator Joyal: Okay. Thank you.
Senator McIntyre: I have questions for Mr. Deramond and Mr. Langlois.
Mr. Deramond, in your speaking notes, you grouped your proposals under four main themes. I want to draw your attention to the second theme, in which you highlight the importance of increasing the use and powers of case management. In other words, it's important to give courts the power to truly manage proceedings by eliminating pointless postponements.
A number of stakeholders have mentioned the importance of this theme. Can you tell us a bit more about the subject?
Ms. Des Parois: I think we can see, based on what the Supreme Court said in Jordan, that the real problem is the time estimates. I think the judge can play a very important role in sitting down with the parties and properly estimating the time. If the parties set aside four weeks for a trial, and after the four weeks are over, we realize we need another four weeks, the system can't provide another block immediately. First, I think the judge could play a role in providing a better estimate of the time.
In addition, from experience, often charter applications are submitted very shortly before the trial. That shouldn't happen. The Crown, which receives the application a few days before the trial, doesn't have time to summon the proper witnesses and prepare the proper arguments to dismiss the application. As a result, trials are delayed. For case management purposes, the parties would need to be disciplined, if you will, so that applications aren't announced at the last minute.
Senator McIntyre: The important thing is to give the judge or courts the power to truly manage these cases. Okay. Thank you.
Mr. Langlois, the results of your study show a significant increase in the duration of delays in Quebec and an increase in the number of motions for a stay of proceedings. I also understand that the type of offence most often subject to motions within a reasonable time is impaired driving. That said, can this issue or scourge be addressed another way?
Mr. Langlois: We think a large part of the solution lies in the professional practices and the disclosure of evidence, as I said earlier.
Regarding impaired driving, I think it's interesting to note our observation that a group of law firms specializes in the issue and systematically prolongs proceedings using known delay tactics. Ultimately, they always submit the same procedure and motion shortly before the trial, after dragging out the trial themselves. That's generally what we notice in Quebec in cases of impaired driving. Such motions are often disproportionately submitted by these specialized firms.
In terms of ethics, we also need to look at the framework for the real grounds and motivations for the delay requests. However, it's also a matter of finding a balance between the basic right of accused individuals to make full answer and defence and the speed of the justice system, while complying with the ethics code.
I think it's mainly the professional practices that must be exposed and assessed.
Senator McIntyre: Exactly. We need to increase the use and powers of case management.
Mr. Langlois: Absolutely.
Senator McIntyre: That's the solution. Thank you.
Senator Boisvenu: I'll keep my question for the next witnesses. My question concerns ethics more than statistics.
[English]
The Chair: Senator White?
Senator White: Thanks to all of you for being here.
Deputy chief, I realize that you're not speaking on behalf of all the chiefs in Canada, but I think the chiefs for about the last decade have been arguing that we're spending too much time on cases that are of very low relevance, and that there is no proportionality. A shoplifter and an attempted murder seem to receive the same amount of attention.
I think what they were trying to do with the ticketing scheme for marijuana was really a test to see whether or not there were other offences we could deal with in a different way, in a more administrative way, rather than throwing everything into the same criminal system we are now. Just so we're clear, because I know lots of people talk about the police wanting to be tough on crime, what we're really trying to look at is a system that allows us to be a little smarter regarding low-level crimes. Is that where you see this going?
[Translation]
Mr. Deramond: Exactly, Senator White. We're talking about unclogging the justice system. We're talking about minor criminality.
I want to be careful with how I say this, because, at the end of the day, there are victims, all the same. So, from a societal perspective, I think we have a responsibility as representatives of the criminal justice system to find solutions to different problems that reflect the new realities.
We are at a crossroads right now. The system has a certain capacity that was reached a very long time ago. We, the users of the system, are being asked to find solutions. That's what we're doing this afternoon, as you have been doing for some time. We are trying to find solutions jointly through consultations, and that's perfectly fine.
I do the same with the various committees. I can tell you that this idea was put forward by a number of police chiefs and by the Canadian Association of Chiefs of Police (CACP).
In terms of the possession of small quantities of marijuana, of course we are now aware of the situation, with the bill that will be submitted on the issue.
All that being said, one idea behind that was to leave room for the courts and focus on the trials we have to do.
[English]
Senator White: Thank you very much for that. I appreciate it.
My second question will be short. We continue to hear that drug addiction and mental illness are prevalent throughout the criminal justice system, particularly when we talk about offenders. We also hear that, "I can put someone in jail for a day or for six months, or I can put them in treatment in six months for a day.'' That's our reality. From a national drug strategy perspective, are the Chiefs of Police also looking to the federal government to put more money into treatment programs, particularly in provincial systems, so that we can get people into treatment more quickly, rather than leaving them on the streets committing crimes?
[Translation]
Mr. Deramond: Yes. We are working hard on prevention with the utmost interest, across the country.
We do so with respect to drugs and mental health. As I said in my opening remarks, we can save time before the legal process. We can also save time during the legal process, and certainly afterwards as well, because there is an entire reintegration process.
So we have to work on all fronts at the same time, before, during, and after. If we are able to make small gains at all stages of the process, I think everyone will come out a winner.
[English]
The Chair: Thank you very much. We appreciate you being here today.
On our next panel of witnesses, from the Quebec Bar Association, is Claudia Prémont, President of the Quebec Bar, and Sylvie Champagne, Secretary of the Bar and Director of the Legal Department; from the Young Bar of Montreal, Sophia Rossi Lanthier, Lawyer and Director on the Board; and, as an individual, Marie Manikis, Assistant Professor, Criminal Law, with McGill University. Thank you all for being here.
Ms. Prémont, we will begin with you.
[Translation]
Claudia Prémont, President of the Quebec Bar, Quebec Bar Association: Mr. Chair, senators, good afternoon. I am Claudia Prémont, President of the Quebec Bar. As you said at the outset, with me is Sylvie Champagne, Secretary of the Bar and also Director of the Legal Department.
Thank you so much for your invitation. Today's meeting is extremely important, given the extent of the problem we are facing and the need to address it as soon as possible. The Barreau has constantly been working toward better, more effective, more accessible justice. We work with all stakeholders in various settings, as you can see in our comments.
On October 3, we participated in the 2016-2017 Action Plan of Table Justice-Québec. The plan includes six specific areas, which, according to our findings, are in line with the four recommendations in your August 2016 report. From the few questions you asked before our appearance, I have gathered that you are quite familiar with this action plan.
We have submitted our written comments. If I may, I will highlight some of them in the few minutes I have, if I may.
First, the Barreau has been calling for a reform of the Criminal Code for a long time. We think the minimum sentences have had a direct impact on the delays, hindering settlements in a number of cases.
Actually, in November 2012, the Barreau du Québec legally challenged Bill C-10. Our interest was challenged all the way to the Supreme Court of Canada. At that point, we suspended the challenge following the Minister of Justice's mandate letter, which stresses the importance of reforming the Criminal Code and dealing with minimum sentences in particular.
Second, there are two parts to the judiciary. The first part is appointments. As we indicated in our comments, we need appointments to be made more quickly. We noted in our comments that the federal appointment committees, in both the western and eastern regions, have not yet been set up.
We know that they will be ready very soon, because we have received the request to provide the minister with names of candidates who could sit on those committees, and we appreciate that.
Right now, there are three vacancies at the Superior Court of Quebec. We sincerely believe that appointments should be made more quickly. In the majority of cases, it is known in advance that a judge will leave their position, retire, or become a supernumerary judge. So the deadlines for filling the vacancies should be sooner.
The second issue is inadequate resources. As you may know, at the start of the legal year, the chief justice made an observation about the increase in the population over the last 30 years. We talked about an increase of about 20 per cent. During the same period, the number of judges increased only by 3.5 per cent. The number of judges is insufficient, in our view.
Right now, there are three vacant positions that have not been filled by the federal government, but the positions have been created. There are three positions created by the Courts of Justice Act but still not created by the federal government, that is, under the Judges Act. The chief justice considers that five more judges would be required to get the job done.
This means that coordination needs to be improved so that, when the position is created at the provincial level, it should be also created as soon as possible at the federal level. When we talk about the need for more judges, we have to take into account that we have seen a constant increase in the number of days and judges, from 2011-2012 to 2016- 2017.
It is therefore possible that the number of active case files may not have increased, but that the number of trial days for judges has increased from 1,276 in 2011-2012 to 1,698 in 2016-2017. Also, I think the problem with the insufficient number of judges is that the role of judges has changed significantly.
