Proceedings of the Standing Senate Committee on
Legal and Constitutional Affairs
Issue No. 1 - Evidence - February 4, 2016
OTTAWA, Thursday, February 4, 2016
The Standing Senate Committee on Legal and Constitutional Affairs met this day at 10:29 a.m. to study matters pertaining to delays in Canada's criminal justice system.
Senator Bob Runciman (Chair) in the chair.
[English]
The Chair: Good morning. 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.
Members, 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. This is our second meeting on this study.
Joining us today are officials from Statistics Canada and the Department of Justice.
From Statistics Canada, we have Yvan Clermont, Director of the Canadian Centre for Justice Statistics; and Josée Savoie, Chief, Courts Program, Canadian Centre for Justice Statistics.
From the Department of Justice, we have Donald Piragoff, Senior Assistant Deputy Minister, Policy Sector; Stephen Zaluski, General Counsel and Director, Judicial Affairs, Courts and Tribunal Policy; and Anny Bernier, Counsel, Criminal Law Policy Section.
It is my understanding there are also three other officials in the room from the Department of Justice who are prepared to come to the table, if needed, to help answer questions. If that happens, I will introduce them at that point.
We thank you all for being here today and look forward to your presentations, which will be followed by questions from the senators. The floor is yours.
Yvan Clermont, Director, Canadian Centre for Justice Statistics, Statistics Canada: Thank you very much. My colleague and I would like to begin my thanking the members of this committee for the invitation to present on the most recent trends of completed cases in the criminal courts in this country.
I intend to present an overview of certain key indicators relating to the case processing time in the criminal courts. More specifically, results presented here will mainly pertain to the period spanning 2005-06 to 2013-14, a period of nine years. This is the period for which we have the most current data and for which we have available comparable data for all the provinces and territories.
The data presented comes from the Integrated Criminal Court Survey, and these data are published on an annual basis. The data are based on completed cases only or, more precisely, the cases that have received a final decision. By "cases," we mean all charges brought against the same person or company with key dates that overlap — for example, date of offence, date of initiation, date of first appearance and date of decision — and for which we receive a final decision.
On the next slide, I would like to provide some information on trends in cases heard by adult criminal courts over the period I mentioned.
The number of cases completed by the adult criminal courts declined by 6 per cent over the nine-year period, which represents approximately 360,000 cases completed in the 2013-14 fiscal year. This represents more than 1 million charges in 2013-14, with this number having decreased 2 per cent since 2005-06. Over that same period, the number of crimes has declined by 21 per cent, and the crime rate has decreased by 29 per cent.
During this period, five offences only represented half of all completed cases; namely, impaired driving, theft, failure to comply with an order, common assault and breach of probation. The median number of appearances needed to arrive at a final decision was five during this whole period. Often — that is to say in two thirds of cases — the accused was found guilty.
The median case processing time was 123 days in 2013-14, which is one day more than nine years earlier, and 30 per cent of the cases required 241 days or more to reach completion status.
[Translation]
Before continuing the analysis of the next graph, I would like to clarify certain definitions.
For the purpose of our analyses, the case processing time is calculated from the date of the first appearance until the date of the final decision. Between those two dates, the processing time is expressed in days. We use a median which is the central point of a series of values that represent the average duration of sentences, that is to say that half of the sentences are longer, whereas the other half are shorter.
So, this graph is about the seven jurisdictions that have the capacity to report information regarding Superior Courts, namely the Northwest Territories, Yukon, Newfoundland and Labrador, Nova Scotia, New Brunswick, Alberta and British Columbia.
It is important to note that the activities of the Superior Courts of Prince Edward Island, Quebec, Ontario, Manitoba and Saskatchewan, as well as the activities of municipal courts in Quebec, are not represented on this graph because the data cannot be extracted from the electronic information systems of these provinces, and consequently are not reported to Statistics Canada.
Another important element to be considered in this context is that the cases heard in Superior Court in 2013-14 represent less than 1 per cent of the volume of cases heard in the areas for which we have data. With the exception of British Columbia, where such cases made up 2.8 per cent of cases heard, that is a relatively small number of cases.
The graph you see here shows the average case processing times. We can see that over the years the processing time for cases in Superior Court becomes not only longer, namely longer than eight months, but also that there was a considerable increase as of 2010-11. During the period covered by this study, the average case processing time in Superior Court went from 278 days to 514 days, so it almost doubled.
The next graph presents the average case processing times for each province and territory during the last year for which data was available, with the same limitations, as previously explained.
Let us say at the outset that several factors may have influenced the variations we observed among jurisdictions. The police and Crown may use different indictment practices, there may have been a different distribution of offences, and there may be different diversion programs. Consequently, we have to be cautious when we make comparisons between jurisdictions. This graph shows that case processing times vary significantly from one province to the other, and from one territory to the other.
In 2013-14, for instance, Prince Edward Island had the shortest processing times in the country, with an average duration of 37 days. This is true for all of the period under study, from the beginning. Saskatchewan and the three territories also had processing times that were well below the national average. Processing times in Quebec, however, were the longest.
The differences between the provinces and territories remained relatively stable from 2005-06 onwards. However, there were variations in some provinces which are worthy of note.
In Quebec, for instance, processing times that were longer than elsewhere in the country have increased since 2010; they went from 191 days to 238 days in 2013-14. There were also increases in Manitoba and Nova Scotia, but they were of lesser duration than in Quebec.
The next graph shows that case processing times vary considerably according to the type of offence. In this table, the five most common types of offences are in red; they represent approximately half of the cases heard in criminal courts. As you can see, violent offences have an average processing time of 172 days on the whole; homicides take 451 days. It is important to note that sexual assault offences also had longer processing times. In 2013-14, processing times for traffic offences were 150 days on the average, including impaired driving offences, which took approximately 141 days. Property offences had an average processing time of 106 days. Finally, administration of justice offences, for instance breach of probation or failure to appear, were the offences with the shortest processing times, namely 76 days.
The next graph shows the evolution in the number of the most common types of offences for which we have comparable data over the past few years. As we said, these cases represent close to half of cases heard before the courts.
Impaired driving is the most common offence tried by the courts and represents approximately 11 per cent of all cases. It increased in number until 2010-2011, and then went down to the lowest level observed in nine years, which represented a decrease of 13 per cent.
The evolution of theft cases was quite similar, with a decrease of 7 per cent, while breach of probation conditions offences, and failure to comply with court orders, increased by 13 and 19 per cent respectively. These are the red and green lines on the graph. During that time, the number of common assault cases decreased by 10 per cent.
Let us now look at the other side of that graph, which shows the case processing times for these offences. This graph illustrates the average case processing times over the same period.
The average processing time for impaired driving cases went from 158 to 141 days over the period of the study. That decrease was greatest from 2010 to 2012-13. However, the length of these cases increased during the last year of observation.
The various practices in use in different courts in the country for the processing of impaired driving cases may have influenced the processing time for these cases. During the period of the study, there were many initiatives regarding these cases in some jurisdictions. There was, for instance, the Motor Vehicle Act in British Columbia, and the Justice on Target initiative in Ontario.
We noted a certain convergence between the introduction of these initiatives and the more marked declines in processing times as of 2010-11, accompanied by an increased decline in the number of cases heard by the courts and the average processing times. This was the case particularly in British Columbia, although that does not show on this graph.
The increase in processing times observed in the last period, 2013-14, was attributable, among other things, to an increase in processing times for these cases in the province of Quebec. During the same period, the processing time for common assault cases was around 130 days, and the processing time for the other three types of offences was under the national median of less than three months.
Obviously, the more appearances there are, the longer it takes to arrive at a decision in a case. For example, cases that involved six appearances or more required eight months of processing time. A similar observation can be made if one looks at the average processing time for a case and the number of charges in it. The following graph illustrates that fact. Cases with only one charge were processed on the average in 84 to 94 days during the period covered by the study. These processing times were naturally slightly longer for cases where there were two charges, and longer still for those with three or more. Over the same period, these figures varied very little.
The next graph also presents the evolution of case processing times according to the number of charges, but this graph presents cases that took more than eight months to process. So the graph only shows cases that took longer than eight months to close. As we said earlier, these cases represent a stable proportion of 30 per cent of all cases heard by the courts during the nine-year period of the study. This time, one obtains a slightly different picture.
