Proceedings of the Standing Senate Committee on
Legal and Constitutional Affairs
Issue No. 1 - Evidence - February 3, 2016
OTTAWA, Wednesday, February 3, 2016
The Standing Senate Committee on Legal and Constitutional Affairs met this day at 4:20 p.m. to study matters pertaining to delays in Canada's criminal justice system.
Senator Bob Runciman (Chair) in the chair.
[English]
The Chair: I want to mention at the outset of the meeting that we have a new committee clerk, an unfamiliar face to some of us, although she is a veteran of this committee in the past and returning to the committee after serving on other Senate committees. We will welcome Jessica Richardson as the new clerk of the committee. I would also like to point out that we have two analysts returning to the committee from the Library of Parliament: Julian Walker and Maxime Charron-Tousignant. All three are lawyers, and that's a good thing.
I welcome colleagues, invited guests, and members of the general public who are following today's proceedings of the Standing Senate Committee on Legal and Constitutional Affairs. Last week the Senate authorized the committee to examine and report on matters pertaining to delays in Canada's criminal justice system and to review the roles of the Government of Canada and Parliament in addressing such delays. As a committee, we hope to examine the scope of the problem, listen to experts and review the research to identify the legal, policy and operational issues that lead to court delays, and hopefully recommend some solutions. This is unquestionably a significant matter. Our goal will be to produce a report that ultimately can be used as a resource for operational and policy reform across Canada.
On that ambitious note, I would like to welcome our first witness, a familiar face to this committee, the Honourable Patrick J. LeSage, former Chief Justice of the Ontario Superior Court of Justice. He is with us today by video conference from Toronto.
Mr. Justice LeSage, we thank you for assisting the committee with our study. We look forward to your presentation, which will be followed by questions from senators. Mr. Justice LeSage, the floor is yours.
The Honourable Patrick J. LeSage, former Chief Justice of the Ontario Superior Court of Justice, as an individual: Thank you very much, Mr. Chair. It's a pleasure to be at a meeting chaired by somebody from Leeds and Grenville. They are a very hospitable group.
I want to start off by commending the committee for this monumental task that you have undertaken. It is a matter that has not been studied in this comprehensive way for many, many years. One of the questions you posed was: Should there be a rewriting of the Criminal Code?
I think it was in about 1953 or 1954 that the Criminal Code was rewritten, which made it a lot simpler than it had been. Unfortunately in the last 60 years, it has become a very complex document, so looking at the code and reviewing it is exceedingly worthwhile.
Many of you on this committee know much more about the criminal justice system than I do because you know it from different perspectives. I really have not been closely involved with it in the last several years. Although I have done some reports and commissions of inquiry involving the criminal justice system, I haven't had hands-on involvement in the criminal justice system for several years since I left the court. But I can tell you that just from reading newspapers and listening to the radio and hearing what is going on, I'm satisfied that there needs to be a review such as this.
I think that when starting your review, you must look at and consider whether the criminal justice system is really structured to handle much of what it receives. It receives the addicted, the homeless, the poverty stricken and the mentally ill, but the criminal justice system was not meant to really deal with those sorts of issues, and more and more they are taking up the time.
Some changes have been made in the last many years that have resulted in much longer incarceration, particularly pretrial incarceration. I understand that about 60 per cent of provincial penal inmates are those awaiting trial. That in itself, I think we all would say, is unacceptable.
We see the issues of what I refer to and I think is statistically referred to as administrative offences so that now 40 per cent of the people charged with criminal offences also end up being charged with an administrative offence. That simply is an offence that has arisen because at some stage along the way in the process, which is often too long, they have failed to follow the restrictions that have been put on them, some of which were probably unnecessary and some of which do not really deserve to be in the criminal justice system. So there has been a dramatic increase in the administrative offence.
The hybridization of offences, and I think you know what that is, basically refers to those offences that may be dealt with either by summary conviction or by indictment. The discretion that was exercised historically in making that decision had been with Crown prosecutors, be they federal or provincial. Much of that discretion has been taken from them. As a result, you now have superior courts and juries spending an inordinate amount of time dealing with matters that really should be dealt with at the court of first instance. They would be dealt with without a preliminary inquiry and without a jury. Many of them — to use the slang the "dime package" sale of crack cocaine, that is a $10 sale of crack cocaine — must be dealt with by indictment. That means they are entitled to have a jury, and many, if not most, of them do. At the end of it all, the addicted person who is so often the salesperson ends up with a sentence of six months, maybe three months or maybe nine months, and yet it has cost the system an immense amount of money.
The other matter I would comment on — and there are a host of areas that one could cover but I think they are better raised in discussion — is perhaps the lack of screening in the appointment of judges as to the skills that may be required for a particular appointment. Because of the complexity of the criminal law today, if someone is going to be adjudicating in crime, they really need to have a fairly well-rounded experience in criminal law. Otherwise, they'll get lost in the complexities that now exist. I don't think the complexities need to exist, but they do.
I'll leave my comments at that. I would be delighted to comment on other issues that may be raised. As I say, amongst your members in this committee, you have a wealth of experience in what the criminal justice system is all about.
Thank you for inviting me.
The Chair: Thank you, sir. We'll begin questions with Senator Baker.
Senator Baker: Welcome, Justice LeSage, to the committee.
You are quite well-versed in this area of large and complex criminal case proceedings. I believe it was in 2008 that you studied this matter in some detail with Michael Code, who is now a judge of the Superior Court. We had him before this committee but not on this particular subject.
You made some great recommendations. We congratulate you on your extensive report. You recommended specific changes to the Criminal Code of Canada to accommodate some of your recommendations so that the trials would not go on for an extended period of time. Were any of those suggested changes made to, I believe, three or four sections of the Criminal Code?
Mr. LeSage: Yes, some were. For instance, prior to the change, the one who was to be the trial judge was the only person who could hear pretrial motions and make pretrial rulings. That presented a lot of problems schedule-wise, so we recommended that any judge of the court in which the matter was going to be heard would have the authority to make rulings on a number of preliminary areas that would be binding and become part of the trial record, even though they weren't eventually the trial judge.
That was the main change that was made, but I'm not sure that it's been utilized as much as it could. Also, I would have made a one-word change in the Criminal Code, and it ended up with a process that I'm not sure has really enhanced what I was aiming at.
Senator Baker: So determinations made by a Superior Court judge in a Superior Court trial need not be the decision of the trial judge, but that decision stands for the extent of the trial and is appealable at the conclusion of the trial.
