Proceedings of the Standing Senate Committee on
Legal and Constitutional Affairs
Issue No. 13 - Evidence - October 5, 2016
OTTAWA, Wednesday, October 5, 2016
The Standing Senate Committee on Legal and Constitutional Affairs met this day at 4:16 p.m. to continue its study on matters pertaining to delays in Canada's criminal justice system.
Senator Bob Runciman (Chair) in the chair.
[English]
The Chair: Before we get on with the business of the day, I just want to put something on the record with respect to our interim report. I want to congratulate Senators Baker, Batters and Carignan for the outstanding job they did in terms of the follow-ups with various media, an outstanding job. Congratulations to our clerk, Jessica Richardson, for the role she played; our analysts for the great work they've done; and Communications, including the graphics on the interim report. I think members will agree they were first-class. It was a packed week. A lot of great work was done on our behalf and we thank all of you.
We did hear a lot of positive comments during our Western swing with respect to the interim report in terms of encouraging further thoughts, ideas and suggestions with respect to the reforms and recommendations we might make in that direction.
Now we'll get on with the business of the afternoon. Members, earlier this year the Senate authorized the committee to examine and report on matters pertaining to delays in Canada's criminal justice system and to review the roles of the Government of Canada and Parliament in addressing such delays. This is our twenty-second meeting on the study.
For our first hour, we are pleased to have with us today from the Office of the Commissioner of Official Languages, Graham Fraser, who is the commissioner; and Pascale Giguère, General Counsel of the Legal Affairs Branch of the office. Thank you both for being here today.
Mr. Fraser, the floor is yours, sir.
Graham Fraser, Commissioner, Office of the Commissioner of Official Languages: Good afternoon, ladies and gentlemen, honourable senators and members of the Standing Senate Committee on Legal and Constitutional Affairs.
Thank you for giving me the opportunity to share my observations as part of your study on delays in Canada's criminal justice system. I read your preliminary report with great interest. Your second recommendation, on the process for judicial appointments to provincial Superior Courts, particularly caught my attention.
First of all, I share your point of view regarding the urgent need to reduce the long delays in Canada's justice system. The Canadian public deserves a much more accessible and efficient system.
[Translation]
While access to justice is an issue for all litigants, the approximately two million Canadians belonging to an official language minority community face an added challenge. Despite the provisions of the Criminal Code recognizing the right of all Canadians to be heard in the official language of their choice, there are obstacles preventing the exercise of this fundamental right. Lawyers often feel the need to advise clients that if they choose to assert their right to be heard in their preferred official language, the court proceedings will be longer and more costly.
[English]
This was one of the findings of the study on access to justice that I published in 2013, together with my counterparts in Ontario and New Brunswick. We examined the process for appointing Superior Court judges, as well as the language training that is offered to them. We came to the conclusion that the process does not ensure the appointment of a sufficient number of judges with the language skills required to hear citizens in the official language of the minority without incurring delays or additional costs.
[Translation]
Our conclusion is based on two main findings. Firstly, there is no concerted effort to determine the needs of the superior courts in terms of bilingual capacity, or to ensure that a sufficient number of bilingual judges are appointed to these courts.
Secondly, there is no objective evaluation of the language skills of superior court judiciary candidates. The only such criterion consists of a question on the application form for the superior court judiciary regarding the languages in which the candidates state they are able to conduct a trial. This self-evaluation is never objectively verified.
[English]
We made 10 concrete recommendations to correct this situation. We stressed the importance of establishing a concerted approach involving Canada's Minister of Justice, their provincial and territorial counterparts, as well as the Chief Justices.
The previous federal government did not address the recommendations of my study, nor did it initiate discussions with the provincial governments, despite the interest expressed by some, particularly Ontario and New Brunswick. For this reason, in my most recent annual report, my first recommendation is that the current government implement the recommendations of the 2013 study by October 31, 2016.