Not only do they hear trials, but they also act as conciliators in settlement conferences. They do a lot of management with the new rules, and they are also asked to manage cases, as I understood from the discussions you had with the witnesses before us. They will be asked to be even more efficient in their case management. So, of course, the time they spend on management is not spent on hearing trials.
[English]
The Chair: Ms. Prémont, I'm going to have to ask you to wrap up.
[Translation]
Ms. Prémont: Yes, absolutely.
I will close by talking about the justice budget. For a number of years, the Barreau du Québec has been stressing that an infusion of money is needed. We feel that justice is the poor cousin. This is a must if we want more effective and quicker justice to address the delays in the criminal justice system.
I encourage you to read the rest of our comments. We would be pleased to answer any questions you may have. Thank you.
[English]
The Chair: Thank you.
I remind you that there are other presenters. We have roughly a five-minute guideline so that senators can have sufficient time to ask their questions.
Ms. Manikis.
Marie Manikis, Assistant Professor, Criminal Law, McGill University, as an individual: Thank you very much for this invitation. I will make this as short as possible.
I think we all realize that this is a very important question that touches all actors of the criminal justice process, especially with the Supreme Court decision in Jordan. We see this need to really tackle judicial delays, and my presentation will focus on four main points.
The first one relates to first appearances and bail hearings. I've undertaken a study, which is in its initial phase. We have looked at a hundred hearings in bail courts and first appearances in Quebec, in Montreal to be more specific. What we've realized is the number of adjournments that have taken place for various reasons.
One of the noteworthy elements is the fact that often prosecutors were missing from the courtroom. There were situations where the files weren't provided and clients hadn't met with lawyers. A lot of this is due to a transportation issue. A lot of the prisoners were brought to these hearings, and there were such delays in transportation that the whole process took time. A lot of delays relate to transportation or prosecutorial presence. Also, defence counsel, especially Legal Aid, often hadn't met with their clients yet.
When conditions were imposed for release, one thing we noticed is that there was no discussion or consideration of the specific background of individuals at that stage. That's one of the things we realized. We questioned how efficient these orders are, especially if mental health issues may not have been considered.
A second element, and it ties into this situation, is the lack of resources. In terms of judges, we've seen that there have been vacancies that haven't been filled. This is also the case in the court of Quebec, and also for prosecutors.
The prosecutor has been called to play a more active role in different stages of the process, such as ethical duties. Also, the onus is often placed on prosecutors to trigger mandatory minimums. It seems that there's an under-funding of several prosecutorial services.
My main focus is in Quebec. I've seen several reports that were brought out for years now, and there's an estimate that 200 new prosecutors should be hired in order to reach the national average. So they're understaffed. They're also the least paid across the province, so this is an area of concern that I think probably is one of the causes of these delays.
Finally, I would add that charges laid should be pre-screened by prosecutors. In most provinces when a charge is laid by police, they are not pre-screened by prosecutors in many cases. Only B.C., Quebec and New Brunswick have a policy in which prosecutors actually pre-screen these elements. There's an estimate that charges are withdrawn in 30 per cent of the cases where Crowns haven't pre-screened the charges. This also causes delay. It could take a long period of time between the moment the police lay a charge and the moment the prosecutor decides to withdraw it because there's not sufficient — or maybe there are other ways to treat a certain issue.
I think the issue of diversion and using the criminal justice system as the last resort is something to think about very seriously. There are a number of reports on mental health done by the commission of Canada. Frank Iacobucci's report in 2014 raised some interesting elements on how to do this, including education for police, having an anti-stigma education to challenge attitudinal barriers that lead to discriminatory actions in different stages of decision making. Another was hiring and promotion by psychologists, so the importance of police departments working with psychologists, and an emphasis on de-escalation techniques. These are some of the elements to bring forward.
I would be happy to answer any questions you may have. Thank you.
The Chair: Thank you.
Ms. Rossi Lanthier.
[Translation]
Sophia Rossi Lanthier, Lawyer and Director on the Board, The Young Bar of Montréal: Good afternoon, everyone. I am here today as a representative of the Young Bar Association of Montreal. Our association represents the 5,100 lawyers practising in the Montreal area who have been registered with the Barreau du Québec for 10 years or less.
A number of lawyers who are members of our association — such as Adam Villeneuve here with me today — practise criminal law.
The Young Bar's mission is, first, to promote accessibility to justice and to protect our members' interests. So you will understand that we were particularly pleased to receive your invitation today and we thank you for it. We are particularly concerned about this issue, because of our mission, and also because, like Mr. Villeneuve, many of our members practise in the criminal justice system.
As part of this consultation, the approach we have chosen is somewhat different. We have set up a committee with a number of our members who practise in various areas of the criminal justice system, including legal aid, private practice, defence and the Directorate of Criminal and Penal Prosecutions.
I will not tell you anything new by telling you this, but those practising lawyers are well aware of the issue of delays. This issue is well known. That's why we have called on our members to learn about their experiences. We have also looked at the various presentations and submissions for your study.
Given that the problem is well known, what we have chosen to do today is to present solutions. So as young lawyers, we have decided to put ourselves in solution mode. We will present four solutions that we believe can help reduce delays in criminal and penal matters.
You can see from our brief that all the solutions we are proposing apply to the provincial level, but also locally. Clearly, we know full well that we are before a Senate committee, which is under federal jurisdiction.
However, when we looked at your interim report, we saw that you were advocating for federal-provincial collaboration to help solve the problem of delays in the criminal justice system. Clearly, I think collaboration is essential, considering that we would be solving only part of the problem if we were to look solely at the federal side.
So the solutions we are proposing are fairly simple and revolve around one element, best practices. As a first step, we believe it is important to introduce future lawyers to best practices in case management. They must also be made aware of the positive impact of good case management on reducing delays.
Right now, in the university curriculum, at the École du Barreau and also during the articling, lawyers are hardly made aware of the impact that good case management can have on cases. We believe that lawyers should become aware of best practices during the École du Barreau and their articling.
Lawyers should not have to learn to manage on the job, as they say, when they start practising. In a system that is already paralyzed by a culture of complacency toward delays, we must address the problem at the source. So, when we educate future lawyers, if we equip them with the tools to deal with the issue, we think we could significantly reduce the problem. So that's part of education and awareness, if you will.
[English]
The Chair: We are not going to be able to hear all of your submission. We all have it, so maybe you can just wrap up and we'll get to questions.
[Translation]
Ms. Rossi Lanthier: Yes, of course.
I think there is a real consensus on the issue of delays. The delays are very long and must be reduced. You have been made aware of an accumulation of all sorts of problems, which result in a lot of delays.
Some possible measures are complex and costly. We believe that the solutions we provide are very simple and easily applicable. They are practical, can be implemented easily and respect fundamental rights.
Thank you very much.
[English]
The Chair: Thank you very much.
We'll begin questions with the deputy chair, Senator Baker.
Senator Baker: Thank you to the witnesses for their very excellent presentations.
I don't know whether the bar wishes to comment on this, but when judging delays that cause stays, only actions of the Crown — the prosecutorial service, the prosecutor and the police — and the court, and here I am referring to institutional delays, inherent delays, are taken into account. Any delays caused by defence counsel are not taken into account in giving a stay of proceedings. I don't know if you want to comment on that.
Here's my main question for anybody who wishes to answer it. You say that case management judges and settlement conference judges take up time and therefore they can't be used in trial. The very reason we brought in case management in the Criminal Code was to get rid of delays, not to cause delays. You're telling us that it's causing delays. Settlement conferences were brought into the rules everywhere to stop delays. You don't have to go to trial if you can get a settlement in a settlement conference.
So you're saying the judges who are trying to prevent delays are causing the delays because they can't be in a courtroom. That is very confusing. Perhaps you could address that.
I am still looking for an answer to a question I asked the previous panel, and that is: Would you agree with the committee suggesting that all disclosure to be used in a criminal trial must be presented prior to trial, if there's any new evidence during trial, that it can only be entered by application to the court and proof that due diligence was used and that it could not have been provided prior to trial?
Those are my two questions, but first of all, this conflict that you've presented to us.
[Translation]
Ms. Prémont: You are absolutely right that anything that relates to an out-of-court settlement is about saving time before a judge for a trial. It is clear and gives a clear result.