It was in the section of your report in which you were dealing with the time constraints on judges. You've had experience. You've adjudicated trials at the civil level, the family level and the criminal level. Your history goes back for years. Believe us, the law really hasn't changed substantially as far as Askov or Stinchcomb are concerned. They're still the precedents today.
The Federal Court rules allow for the freedom of judges. Those determinations that are not major in nature pertaining to the trial can be done by a prothonotary, somebody who is versed in the law and who makes those particular decisions. Under the civil rules, you have settlement conferences where a judge sits down, listens to all the evidence and says, "Look, you don't have a hope of succeeding in this case." Whatever that judge says can't be used in a trial, as it's all secret, which leads to matters not going to trial in many cases.
I searched your report and noticed that you didn't comment on whether you could utilize the Federal Court experience of prothonotaries replacing judges in preliminary matters, or in supplanting the rules in civil procedures, which frees the court time as far as not only settlement conferences but also many trials are concerned.
The Chair: Question, senator.
Senator Baker: It's a big question. If either of them were instituted, it would save on trial time. Have you considered it?
Mr. LeSage: No.
Senator Baker: I figured that. Tell us why. I read your report, and it's fantastic.
Senator McIntyre: Thank you, Mr. Justice LeSage, for appearing before us.
It is often said that judges at all levels are masters in their courtroom. After discussion with all parties to the proceedings, whether Crown or defence counsel, they set matters down for trial. They hear the evidence, whether it is a trial with a judge sitting alone or with a jury. That said, they are in charge of delays of trial dates. In fact they are masters in their own courtrooms, except for one thing. Above their head is the chief judge of a court.
Now I notice that between 1996 and 2002, you were Chief Justice of the Superior Court of Justice in Ontario. Before that, you were Associate Chief Justice of what is now the Superior Court of Justice, County and District Court Judge, and Associate Chief Justice of the District Court of Ontario. Now that's a very impressive CV.
Tell me a little bit about the role that the chief judge plays in dealing with judges. Judges assign cases, but the chief justice plays a very important role in order to avoid some of those court delays we've had in the past. Could I hear from you on that, please?
Mr. LeSage: Yes. I would be happy to try to respond.
I don't mean to be nitpicky, but you started your question about the judges in their courts. I've always taken the position and expressed it to other judges that the court is not our court. It is the public's court. It bothers me when I hear a judge saying, "In my court, you will do this or that." It's not their court; it's a public court. I realize it's a trivial thing, but I did want to mention it.
A chief justice is often referred to as a "first among equals." Basically, it is leadership and the authority to assign judges to cases. In practice, that is not frequently done as it's done by trial coordinators under the direction of the Chief Justice. You're there to set broad policy and to assist other judges.
I always tried to sit a fairly full schedule and to move around the province, certainly when I was the Associate Chief Justice of the District Court and the Associate Chief Justice of the Superior Court. We had some 50 judicial centres.
One thing you cannot do as a chief judge is interfere in how a judge will decide their case. It would be highly inappropriate of me, even if I read something in the paper of a judge making a ruling that I felt I knew to be wrong, to raise that with him. I might try to do it in an indirect way. In other words, just say hello to the judge, ask how the case is going and hope that the judge might raise the topic. I always believe, and I think all chiefs should believe, in my view, that they may never interfere in the decision-making aspect of a judge's role.
However, you can speak to a judge about their conduct, but then you have to be very careful that it's purely conduct and not a judicial ruling. Yes, about their conduct, it's a matter that sometimes you might phone the judge — in Ontario they're spread across this large province — and have a chat with them, but that's the role of a chief justice.
On the assignment of cases, 90 per cent of them are done by assignment personnel who work for the chief judge. You even have to be careful that you don't pick judges for particular cases to get a particular result. That doesn't mean to say that on high-profile cases or very specialized areas you can't pick a particular judge.
To go back to Senator Baker's question as to why we never looked at the prothonotary concept, it's that no one ever raised it with us, and I've never really thought about it.
Senator Fraser: I, too, thank you very much for being with us, Mr. Justice LeSage. It's always a privilege for us to hear from you.
I have two questions that I think can both have relatively short answers. The first has to do with the striking example you gave about the dime bag of cocaine ending up with jury trials and who knows what all. I think examples like that bring home the problems we can face.
You also said that 40 per cent of those convicted of criminal offences are also convicted of administrative offences. Some of those administrative offences, in your view, are inappropriately part of the Criminal Code. Can you give us an example of that kind of unnecessary administrative requirement?
Mr. LeSage: Okay. A person is charged; it could even be with a relatively minor offence. They go into court. It may be that there is a reverse onus with the bail. In my view, there are far too many reverse onuses. There should be a fraction of what we have. Whether it's reverse onus, they are let out with a surety and conditions placed on them that are unreasonable. It is impossible for many of the people you deal with in court. They don't come from nice houses, although they may well do; so don't get me wrong, as many do. But some of them struggle to get out of bed in the morning, and then we put conditions on them that are unreasonable, such as saying to an alcoholic, "You can't drink." You might say, "Stay out of the bars or stay off the street if you're drinking." You can't say to an alcoholic that they can't drink because they're going to violate that; and that is an administrative breach. Or they're late for court or they don't attend court. It's not that they've skipped bail, but it's just that who knows why.
As I said in my opening remarks, a lot of people we deal with have serious mental health issues or they have poverty issues or they're homeless. You can't put conditions on those people because of course they're going to breach them. Then they end up with offences that I call administrative offences. So 40 per cent of the people who are charged have an administrative breach amongst those charges.
Senator Fraser: I have a second quick question. I have learned on this committee that frequently changes in the law end up having unintended consequences, given changes brought in that meet what appears to be a real need, socially appropriate and all that. But as time goes on, there turn out to be unintended consequences or there turn out to be clever ways that the new provision in the law can be used to delay proceedings.
If memory serves, we don't have a law reform commission anymore, but would it be useful to have a standing body like a law reform commission to keep an eye on that kind of thing so that committees of the Senate don't have to come and look at it on an irregular basis?
Mr. LeSage: Yes. I was a fan of the Law Reform Commission of Canada. They were instrumental in a tremendous number of changes, which I was pleased to see. Parliament legislated a number of their recommendations. They were a great body. I was on one of their advisory committees, so I am biased, I guess. Actually, I was invited to be a commissioner on the Law Reform Commission, but for reasons I wasn't able.
Nevertheless, I commend you, the Senate committee, for looking at this. I think it's time for a new impetus.
Senator Fraser: Thank you.