We observed that the processing times for the longest cases gradually increased in the country over the years of the study. Cases with one charge went from 358 to 375 days, and those with two charges went from 380 to 409 days. Finally, cases with three charges or more increased from 400 to 413 days.
We also note that there were differences in case processing times related to the type of decision handed down. An interesting point is that acquittals take more time, namely 253 to 324 days on the average. These cases are far fewer in number and represent approximately 4 per cent of the overall number of cases heard by the courts. If we exclude cases that took longer than eight months, we observe the same picture with regard to acquittals. The graph does not show this, but for the cases that lasted longer than eight months, the results were the same for the acquittals.
Processing time for guilty verdicts, which represent more cases, remained stable throughout the period. We observed a slightly different picture for the other types of cases. For example, the was a decrease in processing times for withdrawals, and the time required for processing stays remained brief and decreased only slightly.
[English]
I would like to conclude this analysis with a quick overview of the completion of cases in youth court this time. The number of cases completed in youth court decreased by 31 per cent during the same nine-year period. If you remember, for adults, this was a decrease of 6 per cent.
It's worth noting that the rate of youth accused of crime was 42 per cent lower in 2014 than a decade ago. The number of charges decreased by 23 per cent. More than half of these cases finished with a guilty verdict, which is two thirds for the adults.
In the case of youth, the median time length for processing a court case was 120 days in 2013-14, which is 14 more days than nine years earlier. If you remember, the time expressed for adults was only one day more in total.
We had a lot of information, but in summary, the volume of cases heard in criminal courts decreased by 6 per cent over the last nine years. The case processing time expressed by the median mainly stayed the same during this period, at about four months. Data on Superior Courts, where available, showed an important increase in the case processing time and almost doubled in the nine years of observation we have.
The proportion of cases heard, spanning more than eight months, remained stable at 30 per cent of cases, but the length of time to complete these cases increased. The case processing length varies according to various factors, as we saw, but other factors for which we have little or no information may also influence the processing time of cases in courts. For example, additional information on Superior Courts, legal representation, specialized courts, the presence of a warrant, Crown proceedings and Crown election, mode of trial, plea and remand are needed to improve our understanding of the underlying factors linked to the workload of courts and the processing time of court cases. Harmonized national information in that regard would certainly help to design strategies to help reduce processing time.
It is worth mentioning that we have just begun a redesign of the court survey on which this data is resting, with a wide consultation with our partners in order to identify priority national information needs. This redesign, we hope, will aim to improve data entry, increase awareness of statistical process and utility among court administrators, and enhance the information system technologies to do so.
Thank you.
The Chair: Thank you, Mr. Clermont.
Is there any possibility of providing the committee with your notes?
Mr. Clermont: Yes.
The Chair: You may direct them to the clerk. Thank you very much.
Mr. Piragoff, the floor is yours, sir.
Donald Piragoff, Senior Assistant Deputy Minister, Policy Sector, Department of Justice Canada: Thank you, senator. It is a pleasure to be here today to inform the committee of the Department of Justice's work over the last few years in addressing the issue of delays in the criminal justice system. My opening remarks will focus on legal aid funding, work conducted by the federal, provincial and territorial ministers responsible for justice on delays, research conducted by the department on this issue, as well as recent legislative initiatives on mega-trials and other amendments that aim to improve justice efficiencies.
[Translation]
I will also speak very briefly to judicial resources, but my colleague Stephen Zaluski, who is Director of Judicial Affairs, is here to address any follow-up questions.
[English]
At the outset, I'd like to remind senators of the seminal 2008 report of former Ontario Chief Justice Patrick LeSage and Michael Code. I understand you heard testimony from the former Chief Justice last night. They identified three major events as having transformed the modern criminal trial from the short, efficient examination of guilt or innocence that existed in the 1970s to a very long and complex process. These three major events are: first, passage of the Charter of Rights and Freedoms; second, reform of the law on evidence by the Supreme Court of Canada; and, third, the addition of many new complex statutory provisions to the Criminal Code and other related statutes.
I would like to point out that the Prime Minister has mandated my minister, the Minister of Justice, to review changes in the criminal justice system and sentencing reforms over the past decade; to modernize efforts to improve the efficiency and effectiveness of the criminal justice system; and to address gaps in services to indigenous people and those with mental illness.
Together with her colleagues, the Minister of Public Safety and the Minister of Indigenous Affairs, the Minister of Justice will work closely with key provincial, territorial and municipal colleagues and partners, as well as other key stakeholders across Canada to examine how the system is currently working and to identify gaps and pressure points.
The objectives of the review include producing a comprehensive and modern justice system that is more transparent, efficient, fair, effective and accessible to all Canadians. This review would also help to ensure that future reforms are consistent with the fundamental objectives of the criminal justice system, our values, and the Charter of Rights and Freedoms.
As part of this broad review, a long-term, comprehensive and strategic approach to criminal law policy development will be explored in order to calibrate our justice system to better reflect the values of our society and to better serve its citizens.
Mr. Chair, I would like to say a few words about relationships with respect to the provinces and territories.
[Translation]
The criminal justice system of Canada is a partnership between the federal government and the provinces and territories, each having their respective areas of jurisdiction.
[English]
The federal government is responsible for enacting criminal laws and procedure, and the provinces are generally responsible for the administration of justice, including the prosecution of most Criminal Code offences. Cooperative federalism is an essential part of Canada's criminal justice system: Neither level of government can successfully carry out its mandate without the cooperation of the other.
In addition, the federal government provides cost-sharing support to the provinces and territories to provide programming in areas such as legal aid, Aboriginal court workers and policing. Given these shared responsibilities, the federal, provincial and territorial governments recognize the importance of collaboration in the discharge of their responsibilities.
In the context of the criminal law, federal-provincial and territorial relations are primarily served by three related groups: first, the federal-provincial-territorial ministers responsible for justice and public safety; second, the corresponding federal-provincial-territorial deputy ministers' meetings; and, third, the Coordinating Committee of Senior Officials in criminal justice, also known as CCSO.
Over the past five years, federal-provincial-territorial ministers have discussed a number of issues that have an impact on delays in the criminal justice system, including access to legal aid, self-represented accused, mental health and fetal alcohol spectrum disorder, large and complex cases, access to justice and modernizing the bail regime.
[Translation]
In addition to the work undertaken by ministers, I would like to mention that government officials have been engaged in discussions in many fora with various representatives of the criminal justice system, such as police, defence counsel, prosecutors, and judges.
[English]
In 2003, federal-provincial-territorial ministers and some members of the judiciary agreed that some key participants in the justice system should work together to examine areas of concern and recommend solutions relating to the efficient and effective operation of the system without compromising its fundamental values. The Steering Committee on Justice Efficiencies and Access to the Justice System was specifically created to engage in this work. The committee is composed of a number of judges, deputy ministers, representatives of the police and representatives of the bar.
Over the years, the steering committee has recommended various avenues to ensure that accused persons are tried swiftly and fairly on the merits. Examples of areas of focus are police education, enhancing the use of police discretion to reduce unnecessary bail appearances, and early resolution of disclosure disputes to avoid undesirable delays.
Another important forum is the national symposium on reinventing the criminal justice system, which has been held annually since 2009. Key leaders in the criminal justice system have engaged in candid discussions and shared perspectives and solutions to the challenges of shaping a responsive, accessible and accountable criminal justice system. Over the years, the topics of discussion included important and relevant issues such as solutions to increase efficiency and effectiveness of the criminal justice system; reforming the management of the criminal justice system; bail and remand; a practical tool kit for mental health in the criminal justice system; public confidence in the justice system; performance measurement of the system; and, most recently this year, an examination of vulnerable populations, both as accused and victims.
The reports of the symposia have been shared with participants and their host organizations for consideration, given their respective roles in the criminal justice system.
Mr. Chair, you might wish to invite some members of these two bodies to testify with respect to their work.
[Translation]
Numerous criminal justice system stakeholders have examined the challenges associated with the conduct of large complex cases, as well as measures to improve the conduct of these trials.
[English]
In 2011, Parliament passed the Fair and Efficient Criminal Trials Act, known as Bill C-2. It was aimed at improving the conduct of long and complex cases, and it introduced measures related to three objectives: strengthening case management; reducing duplication of processes; and improving criminal procedure.