But it is also important to keep in mind that, if this conciliation, this mediation does not take place outside the trial as such and is done by the same people . . . Based on discussions with the judges and the representatives from the Superior Court and the Court of Quebec, it is clear that the role of judges has changed over the years. By increasing the trial days for the hearings and adding other tasks on top of that, it is clear that, as we speak, there are not enough judges to do the job. That's what I was saying.
Clearly, it is the same people who do both, so we cannot be in two places at the same time. After a number of years of practice in court, although I practise family law, not criminal law, I can tell you that, when the out-of-court settlement conference came in 2003, very few practitioners, such as family law lawyers, asked the judge for an out-of- court settlement conference. Right now, there are not enough dates for all the lawyers who want a settlement conference.
So clearly, judges who previously heard cases devote a lot of days a year to that task. So that is what I am talking about. I think the role of judges has changed tremendously over the years. We are asking them to do that, and I think it's good, but we have to be aware that the same people are doing two jobs.
Adam Villeneuve, Counsel, The Young Bar of Montréal: My opinion is simple. A judge, in case management and settlement, will be limited by the preparation of both parties. If the defence and the prosecution do not do their homework prior to appearing before a trial judge who wants to manage the case, the judge will be limited. Certainly, we could give them additional powers, and we should do so.
But, basically, my main fear is that the constitutional rights of the accused will be under attack. I do not want to blame anyone; I did not come here to blame anyone at all. But if the parties do not do their homework before the case is heard, the judge is going to be limited.
Senator Boisvenu: It is a pleasure to see you again, Ms. Manikis. For the information of my colleagues, Ms. Manikis did her doctorate in England, and her topic was the Victims Bill of Rights. At that time, she worked very closely with the Association des familles des personnes assassinées et disparues and with my office in the Senate. She was there at the very start of the bill of rights that the Conservative government passed two years ago now. I had to point that out, because she is very humble about her contribution.
My question goes to Ms. Prémont. I am going to ask it as diplomatically as I can. You know that my concerns are particularly directed to the rights of victims of criminal acts and to the treatment of victims in the justice system, which, in some respects, in my opinion, does not include victims but rather excludes them.
This morning, we heard some statistics that still frighten me a little in terms of the fairness of the justice system, particularly in Quebec. As Justice Fournier confirmed this morning, about 55 per cent or 60 per cent of victims will drop their complaints during the proceedings because the delays are too long.
When a researcher like Mr. Langlois tells us that more than 50 per cent of defence counsel knowingly seek to delay legal proceedings, are we not faced with an ethical problem that knowingly puts victims at a disadvantage in the legal system in order to get someone acquitted?
The bar has an important role to play, because your organization has to serve the public interest. But I see that we are not serving the public interest in the justice system, we are actually serving the lawyers' interest.
So I would like to hear what you have to say about it, because it seems to me to be a major concern to see that we are deliberately delaying procedures in the system so that victims give up their complaints and that, basically, the criminals go free.
Knowing as we do that only one woman in ten pursues a complaint of sexual assault, we have an ethical problem, in my opinion, one that goes directly to the bar, not just to lawmakers.
Ms. Prémont: Our mission in that regard is indeed to protect the public. You should know that it is something to which we are bound, tightly bound, and something on which we work every day. We are working to change the lawyers' culture. In 2015, we amended our code of ethics to state specifically that any abuse of process or any procedure improperly undertaken by a lawyer is a breach of ethics.
We are taking responsibility. We are discussing this problem openly. Senator, I can tell you that, at the Table Justice-Québec, among other places, this is one of the focuses of the action plan as such, and it includes everything that affects changes in culture and new ways of proceeding.
I should tell you that we are perhaps a little further ahead in civil law. We did it when the new Code of Civil Procedure came out. We supported that change. We talked to our members about it, and we continue to give them the tools precisely in order for things to work better.
We are also doing it in criminal law. Of course, I should tell you that the Jordan decision certainly woke people up. You should know that we are extremely committed to it. I agree with you that there is no reason for this; the situation must be improved. We must talk about it. In my humble opinion, our members agree with that and are aware of the need to improve the situation.
One of the actions that the bar has committed to take more formally, although it already previously existed informally, is to improve the relationship between defence counsel and Crown counsel. I am not saying that the relationships are all bad, but improving them would help to develop a feeling of confidence that would then allow for better ways to be found to make the delays much more reasonable.
So please be aware that we have got the message, and we are talking about it openly. We are not sweeping it under the rug, not in the slightest.
Senator Jaffer: Thank you very much for your presentations; this is really interesting. I have a question for the lawyers here.
[English]
In our hearings across the country, the one thing that we heard was, "It's your fault,'' especially defence counsel's fault.
I will start with you, Mr. Villeneuve. Even this morning, we heard from witnesses who were saying that you purposely delay so that you can negotiate — that's not what I'm saying — and that this is an advantage for your clients. Can you reflect on that, and then Ms. Prémont?
[Translation]
Mr. Villeneuve: I am not going to make any friends in my profession today. I do not have a high-volume practice. My clients are generally first offenders, so I am not in court very often. But, I have to point out to the committee that I have witnessed conversations in the corridors about delaying tactics, pure and simple.
We have to face up to that reality. In my opinion, the lawyers we have to influence are those just entering the profession, to prevent them from getting into bad habits. We need incentives such as the ones we described in our brief, so that older lawyers, those steeped in a culture of complacency, are not inclined to use delaying tactics and do not resort to them as a reflex.
Victims suffer because of it; that is a fact. They withdraw their complaints; that is also a fact. But there is another side to the coin. I have had some clients who wanted to plead guilty, even though the evidence was not strong enough to justify a guilty verdict. Why did they want to plead guilty? Because the victim was not in court on the appointed dates. So clearly the prosecution asked for the matter to be postponed. I could not be opposed to that because it was a first request for a postponement, sometimes a second. In some cases, that led a client to plead guilty, despite the nature of the evidence. To me, that is an affront to the presumption of innocence.
[English]
Senator Jaffer: Ms. Prémont, when you are answering, can you also respond to how maximum and minimum penalties have affected the issue of delays?
[Translation]
Ms. Prémont: In the bar's opinion, the issue of minimum sentences has directly affected the delays. In our discussions, with both defence and Crown counsel, we find that a number of trials are taking place because basically there is a minimum sentence. At that point, when the case goes to court, it prevents some settlements from being reached. It was easier in the past.
That is what trial lawyers are telling us about minimum sentences. That is the position that the bar took, and it is why we asked to be part of the debate on Bill C-10. It was important for us that discretion be given back to the court. Clearly, if people have to go to court because no settlement can be reached, of course the courts become clogged. We can say that it is a contributing factor.
Senator Jaffer: Thank you.
Senator Dagenais: I do not want to go back to the question that Ms. Prémont and Ms. Champagne have answered at length. It was about court delays because of habits that can sometimes please a lawyer's clients. But I hope that the Quebec Bar Association, a very professional organization, will find a way to dissuade some lawyers from using that strategy that can serve clients very well at times. I can tell you that, in a previous life, I even knew clients who would say to me: "Give me the name of such and such a lawyer. He can get me off; he will just keep delaying things.'' At a certain point, you know, people know who they are.
I want to come back to the Table Justice-Québec. My colleague, Senator Joyal, asked Didier Deramond whether he had been invited to the Table Justice-Québec. We discovered that the two major police forces in Quebec had not been invited. I find that somewhat of a pity because, of course, they are part of the legal apparatus, whether we like it or not. I imagine you took part in the Table Justice-Québec, that you were invited.
Ms. Prémont: Yes. We were invited by the minister. I did hear the question just now. I am not able to tell you why they were not there. Some organizations, such as the Association des avocats et avocates de la défense, were not there. We asked the minister to add those associations, because we thought it would be helpful if they were there. As for the bar, we also had members of our criminal law committee with us, which seemed helpful too. But I have no answer for you as to the reasons.
Senator Dagenais: I imagine that the Director of Penal and Criminal Prosecutions was at the table?
Ms. Prémont: Absolutely.
Senator Dagenais: It is a pity that he is not here today Thank you very much, madam.