Mr. LeSage: We've been making so many amendments to so many things. It's a very confusing document, and laws should be easily understood.
[Translation]
Senator Dagenais: Thank you, Mr. Chair and Justice LeSage. We want to sort out this issue, so that our committee can make better recommendations.
So I will put forward four elements that could be causing the delays. If you answer yes, in what order of importance would you place them? The first is an element that has to do with adopting legislation, the second involves procedural rules, the third is related to lawyers, and the last concerns a shortage of judges or staff. Taking into account those four elements, tell me whether they are to blame for the delays and in what order of importance you would place them.
[English]
Mr. LeSage: I'm not sure I can answer your question. I'm not sure I understood the very beginning, but let me try to answer at least the part that I got.
Yes, there's a shortage of judges, but I don't see that as a principal concern. I think we need to make our system simpler and less complex, and I believe we can do that. It's very doable. That's the first thing.
Yes, if we're going to have the complex structure we have now, then maybe we need more judges, but we shouldn't have to have more judges. I like to say, and this is really historic because I've been in the business for well more than 50 years — I used to prosecute a lot of murder trials as I was a prosecutor before I became a judge. I probably prosecuted 25 murder trials, and I never had one that went more than one week.
Now, of course we can't do that today because now we have email, video surveillance, DNA and wiretaps. We have all of this, so much of which, yes, can be helpful, but we need to know how to better organize and control the additional tools that we have to investigate crime.
With regard to rules and procedures, I think that a number of procedures that are in the Criminal Code — I'm not au courant with all of the Criminal Code believe me; I've been out of this a while — are too complex. For instance, I'm told that there are applications to get a search warrant that run to 3,000 pages. There has got to be a better way.
I wouldn't blame the lawyers. I think if we have simpler, less complex laws, then the lawyers will abide by them, and it's the judge's role to control that. The legal text, if you're referring to the substantive crime itself, is often far too complex and the procedure in the Criminal Code is too complex.
I hope that partly answers your question.
[Translation]
Senator Boisvenu: Thank you for your answer, Justice LeSage. I think we are tackling an issue that creates a lot of expectations among victims of crime. In our current legal system, trial length is the biggest source of frustration for victims, who are often witnesses in legal proceedings. However, the quality of their testimony is inversely proportional to the length of the trial. The longer they wait, the less credible their testimony becomes, and its quality declines. So victims expect a lot from us, as members of this committee. I want to thank you for agreeing to come talk about this matter today.
You talked about reviewing the Criminal Code. I would like you to quickly tell us how reviewing the Criminal Code would help reduce delays in legal proceedings, especially in our criminal courts.
[English]
Mr. LeSage: First of all, I agree with your comments about what this does to witnesses, victims and people who have to go through the court system.
Let me give you a simple example, and I referred to it before. If many offences that are committed are made hybrid offences, they could be summary conviction or indictable. The Crown has the duty and the right to decide which way it's going to go. For instance, there are a variety of crimes in sexual assault. It can be a touching or it can be the most horrible of things, but the Crown may well decide to go by summary conviction. That means that the victim, the witness, appears once. If they go by indictment, they'll appear at a preliminary inquiry and then appear at a trial with a jury; they go through the whole process twice. They've already given statements to the police, which have been provided, produced, if the system is operating correctly. At least in that sense the matter is dealt with in one appearance of that victim, of the person who is the complainant, whichever terminology you want to use. They are members of the public who are dragged into the process.
A simple amendment could be to amend the Criminal Code so that a minor sexual assault — and there's a whole spectrum. If it's over six months old, what is referred to as an historic matter, then the Crown has no choice but to proceed by indictment, even though it may have been a simple touching. I won't say "a simple touching" — a sexual touching. If the Criminal Code were amended in that regard, that would save a lot of grief with a lot of people.
Again, you have to have faith in your Crown attorneys. As a former Crown attorney — and I'm biased — I do.
[Translation]
Senator Boisvenu: In conjunction with our review of the Criminal Code, which is a considerable task, could we adopt disciplinary measures over the short term for courts and legal proceedings, including for sexual assault trials? For example, I attended a trial in St-Jérôme, which was postponed 37 times. Would adopting disciplinary measures help reduce court delays?
[English]
Mr. LeSage: I am embarrassed to say that I'm a little hard of hearing and didn't hear everything the interpreter said.
I don't know the details of the case to which you refer, but I spoke to someone in the last few days who is now presiding on a case that is eight and a half years since the charge was laid. That is outrageous and totally unacceptable. There has got to be a process, whether time limits or whatever, to ensure that they move more quickly. But part of that is administrative and it is really in the hands of the provinces.
Senator White: Thank you, Justice LeSage, for being here with us today.
In discussions around court delays and costs there are also many discussions around how much time is spent getting from the first step to the last step. In Ontario, for example, it takes nine appearances, regardless of the crime, typically to get through a case. It almost doesn't matter if it is a shoplifter or attempted murderer; it's nine appearances. But the word often used is "proportionality." Now, section 718.1 of the Criminal Code speaks to proportionality, but many of the reviews done speak to that being too late. By the time you get to 718.1, you're already in a criminal court case in a criminal court.
Some of the discussions, though, that have probably been more helpful have been around things like having a provincial statute option, where laying a charge allows the police to choose for the more serious dime bag of crack cocaine. A dime bag of crack cocaine at a schoolyard would be a criminal offence, whereas a dime bag from someone selling on the street to someone of a similar age, a 35-year-old, would allow for a provincial statute option, or even where the Crown could elect a no jail option, which takes out section 7 of the Charter as well, which is often the most challenging.
Do you see some of those areas as places that we should be pursuing in this review to try and make recommendations for changes?
Mr. LeSage: Well, Senator White, you know this whole area better than I, and I can't think of anyone who can better explain what has happened, what is happening and what can happen. I think what you've just said is something that can happen.
If I could be so bold as to say, about three or four years ago I was invited to speak to chiefs of police across Canada. It was organized by what used to be the federal Solicitor General. I forget what it is called now. That was one of things that I commented on, yes — to make them regulatory offences, make them provincial offences, a lot of that.
That also leads me to something that I saw in the paper two days ago, on Monday, February 1. It was on page 4 of the Globe and Mail. It was about a process they have in Saskatchewan called the "Hub." I won't try to explain what it is, but it's really something worth looking at.
As you know, the police are actually very proactive in this area. They have a lot of experience, and they need to be listened to.
I agree with everything you say.
Senator Batters: Thank you, Justice LeSage, for being here on this important topic. I am from Saskatchewan, and I was very pleased to read that article on Monday as I flew to Ottawa.