Among other things, this legislation, first, provided for the appointment of a case management judge empowered to decide preliminary issues such as Charter and disclosure motions; second, allowed for a joint hearing of motions involving similar evidence arising in related but separate trials; third, made the decisions of certain preliminary issues binding at a new trial resulting from a mistrial unless exceptional circumstances can be demonstrated; and, fourth, increased the maximum number of possible jurors to hear the evidence from 12 to 14.
Mr. Chair, I would like to say a few words about legal aid funding. The federal Legal Aid Program provides contribution funding to enable the provinces and territories to deliver criminal legal aid services, including information, advice and representation to economically disadvantaged persons at risk of incarceration and to youth facing prosecution under the Youth Criminal Justice Act.
By reducing the number of unrepresented accused, legal aid helps decrease the number of court delays, stays, court orders for funded defence counsel, wrongful convictions, and the likelihood that sentences will be challenged or overturned.
A federal annual contribution of $112.4 million helps support criminal legal aid in the provinces, and criminal and civil legal aid in the territories.
[Translation]
The Department of Justice has been working closely with the provinces and territories to foster innovation and accountability in legal aid services.
In 2014, my department published the federal Criminal Legal Aid Study, which highlights innovations and best practices internationally and in various Canadian jurisdictions.
[English]
Mr. Chair, I have given copies of that report and its annexes to the clerk, and we will also provide electronic copies to the committee.
During times of limited resources and increasing demand, legal aid plans across Canada have implemented a range of practices that are contributing to overall justice efficiencies. These include, among others, expanded duty counsel, presumed eligibility and accelerated intake processes.
Expanded duty counsel services help an unrepresented accused to resolve as many matters as feasible and appropriate prior to the request for a full legal aid certificate, thus speeding up the resolution of cases.
The territories use a related approach called presumed eligibility, which ensures that every accused is presumed eligible for legal aid services until a plea of not guilty has been entered.
Accelerated intake processes, often with legal aid intake offices being located in court buildings, reduce delays caused by remands and adjournments due to the status of legal aid not yet being determined.
Some legal aid plans have also introduced triage systems to connect individuals with services earlier and to provide everyone who contacts legal aid with some level of service.
These are just a few of the many innovative legal aid practices that have been put in place by various legal aid plans across Canada. I encourage you, senators, to invite witnesses from these plans who will be able to speak about their own initiatives in more detail.
Mr. Chairman, you heard the presentation from Statistics Canada.
[Translation]
The Research and Statistics Division of the Department of Justice has conducted an original research to look at the issue of delays in the criminal justice system.
[English]
The research examined 3,093 cases closed in 2008, from five courts in four Canadian jurisdictions. Although this limited sample provides some insight into delays, it is not necessarily representative of the entire country. As you know from the previous presentation, there is a significant amount of regional variation. My colleagues at Canadian Centre for Justice Statistics highlighted many of those regional variations.
In the majority of the cases we looked at, the department found that the average criminal court case required 218 days and an average of six scheduled appearances to reach completion. Five per cent of cases required more than 730 days — that is, two years — to reach completion.
There were various factors related to case length, including determining the most serious offence in the case and whether the accused had legal representation, pled guilty, breached release or had a criminal history.
Cases where legal representation was intermittent had the longest time to completion, at 298 days, compared to 189 days for cases with no legal representation, and 160 days when the accused had legal representation throughout the case.
Guilty pleas were found to reduce case processing time. The median case length was 58 days with a guilty plea and 190 days when there was no guilty plea.
Finally, Mr. Chairman, the committee has asked for information about the role of the federal government in ensuring that courts are adequately resourced, especially what role trial delays play in deciding whether to agree to provincial and territorial requests for more judges.
Let me first note that much of the heavy lifting in the criminal justice system is done in the provincial and territorial courts rather than in the Superior Courts. The number of judges in those courts is a matter for the province to determine. The federal government is not involved.
With respect to requests for additional Superior Court judges — also known as section 96 judges — the Minister of Justice, of course, has a role. The Department of Justice supports her in assessing such requests and provides advice as to whether need has been objectively demonstrated by the province.
Mr. Zaluski can speak to those matters in more detail if he so wishes, but suffice it to say that evidence of delays and backlogs is among the range of indicators officials will look to in assessing a given request. Ultimately, however, the decision of whether to agree to a request for additional Superior Court judges lies with the minister, her advisers and her cabinet colleagues.
[Translation]
In conclusion, Justice has a mandate to work to ensure an accessible, efficient and fair system of justice. Although Justice Canada and Parliament are responsible for criminal law reforms, the criminal justice system involves other levels of government and players such as police, prosecutions, courts, et cetera. Those partners also undertake many initiatives to address delays and to make the system more effective and efficient.
[English]
You may have heard of other initiatives, such as Ontario's Justice on Target, the Nova Scotia Criminal Justice Transformation Group, the Problem Solving Courts in British Columbia, and Alberta's new Court Case Management Program. You may also wish to invite to your committee witnesses who have significant knowledge of these provincial initiatives.
We would be please to answer any questions you may have.
The Chair: We will begin those questions with Senator Baker.
Senator Baker: Thank you to the witnesses for their excellent presentations.
This committee is seized with the period of time it takes in criminal proceedings for a trial to run; some of them run into many years. The senator to my left and I discussed this a few moments ago, and that's why I'm putting forward this question. It's a simplistic question. If you wish to comment on it, fine. If you don't, we would appreciate you giving us something in writing as to why we can't do what we're suggesting.
When the Federal Court had a problem similar to that which the criminal justice system does today, they introduced section 12 of the Federal Court rules to appoint prothonotaries, and they dealt with these preliminary matters in the Federal Court. Under civil rules in each province, we have settlement conferences that take these matters out of the hands of the trial itself.
Mr. Zaluski, why couldn't we take the prothonotaries idea at section 12(1) of the Federal Courts Act and put it in the Criminal Code perhaps under "Case Management Judge" as we did in 2002? Is that the proper place to supplant a suggestion as to a solution to the same problem in the Federal Court? Can it be done under section 551.1? Would that be the logical place to put such a suggestion?
My second question is quite simple. Mr. Piragoff, you're the author of that text on similar-fact evidence, aren't you?
Mr. Piragoff: Yes, senator. You've asked me that before.
Senator Baker: Of course you are.
When Justice LeSage was here, the committee was concerned about having two Crowns in long criminal trials. One Crown is representing a federal act, say the Controlled Drugs and Substances Act, and another Crown is from the province representing the Criminal Code. Sometimes it's even factored down to the provincial court level. You have two Crowns who have to organize their time, stretching out the period of time for trials.
So there are cases like that, Mr. Piragoff: similar-fact evidence, different charges. You're the expert on "objective impracticality," as you put it. You coined that phrase in your text. Where can we suggest we put this idea either in law or in the rules of court to enable the trial to move more successfully with one Crown?
So those are my two things. I would appreciate it in writing, because it would give us some direction. It's outside the box. It's simplistic, but as Justice LeSage said, no one has ever suggested these matters before. It certainly doesn't tinker with the system; it makes a major change to the system.
Do you have any comment? If you could give us something in writing, that would be great.
Mr. Piragoff: Regarding your first question, a criminal trial is essentially different than a civil trial or a case in the Federal Court. It's not the role of a judge to try to force an accused person to admit guilt or to plead guilty. The judge is there to ensure there is a fair trial and that the state is able to prove beyond a reasonable doubt that a person is guilty and therefore subject to penalty by the state and possibly even loss of liberty.
The purposes of a civil trial, including the Federal Court, are much different, and the role of the judge is different. So the type of pretrial conferences that happen in the civil trial where the judge will sit with the counsel outside the courtroom, in chambers, in secret, to try to come to resolution of the case is different, because they will be talking about damage awards and liability. Here we're talking about the guilt or innocence of an individual, and possibly loss of liberty.
Nevertheless, there have been a number of amendments over the years, including the act that I mentioned that Parliament enacted in 2011, which was before in committee. Those amendments have made a number of changes to give judges the power to — I wouldn't say "knock heads together," as they can do in a civil case or even at the Federal Court — at least to get counsel on both sides to narrow the issues.
There are opportunities now for pretrial conferences. There is also something called focus hearings in the context of preliminary inquiries to have counsel at least focus the attention of the judge and the trial to the key essential issues that the judge has to determine, as opposed to a shotgun approach or shotgun defence. Essentially, what are the key issues that have to be determined? What can counsel on both sides admit so we don't have to hear witnesses? Again, it's not knocking heads together to resolve a verdict, but it is management of the case in such a way so as to reduce the number of witnesses and the amount of time required.