Senator Joyal: Related to what you said in your opening remarks, I notice, in the recommendations contained in the Table Justice-Québec report, the need to fill positions and to know in advance when positions will become vacant. It is a bit like the Senate; we know when there will be vacancies. There is also the financial need to equip the justice system with modern electronics and the need for rooms to put them in. Why is there nothing like that in the Table Justice- Québec report, given that everyone who is part of the system seems to acknowledge that it is indispensable? Certainly, the report points in the right direction. But, as someone once said, as for the practical objectives in the report, show me the money.
It astonishes me because, if we want to be effective, those questions have to be dealt with. Why do those aspects not have a place in the Table Justice-Québec report?
Ms. Prémont: I agree with you and we said so clearly. In the media conference, there was even a question directed to me. I replied that, in my opinion, resources are inadequate.
Now, for the Minister of Justice, since it was she who convened the Table Justice-Québec, one of the answers was not supposed to be the lack of resources, if you will. She said that we were to start by being more efficient with the existing resources. Then we would see if resources were lacking and, if so, to what extent. That, however, is not the bar's position. We see a lack of resources and we believe that the budget allocated to justice is inadequate.
Senator Joyal: Yes. The other question follows on from Mr. Villeneuve's remarks and his reply about what he called incentives. I believe that the Jordan decision is a disaster for the profession. I am a retired lawyer myself, and my colleague, Senator Carignan, is also a member of the bar.
Ms. Prémont: A shock wave.
Senator Joyal: As my colleague, Senator Baker, said, it is not just the system that must be targeted but those who maintain the culture of delays. The culture of delays rests mainly on the shoulders of some lawyers. Jordan comes out against us all collectively.
Ms. Rossi Lanthier, I read your brief carefully too. It seems to me that, if we want to change the culture of delays, we need mandatory training, and that involves reforming the Code of Penal Procedure. I do not think we will manage to break the culture simply by being full of idealism when we begin the profession. I admire your enthusiasm, but I think we need a revised code of procedure to give judges some authority in managing cases in order to impose some virtue on the parties involved.
We can, as you propose, provide awareness and education and so on, but that is not going to be enough when there is what might be called a secular culture that, in addition, tends to serve the needs of defence counsel. Earlier today, we were given some statistics from Vincent Langlois' research. For once, Mr. Villeneuve, as you admit yourself, we see how this is all firmly rooted in the system.
So I would like to hear what you have to say about the initiatives we can take to address the matter of managing delays and how we can prevent them in a mandatory way.
Sylvie Champagne, Secretary of the Bar and Director of the Legal Department, Quebec Bar Association: Certainly, things can be done in the Criminal Code in terms of managing delays. We have asked for the Criminal Code to be revised in its entirety rather than in parts, so that the system can be adjusted, whether that is about preliminary inquiries, about disclosing evidence, or about various matters that have been brought up.
In terms of management, yes, we have to revise the Code of Penal Procedure to give additional tools to the bench so that they can manage files efficiently. The bar is always open to collaborating on and looking into matters. But it is not something that we at the Quebec Bar Association undertook on our own.
Senator McIntyre: Thank you for your presentations.
Ms. Prémont, I share my colleagues' comments and I find that you have well described the Quebec Bar Association's role in the Table Justice-Québec action plan that was announced in October.
I must acknowledge that I have very much liked the bar's comments during the consultation on matters pertaining to the delays in Canada's criminal justice system.
Ms. Rossi Lanthier, do the lawyers who have been practicing for less than 10 years have a different perspective on the administration of criminal justice, as you mentioned in your brief, especially with regard to the legal culture and the relationship between Crown prosecutors and defence counsel?
Ms. Rossi Lanthier: Do they have a different perspective? I think that what we mean, as Mr. Villeneuve mentioned, is that, when we arrive, we are basically tainted by the culture in place. So when young lawyers begin their practice, they are automatically influenced by the existing culture.
I agree with Senator Joyal. We have suggested good practices and we stand by them. But I feel that binding amendments to the legislation are needed in order to impose those good practices on defence and prosecution lawyers alike.
Senator McIntyre: As you mentioned in your brief, yes, future lawyers must be made aware of and educated in best practices. Thank you.
[English]
Senator Batters: Thanks very much to all of you. Your presentations have been really helpful.
I want to commend the young lawyers of Montreal for coming here today and bringing such a fresh perspective, and solutions-based. I love that. That's what I'm always asking about in these committee hearings.
I wanted to give you a chance to tell us more about two of the things in your brief. One of your solutions is encouraging prosecution and defence to open a dialogue early. I would also like you to talk briefly about universalizing technology, where you're speaking about being too dependent on paper — and I'm guilty of that myself — and also doing something like using emails to confirm trial dates. Perhaps you could speak briefly about that. I think the solutions are really going to come from people that are young and have new, innovative ideas.
[Translation]
Ms. Rossi Lanthier: So in terms of technology, we currently see a disparity in the access to technology among various stakeholders. So not all stakeholders have access to the same technology. Some people have access to more technology than others.
It is certain that making that technology available to all the courts, to all the stakeholders, is very expensive. Moreover, we should optimize the technology available to everyone. One example is email. We don't even set hearing dates by email. We don't even consult the parties by email to determine their availability. Email is certainly a technology that is accessible to everyone and that we could optimize. So instead of waiting for everyone to have access to the same technology, why not use and optimize existing technologies that are available to everyone? That's in reference to the question on technology.
As for the question on dialogue, the parties are currently talking. In any case, this once again has to do with good practices. We advocate good practices and awareness-raising, but perhaps restrictive methods, legal methods, are required. What is needed are constructive and rapid exchanges in case-related matters.
Dialogue must be constructive, and that requires a good knowledge of the case, legal issues and the evidence. That kind of a relationship currently doesn't exist between the parties. That's really something that stems from culture.
So when it comes to dialogue, we definitely want to encourage constructive conversation. We want things to change. We, the young people, feel that part of the problem is that changes must be made at the grassroots level. We are future lawyers. So we believe that a change can be made now, and we hope that can help somewhat reduce the delays in the future, at least in terms of that aspect.
[English]
Senator Batters: Excellent.
Ms. Manikis, I just made a note here. You were thinking that about 200 new prosecutors should be hired. That's a huge amount. You said that they're the least paid across the province, but I think you were meaning to say across the country, is that right?
Ms. Manikis: That's right, yes.
Senator Batters: Thank you.
Ms. Prémont, regarding the judicial advisory committees, this is something I was actually questioning the government leader in Senate about this week. What is the case for Quebec? Last week, the federal justice minister made some judicial appointments and then indicated that she would be reconstituting judicial advisory committees, but not until the next few months. Was it the case that some of Quebec's judicial advisory committees were functioning, or had they all become defunct over the last year? How was that working?
[Translation]
Ms. Prémont: That is correct. Over the course of the past year — so since October 2015 — no committees have been functioning, but they should be reinstituted, as far as I understand, by mid-November, to quickly move on to appointments and deal with current vacancies.
In addition, positions were created under provincial legislation, but they were not created on a federal level. Of course, there should be alignment, so that appointments can be made afterwards.
[English]
Senator Batters: Did you say that the judicial advisory committees have not been functional in Quebec for the last year?
[Translation]
Ms. Prémont: That's exactly right.
[English]
Senator Batters: Wow, shocking.
[Translation]
Senator Carignan: I agree with a number of aspects that have been discussed, including the need for a new criminal procedure code to help judges oversee operations, and especially to force defence lawyers to be more disciplined in their investigations or their methods.
I also agree that there are not enough Crown lawyers and they are underpaid. That creates a problem in terms of recruitment and skill retention.
I have now been a lawyer for 26 or 27 years, so the problem existed before the Harper government took power and before it imposed minimum sentences. So I understand that you have a political role to play, as well, and that the message of minimum sentences is something to consider. However, I feel that the problem goes much deeper than that.
I see that the committee and the testimony are on the right track. Would you not say that there is a lack of leadership from ministers, among others? I am hearing the Minister of Justice say that they will try to do what they can, using what is currently at their disposal and be more efficient, when we have a nuclear bomb hovering over the justice system. I am talking about the impact of the Jordan decision. Is there not a lack of leadership? When the minister talks to you like that, imagine what she says to her finance minister when she wants to get more money for the justice system. I am very concerned about the way she is presenting the justice system's case to the cabinet.
So here is my first question: Is there not a lack of leadership? The same goes for us on the federal side. Second, don't you think there should be specialized chambers?