Dale McFee is actually the person who was the former chief of police in Saskatchewan and now is deputy minister of the department that deals with that particular system. He's the one who set it up, and he is now trying to bring it forward on a province-wide basis.
This issue, as I saw in Saskatchewan, working for the Minister of Justice there, is something that across the country is a crucial issue for justice departments. A major line item always is how we can deal with these kinds of issues and make sure that we are making these types of trials happen more quickly and with less cost rather than the skyrocketing that's going on.
I would like to know which of the recommendations you made in your report are most relevant for the federal level.
Mr. LeSage: I would give a lot more discretion back to Crown attorneys. I know that I sound like a spokesperson for Crown attorneys. I'm not, but I respect them, and I've dealt with them for years and years. I respect their decisions.
They have often been ahead of the curve. For instance, when there was a mandatory minimum of seven years for importing narcotics and somebody imported five or six ounces or, more likely, five or six joints, that would be seven years. They would charge the person with possession for the purpose of trafficking. It didn't fit. It twisted the law. It was not humane, and the law eventually got changed.
Mandatory minimums make it very difficult for Crown attorneys and for police. Yes, I believe — I'm totally inconsistent because when I started as a Crown attorney, the death penalty was still quite alive and well. I have no difficulty with mandatory minimums for murder because I know and have seen the alternative of execution.
There are some other things that need mandatory minimums, but a lot of the things that have mandatory minimums don't need to have mandatory minimums. They don't need only to be dealt with like crack cocaine as an indictable offence. I think the term that's used is "hybridized." The Crown can decide whether to go with the more serious process and penalty or go with the less serious.
Those are a few simple things. And make it very clear that the police have greater powers or clearly understand their powers and what conditions they can put on in releasing before you get into the bail system, because once you get into the bail system, it becomes a very complex process. There are way too many reverse-onus provisions.
I know I sound like a left-wing advocate. Maybe I am, but I think our system could be better. Saskatchewan, as in so many things, appears to be a leader in this, and I wish them well. I can tell you that when I was chief justice, we had 21 judges in our court who were born in Saskatchewan.
Senator Batters: I love that. That's wonderful. Thank you.
The case management judge provisions were introduced to the Criminal Code relatively recently. Among other things, case management judges can encourage the parties to make admission and reach agreements, impose deadlines on the parties, hear guilty pleas and impose sentences. Could you briefly discussion your view on those changes?
Mr. LeSage: I think they're great. I just wish they were utilized more.
As I did say earlier — and no disrespect to the wonderful people who do the drafting in Justice — I would have made a one-word amendment to the Criminal Code: allow "discretion." When you give people discretion, they'll exercise it responsibly, and they do it publicly.
The Chair: Justice LeSage, when Senator Dagenais was listing his priorities for the cause of delays in the system, I think I heard correctly that you said lawyers are not a problem, but in your report with Mr. Code, you did indicate a concern over the attitude of some people in the system.
As part of preparing for this meeting, I was looking at Justice Moldaverviews. He gave a number of speeches when he was on the Ontario Court of Appeal. This is part of what Justice Moldaver's views were, and I don't suspect they've changed. Defence "counsel who trivialize and demean the Charter," use the Charter to delay and obstruct justice, counsel who "clog the courts" by bringing baseless Charter applications, these antics deprive other persons of their day in court in a timely way and are "pilfering precious legal aid funds at the expense of needy litigants with legitimate causes."
We know how the defence bar reacted to that. I think it's safe to say they were outraged. What merit did those comments have then and, more importantly, today?
Mr. LeSage: First of all, Justice Moldaver is a very wise judge and very old friend. He is also from Eastern Ontario, as you probably know.
I actually gave a speech to quite a large group about a year after Justice Moldaver. I disagreed with some of the things he said, but the reality is that much of what he said was correct. I thought he was a little too harsh in the way he put it. I don't think I would have expressed it as directly as he did or perhaps not as well as he did.
I think we must accept that everyone has a role to play. A judge has a role to play in controlling the courtroom and the process.
Much of what Justice Moldaver said there I agree with, and some of it I don't, not in principle.
The Chair: Part of this relates to legal aid costs and billable hours, and I know you touched on that in an extensive way. Do you have a view on public defenders as an alternative? They are full-time salaried members who could remove this question of billable hours and delays to increase billable hours.
Mr. LeSage: The reality is that it's pretty hard to over-bill legal aid. First, they don't give out a lot of certificates.
We don't have a public defender system, per se, but in courts of first instance, say in the Ontario court, in the provincial courts, there is a legal aid employee or private lawyer retained to be there to help people through the process. So it has some of the characteristics of a public defender system and some of the characteristics of the original legal aid system.
I can tell you as one who was in the courts for several years before a legal aid system came into being, it was sad what would happen with so many people who had no lawyers and needed lawyers and couldn't get them. Legal aid needs to have much more funding than it does. Yes, there have been some cases where lawyers have overbilled and overcharged — and some of those have been disbarred — but that's very much the exception.
Senator Baker: This is something that perhaps you may not have considered, but I'll put it to you: You dealt with these huge mega-trials in your report, some of them drug trials. When you look at a trial like that, you look at two Crown attorneys. You look at a Crown attorney prosecuting the Controlled Drugs and Substances Act, and you've got a Crown attorney in the courtroom from the province prosecuting the Criminal Code provisions. Sometimes that leads to all kinds of problems with scheduling. It stretches out the time of trials. However, I've never seen a suggestion ever made that perhaps we should only have one Crown attorney who prosecutes both acts.
Mr. LeSage: I was part of that discussion many years ago. When I was in charge of the Crown attorneys in Ontario, I recall giving an authorization to the federal Crowns to prosecute Criminal Code offences if they were ancillary to the drug charge.
That's one of the quirks of Confederation, and even those who came in much later to Confederation are still faced with that division. Does it make a lot of sense? Probably not.
I have great admiration for the Public Prosecution Service and I have great admiration or the Crown service, but could they be merged? Yes, but bigger isn't always better.
The Chair: Thank you, Justice LeSage, for once again appearing before the committee. Your willingness to appear is very much appreciated and your contributions are always very helpful to the committee's deliberations.
Mr. LeSage: It's a great honour to be invited, and I wish you well in your deliberations. There is a lot of work that can be done. You may decide to narrow it down at some point, but I'm so pleased that you're doing it. Thank you and best wishes.
The Chair: Thank you.