[Translation]
The Honourable Jody Wilson-Raybould, Minister of Justice and Attorney General of Canada, has not yet made any such commitment. The government has, however, committed to increasing transparency, accountability and diversity in the appointment process for superior court judges.
Moreover, the Minister of Justice has committed to reviewing the appointment process, and her department initiated consultations with a range of actors this past summer. Members of my team were consulted and shared approaches that could be considered in order to uphold the rights of official language minority communities and address their needs more directly.
[English]
I have given the Clerk of the Standing Senate Committee on Legal and Constitutional Affairs the letter I sent to the Department of Justice Canada on that occasion.
I mentioned that some provinces have expressed an interest in improving access to justice in both official languages. Some tangible measures have already been taken. In the spring of 2015, the Honourable Madeleine Meilleur, then Ontario's Attorney General and Minister Responsible for Francophone Affairs, launched a pilot project, based on an active offer of service strategy, to provide quality French services to French-speaking litigants and lawyers at the Ottawa courthouse.
[Translation]
Meanwhile, since 2011, New Brunswick's provincial court judge, Yvette Finn, has been leading a language training program for provincially appointed judges from across Canada. At the beginning of this year, she also set up a language skills evaluation service for provincially appointed Canadian judges.
As part of the Canada 150 celebrations, the Office of the Commissioner of Official Languages is involved in organizing a national conference on 150 years of legislative and judicial bilingualism.
[English]
This conference, which will be chaired by the Honourable Michel Bastarache, will bring together law students from every Canadian university, lawyers, academics, as well as members of the judiciary and of Parliament, to look at how far we have come since 1867 and evaluate the progress that has been made. This will be an excellent opportunity to highlight the federal, provincial and territorial governments' commitment to and cooperation in taking concrete action to improve the judiciary's bilingual capacity and, in turn, access to justice in both official languages.
Thank you for your attention. I will now gladly take your questions.
The Chair: Thank you, Mr. Fraser. We'll begin questions with the committee's deputy chair, Senator Baker.
Senator Baker: Thank you to the witness for his presentation.
I see that you have your principal legal authority with you, Mr. Fraser.
Mr. Fraser: That's correct.
Senator Baker: We read case law, and you are frequently quoted in case law every single year at practically every level of court, especially recently in the Supreme Court of Canada in separate judgments, as well as the Federal Court and the Federal Court of Appeal.
My question is to your legal authority, because we don't have the opportunity very often to have somebody who actually litigates before the Federal Court and the Supreme Court of Canada or the Superior Court of a province. My question concerns what are called prothonotaries under the Federal Court Rules. In French it's protonotaire, and there's no discussion as to pronunciation problems.
Decisions have been reached, I imagine, by prothonotaries Morneau and Aronovitch, and they free time up for a judge and make a lot of pretrial decisions, even interlocutory decisions, during proceedings.
We talked to a panel of judges recently. Justice Barnes was there from the Federal Court. We asked him specifically what his recommendation would be as to whether it would be practical to import into the criminal justice system a system similar to that in the Federal Court to free time up for judges. Do you have any opinion on that matter?
Pascale Giguère, General Counsel, Legal Affairs Branch, Office of the Commissioner of Official Languages: Thank you for the question. I'm not sure I can answer the question itself, but I can gladly give you my opinion on my experience working with prothonotaries in certain litigation.
I've had the opportunity to work with some prothonotaries of the Federal Court, as well as the Ontario court here in Ottawa. I must say that in all of my experience, it has been very useful in civil cases to have these prothonotaries. As you mentioned, they do make some decisions on procedural matters, on setting dates for motions and hearings, and on deciding whether or not we should be going forward as the case is or whether we need other steps in between. Generally it helps with the litigation. It helps for the parties to reach an agreement on the steps that need to be taken. In some instances, where warranted, it helps to have some decisions so that we can move ahead instead of making motions before a judge, which would take longer and probably make the proceedings longer overall.