The Chair: Mr. Piragoff, we're going to have to move on. Perhaps you can provide those answers in writing, given the time constraints we have. That would be helpful.
Senator McIntyre: Thank you all for your presentations. My first question is to StatsCan.
How do Canada's trial times compare to other countries? Also, do you have any thoughts to share on why differences might exist between countries?
Mr. Clermont: We don't have any information about the times of trials in other countries. We would have to research it back at the office. We don't make any international comparisons as part of the report we have on courts data for Canada.
Senator McIntyre: Very well.
My other question is addressed to the Department of Justice and has to do with preliminary inquiries. As we all know, a defendant has the right to a preliminary inquiry if he is to be tried by a Superior Court judge alone, or a judge and jury. The purpose of a preliminary inquiry is to determine whether there is sufficient or any evidence upon which a properly instructed jury could return a verdict of guilty.
I vividly recall when I was practising law that there was very little Crown disclosure, and I'm sure Senator Baker would recall that defence counsel would often refer to those trials as "trial by ambush." As defence counsel, I would never waive a preliminary inquiry, as it amounted to some form of disclosure.
Given that extensive disclosure is now mandatory before trials, has any thought been given to modifying or even eliminating preliminary inquiries, which used to have a large disclosure role?
Mr. Piragoff: Yes, a significant amount of work has been done in the area of looking at the role of the preliminary inquiry. Parliament actually passed legislation a number of years ago to help streamline the preliminary inquiry process. I mentioned the focus hearing, for example, to make the preliminary inquiry more focused in terms of its purpose.
Needless to say, there is no consensus in the country with respect to what should be done with respect to the preliminary inquiry. Clearly there is a lack of consensus between defence counsel and Crowns. But even among the provinces, there are divergent views as to whether the preliminary inquiry should be maintained. Some provinces would like to abolish it completely; others would like to see some reforms; and others would essentially like to see it the way it is now, given the recent reforms from a couple of years ago.
Quebec is experimenting with its own operational systems in terms of the preliminary inquiry, using some civil law concepts in the course of the preliminary inquiry.
It is a matter that has been discussed by federal-provincial-territorial ministers of justice several times, and there is no consensus among the provinces as to what to do.
This is not a matter that I have yet raised with the new minister, but it is something that we will be discussing with her.
Senator Jaffer: Thank you for your presentations. I want to ask both of you this, and then I have a question for Mr. Piragoff.
My first question is about specialized courts. I don't know what your collected specific statistics are, but I understood that one of the reasons for introducing specialized courts is to streamline the processes to make them faster, whether it's drug court or family violence court. Do you have any statistics to show that specialized courts reduce the time delay?
Mr. Clermont: The easy answer to that question is that this is why we're undertaking a redesign of the criminal court survey we have now. We'd like to get information about that. It is difficult to get the information out of these 13 different systems in the country.
One of the objectives of the consultation process that we're undertaking at the moment is to determine the priorities in terms of the information that is needed. It's not something we have at the moment, but we would like to pursue. It was part of the conclusion I made that we would very much like to collect information on this.
Mr. Piragoff: The purpose of specialized courts is not simply to increase speed or disposition of a case. As I think was mentioned last night, many of the cases before the courts deal with vulnerable individuals — people who have addiction problems, people who are mentally ill, people who have other social problems, such as housing.
Sometimes the purpose of a specialized court is not necessarily to speed up the trial. It actually takes longer because you're dealing with the person's social problem and not simply whether the person guilty or innocent. For example, drug treatment courts actually take longer to process a case because the court is not simply determining whether you trafficked or possessed drugs? It's actually looking at, "How I can ensure that you don't come back before me again?" So it actually takes longer. It's not geared simply to determining whether you're guilty or innocent; it's also geared to actually dealing with your social problem.
So some of the specialized courts may actually take longer, but in the end it may be more efficient for the justice system because the person may not reoffend and be back before the court again. So a little bit longer pain now, maybe with long-term gain later on in terms of lack of recidivism.
Senator Jaffer: One of the complaints that I hear, especially from defence counsel, is non-disclosure. It takes a long time for disclosure. I was wondering if you, on the federal side, have anything to try. I know every case is different, so this is a very general statement, but are efforts being made so that the delay will not be as long, especially in the big drug cases, and to deal with issues of disclosure?
Mr. Piragoff: Most of the issues related to disclosure are operational in nature. It really comes down to the question of protocols and operations between the police and the prosecutors — the police getting the evidence to the prosecutors and the prosecutors getting the evidence to the accused. There are electronic issues involved in terms of compatibility of electronic systems et cetera.
It is a huge problem. It is not a legislative problem. In fact, the disclosure obligations have come from the Supreme Court of Canada through the Charter. Parliament's hands are quite limited in this area because the court has enunciated that there are certain constitutional rights to have the disclosure made. It becomes a practical matter of the police and the prosecutors trying to fulfill those duties.
[Translation]
Senator Boisvenu: Thank you for your very interesting presentations. I have some technical questions regarding statistics.
You said at the beginning that the number of cases settled in court had decreased by 6 per cent. We also know that for the same period the number of charges brought by victims decreased by 10 per cent. So over the same period, victims brought fewer charges when they had been victims of a crime.
Is there a direct link between the decrease in the number of charges laid and the decrease in the number of cases heard by the court?
Mr. Clermont: Thank you, Senator Boisvenu. That is an excellent question.
Indeed, the inquiry on victimization shows that there was a decrease in the number of reports involving criminality, but this varies greatly according to the type of crime. It is clear that there are variations in certain cases.
I would, however, like to have the opportunity of providing you with more detailed information on this topic, because there could indeed be a link. However, I would have to look at other data sets on victimization, which were released last November, and I would look at another report released in the summer of 2015 that dealt with the rate of reports made to the police on different types of crime.
Senator Boisvenu: There is another topic that is of great interest to me, and that is the proportion of stays and withdrawals, 32 per cent. We know that for sexual assault cases, the figure is 50 per cent.
In one study that was done concerning victims of sexual assaults, one of the reasons given as to why victims withdrew their complaints was that the time periods involved were too long. Often, victims were involved in trials that could last four to five years until completion. If the offender is incarcerated, that counts as time served, which means that the individual is practically released at the end of the trial, and the victim has to relive her fear. This is something which concerns me a great deal.
My question is about summary prosecution, a procedure that is being used increasingly in Quebec for sexual assault offences. Were summary prosecutions included in the statistics you gave us this morning?
Mr. Clermont: Once again, I would like to have the opportunity of providing more detail on the trends in delays, especially as concerns withdrawals of proceedings, by type of offence.
Senator Boisvenu: That is interesting.
Mr. Clermont: We will be able to send the committee more specific information on this topic.
As for whether prosecutions are summary or indictable offences, unfortunately, the various jurisdictions cannot provide us with that information, so it has not been compiled.
Senator Boisvenu: Last year, in Quebec, 25 per cent of prosecutions in sexual assault cases were summary prosecutions. This means 25 per cent of cases would have been excluded from the statistics.
And so I am wondering if the picture you have presented this morning regarding statistics on crime is an accurate picture of what goes on in the courts. You told us there was a decrease in the number of cases, but an increase in processing times. Isn't there a contradiction there?
Mr. Clermont: Once again, that is an interesting observation. We said that there was a decrease in the number of cases; the time periods remained relatively stable.
Senator Boisvenu: Except in Quebec.
Mr. Clermont: Except in Quebec, for certain types of offences. As for summary proceedings, they are included in the statistics, but we cannot distinguish them from offences prosecuted by criminal indictment. That is why we cannot make a distinction between them, given the lack of detail in the statistical data we have in hand for each case.
That is in fact one of the variables we would like to capture so as to have more information, at least for those jurisdictions that are able to report this information in the new survey which has just begun.
Thank you for your comment.
[English]
Senator Joyal: My first question is maybe a complement to help us try to understand the consequences of the phenomenon of delay. Do you have data on the number of cases that were dropped following a decision of the court that there was unreasonable delay sanctioned by the Charter?
Mr. Clermont: Unfortunately, we don't have that level of detail.
Senator Joyal: You don't have that. So we don't know how many criminal charges.
Mr. Clermont: No.
Senator Joyal: We know it, of course, in Quebec, and my colleagues around the table know about it. When the SharQc trial was dropped following a decision of the Supreme Court, there were many accused. I think there were 120 accused or persons charged. It struck public opinion that there was a serious problem behind that, especially in such a case.