Before we move on to our next witness, I want to remind members that the proceedings are being televised, and there is something new this year that you may not be aware of. The Senate is now broadcasting in wide screen format, so not only the senator speaking but also their neighbours may be on camera. Hopefully you'll keep that in mind.
Senators, now joining us is Carissima Mathen, who is Associate Professor, Faculty of Law, University of Ottawa. Ms. Mathen teaches constitutional law, criminal law and comparative civil liberties.
Ms. Mathen, thank you for being with us today as you approach the hot seat. We are looking forward to your presentation, which will be followed by questions from the senators. The floor is yours.
Carissima Mathen, Associate Professor, Faculty of Law, University of Ottawa, as an individual: Thank you very much. It's a pleasure to attend before the committee once again. The last time was just over two years ago, and I hope this discussion about the division of powers proves helpful to your deliberations.
I'm delighted to be asked to discuss division of powers. Sometimes it's a little bit the poor relation of constitutional law. Other things seem to get all the attention, but it is foundational. It is indeed ex ante to any other constitutional consideration.
I also wish to join Justice LeSage in commending you for undertaking this study. Delays in criminal proceedings are a chronic problem, and they directly affect access to justice and, indeed, I would argue the rule of law.
I will start with a short overview and then focus on substantive criminal law and ancillary issues. By substantive criminal law I mean the actual definition of offences. "Ancillary issues" refers to the methods by which offences are enforced.
My notes, which I have given to the clerk, include at the end a chart which may prove helpful to your subsequent deliberations as well.
Jurisdiction over criminal law is governed primarily by the Constitutional Act, 1867. It is also affected by unwritten constitutional principles and, of course, all authority in this area must be exercised consistent with the Charter of Rights and Freedoms.
The constitutional division of powers over criminal law might be described as "compulsory cooperative federalism." This is because the jurisdiction does not reside exclusively with one order of government.
Section 91 grants to Parliament the authority over "The Criminal Law, except the Constitution of Courts of Criminal Jurisdiction, but Including the Procedure in Criminal Matters."
Section 92 grants to provinces the authority over "The Administration of Justice . . ., including the Constitution, Maintenance, and Organization of Provincial Courts, both of Civil and" — importantly — "Criminal Jurisdiction . . . ." Section 92 also permits provinces to enforce valid provincial laws by imposing punishment up to and including imprisonment.
Turning to the substantive criminal law, it is important at the outset to appreciate a distinction between offences and crimes. Offences, which include crimes, are laws that function in a particular way. They impose a prohibition backed by a penalty. You might think of them as "thou shalt not" laws.
Because the provinces have the power to punish breaches of their laws, they are in affect authorized to enact offences. Therefore the term "criminal law" as used in section 91 must mean something more than a law that simply takes the form of an offence. Indeed, what it refers to are offences enacted for a certain purpose — a purpose that can be understood as pertaining to classical criminal law.
While the precise meaning of that term is elusive, it can be understood as deeming certain behaviour as inherently wrongful, enacting a sort of moral judgment. These offences are commonly called "true crimes," and we need only think of some common offences in Criminal Code, such as culpable homicide, assault, theft and so on. Only Parliament may enact true crimes. That is the effect of section 91, but both Parliament and provincial legislatures may enact offences; that is, prohibitions backed by penalties that are motivated by non-criminal law purposes.
Turning now to the ancillary issues, of which there are a number, I shall move through them briefly in sequence and leave any follow-up to your questions.
First we have the term "procedure in criminal matters." This is the term used in section 91 and so it is, on its face, directed to the criminal law, meaning true crimes. It is therefore vested in the federal government. "Procedure" includes rules governing such things as the laying of an information, preliminary inquiries, trials and appeals.
The term also is accepted to include the laws of evidence. However, to the extent that any offence carries a possibility of imprisonment, the Charter of Rights sets out minimum procedural protections, notably, the right to a fair trial and the presumption of innocence.
Next we have policing. Policing is accepted as included within the definition of the "administration of justice" and is thus designated to the provinces under section 92. But control over policing is not an exclusive provincial power. It operates concurrently. This explains the coexistence of the RCMP and provincial and municipal police forces in a variety of provinces.
Next we have prosecution. We might think about this in terms of prosecuting the federal Criminal Code; prosecuting other federal offences, for example, in tax or immigration law; and prosecuting provincial offences.
The federal Criminal Code grants prosecutorial authority to provincial Crown attorneys, who of course report to provincial attorneys general and are members of a provincial bar. But this is basically delegated authority; it is not a matter of constitutional dictate. It is, therefore, within the purview of the federal government to prosecute any federal offence, but that power for them has been unexercised when it comes to the Criminal Code. Federal prosecutors have carriage over other federal offences and provincial Crowns have carriage over provincial offences. You can see that they, in fact, discharge a sort of double duty.
Next, we must consider the assistance of defence counsel. Legal aid is provided by the provinces. However, the federal government may provide assistance to individuals facing federal charges should it choose to do so.
The phenomenon of self-represented defendants continues to be of concern to the legal profession and the judiciary, and it is possible that phenomenon contributes to delay. In some cases, this is a function of a defendant's choice, but in others, an inability to pay is likely at work as standards do vary from province to province for the provision of legal aid.
Next we have punishment, probation and parole, which I will consider together, although they represent separate functions. The responsibility for setting the terms for these three functions is invested in whichever order of government has the authority to create the related offence. A concern raised in recent years is that increasing the severity of sentences acts as a disincentive to the plea process and may encourage more defendants to opt for a trial. If a valid concern, this certainly would contribute to delay.
Finally, I want to raise the issue of the term "constitution of criminal courts." The Constitution Act, 1867, gives exclusive control over the constitution of criminal courts to the provinces, which would seem to imply that only provincially constituted courts may try offences. But in answer, the story is actually more complex for two reasons.
First is the inherent jurisdiction enjoyed by superior courts to try any case regardless of subject matter. Superior courts are protected under section 96 of the Constitution Act, 1867, as well as the unwritten principle of judicial independence. Their jurisdiction cannot be disturbed by either order of government. Therefore, crimes may be tried in both courts established by the provinces as well as superior courts.
In addition, the federal government may grant other courts the jurisdiction to adjudicate criminal offences, although to date it has not done so.
To conclude, and flowing from this overview, I would offer two points of consideration. First, the federal authority over aspects of criminal proceedings is larger than usually supposed, and it is certainly broader than the bare text of the Constitution would suggest. Second, federal choices regarding the Criminal Code have a critical and perhaps determinative effect on the criminal justice system as a whole including, in some cases, delay.