So I have found prothonotaries very useful both before the Ontario court in civil matters and before the Federal Court. I'm not sure whether it should be imported to the criminal side. That is maybe a question for you to look at, but I would say it has been useful in the civil system.
Senator Baker: And in the Federal Court system?
Ms. Giguère: Yes.
Senator Baker: The provision in the Federal Court Rules, as I recall, simply applies to their appointment. They are not judges. Under the Judges Act, I think they're paid 74 per cent of the salary of a Superior Court judge, which isn't all that bad. But they are people well known in the legal community for their expertise in that area.
Thank you very much.
[Translation]
Senator Boisvenu: Mr. Fraser and Ms. Giguère, welcome to the committee.
Mr. Fraser, I think you will be retiring soon, and I would like to take this opportunity to thank you, on behalf of all Canadians, for the tremendous service you have provided and especially for the wisdom that has accompanied your recommendations and comments for close to a decade now.
I am going to lead you into a different area of bilingualism, away from justice, but I think it is important all the same. Perhaps this will be your testimony as a future retiree.
As you know, I represent Quebec, and language is a major and historic matter for the province. It is also a very hot issue. You have written several books about this, including Sorry, I Don't Speak French, in which you state that Canada has been run by many lawyers since 1969.
What are the real obstacles that are giving us the impression that the use of official languages is stagnating? I would even say that in some provinces, there is the impression that they are moving away from this fundamental right that Quebec enshrined in the Constitution. I would like to hear your thoughts on this. The question also relates to the access to justice.
Mr. Fraser: Yes, absolutely. We have a federal system in which, for better or worse, education comes under provincial jurisdiction. West of Ontario, as far as I know, there is not a single province where French is a compulsory subject, either at the primary or secondary level.
However, the public schools of Edmonton have the best immersion system in the country. The system is entirely voluntary, and it attracts students committed to learning French. It is now possible to be educated in French up to the bachelor's degree level in almost every province, except Prince Edward Island and Nova Scotia. This is a remarkable step forward since 1982.
In addition, the Charter ensures that francophone minorities outside Quebec have a right not only to schools, but also to school management. So, we are seeing enormous progress in terms of language rights for minorities. However, the right to language training for the majorities was not enshrined in the Constitution. That's a very specifically limited right.
Section 23 of the Charter follows the Charter of the French Language very closely, further to the review required by the Supreme Court. Therefore it has a Canada clause, but that contrasts with the Quebec perspective, as presented by Dr. Laurin in 1977.
I do not think that the federal government could resolve the issue since it is under provincial jurisdiction. However, one way to manage the situation is to inform universities across Canada that the federal government is the largest employer in Canada and needs bilingual employees. It would involve sending the message to deputy ministers, one department at a time, to universities and to faculties, that it is important to provide graduates who are interested in working in their specific fields within the federal government. Universities should also send the message to secondary schools that they could provide a bonus to students who take a more demanding course in the second language.
One secondary school student told me that his immersion teacher had recommended to his students that they take the basic French course because it was easier and also because universities only look at grades. I think this encourages mediocrity. There is a way to encourage learning both official languages, but clear and specific incentives are needed.
[English]
The Chair: Just for the benefit of any new members and witnesses, we do have a five-minute guideline at this committee, which encompasses both the question and the answer. We have a very active membership on this committee and frequently full participation. I hope everyone will keep that in mind. If I do cut you off, it's nothing personal; rest assured.
Mr. Fraser: I understand.
Senator Joyal: I take your words for myself, and I am not hurt.
[Translation]
Welcome, Mr. Fraser and Ms. Giguère. The Minister of Justice announced in the review of the process for judicial appointments to the Supreme Court that candidates will have to be bilingual from now on. If I understand the content of the letter you sent in August 2016, there is no grid to determine this capacity, and you noted the controversy in the newspapers.
[English]
What do we mean by "bilingual capacity''?
[Translation]
Have you had the opportunity to determine what is meant by the language capacity of candidates to conduct a hearing in either of the official languages?