So you don't have any additional information that would help us to understand the phenomenon?
Mr. Clermont: We could have the number of withdraws, the proportion of withdraws, the part of cases that are lengthy, for example, above two years, and conduct comparisons with other types of cases that are of a shorter length than that. That would give us an indication, but we would not be able to determine precisely if those cases that were withdrawn from the court were withdrawn because of adding procedures that are too lengthy. We wouldn't be able to specifically say it's because of that, but we can provide some indicators as to how many there are.
Senator Joyal: It would be helpful for the committee, Mr. Chair.
The Chair: It would be.
Senator Joyal: My other comment, when I look at the chart on page 5, is how admiring I am of Ontario, Mr. Chair. I compared the largest provinces. And I say this with all due respect for all provinces in Canada. B.C. is a large province — Ontario is the largest — as is Quebec in terms of population and criminal charges. There is such a discrepancy between Quebec and those two other major provinces that you cannot help but say there is a real problem.
[Translation]
Something isn't right.
[English]
I would add, of course, Manitoba, but perhaps Senator Plett will want to speak to that.
What is the phenomenon that explains that Quebec is almost double the time of Ontario? Is it because of the mega- trial that took many years? It involves a lot of accused. Is it because there is this phenomenon in Quebec? What are the other elements that could explain such amazing results?
Mr. Clermont: Once again, we provided a national picture and some basic indicators about the differences we are observing across jurisdictions. It is true that we observed longer delays in the Province of Quebec. I said, too, that this has been the case for the whole period that we have studied. Moreover, that delay increased or grew larger so that this propensity that we used to observe between Quebec and the other provinces increased.
As for the exact causes for the increase in those delays, they could be numerous. They would probably require a thorough analysis of the underlying causes. We only have limited information to determine that. As we said in our conclusion, we don't have any information as to the types of pleas, tribunals and cases that are being heard. We don't have information if things are by summary or by criminal act. There is a lot of information missing.
Moreover, we don't have any information about the resources for the courts in the various provinces. I would think that probably a big part of the answer would lie with the explanations of the different jurisdictions in that regard. There has been a series of articles in La Presse since last Saturday.
Senator Joyal: Yes. I draw the attention of our chair to that. I am sure my colleagues around the table know about that.
Mr. Piragoff, in your federal-provincial meetings with representatives of the provinces, how far did the provinces raise this issue as being a priority that needs to be addressed? What kind of request did they put before the federal government to address it?
Mr. Piragoff: A significant amount of work has been undertaken with the provinces to look at the question of efficiencies. In fact, my colleague Ms. Bernier co-chairs a committee on criminal procedure. I will invite her to inform the committee about some of the work that has been undertaken by the federal-provincial-territorial officials and ministers to look at the question of efficiencies.
[Translation]
Anny Bernier, Counsel, Criminal Law Policy Section, Department of Justice Canada: Thank you for your questions. In fact, several questions regarding proceedings in criminal matters were submitted to the Coordinating Committee of Senior Officials, and in the group I work with, several people raised concerns regarding trial delays. Of course, as requested by the Prime Minister, we work on several aspects of the criminal justice system, particularly on the interim release system. You heard all of these things yesterday when Justice LeSage and Professor Mathen testified.
Senator Dagenais: There has been a great deal said about unreasonable delays. As a former police officer, I can tell you that there are defence lawyers who have made very good use of unreasonable delays in impaired driving cases. I will not name any legal firm, but often clients would go to it and say that it would be easy to ask for delays for this or that reason, so that after two or three years, the accusations would be withdrawn because of these unreasonable delays. Take the famous SharQc case in Quebec, where the bikers did very well, and several were set free because of these unreasonable delays. Does this serve justice? We saw what happened recently in the SharQc case in Quebec.
That being said, Mr. Piragoff, should the solution to counter these unreasonable delays come from the provinces or the federal government? Are there provincial practices we should attempt to change in order to avoid these extremely long delays, which, on occasion — and I do not want to point the finger at defence lawyers, but some use this to good advantage — are used to save the accused's necks?
Ms. Bernier: If I may, I would simply answer by saying that cooperation between the federal government and the provincial and territorial stakeholders is essential. Yes, there is shared jurisdiction, both federally and provincially. This was explained clearly yesterday.
The Criminal Code must be seen as a whole through which we are trying to make changes that will improve things. As my colleagues from Statistics Canada said, practices differ from province to province, but the Criminal Code applies to the entire country. So, each change has to be taken into account, and must be the topic of consultations among the various stakeholders, the criminal justice environment, law enforcement representatives, defence representatives, et cetera. I think that the work we are doing at this time with the various committees and various fora is allowing us to move this file forward. We are well aware of all of these delays and of the fact that, unfortunately, they can have repercussions on people. As you were saying earlier, some trials may be aborted, and so on.
[English]
Senator White: Thank you all for being here.
Mr. Clermont, your statistics are very helpful, but did you do any work on urban versus rural, in particular when it comes to days in Nunavut? When I was with the RCMP there, we saw the court once every six months. That is pretty quick because 365 days go by on a second appearance. Did you do any work breaking that down on the cases? In particular, it might answer some of the questions around northern Manitoba and northern Quebec where it could be a year and a half to get a second appearance or even a first appearance in some cases.
Second, did you do any work on appearances versus number of days? Do you have specific data around the number of times they appeared in court to get to an end conclusion versus 175 days?
Mr. Clermont: Thank you, Senator White, for your first question.
We don't have the information about urban/rural as we haven't done any studies as such, especially for the reason that if we take the courts in a silo and analyze the issue, sometimes the cases are heard far from where the crime was committed. For that type of study, we would have to conduct a record linkage between the court data and policing data, which is technically not impossible but it would be a challenge. We would need to have in our databases personal identifiers to proceed in that direction, which is not currently the case; but we hope to have that available to us in January 2017. That would enable such results.
As for Nunavut, we have information for the territories. Nunavut has about 25 communities, the biggest one being Iqaluit. It is not necessarily considered urban in the statistical definition, but it's a big community, per se. We wouldn't be able to disentangle what is happening in Iqaluit and the other regions.
On the number of appearances and the measure of delays, I would like to get back to you as to whether there is something we can do on that. The permutations we can do with the variables to create indicators are quite interesting. There is the potential for deriving the information you have requested, but I would like to consult with my people.
[Translation]
Josée Savoie, Chief, Courts Program, Canadian Centre for Justice Statistics, Statistics Canada: We know that the more appearances there are, the longer it takes to process a case. We could provide that information very quickly. I do not have that data today, but we have examined this in the course of the past few days and we know that when there were six appearances or more during the period of the study — from 2005-06 to 2013-14 — cases always took longer than eight months to process. So, as soon as there are six appearances, you cross the eight-month threshold for the time required to obtain a decision.
[English]
Senator White: Ontario, Manitoba and Alberta shared that data with us in 2010 and 2011, specifically to the number of appearances and whether a court party was "relevant" in the community from which the cases were derived: Did they have to travel to the community? It would have identified that you are not arresting somebody on a Monday and bringing them into court on Tuesday; you are setting them over for 30 days later when the court comes back to town.
While these statistics are excellent, it would be helpful for us to go a bit more in-depth.
Senator Batters: This was a key issue for us every single year in my past work for the Minister of Justice in Saskatchewan as his chief of staff. I note the difference between Manitoba and Saskatchewan in that particular graph. Saskatchewan's court delay is about half the size of Manitoba's. I know that was the result of a lot of hard work and innovation by the officials and political leaders in Saskatchewan. Saskatchewan also has a significant northern component, and court delays are longer by virtue of not having as many opportunities for court. We have the same issues, yet we somehow manage to deal with them.
Impaired driving cases to me seem to be absolutely key in this area. This is a big factor in what is plugging up our courts. We see the massive number of charges — 39,000-plus in the last year we have stats for — and the lengthy number of days, an average of 141. Some of the other categories may have a longer median number of days, but the number of charges is considerably less.
Prior to the end of the last session, Minister Peter MacKay introduced Bill C-73, which was substantial legislation on impaired driving. Alas, he ran out of time before the election; he referred to that piece of legislation in an interview that he did with Canadian Lawyer magazine, saying that he wished he had had more time for that.