Thank you.
The Chair: I'll begin questions with Senator Baker.
Senator Baker: Thank you to the witness for once again appearing before the committee. I'll try to confine my questions to what the witness spoke about as far as jurisdiction is concerned and the Constitution.
Let me start with the last question asked of the previous witness. Here we are grappling with time spent during trials. We're trying to cut down on the time spent.
Let's say you have a complex drug trial that involves all kinds of things and is called a "mega-trial." You have two Crown prosecutors, one representing the federal government on the Controlled Drugs and Substances Act and the other a provincial Crown attorney because perhaps somebody was wearing brass knuckles when they committed an offence during the previous offence.
Do you see any problem? These people meet and have to arrange court times according to their schedules. You see consistently where dealing with two Crowns is more complex. Do you see any problem constitutionally? Would the provinces or the federal government object to having one Crown prosecutor on one case and not two Crown prosecutors?
Ms. Mathen: My reading of the jurisprudence is that there is no division of powers barrier to doing that because it is an accepted principle of federalism that either order of government enjoys the authority to enforce its laws, including prosecution. I can't speak to objections taken by provincial governments. The precise issue has yet to be litigated, but my reading of the jurisprudence is that that choice would be open to Parliament.
Senator Baker: Let me ask you about inherent jurisdiction, since you bought it up. A provincial court judge does not have inherent jurisdiction but a superior court judge has inherent jurisdiction. From time to time, it thereby appoints a lawyer at attorney general rates, which are considerably higher than what you get under a certificate if you were dealing with legal aid.
Do you see anything wrong with extending that matter more than it is utilized presently by the superior courts by using their authority in complex cases, as has been suggested by the previous witness, to pay more for lawyers? Could they use that inherent jurisdiction to give attorney general rates to defence counsel if the person cannot afford counsel?
Ms. Mathen: The discretion to which you refer is protected under the court's inherent authority to control its processes. If you are talking about the superior court as opposed to the court of appeal, and the court of appeal enjoys that authority through the Criminal Code, then it is bounded by considerations of justice and making sure that justice is served.
It's always tricky to determine what the courts would accept as limitations on their own discretion, to be frank. I do think that the courts should rightly be cautious in using their inherent jurisdiction to control matters in their courtrooms to fill gaps that they may perceive in the provision of legal aid.
Senator Baker: What would you suggest should be the recommendation of this committee? You know what we're seized with. Is there something that you feel should be done to shorten the time of trials in this country?
Ms. Mathen: Well, I would echo the comments of Mr. Justice LeSage and say that decisions taken at the criminal law policy level under the Criminal Code are having an impact on the complexity of trials that are required, for example, through sentencing. I think that would be my top recommendation at this time as something that could be dealt with fairly simply in terms of the law reform that would be required and would likely have an immediate effect.
Senator McIntyre: Thank you, Ms. Mathen, for appearing today.
I draw your attention to two Charter sections: 11(b), the right to a trial within a reasonable time; and 11(d), the right to be presumed innocent. Do you see any conflict, either practical or theoretical, between those two sections? In other words, can the need to be fair to an accused jeopardize the right to a speedy trial? I'd like you to elaborate on this interaction.
Ms. Mathen: It's certainly the case that different values are reflected by different Charter rights. No Charter right exists in a subordinate position vis-à-vis another.
I do think these two provisions work in concert, and from my observation of the criminal justice system, I don't believe that the right to a fair trial historically has contributed to delays. I think delays are more commonly a function of institutional pressures. That would be my response to that question.
Senator Fraser: Thank you so much for being here, Ms. Mathen.
I was struck by several elements but in particular one element of your opening remarks, when you said:
A concern raised in recent years is that increasing the severity of sentences acts as a disincentive to the plea process and may —
I think you stressed the word "may."
— encourage more defendants to opt for a trial. If a valid concern, this would lead to delay.
Certainly over the years, as mandatory minimums and tougher sentences have come before this committee, we have heard defence counsel — and to some extent I think even Crowns — suggest that this would be the outcome of whatever given change was before us.
But I take it from your stress on the word "may" that we don't know. We have now several years of experience of these increasingly severe sentences, but I take it we cannot really know, that serious study has not been done to determine whether that has been the effect of these changes in the law.
So the first question is: Am I right in assuming that we don't know?
Second, if serious work has not been done, it seems to me that it would be a very useful element of this committee's study if we could do it. So how would we do it? How can you test alternative reality? What would be an appropriate way to go about examining the impact of all of these changes that wouldn't end up being dismissed as merely anecdotal?
Ms. Mathen: Thank you, senator. I appreciate the opportunity to clarify that one point.
I qualified my observation because I do not have the personal knowledge to enable me to offer a firm conclusion. It may be that that information is out there. I was not able to discern that in the time I had to prepare these remarks, and it may be that other witnesses appearing before this committee will be able to offer insight.
In terms of such studies, of course it would require careful design. I do think that you can design statistically sound methods of research that would not rely on anecdotal evidence, but it would involve more sophisticated social science techniques that, to be frank, I'm not that well versed in.
Senator Fraser: I'm not sure that senators are expert, so we would have to hire an expert or turn to experts in the Library of Parliament rather than just calling witnesses, I guess.
Ms. Mathen: Yes. But I do think that we can certainly draw on the statistics that are available.
The issue here is some of the changes are still relatively new, and so you would have to be careful with the comparisons you were drawing in terms of the criminal justice system at certain points in time.
Senator White: Thank you very much for being here.
My question surrounds jurisdiction. In some countries — and I'll use Australia — they have state criminal codes as well as federal Criminal Code equivalents, I guess. In Canada we don't have that, and you spoke to that.
Is there something that would stop us constitutionally from having an offence, not only hybrid, but federal and provincial or territorial, so that it could be prosecuted through ticketing schemes or something like that if a province felt it was appropriate, similar to what they've done in British Columbia with administrative sanctions for impaired driving, as an example?
Ms. Mathen: This is actually a very interesting question because of the complexities of our division of powers. It's not like Australia or the United States, where it's fairly clear and the general criminal law power is reserved to the states.
In my research around this question, I noted it was in fact seen as an instance of nation building, and the Fathers of Confederation felt that it was important that the criminal law be uniform across the country. I've quoted from Oliver Mowat, who said "to weld us together as a nation," and perhaps also in express disavowal of the experience in the United States around the time of Confederation.