Mr. Fraser: It is important to understand that, in the Supreme Court, there is not the same need to master both languages as for a judge who would have to preside over a Federal Court case, for example. However, it is very important that the judge be able to hear statements from lawyers in the language of their choice. Judges must also be able to read.
Approximately 30 per cent of cases heard in the Supreme Court that come from the provinces are from Quebec. In almost every case, the documentation is in French, and the case was presented in French at the previous steps before reaching the Supreme Court. It takes only one unilingual judge for the lawyer, who made his argument in French before the Federal Court or the Federal Court of Appeal, to face a strategic choice if a judge is required to follow his argument through interpretation.
I do not think there is the same obligation for oral proficiency as there is for a senior public servant. Quite often, some judges are not comfortable in a diplomatic conversation at a cocktail party or at the cinema. However, after reading all the documents, these judges, who are proficient in the vocabulary of the case, are able to understand the lawyers' arguments and ask them questions. So there is the key issue. Are all judges able to understand the arguments presented before the court without using simultaneous interpretation?
Senator Joyal: Have you developed a set of criteria to define what language proficiency is or what level of language proficiency can be measured so that a candidate is able to hold a position in a court?
Mr. Fraser: It has not gone further than the argument I just expressed. That is some of the argument that was presented in the private bill now before the House of Commons. However, I can tell you that the Honourable Yvette Finn, a provincial court judge in New Brunswick, created a fairly detailed grid to determine the language skills of judges for carrying out their responsibilities. The grid is very useful for establishing the level of proficiency a judge must attain to preside over a case.
Senator Joyal: Have you received complaints in the past from Canadians who have said that they did not have access to a trial in one or the other official language, as set out in the Criminal Code?
Mr. Fraser: The complaints we have received come from lawyers or judges who handled the problems related to the delays and the fact that, quite often, the judicial system does not have the capacity to hear a case in the accused's language in a timely manner.
We note in our report, which was drafted based on the issue of access to justice in both official languages, that lawyers often feel compelled by duty to tell their clients that the trial will be quicker and less costly if they agree to be tried in English, "Yes, you have the right to exercise the right to be tried in the language of your choice, but you must understand that it costs more and will take longer.''
Senator Dagenais: Mr. Fraser, for information purposes, I sat on the committee that appointed superior court judges for three years, specifically the committee responsible for eastern Quebec. When we review the CV of the candidate lawyer, the thing that sometimes guided our decision. . . Among other things, in the case of judges who needed to be appointed in Temiskaming, on the Ontario border, we had to determine whether they had a sufficient knowledge of English because appointing a unilingual French judge in that area would be problematic.
You mentioned that measures had been put in place to try to encourage French immersion. Have you noticed an improvement further to these measures or are there more specific changes that should be made when judges must preside over a trial in Quebec, especially on the Ontario border? This often guided our decision.
Mr. Fraser: Requests to hold trials in English are often made at the Ontario border, in Montreal and in the Eastern Townships. It becomes more problematic in eastern Quebec. I had conversations with the former Chief Justice Robert, in Quebec, who was concerned about the situation. However, after releasing the report, we did not follow the progress, and I cannot give you a detailed answer. But I can tell you that there are lawyers who told us that the problem is less widespread in Montreal, but that it is a problem in the regions.
[English]
Senator Sinclair: Good afternoon, commissioner. It's good to see you again.
I know among the work that you have been doing is evaluating the French language services that are funded by the federal government, and that there are funds transferred from the federal government to provinces with regard to provision of French language services. Can you share any information you have with regard to the question of the extent to which the federal government funds French services or French language training or French immersion programs in First Nations and Inuit communities?
Mr. Fraser: There is a French language school system in Nunavut, but I can't speak to the presence of immersion schools on First Nations reserves or in First Nations communities off reserve.
This is not based on any data, because I don't have any, but my suspicion is if there were, I would have heard about them.
Senator Sinclair: I think you're quite right, because the reality is that First Nations schools are generally underfunded by the federal government based upon a formula that is not applicable to the federal schools but is applicable to provincial schools.