You are a family lawyer, and my wife is a family lawyer. I have lost track of the times she has told me about appearing before a judge who has never been involved in family law before, understands nothing about family law, and whom she must provide with guidance. That leads to further delays. However, when she argues before a judge whose area of expertise is family law — and that occurs in 50 per cent of her cases — things go much better, much more quickly, and case decisions are much more appropriate to the situation.
So don't you think that there should be specialized chambers, especially in the Supreme Court?
Ms. Prémont: I would like to give a quick answer to the first and the second questions. In terms of leadership, what I am seeing is that the Table Justice-Québec, despite its flaws, is still an excellent development. Everyone was around the table, aside from police officers, as you pointed out earlier. Everyone was working in the same direction. That has not often happened in the past. So I think that the stars have aligned and we all share an objective.
We have asked for estates general on justice. That has not been done in 25 years. We think that it is necessary. We know what the problems are. The goal is not to sit all the stakeholders down to redo something that is already being done in a number of different forums. The idea is first to ask ourselves how we got here. I think that we should ask ourselves the question, and then find solutions with individuals from every walk of life. We have the police officers leading the charge, among others. There are also litigants, those who address the justice system. So we think that it should be done. We asked the Minister of Justice to do it. We will see what the outcome will be, but that's one of our ideas.
As for the second question about specialized chambers, we absolutely agree, and we say so in our brief. I'm a huge believer in that idea. I believe in it as a way to help with delays, as you say, but also because I think that judges who specialize in a specific field, who know it well, will come up with innovative solutions, so that justice will be served more effectively.
We have seen that in Quebec City. I am talking about what I know because I am a family lawyer from Quebec City. We have a judge who has practised family law her entire life, who is the co-ordinating judge and has come up with some truly extraordinary solutions in child custody cases, and in terms of keeping a judge on a case, especially in high- conflict cases.
So those are the kinds of ideas put on the table by judges who know their field and like their work. We are extremely enthusiastic about that option and we think that the outcome would be excellent.
[English]
Senator White: Thanks to all of you for being here.
Ms. Prémont, my first question is related to your initial comments around requiring more judges, more Crowns and more money in the justice system. My background is policing, and I always talk about supply and demand. You're talking, really, about managing the demand, but most police organizations in this country would tell you we need to manage supply, that we have too many people in the justice system. We have too many people charged criminally when there is no other alternative. We don't have an administrative process. British Columbia, for example, has focused on an administrative process for impaired driving.
Don't you agree that an alternative to adding more resources to a broken system — and I would argue it's broken — would be to actually focus some energy on those people who are ending up in the justice system that should have an alternative route away from that system?
[Translation]
Ms. Prémont: That is most definitely an extremely worthwhile issue to look into. We also think that anything to do with facilitation, mediation and conciliation must be developed. We are already advanced in civil law, but that all applies in criminal law, as well. It exists in Quebec. I think that is indeed one of the elements we must work on. I actually think that Canadians also want to move toward that kind of conflict resolution. So my answer is yes. However, have we put pressure on the others? Perhaps Ms. Champagne could answer that for you.
Ms. Champagne: When it comes to the mental health issue and problems experienced by people with addictions, there are clearly already programs provided in various courts in Quebec. We actually think that, when it comes to the revolving door syndrome, for those people, we must focus our actions much more on prevention, but also on social and health services. The issue must not only be looked at from a curative point of view. There is much work to be done to avoid the revolving door syndrome, and the bar supports those initiatives.
[English]
Senator White: I have another short question concerning mental illness and drug addiction. Over 70 per cent of offenders in our justice system today would identify as mentally ill and/or a concurrent disorder of drug addiction, and yet we have a six or seven month wait list to get anybody into a drug treatment program today in this country. Every province is identical and none of us are doing this right.
Would you also include in a justice symposium or a justice discussion the need for a national drug strategy that actually focuses on getting people help before they commit the four to eight crimes per day to satisfy their addiction?
[Translation]
Ms. Prémont: I believe so. Perhaps you would like to add to that point? In my opinion, we must definitely discuss this, including in estates general.
[English]
Ms. Manikis: I think a lot of it has to do with a culture shift as well, even being able to identify who has a mental illness before they arrive at the first stage or a charge being laid against an individual. I think training in that respect is a good way to possibly change cultures, including psychologists and police departments. It is fundamental.
On issues related to mandatory minimums, we've seen as well that a lot of people who have mental illnesses are captured within that. One of the things we see is that often they have to bring a section 12 challenge, and that's what causes delays. It's the constant constitutional requirement.
What's being done in other countries, including England and Whales, is an exemption clause, where the judge gets to decide if there's any leeway to actually give a lower sentence in some of these situations where there's a need and possibly go with alternatives. With mandatory minimums, it's impossible to do that unless there's a constitutional challenge, and that takes up a lot of resources within the system because each case is dealt with case-by-case through these challenges.
I will be sending you some documentation on technology, including a business intelligence model that has been developed in Alberta, and ways to track progress based on different benchmarks. In Ontario, some elements in the courts are looking at efficiencies and the percentage of time they have met these benchmarks. What's interesting is that there's a constant review of what is being done for each agency and where the delay is mainly caused.
I think having these benchmarks throughout the different systems, even within the prosecutor's office or within different agencies, might be one of the things to track progress and efficiency.
The Chair: Well, thank you. We've gone a little over time, but I think it's been well worth it in terms of the contribution you've all made to our study. Thank you again for being here today.
For our final panel today, we have with us, from the Montreal Association of Defence Lawyers, Philipe Knerr, Attorney; and from the Quebec Association of Defence Lawyers, Mathieu Rondeau-Poissant.
Gentlemen, welcome. You have approximately five minutes for opening statements.
[Translation]
Philipe Knerr, Attorney, Association des avocats de la défense de Montréal: Honourable chair, honourable members of the committee, ladies and gentlemen, the Association des avocats et avocates de la défense de Montréal would like to begin by thanking you for taking the initiative to invite us to participate in this discussion on delays in criminal and penal courts.
As a quick introduction, our association, better known as the AADM, represents nearly 500 defence lawyers practising in the greater Montreal area. So we also represent the bar associations of Longueuil, Laval and Montreal.
For the purpose of this presentation, I would like to focus more particularly on the reality of the delays in the Montreal courthouse. I do not mean to sound the death knell, but I believe that we are currently going through a crisis, which I would even term as advanced.
For example, in the Quebec court, an accused individual who is currently free and needs two or more days for a preliminary hearing will have to wait 23 months before the hearing is held. Then, subsequently, they will have to wait another 23 months to undergo trial. If we do the math, ladies and gentlemen, that delay significantly exceeds the 30- month ceiling imposed by the Supreme Court of Canada in the Jordan and the Williamson decisions.
Of course, the AADM is not here just to talk about the problems you are very familiar with. We are also here to tell you about our thoughts and some of our recommendations.
First and foremost, I must reiterate that the delay issue cannot be attributed to the actions of a single stakeholder in our justice system. In that respect, I unfortunately dislike the comments whereby defence lawyers are exclusively to blame for the delays in our justice system.
Although this all too often seems to be overlooked by a number of stakeholders, there are no delays caused by the defence that can be used by the accused individual to obtain a stay of proceedings, and we should remember that. Delays in the criminal justice system are everyone's business.
In that respect, the AADM has collaborated — including at the Table Justice-Québec — on implementing an action plan to improve the effectiveness of our justice system. That shared initiative, which brings together the vast majority of our system's stakeholders, has actually already borne fruit. We see that, in Montreal, since mid-October, we have had a video appearance system, which helps defence lawyers communicate much faster with offenders in the Bordeaux correctional centre. In addition, that helps avoid having to transport inmates to the courthouse every time.
There is no doubt in my mind that the use of new technologies is one of the most significant solutions to consider in our fight to reduce delays. My time is very limited, of course, so I will quickly go over some of our other solutions.
When it comes to evidence disclosure, especially in mega-trial cases or major projects, we often receive terabytes of information. We are talking about several hundred thousand pages, even millions of pages. That sometimes takes years to evaluate.
In those circumstances, we believe that a trial book should be given to the defence in the case's earliest stages, or as soon as possible, in order to focus the debate that will take place before the courts.
Also with regard to disclosure, we recommend that a clear policy be established, one where it would be provided that no case could be authorized without the disclosure being complete in the eyes of the prosecutor. That is unless, of course, under the circumstances, public security is in jeopardy and charges must be laid as quickly as possible.
We also believe that the establishment of a non-judicial alternative program, such as currently exists in youth law, would be very useful in adult cases.