There were measures in that bill to address the issue of court delays and limit the technical defenses being used by defence lawyers on impaired driving charges to drag out the length of trials. I notice that there isn't anything in the new justice minister's mandate letter on impaired driving. Are there any plans to reintroduce something to help us in this area on a federal basis?
Mr. Piragoff: I'm glad you raised the issue of impaired driving, because it might answer part of Senator Joyal's question about Quebec in terms of the delay.
Slide 5 is a snapshot of only one or two years. Senators may recall that Parliament enacted legislation a few years ago to deal with impaired driving in response to Supreme Court decisions dealing with technical defenses.
That legislation prompted more litigation, particularly in Quebec, challenging the new legislation that Parliament had enacted a few years ago. A number of impaired driving cases in Quebec were put on hold pending some leading cases going forward. Part of this 2013-14 delay could be because of the impaired driving situation in Quebec at that time. I don't know, because we really need to have a longitudinal study as opposed to just a snapshot of one year as to what happened over a period of time. That's only speculation, but that was a significant problem in Quebec.
The previous government had tabled a bill in June before the election. It is not in the minister's mandate letter but, nevertheless, the purpose of that letter is to look at the last 10 years and do a systemic review of the justice system on how to improve efficiency. That would include significant offenses such as impaired driving, which clearly causes a substantial impact on the criminal justice system. In fact, British Columbia doesn't use the Criminal Code anymore to prosecute impaired driving cases; they use their own provincial administrative legislation to reduce delays in the courts. It is still on the radar screen.
Senator Batters: It is on the radar, but having not been specifically mentioned in the mandate letter by Prime Minister Trudeau, you wonder how high it is on the priority list. I wanted to raise it because it is a big part of this puzzle.
The Chair: I have a couple of questions.
Mr. Clermont, you mentioned at the outset of your comments that it was not possible to extract data from certain provinces. I wasn't clear on that. What impact does that have on the information you are providing us?
Mr. Clermont: The impact is hard to measure, but one can guess that it would be minimal. Where we do have the information on Superior Courts, they represent less than 1 per cent except for B.C., where it is about 2.8 per cent of all cases being heard in criminal courts.
If we consider that this is so in the provinces for which we don't have information, we can easily determine that the impact on the overall statistics would be smaller. Even if those Superior Court cases were much longer, they would have a very small impact on the overall median time it takes to process them.
The Chair: Is there resistance to providing this?
Mr. Clermont: It's not resistance. I think it is technical capacity. The information is not easily available from the existing systems.
The Chair: I have a question for Mr. Zaluski. Mr. Piragoff was talking about the number of Superior Court judges and went through the criteria for whether there's a need in any given jurisdiction. A question has been raised around this table not related to this particular issue but to supernumerary judges. Since 2006 we have seen a 4 per cent increase, so that 24 per cent of Superior Court judges are supernumerary. There is a pretty safe assumption there that there is a lesser workload for them.
Is there any concern about this growth? Where are we going with this? What impact might it have, if any, with respect to the time issues being dealt with by the courts?
Stephen Zaluski, General Counsel and Director, Judicial Affairs, Courts and Tribunal Policy, Department of Justice Canada: It is a good question. I think I can address it by explaining how the supernumerary regime works.
When a judge elects to go supernumerary, his or her position becomes vacant; it becomes a position that the federal government can fill. When there is a large supernumerary complement, it doesn't mean that those supernumerary judges are occupying positions. In fact, they are creating vacancies into which additional judges can be appointed.
In fact, a large supernumerary complement puts other pressures on the jurisdictions that have them in that they need to supply office space and administrative support. But it does not lead to a reduction in the number of full-time judges. The judges that a jurisdiction has are full-time judges, and supernumerary are almost bonus resources in addition to that.
The Chair: What if a supernumerary has a case and then leaves to spend three months in Florida, for example. I've heard of some of those situations. If you look at those instances, they can have an impact in terms of the time dealing with a case.
Mr. Zaluski: It certainly can. It presents challenges for chief justices in assigning judges to cases. It creates pressures on the chief justice to figure out how to assign cases to a judge based on their availability. As I say, it creates pressures in the system, but I can't speak to the degree to which having a supernumerary judge on a matter is contributing to the delays on the matter.
The Chair: It might be worth looking at. I just wonder if there are any concerns about the growth. We have seen a 4 per cent growth since 2006. It is a pretty attractive option for a lot of judges, I would think. Perhaps it is something you should take under consideration.
I have time for a quick question, Mr. Piragoff. It deals with Senator Jaffer's issue around specialized courts. We talked about drug courts. Your comment was that there may be short-term pain for long-term gain, but I was struck by the use of the words "may be." Is there any kind of exercise happening to assess what impact this does have and if, in fact, they are having the beneficial results that you hope to achieve?
Mr. Piragoff: Senator, maybe I can invite by colleague Elizabeth Hendy to come to the table. She is the director general responsible for programs in the Department of Justice. We recently conducted an evaluation of drug treatment courts, and I think she can speak to that and talk to the senators about some of the results of that evaluation.
Elizabeth Hendy, Director General, Programs Branch, Department of Justice Canada: With the drug courts, we are dealing with vulnerable populations, so it is true that they are often in the court system longer than if they had plead guilty. They probably would have ended up back in the court system several times.
We have done an extensive recidivism study that I can provide to you after, so I will not quote exact figures. However, on average, those who complete a drug court program are 20 to 30 per cent less likely to experience recidivism than those who did not, or did not finish the program. So they are beneficial in addressing the underlying causes that led to the criminality.
We will provide those studies to the clerk after.
The Chair: Thank you very much. I appreciate that.
Senator Baker: Mr. Piragoff answered one part of my three-part question. I think he answered the easiest part, comparing civil trials with criminal trials. He didn't, however, address the main question we had concerning trying to relieve judges of their time. The case management judge is appointed by the chief judge. That's the way we worded it in the Criminal Code. So it is up to the chief judge. The point is that it is spread right across Canada, and it is working very well.
The matters raised by committee members involve minor matters, I would say, in some cases of, say, disclosure or of unsealing a warrant, for example. Under the Criminal Code, you have to go before the Superior Court judge and ask, "Can we unseal an ITO?" which is an "information to obtain," a sworn affidavit.
This is why I mentioned the Federal Court. These matters could be dealt with by prothonotaries, not by judges. It is eating up judges' time. That is why we would like to have a response in writing as to whether we can take the idea under the Federal Court rules — here are the Federal Court rules; look at this — under the Federal Court Act and supplant the idea of having a prothonotary, someone who is well versed in the law, who sits on these preliminary disclosure matters — which members are concerned about eating up the time of the court — and such motions as unsealing a warrant.
I know you probably don't want to comment on it — you didn't before and perhaps you shouldn't — but perhaps you can supply us with something in writing as to whether it is correct. If we take section 12 of the Federal Courts Act and put it at 511 of the Criminal Code, would that suffice, or would you advise it to go someplace else?
Mr. Piragoff: Senator, Parliament can create new judicial officials that are less than a full Superior Court judge. It happens in civil courts all the time in terms of motions. A lot of motions are done similar to that in the civil system. It could be done. There would be resource implications for the federal and provincial governments to create a whole new cadre of judicial officials.
Senator Baker: Thank you.
Senator McIntyre: I have two short questions for the Department of Justice.
Senator Baker earlier raised the issue of case management judge provisions. As we know, those provisions were added to the Criminal Code recently as part of an effort to deal with court delays.
Are there other amendments to the code or other pieces of federal legislation that have been suggested to lessen delays? I think the answer is no.
Mr. Piragoff: The legislation from 2011 specifically dealt with the issue of delays in the mega-process. Nevertheless, there are a number of small amendments that can be made. There were suggestions made last night with respect to changing some offences from indictable to hybrid in order to give the Crown the option to proceed summarily as opposed of having to proceed to through a preliminary inquiry.
There are little things that can be done, but usually these types of small amendments take up a bit of discussion with the provinces. They usually come in an omnibus bill, because there is no common thread other than a bunch of ad hoc amendments. These kinds of bills show up once in every five years as an omnibus bill, dealing with a number of criminal procedures.
We do have a whole bunch of small amendments we are looking at that we could bring forward that would have an impact on efficiencies and effectiveness. Again, that is something that the Minister of Justice will be looking at in her mandate, which is to review the criminal justice system and improve the efficiency, effectiveness and fairness of the system in light of Canadian and Charter values.