I have checked, and I don't know of any French immersion or even any specific funding for French education in any of the First Nations schools. If you do find out, maybe you can share that with us.
Do you think that the lack of French services for First Nations and Inuit children might be a hindrance with respect to their capacity to become functionally bilingual in order to accept a judicial appointment at some point in their career?
Mr. Fraser: Certainly the earlier a child or young person acquires a second language the greater their mastery of that language is later in life. If there is no access to second language education, it is a significant obstacle and challenge.
That's one of the reasons why I have always maintained that until every Canadian child has equal access to quality second language education, it will always be necessary for the federal government or, for that matter, the judicial system to provide language training because there are some young people graduating from immersion with a serious degree of fluency and others who have had no French at all.
For the federal government, which has an obligation to be representative of the population as a whole, there will always be, unless the education system changes significantly, a need for the federal government to provide language training for employees.
The Chair: Commissioner, pulling this back to the mandate of the committee with respect to the criminal justice system and delays in the system, you may have referenced one example in your 2013 report. Do you have other data you've retained with respect to the impact this might be having on delays across the country?
Mr. Fraser: As part of this study, we interviewed lawyers, judges and other employees of the court system, and we did an online survey of some 220 people involved in the court system. The data from that is shown here.
We made a distinction in the data between those centres where it is relatively easy to get a bilingual trial and those areas where it is a challenge to get a trial in the second language. In the areas where it is more of a challenge, some 85 per cent of those that we polled found that it caused significant delays. It was hard to find a judge who had the necessary language skills, and the court personnel did not have the language skills. Even in those centres where it was relatively easy, like Montreal and Ottawa, some 40 per cent of those polled found there were still challenges and delays.
I'll ask Ms. Giguère to see if there are any elements of the timing that I have neglected in my reply.
Ms. Giguère: I think you given the pertinent information.
I would add that you can find some data on page 18 of our study, specifically with respect to delays. As the commissioner mentioned, we asked a question to some lawyers, and the answer they gave us is indicated in the report. And on pages 19 and 22 of the report, you'll find other mentions about the impact of delays for the minority language community.
I can add that there are two cases, perhaps one that you would be really aware of, which is the Beaulac case where, as you know, it took 15 years for Mr. Beaulac to obtain a trial in his language.
The other one is a more recent Ontario Court of Appeal case from last year, R. v. Munkonda, where there were also delays with regard to the language rights of the accused under the Criminal Code, and that resulted in quashing the decision for the remand-to-trial starting back then.
Of course, there are impacts in the criminal justice system when there are not enough bilingual judges or when rights under the Criminal Code are not respected.
The Chair: Is there any problem with respect to access to interpretation? These are individuals who simply say they want the trial in their first language, but in terms of access to interpretation, is that a problem anywhere across the country?
Mr. Fraser: The right, as defined under the Criminal Code, is a right to be heard. Interpretation is only offered for languages other than official languages. So that was outside the scope of our study, but certainly the court system has the capacity to provide interpretation for the accused in Tagalog or in Punjabi or various other non-official languages. But that's not an issue that we dealt with.
The Charter right, as defined by the Supreme Court in Beaulac, is a right to be heard in any criminal trial anywhere in the country in the official language of your choice.
Senator Batters: I have a brief question following up on that particular aspect. Am I correct in assuming that, probably, in large areas of the Atlantic provinces other than perhaps in New Brunswick, in large areas of Western Canada and certainly throughout the territories, it would be more difficult to find a judge in order to have a trial in French?
Mr. Fraser: Not necessarily. I would note that the recent Caron case that went to the Supreme Court, which involved the question of language rights and obligations in Alberta and Saskatchewan, went through the three levels of court in Alberta entirely in French.
The decisions were drafted in French. It was an intriguing, erudite historical argument on both sides. Caron won the initial case and was overturned in the second case.