When it comes to the proliferation of minimum sentences in Canada, we are considering two solutions. During the Barreau du Québec presentation earlier, the discussion focused on the interest of setting out legislative measures whereby the judge could wave the minimum sentence in some exceptional circumstances — when there is a number of mitigating factors that justify another sentence, and also in impaired driving cases. That's a major problem in our system. We suggest using administrative penalties in those cases to avoid their criminalization.
That concludes my brief five-minute presentation. Thank you so much for your attention.
Mathieu Rondeau-Poissant, Lawyer, Longueuil district representative, Association québécoise des avocats et avocates de la défense: Good afternoon. I am a representative of the Association québécoise des avocats et avocates de la défense — AQAAD. We are a sister association of the AADM, whose president actually sits on the AQAAD's board of directors. Therefore, we have a comprehensive and fairly united view of the changes made, although that has not always been the case. So I would like to echo all of my colleague's comments.
I would like to be much more specific and bring you to something that we find particularly worrying. During our last annual meeting, we surveyed our members about issues that they were experiencing in each district; we represent prosecutors from all districts in Quebec.
The first issue that was raised is the relationship between Crown attorneys and defence attorneys. The second issue is the relationship between Crown prosecutors, defence attorneys and the bench. Essentially, these are communication problems. We often hear that defence attorneys make too many motions, frivolous and unnecessary motions, and that this is what bogs down the justice system. We are currently working on setting up meetings between the various chief prosecutors and our association's regional representatives to facilitate communication. We strongly believe that better communication among the various stakeholders is necessary throughout the matter.
My colleague, Mr. Knerr, said previously that he greatly appreciated something new in the Montreal district, and in several districts: case management. Now, when we want to set a long-term date in the various Quebec districts, a case management judge is appointed who meets with us, before court hours in some districts, and throughout the day in others. For example, there is a room in Montreal completely dedicated for this. It makes it possible to create clear timelines for the Crown and for the defence, both for disclosure of evidence and for motions. The judge may therefore see the futility of certain motions on both sides and ensure that we do not go from one pro forma to another without any communication, which prolongs the proceedings unnecessarily. That is one thing we think is key.
I think that introducing a similar program to what has been done in civil law for years, where a clear timeline is set for everyone at the start of a case, would be another solution. For example, the Crown would be told that it has so much time to finalize its disclosure, and the defence would be told that it has so much time to announce its applications. On such-and-such a date, a preliminary hearing will be set, and they will have to decide whether or not they want a preliminary hearing. On such-and-such another date, the trial will be set. All this would help enormously, especially for major cases. Many cases do not need this kind of management, but it would greatly help communication among stakeholders for major, long-term cases.
It was mentioned earlier that dates are not set by email. That is incorrect. We set them. I personally set two, just this week. But for that, a judge must have been appointed to the case. For example, when a judge is appointed at the preliminary hearing and a date has to be set, it is certainly easier. We can hold a conference call, send two emails, and the date is set. We set it in court two days later, and then we will formalize everything in a record. Of course, this is simpler, but it requires case management judges.
The other thing that often comes up is the appointment of more prosecutors. I spoke with Pierre Teasdale, who allowed me to share his remarks with you. Mr. Teasdale was a Crown attorney for almost 40 years in Quebec. He resigned mainly because there was a major erosion of the power that is granted to every prosecutor in the districts. That is why he left his position. My colleague told me that my former associate, Dominique Saint-Laurent, who was also a Crown attorney for some 20 years, left his position for the same reasons.
Mr. Teasdale was telling me that, although people are calling for more prosecutors, that is not what we need. Prosecutors need to be given back the power to make decisions in the cases.
I have 16 years of practice. When I started practising, it was fairly common for the municipal courts and the Court of Quebec to deal with impaired driving cases under section 327 of the highway safety code, which relates to endangering human life and safety. This criminal offence enabled the settlement of these cases and ensured that they did not go to trial. Yet for many years, there has been a directive that prohibits any prosecutor from making that kind of settlement. Prosecutors are in a better position to determine which decisions they can make in their cases.
So I think that summarizes the core element, which is the relationship between the Crown and the defence, which might greatly improve the management of delays. Thank you.
[English]
The Chair: We will now move to questions, starting with our deputy chair, Senator Baker.
Senator Baker: Thank you to the witnesses.
As a preliminary comment, I want to point out that Jordan gives kind of a break to areas where there are a high number of 11(b) stays. Where there is a tradition of delays, Jordan gives that jurisdiction a break because the Crown can rely on past practices. When you look at 11(b) stays, you see the court only adversely criticizing the Crown, the police, the court about the institutional delay, not defence lawyers. I want you to verify it. No 11(b) stay argument in Canada has ever blamed the delay on the defence, not one.
Now, here's my question. You both made a suggestion to us. You, Mr. Knerr, suggested that we have total disclosure prior to trial of all matters that are to be used at trial. If I understand you correctly, that's what you said.
Mr. Rondeau-Poissant, you suggested that we borrow settlement conferences from the civil rules, to be applied in a similar manner to criminal proceedings so that you go before a judge and decide all matters in private.
Have I understood correctly the two suggestions you are making?
[Translation]
Mr. Rondeau-Poissant: First of all, yes, there is criminal facilitation, which is a process that already exists in Quebec at the Court of Appeal, the Superior Court and the Court of Quebec. I myself took part in the first criminal facilitation, in appeal, about a decade ago. The system works well and is established in Quebec.
What I was talking about was the management of public proceedings because the proceedings are public, and are held in a courtroom, but that allow the judge to impose timelines, for both the Crown and the defence, so that the case moves forward. It also makes it possible to ensure that the only thing that needs to be resolved on the day of the trial is the salient issue of the trial itself.
That is basically what I was suggesting.
[English]
Mr. Knerr: To answer your question about the Jordan motions and also to go back to the disclosure issues, the reality is that in terms of disclosure, we see too many files where we have to ask for the same disclosure again, again and again. For instance, police notes in DUI files. It is inconceivable to me that we do not receive, as the first part of our disclosure, police notes. We don't have them. And, systematically, we have to ask for them. That generates, in all files, at least two to three months of added delay because the defence is saying, "Listen, Crown, I don't have the police notes and they are essential to my client's constitutional right to make a full answer in defence.''
Senator Baker: Thank you.
[Translation]
Senator Dagenais: I have two very quick questions. The first is quite simple. If the evidence is disclosed, is a preliminary hearing still necessary?
Mr. Knerr: To answer your question about the preliminary hearing, I must say that I was expecting this to be discussed today. The preliminary hearing has a very important function, which is exploration and questioning in advance. In some respects, the preliminary hearing helps us test the evidence, to learn more about the evidence.
Obviously, the disclosure of evidence will sometimes be simply a one-page statement from someone describing what happened, but it will have been written by the police officer who took the statement. It is strange but, at the preliminary hearing, we sometimes have a one-hour cross-examination for a one-page statement, and we will uncover facts that are essential to the defence of our client.
However, sometimes the preliminary hearing can also be used for the prosecution because it will allow the prosecution to target the case or convince my client. They will say, "Look, the evidence against you is very strong. Let's try to find a way to settle the case.''
So I think that the preliminary hearing has its usefulness. I think it is essential. Perhaps we could talk about it under another heading as well, but to answer your more specific question, I think the preliminary hearing is still very useful, for the reasons I mentioned.
Senator Dagenais: Obviously, aside from the volume and the evidence to be disclosed, could you elaborate on your relationships with the Crown attorneys and the Director of Criminal and Penal Prosecutions? Is there anything that might change quickly to reduce surprises or delays?
As an aside, let me say that we should not focus more on defence attorneys. We have spoken at length today about delays. I think that everyone — judges, Crown attorneys and defence attorneys — are part of the problem and the solution.
Go ahead on your relationship with the DCPP.
Mr. Rondeau-Poissant: The first thing that is criticized in the relationship with the DCPP is that very few of our calls and emails are returned. Of course, Crown attorneys often complain about having too many cases, too much volume and not being able to return our calls. However, not taking calls simply increases their work on pro forma day.
I would say that is the most common complaint since Jordan. The Crown attorney noted that in a case before Justice Bisson two weeks ago. Suddenly, a lot more of our calls were being returned and many more of our emails have received responses, which makes our work a lot easier and, of course, expedites cases.