In terms of dual jurisdiction, the problem would be in relation to the use of the term "the criminal law" in section 91. That's very specific. That is an exclusive authority to Parliament. So while the courts have recognized some overlap — motor vehicle regulation is the clearest example in that you do have some clear overlap between Criminal Code and regulatory provincial offences — you would have to be very careful to ensure that you weren't just enacting Criminal Code offences at the provincial level. The provinces clearly would be ultra vires if they tried to do that.
Senator White: Could we instead have certain Criminal Code offences fall under the Contraventions Act, which would allow them to be dealt with through a ticketing scheme, which is federal legislation, if designated, or, for example, not in six months probably, possession of marijuana?
Ms. Mathen: As I said earlier, the federal government can designate prosecution for certain offences, and that's not really a matter of constitutional dictate. I think it would be outside the boundaries of the division of powers for a criminal offence to appear in non-federal legislation.
Senator White: But the Contraventions Act is federal legislation. So if you allow penalties for certain minor criminal offences — trespass by night, for example — things where the police would have discretion to charge under the Criminal Code of Canada or charge under the Contraventions Act, then there is no provincial jurisdiction; they're both federal. But it would allow for a lesser offence — ticketing, for example — under the Contraventions Act. You don't see a problem with that?
Ms. Mathen: No. As long as the federal government retains the authority in terms of selecting the mode of enforcement, I don't see an issue.
Senator White: Even though the police would control discretion over whether it was a contraventions/ticketing scheme versus a Criminal Code charge?
Ms. Mathen: The granting of discretion in terms of how an offence is enforced is not something which I see as a direct limit in section 91.
The Chair: This is a somewhat related supplementary. A lawyer friend of mine gave me this. Part of it, in any event, is related to your "constitution of criminal courts" submission and the federal government granting other courts' jurisdiction to adjudicate criminal offences, which I think ties in somewhat with Senator White's query.
In light of the court-ordered disclosure as a Charter right from Stinchcombe, I wonder if it makes sense to you to amend the Criminal Code to create the option of an indictable offence with a maximum sentence of five years less a day, which would avoid the section 11(f) Charter right to a jury trial for offences with a penalty of five years or more, and include an amendment to section 553, which would make those offences within the absolute jurisdiction of a provincial court judge.
Ms. Mathen: The risk I see in that is an argument that the federal government would be deliberately trying to subvert the purpose of the Charter right, so that would be a Charter issue.
In terms of a division of powers issue, I don't see an issue. I don't see a problem.
Senator Batters: Thank you very much for being here today, Ms. Mathen.
I felt like I was back in first-year law school again hearing about division of powers. It was like I was in Professor Schmeiser's class all over again. It was nice to hear all of that.
I'm wondering if you could tell us where you particularly place the responsibility for trial delays. Is it on groups within the criminal justice system, such as judges and lawyers, or are lengthy proceedings at this point simply part of the price for having a Charter of Rights and Freedoms and other laws that promote fair trials?
Ms. Mathen: I'm not sure I would lay the responsibility with any one factor. I think criminal justice — as we've seen, it is a very broad term — is quite complex. It embodies a number of values and interests, some of which might be seen as competing, in a sense, which is the responsibility of society and our government to reconcile.
The criminal law itself has become far more complex in the last 20 years or so, and it has not been accompanied by, in my respectful view, sufficient efforts at reform to rationalize the statute that we have. It's extraordinarily unwieldy. There are various inconsistencies in terms of the language used. It hasn't been revised in some 30 years or so, and the last substantive overhaul, as Justice LeSage mentioned, was in 1955. That leads to greater complexity, which I think is a burden on the criminal justice system.
There is no question that the Charter of Rights has effected a revolution in criminal law in terms of imposing new standards that must be adhered to and which do impose costs, but that's in the furtherance of a greater good, in my opinion, and is something that is clearly part of the landscape and needs to be accepted as part of that landscape.
Senator Batters: Could you also tell us if you are aware of existing efforts across Canada to address delays in criminal proceedings or to ensure that the justice system allows criminal proceedings to move efficiently? If so, what are the best innovations that you're aware of?
Ms. Mathen: I'm not aware of precise innovations in that regard, but that's not to say they don't exist.
[Translation]
Senator Dagenais: Assuming that electronic evidence may be behind some delays, could we not find a solution to accelerate things, without preventing the Crown and the defence from playing their full role?
[English]
Ms. Mathen: Perhaps I could ask for clarification, senator, as to some examples of what you mean by electronic evidence.
[Translation]
Senator Dagenais: As you know, electronic evidence is used in some trials nowadays. Experts appear, people testify and electronic evidence is presented. Sometimes, that is what causes delays. Could we not find a way to accelerate the process without preventing the Crown and the defence from doing their job?
[English]
Ms. Mathen: I think the straightforward answer is that I'm not here today with a solution to that problem. I do think that electronic evidence, because it raises a variety of other concerns, has produced this panoply of procedural protections. Some may call it a morass. But I think the gathering of that evidence takes place in a context where we have to protect other concerns. One would have to be prepared to make a trade-off of sorts, and other aspects of the Constitution would come into play to act as a limit on the ability to speed things up.
[Translation]
Senator Dagenais: On another note, I am sure you are familiar with the Stinchcombe decision. Under that ruling, parties must disclose evidence in great detail. Don't you think that way of doing things imposes a heavy burden and leads to trial delays?
[English]
Ms. Mathen: I think that the Stinchcombe rule, which applies to Crowns, is a necessary part of full answer and defence. I believe this is an instance of a trade-off in the criminal justice system. I personally would not be in favour of relaxing that standard, and I don't believe it would be possible without a significant undertaking in the courts.
[Translation]
Senator Boisvenu: Ms. Mathen, welcome and thank you for your presentation. Until last week, we had never seen so many judges publically speak out against delays in criminal proceedings in Quebec.
For example, in Quebec, in 2009-10, time frames for sexual assault trials were 508 days, and in 2013-14, they were close to 700 days. Some cases take one or two years, but others may take five, six or seven years, as that is an average. Judge Côté and Judge Rolland publically said that we will hit the wall if current practices continue. According to Judge Fournier, the important thing is not to know how thick the wall is, but rather to know that there is a wall in front of us. Those judges are talking more about practices that have developed historically in criminal proceedings than about reviewing the Criminal Code.
Of the two solutions available to us, which one is the most practical and quickest to reduce delays in our courts? Should we not carefully examine the practices that have developed — I would call them unhealthy practices? Let's take for example the practice of postponing judicial proceedings several times or the review of the Criminal Code, which will be a painful exercise that may require the participation of the provinces, as they administer that piece of legislation. Which of the two solutions do you think would be the most logical approach? Would it be to review judicial proceedings or to review the Criminal Code?