It is certainly more of a challenge to find —
Senator Batters: I don't imagine there are very many bilingual judges in any of those areas that I mentioned.
Mr. Fraser: There is a very sophisticated language training program that's offered for provincial judges. I went and sat in on the training program in New Brunswick that's offered to provincial judges across the country. I was very impressed by the quality of the training. I was also very impressed by the commitment of these judges from across the country to improve their language skills so they could preside over cases in both official languages.
Senator Batters: That's very positive, but am I correct that the numbers still, at this point, remain small?
Mr. Fraser: One of the frustrating things that emerged from our report is we just don't know. No evaluation is made of the language competency of judges. The only evaluation that is made when judges apply is a self-evaluation. There is no serious evaluation made of the needs of bilingual judges.
Senator Batters: Right now, we have a new Supreme Court appointment process that demands functionally bilingual judges, I think at a C level. Am I correct?
Mr. Fraser: I don't think it is so clearly defined. I think Senator Joyal was asking for mine.
Senator Batters: But there is no way of evaluating.
Mr. Fraser: My understanding is that the criterion being used is the ability to hear arguments in the language of choice of the lawyers.
Senator Batters: Hear and read, which would be fairly fluent, I would think. So there's this brand new requirement, but you're saying there is no way of properly evaluating the judges that are currently in the system. Those would be the primary people that would be applying, correct?
Mr. Fraser: I would assume, but I've always had some confidence in the ambition of lawyers. Once it is recognized that this is a criterion for advancement to the highest court in the land, sheer ambition is going to kick in. Certainly we've had judges from Western Canada and from Atlantic Canada who were functionally bilingual, sometimes more than functionally bilingual, highly articulate, and that was the case for Judge Cromwell. That is the case for the Chief Justice, who spent her entire career in Alberta and British Columbia.
Senator Batters: But did not become functionally bilingual until she moved to Ottawa and joined the Supreme Court, correct?
Mr. Fraser: It depends how you define "functional.'' She did a fair amount of language training. She is modest about that and says that she didn't reach a level that satisfied her. She's not only modest; she's a bit of a perfectionist. I suspect that, given the amount of language training that she insisted on taking when she was a judge in the courts in British Columbia, she was at a higher level than she is able to recognize herself.
The Chair: We have a little bit of time left for second round. Do other members wish to participate?
[Translation]
Senator Joyal: I would like to come back to your 2013 study. You mentioned that it contained 10 recommendations. So, I understand from your testimony that none of them have been applied?
Mr. Fraser: No, the previous minister accepted the report with interest but wrote us a letter saying that he was satisfied with the current system for judicial appointments. We met with the Minister of Justice and an advisory committee was created. I think there was a response on one item.
Ms. Giguère: Yes, we received a response from the Minister of Justice before the consultation process that was put in place. She stated that the current process includes a language evaluation, a self-evaluation done by the candidates. The minister is satisfied with it.
Then, the consultation process was set in motion and underwent a government review.
Senator Joyal: Am I to understand that when a province requests that a certain number of judicial vacancies be filled, it does not indicate how many of these positions should be functionally bilingual? In the case of superior court judges, as Mr. Fraser said, they should be able to communicate with the lawyers and the witnesses, and not just be proficient enough in the language to read the proceedings. So, I understand that the provinces do not determine their needs when it comes to appointing bilingual judges, as in Ontario.
Mr. Fraser: There was an informal conversation between the department and the chief justices in the provinces about trusting the self-evaluation of the judges. I was told that there are some people who think they are sufficiently bilingual to preside over a case and who were found not to be in the end.
After they stated on their application that they were sufficiently bilingual to preside and, once bitten twice shy, they decided not to. I have also heard complaints from bilingual judges who had to replace judges unable to preside over a case in French. I think it is possible to be mistaken in a self-evaluation.
Senator Joyal: Should we not be using the federal public service program? In fact, when the public service determines a level of bilingualism for a position, applicants alone do not state that they are competent. The applicant must usually be tested to confirm proficiency in the other language.