Senator McIntyre: In the Askov case, the Supreme Court of Canada set out some guidelines as to how long a delay before trial is too long a delay. You may have answered this question during the proceedings, but at what point does the Department of Justice conclude that a trial has, in fact, been delayed?
Mr. Piragoff: That is not a decision for the Department of Justice; that is a decision for an individual judge, looking at the circumstances of a particular the case.
There is no hard and fast rule, but there are some guideposts. It really depends on the reasons for the delay and who was asking for the adjournments: Was it the accused or the Crown? If it's the accused asking for delays — and there may be legitimate reasons for delays, such as a need to get psychiatric reports or other scientific evidence — then the clock stops ticking. That doesn't count as delay because the accused asked for it. You can't create the delay and then say, "Oh, by the way, it is taking you too long to try me. I want to bring an Askov motion. So you have to look at the circumstances of each case.
Senator Joyal: I will follow-up on the question put very diplomatically by our chair. I commend him for that; maybe his next career will be in diplomacy.
Mr. Zaluski, do you have statistics on the average term of a Superior Court judge and Court of Appeal judge in Canada, and how many decide to resign at 65?
Mr. Zaluski: I don't have those statistics with me, but I believe I should be able to provide that information to the committee.
Senator Joyal: You understand what I have in mind. In other words, what is the average term of a judge, and how many really decide to opt out after 65 or become supernumerary?
Mr. Zaluski: I think what we would be able to provide is the proportion that elects to go supernumerary when they are eligible, or at some later point, before taking full retirement. We would be able to provide you with that information.
[Translation]
Senator Joyal: Mr. Clermont, do you have statistics on the delays observed in the Court of Quebec for all of the criminal cases it hears? According to the information in Ms. Touzin's article, to which you referred, it seems that delays in the Quebec Court are comparable, if not just as long, to those observed in Superior Court.
Mr. Clermont: You have to make a distinction between delays and case processing times. We do not have that information on delays or on the point at which a case is heard before the court.
Senator Joyal: You do not have them.
Mr. Clermont: We cannot determine with perfect accuracy, or even approximately, the time it takes before a case begins to be heard by the court. All we can determine at this time, with the systems we have at our disposal, are the time periods required to process cases, because at this time we can only extract data for the cases that have been closed.
Senator Joyal: Do you have those statistics?
Mr. Clermont: We have those, yes.
Senator Joyal: Could you provide them to the committee, please?
Mr. Clermont: Certainly.
Ms. Savoie: We have data for all of the provincial courts of Quebec. They are sent by the Department of Justice. We do not have data for the Quebec superior courts. That is one of the problems with the survey in Quebec. At this time, we are working on developing extraction systems for the information from the superior courts, but that is a long-term project. The information published in the newspapers last weekend did not come from Statistics Canada. We are not given that data, for the time being. That distinction regarding criminal acts committed in Quebec or heard before the superior courts is not available. We can only provide you with the data extracted on a province-wide scale. In addition, we cannot provide the data on municipal court cases in Quebec. So there is a certain distortion in the data from Quebec, since we do not have the data on the cases heard in superior court.
Senator Joyal: Very well.
Senator Boisvenu: My questions will follow up on those asked by my colleague, Senator Joyal. What we see happening in Quebec is very concerning. I am going to try to identify some potential causes, and you can correct me if I am mistaken.
Quebec holds the record for cases where offenders were found not criminally responsible: 45 per cent of all Canadian cases originate in Quebec. We also know that these trials are often very long and very complex. Sexual assaults against children in Quebec make up 50 per cent of all Canadian cases. Often, these are also very complex cases; I am thinking, among other things, of cases where priests are the aggressors. When we examine the statistics on longer cases, with regard to delays, the sexual assault cases are at the top of the list. Since Quebec has the most cases in both categories, would it not be logical to think that this may be why Quebec also has the most delays? In addition, we know that there is a shortage of crown prosecutors in Quebec of around 60 per cent. If you compare this to Ontario, crown prosecutors deal with approximately 100 cases per year, whereas in Quebec, they have 200 cases a year. It seems to me that if Quebec acted on some of these fronts, the delays would be shortened.
Ms. Savoie: The cases where offenders were found not criminally responsible amount to barely 1 per cent for all of Canada; consequently the influence of these cases on median processing times is minimal.
Senator Boisvenu: However, if the majority of these cases occurred in Quebec, this may have an influence in Quebec. If, as you say, the proportion of 1 per cent is not equally distributed among the provinces but is concentrated in Quebec, this may have a greater impact in Quebec than elsewhere. Of course, I am not a statistician.
Ms. Savoie: That could have an impact, but a very slight one. That is not what would explain the biggest variations. We can provide you with information for the period concerned, if you wish.
Regarding sexual assault offences, we can also do more in-depth analyses when they involve children. That is possible.
Senator Boisvenu: That would be worthwhile, I think. Thank you.
[English]
Senator Jaffer: I have a question for Ms. Bernier.
I know that there has been a lot of streamlining in civil cases. Lawyers are supposed to set out the time every step will take, and they go in front of a case management judge — a different judge than the one who will hear the case or sometimes the same one — to make sure the case is streamlined.
Are any steps being taken to get a handle on criminal cases, especially the big ones that take a lot of court time? How is the federal government involved in trying to deal with court delays directly by implementing procedures that would be more proactive than they are at the moment?
[Translation]
Ms. Bernier: There is indeed a great deal of difference between the civil files and the criminal ones. From my experience as a federal crown prosecutor, it is quite clear that in civil cases, there are different procedures regarding the time periods allocated, whereas for criminal cases, you have disclosure of evidence, which takes a certain time, where we ensure that the file is complete. So, yes, there is a difference. At the Department of Justice, in the different working groups we are attempting to come up with improvements, better rules of practice, better case management. I am thinking, among others, of the steering committee Mr. Piragoff alluded to earlier, which has produced reports containing recommendations aimed at improving the elimination of delays. This report was produced in 2006 and was in fact sent to the clerk; it could certainly be very useful to you, given its recommendations; it is also very useful to us.
[English]
Senator Batters: Mr. Clermont, I'm wondering how we can get the information that Senator Joyal was earlier asking about regarding the number of cases that are dismissed because of court delays. Would it be possible for us to ask the provinces? I'm certain that they keep that type of information. When I ask that, of course, I know that that might only produce the type of information where a court has actually dismissed the charges, not a case where the Crown has recognized this is going to happen and so stays the charges before the court dismissal actually occurs.
Mr. Clermont: What I would like to do, if you would permit me, is maybe do a scan of the jurisdictions to see if they do hold the information, but it wouldn't be information from Statistics Canada. It would be information from the jurisdictions.
Senator Batters: That would be very helpful for us to see.
Mr. Clermont: I know we have regular discussions with representatives of these jurisdictions regarding all of that, and I think that those are questions we can bring forward in the consultation process to see how useful this information would also be for the different jurisdictions and to make sure that we address the need for such information as part of the redesign of the survey. We can do a quick scan to see what there is.
Senator Batters: And you may also ask them to provide, if possible, the types of charges. If a charge is being dismissed, and it's impaired driving of 0.08, that's obviously concerning, but it's not as concerning as a murder charge. I don't know if that can be gleaned, but I would like to see that, as I know other members of the committee would as well.
Mr. Piragoff, in dealing with the federal-provincial-territorial working group on court delays, what were some of the major findings of that group pertaining to what the Justice Department can do to decrease court delays? And what are your top two priorities to implement next to help this from the perspective of the federal Department of Justice?
[Translation]
Ms. Bernier: Thank you for your question. If I may, I will answer.
In fact, we cooperate with federal, provincial and territorial groups, particularly the criminal procedure group — as I was saying earlier — to see how we can fulfil the mandate the Prime Minister gave us. This mandate was to modernize the criminal justice system so as to make it more efficient, particularly the interim release system and remote appearances. We have to encourage the use of new the technological means which are at our disposal. These are some examples of the files we are working on at this time, which should have quite a conclusive impact on delays.
[English]
Senator Batters: Would the top two be conditional release and other types of appearances like video conferencing? Is that what you would classify as the top couple of things the Department of Justice could do?
[Translation]
Ms. Bernier: In my opinion, this will have a major impact on trial delays.
[English]
Senator Fraser: I have two quick questions, one for Mr. Clermont and one for Mr. Piragoff.