[English]
Ms. Mathen: I think in some cases it's a matter of also the particular "legal culture," to use that term, but I simply mean the atmosphere in which criminal justice is done. Where there may be a concern about procedural safeguards perhaps being less than optimal, judges may be more reluctant to, for example, speed things along.
I think that the various pieces need to work together. I don't believe you can prioritize one part of the problem and expect the entire system to respond favourably.
I believe that a more complete approach to addressing the issues that involve statutory reform but also may involve resource issues and frank discussions among the various levels of government is probably what you need in order to effect real change that can address the shocking delays that you and the Quebec judiciary have outlined.
[Translation]
Senator Boisvenu: Judge François Rolland, who is very well-known in Quebec and was the Chief Justice of the Superior Court of Quebec, said last week that, even if 50 judges were added, nothing would change. What we need to do is review trial procedures. Do you agree with that?
[English]
Ms. Mathen: Without having personally investigated the particular situation that prompted those concerns in Quebec, I would not be able to express an opinion.
Senator Baker: I would like to ask the witness and thank her once again for appearing and giving us this particular view. Did you have any concerns with the institution of the terrorism provisions of the Criminal Code and the complexity of them as far as jurisdiction was concerned; that is, that CSIS investigates, but it's not permitted to lay a charge, federal jurisdiction? Then the provincial police — the Ontario police, the Quebec police — investigate the same matter, do the wiretaps and so on, but they're not permitted under the Criminal Code to lay a charge. It goes then up to the Director of Public Prosecutions, who consults with the Department of Justice, and there lies the authority to lay a charge.
Have you turned your mind to this complex matter of the delays involved in laying charges under sections of the Criminal Code like the terrorism provisions, where there are many jurisdictions, including international jurisdictions, but to which the Charter still applies? Have you ever thought about that?
Ms. Mathen: Not specifically, Senator Baker, but I will say that it's probably a byproduct of increasing complexity and having to balance these various factors. It certainly is something that would seem to contribute to some of the delays that we face.
Senator Baker: I think you mentioned "institutional delay" at one point. About 32 per cent of all cases that are tried do not result in a conviction or an acquittal. Somewhere along the way, 11(b) kicks in; that is, it took too long to try the case. A bunch of crooks go free because it just took too long and an application under 11(b) or a stay of proceedings is instituted or somebody is completely discharged. But there is that high figure of over 30 per cent of our cases.
When you look at the case law, you see in all of them there's institutional delay, but only delays that are caused by the defence are held against the defence. Delays by the Crown are held against the Crown.
Do you see a major responsibility here on the provinces in that practically every single judgment that's given expresses these huge institutional delays — courtrooms not available, judges busy, Crowns busy and so on? Do you think some of the responsibility for these delays rests solely on the shoulders of the provincial governments? We're not going to deal with that in this inquiry, but how do you feel about that?
Ms. Mathen: I would go back to my point that we are in an arena where cooperative federalism must be the guiding moray. The provinces have a heavy load. There are tens of thousands of offences, in effect, in this country because of this dual jurisdiction.
I think it's more productive in terms of the health of the federation for both orders of government to seek collaborative ways to move this forward. But it also does require that the provinces devote capital, in every sense, to addressing this issue along with the federal government.
Senator Baker: With regard to the crooks that have committed an offence and get away under 11(b) — and, of course, we have to follow Constitution of Canada — do you see any recommendations that we can make here? For example, do you think we should be addressing changes to the Criminal Code that supplant the Stinchcombe requirements raised by Senator Dagenais and Senator White?
Do you see a role for this committee? How do you see the study that we're doing and our jurisdiction as far as the law is concerned?
Ms. Mathen: The role of this committee can be tremendously important in setting the example of how a federal institution can prioritize delays in the criminal justice system but also identify the various factors that go into making that so. This committee is well placed to provide the insightful analysis that goes beyond the traditional federal- provincial tension that might exist. That would be my hope for what emerges from this committee.
Senator White: Senator Baker started talking about statistics. I want to discuss one, as well.
You probably heard me talking about proportionality with Justice LeSage. In the province of Ontario, on average, 25 per cent of all cases end up with a conditional discharge, suspended sentence or absolute discharge. So the courts will tell you they've figured out proportionality. They're giving out the right sentences for 50,000 cases a year in Ontario already. They're doing the right thing.
The argument they might make — they haven't, but they might make it — is that the police and the Crown aren't doing the right thing and they haven't figured out proportionality. We're locked into one system, not a dual system like I discussed earlier. Would you agree that the reason 50 more judges won't make a difference is because there are too many cases going to the criminal court that need to be somewhere else?
Would you not agree that ultimately adding more resources probably will not reduce the amount of time we spend in court; it will just mean that we spend more time in court on the same cases that we shouldn't be seeing or possibly not seeing?
Ms. Mathen: Again, this goes back to my invocation of the term "legal culture" that doesn't just extend to the judiciary but extends to all actors.
Senator White: Everyone in the system.
Ms. Mathen: Exactly.
The constraints on police and Crown attorneys operate in very opaque ways. The federal government, because of this dual jurisdiction, has limited options as long as the control for those actors remains within another order of government.
But I think that does contribute to the problem in terms of it being a volume issue.
Senator White: For our purposes here, 25 per cent have reached nine appearances per case in the province of Ontario, the exact same as the 75 per cent who end up with a more serious sentence.
Ms. Mathen: That's a sign of dysfunction.
[Translation]
Senator Boisvenu: In your presentation, you talked about federal and provincial powers. Do you think a review of federal and provincial powers in the Criminal Code could be a way to reduce delays?
[English]
Ms. Mathen: That's one way of doing it, but if I understand the question correctly, it would require constitutional amendment. Short of constitutional amendment, I think there are other ways you could promote better outcomes.
The Chair: Thank you, Ms. Mathen, for appearing before the committee again. We always appreciate your presentations and assistance.
Members, before we adjourn, you have a copy of our first report. I'm going to need a motion to adopt.
Senator Fraser: So moved.
The Chair: No questions about the travel?
Senator Fraser: No.
The Chair: Any other questions? All in favour?
Hon. Senators: Agreed.
The Chair: Carried.
I will mention that several senators have made suggestions to steering with respect to future witnesses for the study. I will encourage you to continue to do that. Depending on when legislation comes before us, we are hoping to have enough time with this study to be in a position to adopt an interim report before we break for the summer.
(The committee adjourned.)