The problem is not necessarily when we meet with each other. People are relatively able to speak to each other. There is no particular animosity, except between a few specific individuals. I am also thinking about one district, where there was a specific problem pertaining to certain attitudes, but things are relatively good, generally speaking.
What are difficult are the gaps between returned calls and email responses, which means that we have to wait until the day before the pro forma to get an answer.
Senator Dagenais: Right. Thank you very much, gentlemen.
Senator Jaffer: Thank you for your presentations. I found them very interesting.
[English]
We've heard across the country that a lot of it is the fault of defence counsel. I don't want you to answer that.
After listening to the two of you today, what would be the three things that we could recommend in our report that would help with delays? I got one recommendation that if we could have better communication between — I don't even know if I want to call that a recommendation. But it would be great if there were three things we could put in our report from the point of view defence counsel that would help to shorten the delay period.
Mr. Knerr: Maybe I can start with one of them. I had spoken about this with my colleague prior to coming to speak before this committee.
Case management in Quebec has a very beneficial effect. The reason I say that is because a case management judge will fix, what we call in French, "un échéancier.'' Basically you'll have certain dates to do X, Y and Z in the file.
In my practice, I have a lot of files that are relatively large. We do a lot of white collar crime, but the file starts rolling really once we start doing the case management conference. One of the things I thought about on a personal level was to suggest — and I know that this was discussed before a different panel in the past — the appointment of a case management judge at the outset of a trial or as soon as practicable, because it forces parties to get the work done that is necessary to bring the file forward and go to trial as fast as we can, if ever the file goes to trial.
That's one of my suggestions. I'm sure my colleague has others.
[Translation]
Mr. Rondeau-Poissant: To reiterate what was suggested earlier, judicial facilitation would be the second element. Quebec already has a judicial facilitation system to settle cases. In other words, once the accused and the Crown attorney are both ready to discuss a settlement, we can meet with a judge and discuss the facts. The judge will then make recommendations and help the parties reach a solution. The system is effective.
I think there should also be facilitation, particularly for large cases, with the motions themselves, but not for the merits of the case, not for whether the accused will plead guilty or not, and what the sentence will be. For example, we have a motion for disclosure of evidence, or an O'Connor motion. O'Connor motions are motions that require lengthy discussion because they are third-party documents. The judge must screen all the documents. These motions can take weeks to discuss.
If facilitation was available for this kind of motion, it would certainly enable all stakeholders to give their opinions, the judge could make an informal ruling and say that he is of the opinion that this or that document should be submitted and that others should not be. It would make it possible to move forward much more quickly than through other types of motions, namely, somewhat similar third-party motions, where professional privilege is raised in certain documents. This type of motion could very well go through facilitation, rather than through legal debates that are long, in camera and add nothing.
So, as we said previously, the third thing would be to facilitate communications, perhaps through DCPP directives. It is not just Crown prosecutors who do not answer their emails. I am sure that if a Crown prosecutor was here, he would tell you that there are defence lawyers who do not answer them either. We should not throw stones at them.
But according to the code of ethics, we have an obligation to answer calls and letters. It seems that this is not at all understood by all members in the criminal justice system. Reinforcing this element would certainly help to reduce delays.
Senator Boisvenu: Good afternoon, gentlemen. I think that the discussion we are having is very interesting, and I am convinced that we need to show much greater transparency in seeking solutions.
When people say that minimum sentences are one cause of the delays, I look at the statistics, and the years when the most legislation regarding minimum sentences was passed were from 2010 to 2015. If we compare that period with previous years, or at least the five previous years, the increase is 25 per cent. If we look at the 10 years prior, the increase is 300 per cent.
So, in my opinion, there is no connection between minimum sentences and delays because the increase was larger in periods in which no minimum sentence legislation was adopted, compared with the years in which minimum sentences were adopted.
The other point you made is that Crown attorneys must be exempted from the delays issue. For the first time, a few minutes ago, we had statistics that came directly from the people who were charged and that indicate that almost 50 per cent of people admitted that their defence lawyer had knowingly delayed the proceedings to elicit either an acquittal or a withdrawal by the victim.
So I would say, yes, the Crown must carry out a fundamental exercise on its operation, the government must carry out a fundamental exercise on the resources, but the defence lawyers will also have to do some soul-searching about the system and admit that everyone has a responsibility.
Mr. Rondeau-Poissant: We are probably among the defence lawyers who are least representative of the problem of delaying cases. Neither Mr. Knerr nor I have high-volume practices. Because there are two traditions when it comes to defence lawyers, and that is one of the greatest difficulties in achieving unity in an association of defence lawyers.
There are people who take longer-term cases. There are lawyers who have higher-volume practices. Both are essential. These two categories of defence lawyers are essential to the judicial process because there are, indeed, cases we hear about a lot in the media, major projects, UPAC, which has been very busy in recent years in Quebec, and there is also daily life.
As to whether defence lawyers knowingly delay cases, I doubt it. Some types of cases take time, I am convinced of that. Domestic violence cases are often resolved over time. Is it to make things easier or achieve a better outcome? I do not believe so. I think that for people, particularly in domestic violence cases, but also in neighbourhood conflicts, the passage of time brings benefits for all defendants.
Should defence lawyers be doing some soul-searching? I can tell you that we talk about these things regularly in our association. We are trying to move our members toward better practices, and all the stakeholders in the system are doing the same thing. I think that all stakeholders really need to look each other in the eye and ask why there are delays. That is what we are doing; it is what the Crown is doing and, it will necessarily lead to changes in the system.
Senator Boisvenu: But the data that I just gave you is from people who were accused. Over 50 per cent admitted that their lawyer knowingly delayed the proceedings. The data comes from the accused themselves.
So that is why I say that if we really want to improve our justice system, we will all have to put our shoulders to the wheel; otherwise, in 10 years, we will be right back here, noting the number of trials that have not taken place because of delays, and the cycle will simply continue.
Senator McIntyre: I speak from experience because I have been a defence lawyer.
As a defence lawyer, you often have to represent defendants who are facing several charges, some are summary offences, and others are criminal indictments. Usually, a wide range of charges are pending against them. The accused has been incarcerated, and everything is followed by several court appearances, sometimes before a provincial judge, sometimes a federal judge. The accused often has to leave prison, be placed in a van, be taken to court for the appearance, unless it takes place by video.
The accused who is awaiting trial may be remanded in custody for a rather long time, as we know. So what do you think of the idea that a single judge handles a case, instead of having the accused appear before several judges at various times?
Mr. Knerr: Could I ask just you to clarify your question? Do you mean the same judge at the start, namely, from appearance to trial?
Senator McIntyre: Yes, from start to finish, instead of appearing before 10 or 15 judges, or even more. Because we are talking about judicial delays, here. I often represented defendants who wanted to be done with it, so they went to trial or even pled guilty. Making them appear before different judges led to judicial delays and significant stress for the accused and the victims.
Mr. Knerr: I agree with what you said about the stress experienced by the accused and by the victim, especially when the accused is detained.
Having said that, the idea of having the same judge for the entire case is interesting.
Senator McIntyre: With consent, naturally, the consent of the accused and all of that.
Mr. Knerr: Of course. That said, I do not know if we have sufficient resources to be able to do that. I do not know.
I think that one of the major problems in our system right now is the lack of resources in the number of appointed judges and the number of existing court rooms.
Senator McIntyre: But if you had to make a choice like that, would you?
Mr. Knerr: I do not see any immediate obstacles with working that way. The reality in Montreal is that, with a case where a judge is a manager, the judge will follow the case, as a general rule, until we set a trial date before another judge. I do not believe that working this way is causing delays of any kind. Could it be useful? I cannot exactly answer your question in terms of limiting delays, simply because the reality is that I do not think we have the resources to do so.
Senator McIntyre: But I think that the resources would be there because, often, the accused individuals — and I have represented many of them — want to be done with all of it. They are so anxious to either plead guilty or go to trial.
Mr. Rondeau-Poissant: If I may make a quick comment about this, I see only one obstacle in having a judge follow a case from beginning to end.
The advantage of having a management judge who is not the trial judge is that it allows for greater openness in the representations that are made on both sides because we can reveal things that would not be revealed at the trial to the trial judge. We can reveal them to the management judge who will be able to make the appropriate decisions. The trial judge is not aware of that information because it is not useful at the trial stage and cannot be used as evidence.