Mr. Clermont, I know this is my problem, not yours, but I'm confused. We don't have data from Superior Courts in Quebec, so what exactly is the chart on page 5 telling us?
Mr. Piragoff, I was fascinated to hear that you're looking at lots of little amendments that could help increase efficiency. Could you give us more detail about the nature of such amendments and the areas to which they apply? I'm sure you will say that you couldn't possibly give us the precise language, but any information you could give us about what you're looking at would be very helpful.
Mr. Clermont: Senator Fraser, I would like to mention that it is true: We don't have the Superior Court data for Quebec, but we don't have it for Ontario either, which is another big jurisdiction, and for other jurisdictions such as Manitoba and Saskatchewan, I think. As I said, the representation of these cases is minimal in the overall load of cases. When the data users are reading those analyses, we inform them of the caveat that the data does not contain this information. Moreover, the data from Quebec don't include the cases heard in municipal courts, which usually would be smaller and easier cases to process, but I have no information to sustain that assertion.
Overall, does that make a big difference? About half of the big jurisdictions are not producing any Superior Court data for the sake of comparison. It would have a limited impact on the comparisons as far as we're concerned.
Senator Fraser: What does this chart show?
Mr. Clermont: It would chart the median time it takes to process a case basically in provincial criminal courts, and in some instances, especially for smaller jurisdictions where we have Superior Court data, for Superior Court as well.
Senator Fraser: Thank you.
Mr. Piragoff, it's nice to see you again, as always.
Mr. Piragoff: Thank you, senator.
With respect to Quebec, one should also realize that because of the larger jurisdiction of the courts of Quebec, the Superior Courts in Quebec are essentially limited to judge and jury trials, unlike other provinces where there would be a number of judge-alone trials before the Superior Court. Judge-alone trials are before the courts of Quebec. It's comparing apples and oranges because they are different jurisdictions.
Senator Fraser, with respect to the question you asked about what we're looking at, there's nothing major. There's no silver bullet that's going to do something, not like the legislation that Parliament enacted on the mega-process, which was to create a second judge to look after the motions. Ms. Bernier mentioned a few things in terms of the bail procedures.
Also, I think Mr. Clermont mentioned a significant number of trials right now both in terms of remand but also trials dealing with administration of justice offences. Essentially, these offences occur when a person out on bail breaches the conditions of their bail. Some of the conditions have nothing to do with the substantive offence. For example, they might breach a curfew or consume alcohol when they're not supposed to consume alcohol. They're then brought back before the court with a new charge.
Essentially, we're making crimes out of social problems. It's not a crime to be drunk. It's a provincial misdemeanor to be drunk on the street, but we've now made it a criminal offence to be drunk —
Senator Fraser: In your own home.
Mr. Piragoff: — because they're under a condition to abstain from alcohol. If the police find you with alcohol, so now there is a breach, and now all of a sudden it's a crime to be drunk. Coming home late at night is another condition placed on youth quite often.
We are looking to see if we can make some changes there to give the police an option so they don't have to simply lay another charge. Maybe we could bring the person back before the court for revision of the conditions as opposed to simply laying a charge. That would significantly reduce the number of charges and the backlog in the courts. That's one thing we're looking at.
Ms. Bernier also mentioned the issue of using more technology in particular for northern and rural jurisdictions. Can you do some parts of trials or some motions electronically by video conference rather than fly judges, prosecutors and defence counsel up North and then back?
Senator Fraser: And then wait six months.
Mr. Piragoff: That's right.
The Chair: To Senator Baker's earlier request, this is the kind of thing that you could provide to the committee. What is the ministry looking at going forward, not in specific terms but more generally? It would be very helpful to us.
Senator White: Mr. Piragoff, I'm glad you brought up the administrative process that's used in British Columbia on impaired driving, because it's not done on all impaired driving charges. I understand that some extraneous cases end up in the criminal courts as well.
You've probably been watching how that works in British Columbia. Initially, there were a lot of naysayers. Overall, it's working fairly well. Do you see an issue with a province taking on more of that, such as the 36,000 theft charges across Canada, of which 90 per cent were probably shoplifting or similar, or the 82,000 administrative justice cases. Why aren't we seeing provinces say that they want to take on more of an administrative function? If it's a shoplifter, it's an automatic $100 fine under the Contraventions Act, and if the person is released, rather than a summons to appear in court, a process goes with that. Is there a reason we're not seeing provinces taking on more of that responsibility and using the Contraventions Act or, in this case, the administrative process?
Mr. Piragoff: In the area of driving, it's easier to do because there's clearly a head of provincial jurisdiction, which is jurisdiction over highways and roads. They can use their own provincial head of jurisdiction to declare it a Highway Traffic Act offence and treat it as a provincial matter as opposed to a federal matter.
Theft is a criminal matter. There is no provincial law of theft. The provinces do have jurisdiction over provincial rights, but we have not used the Contraventions Act for Criminal Code offences. We have used it for purposes of other federal offences, like ticketing on the Parkway or migratory birds. There was a proposal by the Canadian Association of Chiefs of Police to use the Contraventions Act for the purposes of prosecuting small amounts of marijuana.
Senator White: That's correct. Our discussions with the CACP went beyond marijuana possession, and the Conservative caucus of former police officers had similar discussions with officials from Justice. If we're successful with minor possession of marijuana, why couldn't we be successful with other minor charges that are eating up the court's time? My answer would not be more courts, more judges and more defence, but less need for them.
My second question has to do with restorative justice. When the Young Offenders Act showed up around 1985, it allowed us access to alternative justice systems, primarily for young offenders. Nothing has stopped us over the last 30 years from growing that capacity for restorative justice. Nova Scotia is probably the leader in the country right now for restorative justice with NSRJ-CURA. Do you see us trying to increase capacity and acceptance of restorative justice, at least through pilot projects across Canada, outside of federal jurisdiction but funded federally as they have been in the past?
Mr. Piragoff: I think the most interesting part of Mr. Clermont's presentation was his last or second-to-last slide comparing adult and youth justice statistics. It showed that over the years, because of a different criminal justice model in that youth legislation, the number of youth going to trial has significantly dropped because that system uses diversion and alternative measures. So you divert the small shoplifting case. You don't go to court; you don't prosecute that. You deal with it outside.
Of course, that has had its costs. They may not be in the formal criminal justice system, but there will be costs somewhere else in having probation officers or social workers deal with the situations.
That is an area that we're starting to look at in the adult system. One of the minister's mandate letters is to look at the issue of efficiencies and also vulnerable populations, particularly indigenous populations which, as you know, are over-represented in the criminal justice system as accused and as victims.
Many people in the justice system belong to vulnerable populations, like those with addictions and mental illness, and those in poverty. Maybe we can treat adults with mental illnesses, for example, with the same tools we use in the youth justice system, as opposed to the tools we have in the criminal justice system, which treats everyone basically the same, which is that you are a competent adult, you know what you are doing, and if you committed the crime, you did it because you intended to. We know that's not the case with youth, nor is it the case with a lot of adults. They're just sad people.
Senator White: Fifteen seconds.
The Chair: Very quickly.
Senator White: I always say that restorative justice is not cheaper than mainstream justice: It's better because it cuts recidivism rates in half. It may cost just as much to get to the end game, but you'll get to the end game half as often the next time around. So there are savings as well.
The Chair: You make a good point, and it's on the record now.
We have a chance for one final question for Mr. Piragoff. Does the ministry see any problem with time spent arguing the admissibility of evidence? I've been told there is an increased focus on that in the courts. Have you looked at that?
Mr. Piragoff: That was part of the reason Parliament enacted the legislation in 2011: to create a trial management judge in complex cases to deal with a lot of these preliminary motions, such as whether wiretap evidence is admissible.
The Chair: To standardize and clarify the information required.
Mr. Piragoff: So you don't eat up time in front of the jury in the trial proper. A lot of these issues can be dealt with in advance.
We've also created other opportunities in terms of pretrial conferences, where some of this can be done if the trial judge is appointed early.
Senator Jaffer: Can you make available to us what is available in youth court that we could look at for adult court? I know diversion is available in both courts.
The Chair: Sure.
Thank you for the very helpful contribution to our deliberations. We may want to have you back. I'm sure there are members who would like to ask additional questions.
Before we adjourn, I want to reiterate what I said yesterday: If you have any witness suggestions going forward, please have them in as quickly as possible so we can line them up.
(The committee adjourned.)