For example, the management judge may very well be made aware of discussions between the Crown and the defence, and a suggested or potential sentence. If the trial judge had to listen to months of prosecutors discussing a potential sentence, it may influence the opinion of the judge, who would then have to determine whether or not the accused was guilty. So I think that distinguishing the managing judge who follows the case from the judge who will conduct the trial is a better system, especially to protect constitutional rights and to provide a just and fair trial.
Mr. Knerr: I fully support what my colleague just said.
Senator Joyal: I have two questions. The first, to follow on what you just said, involves the lack of rooms and the lack of judges. I was stunned that this was not addressed in the report by the minister of Justice and the Table Justice- Québec, to which you yourself are a signatory. It seems to me that, if this is so fundamental to the system's effectiveness and reducing delays, it should normally have been included in the recommendations. Why does the report not contain any recommendations on this?
Mr. Knerr: I will answer this question in two parts.
The first is that, personally, I was not a member of the Table Justice-Québec. Our president, Danièle Roy, was. There are reasons that I cannot explain that would justify why this was not mentioned in the Table Justice-Québec action plan.
That said, from a personal perspective, in a conversation I had with one of the assistant coordinating judges of the Court of Quebec, I learned that the Court of Quebec is currently operating with five fewer judges than normal, so short of the number of judges normally assigned to a district. I think that is a glaring problem.
The second thing is that this judge, who manages rooms and judge assignments, told us that there are simply not enough rooms. He could find deputy judges, who would be able to fill in occasionally or from time to time in certain cases, but there are not enough rooms for that. I think it is a clear problem of our system.
I agree with you that this is not in the Table Justice-Québec action plan, but I can personally tell you that it is a major problem that I have noticed.
Senator Joyal: Mr. Rondeau-Poissant, you put a lot of emphasis on the role of management judges, on the key aspects of their role as communications facilitator, and so on. Do you not think, as we heard earlier, that the Code of Criminal Procedure needs to be reformed, sort of like the Quebec Code of Civil Procedure, which framed mediation, the legal process, so that ultimately a trial is the last option because it is the most expensive, the longest, and so on?
Would there not be a way to frame the judge's powers with respect to the trial process and the preliminary stages, which would almost force lawyers to stand in this corridor, as they will very soon have to, starting January 1, 2017, in civil procedures?
Mr. Rondeau-Poissant: Over the years, there have been Supreme Court decisions, most notably the Ontario Court of Appeal decision in Felderhof, which came to empower the management judge, to explain the powers of judges in managing cases.
Increasingly, judges are interventionist. I do not know if it is necessary to codify it because I think the realities are not necessarily the same across Canada. Codification brings pan-Canadian standardization, which might suit some places and not others. The codes of practice are there to compensate, in part.
The Supreme Court has already established case management powers and reiterated in SharQc and Auclair that the trial judge has tremendous management powers, which are not used very often. But Justice Brunton, in SharQc, used this management power. In this case, it was the same judge from bail hearing to the end of proceedings. He had to be the trial judge, which may have made for tighter management. It was certainly an exceptional trial, with 157 accused individuals on the same indictment. That said, I think the powers already exist.
Now, do we need legislation to tell judges that they must exercise the powers that have already been recognized? I do not think so. I am telling you that we see it day to day. The reality is that they use management powers much more now than they did five years ago, and now than they did six months ago.
I do not think that the Code of Procedure needs to be reformed because we already have the Evidence Act, and we already have codes of practice. I think that we are sufficiently supervised and standardized. Now, judges need to use the powers they have.
Senator Joyal: But who, then, can make judges use them?
[English]
The Chair: Sorry, but we have to move on.
For the final question, Senator Carignan, please.
[Translation]
Senator Carignan: I have two questions, and the first has to do with the disparity in judicial districts.
In the health care system, if we go to the Saint-Eustache general hospital compared to the one in Côte-Nord, we will get through more quickly at the Côte-Nord hospital because there is no wait.
Have defence lawyers also noticed a disparity in the delays in the various judicial districts? If so, what do they attribute it to?
Mr. Rondeau-Poissant: It is clear that there are major disparities in the judicial districts. There are many reasons for this. We would have to look at the issue district by district to determine what is happening. Some districts have far fewer cases to handle. Take the Saint-Jean-sur-Richelieu district, for instance. The district has very few cases, few Crown prosecutors, a single judge, and things move very quickly.
Of course, Montreal has a much higher volume and many more judges, and the system is much more clogged. However, there's everything. There are small districts as well that experience issues.
I don't think we can make generalizations. However, disparities between the districts clearly exist. There are some disparities in how the Director of Criminal and Penal Prosecutions operates, but it's difficult to say exactly what causes these disparities.
We've noticed, for example, that districts where the detention centres are close to the courthouses tend to run better because the inmates arrive on time. We don't talk much about it, but the late arrival of inmates is a major reason for delays. It's not unusual to start at trial at 10 a.m. because the inmates haven't arrived, both in Montreal and elsewhere. Therefore, the proximity of detention centres plays a facilitative role.
Not long ago, I participated in a transfer request and accompanied an inmate to Longueuil. It can take up to one hour and ten minutes in the morning because they're stuck in traffic and there aren't many alternate routes. In the event of traffic jams, they must take the same route. This leads to significant delays. What we call the "11 a.m. roll'', which is the inmates' roll, rarely starts before noon or 12:30 p.m. in the Longueuil district.
This factor needs to be taken into account. In districts where the detention centre is very close — I'm thinking of Amos, where the detention centre is attached to the courthouse by a tunnel, a bit like in Gouin — the delays are certainly shorter. That's something that could be reviewed.
Senator Carignan: I'm a member of the Barreau. By chance, a few minutes ago, I received a notice from the Director of Criminal and Penal Prosecutions. The notice indicates the following:
Plea bargaining and case management before the first step of the pro forma
Dear Colleagues, please note that, in response to Jordan, the Director of Criminal and Penal Prosecutions has decided to establish new practices to help reduce the processing times for certain criminal offence cases.
Before the disclosure of evidence, or at a later step for cases that are already active, you may receive a document that lays out the prosecution's position on the sentence as part of an early settlement. The document establishes, as part of a negotiation of an early guilty plea, the sentence proposed by the prosecutor. The sentence will lapse if the case isn't settled within 120 days of the disclosure.
After the appearance and the disclosure of evidence to the accused individual or the individual's representative, all negotiations between the parties must be held before the next step of the pro forma.
Do you think this will improve the system? Can this type of practice speed up the process?
Mr. Knerr: I have a few comments to that effect.
First, I believe the system is similar to one that exists in Vancouver or British Columbia.
However, we'll need to see the quality of the offer. Offering an accused individual something he can obtain post- trial, in terms of a sentence, is not plea bargaining. It's pointless to plead guilty under such circumstances.
Second, we'll also need to see how flexible the prosecutors will be after the fact. If we make an offer at the start, we don't have the extenuating circumstances inherent to an accused individual. I'm putting myself in the prosecutor's position. It will be very difficult to make a sensible offer in the circumstances inherent to the accused person.
Mr. Rondeau-Poissant: The system has been tested in the Quebec City and Hull districts. Pilot programs have been in place for about six months. The Association des avocats de la défense de Québec, or the AADQ, has already made recommendations as part of the pilot program. These people are probably in the best position to provide answers on the subject, because they have experienced the system.
I know that one of the issues raised was the lack of someone to deal with. Since there's no vertical integration of the case, the integration is horizontal. Any prosecutor can theoretically negotiate the case. They receive an offer, and they don't have anyone to negotiate with. This doesn't take us very far. They then wait for the next pro forma and meet with the prosecutor who is there.
I don't think the system is bad. It can cause certain problems, but there must be an intermediary. To that end, there must be an intermediary who is very familiar with the case. Also, the 120 days must start the day the disclosure of evidence has been completed. If it takes 110 days to receive the evidence, we have 10 days left to negotiate, which isn't very long.
That was a quick overview. However, if the AADQ is invited to appear before your committee, it will probably be in a better position to provide answers.
Senator Carignan: The Director of Criminal and Penal Prosecutions could also come speak. I think we need to take the necessary steps to make him listen to reason.
Senator Joyal: It was part of the Table Justice-Québec's report.
[English]
The Chair: Gentlemen, thank you very much for your time, your testimony and your assistance with our study of this very important subject. It is much appreciated.
Senators, that concludes our meeting and our work week.
(The committee adjourned.)