Shouldn't we first determine the number of bilingual judge positions required in each province and ensure the candidates who apply, like in the public service, must pass a competency test to verify their abilities? At that point, our needs can be met through the appointment.
Mr. Fraser: That's exactly what we recommended in our report. It's an objective assessment of needs and competencies.
Senator Joyal: However, if I understand correctly, to date you haven't received an affirmative response to either of the department's two recommendations.
Mr. Fraser: Not yet.
Senator Joyal: Do you intend to raise the issue again publically? I understand the study dates back to 2013, which was three years ago. Do you ensure a follow-up on your recommendations when they're ignored? As an agent of Parliament, aren't you required to report inaction and let the people in charge know that Parliament makes the decision?
Mr. Fraser: I'm describing the situation as it stands. In terms of our reports, we generally conduct follow-ups. We implemented the recommendation in the last annual report. As I said in my statement, our deadline for a response is October 31, the end of this month. I remain optimistic.
Given that the consultation process is under way, I assume we'll receive a response once it's over.
[English]
Senator Raine: I guess I'm finding this a little bit astounding. What it looks like is missing is an evaluation of what is needed and a way to test those people who are in the chain.
Mr. Fraser: That's right.
Senator Raine: This doesn't seem very complicated, yet it has repercussions on delays later on. Do you think it's fairly simple if you want to take action to actually correct this system?
Mr. Fraser: I think what is required is a systematic process of planning. I think it is a good thing that the government is undertaking an evaluation process of the nomination of judges. I think that review, I would hope, would look at other elements.
I think there are a number of ways in which judges have been selected that do not meet the criteria of openness, transparency, diversity and the other values that one would like to see reflected in the judiciary.
Senator Raine: Yes. I hope I didn't hear you say we need to do more studying and planning for this, because it seems like it has been reviewed.
Mr. Fraser: No, I make a clear distinction between studying and planning. One of the things that I have discovered after 10 years as commissioner is that success doesn't happen by accident. When a goal has been set out to be achieved, whether it's to increase the diversity in an organization or to increase the bilingual capacity of an organization, it requires the leaders of that organization to say, "We want an action plan. We want to see results. Here is a timetable. Here is how we are going to achieve this objective.'' That's not another study.
Senator Raine: That plan is in place?
Mr. Fraser: No. Well, it is to the extent that we've made recommendations as to how they should proceed.
Senator Raine: It seems to me that there are lots of good lawyers who are trained and are in the system of working their way up to the various levels of judging. Surely if they feel that they want to go as far as they can, they should be able to apply somewhere to be evaluated and have that tick beside their name that is an accreditation in the language. That could be contracted out, and that wouldn't be very hard to put in place.
Mr. Fraser: It's also true that there are a variety of language training programs available for judges once they enter the judiciary. I'm not sure that lawyers are eligible for those programs, but it could be expanded for lawyers who want to be able to better represent clients.
Ms. Giguère: If I can add something to your question, the program that the commissioner talked about developed by Justice Finn in New Brunswick is also intended to be available for other levels of the judiciary. The intent is that in the next two years it should be available to all Canadian judiciary, including the Supreme Court and the Superior Courts, and it would evaluate candidates for the judiciary.
The other aspect the commissioner talks about in his study is after those candidates are evaluated in the process, it would also need to be shown when the short list is given for the appointment. Right now, there is no indication of which candidates are bilingual or not on the short list. So the person making the appointment does not know whether the candidates are bilingual or not at the time of appointment.
Senator Raine: A lawyer, then, who is entering the process should be able to say, "I am certified as bilingual'' and get that well in advance, which would help.
Mr. Fraser: That would be a huge advantage.
Senator Joyal: I want to put on the record very clearly that the need to have bilingual judges doesn't exist only for French-speaking Canadians; it exists for English-speaking Canadians as well. You might be aware of the recent case in Quebec that happened last month, the Henderson case, the famous case challenging the constitutionality of the law declaring self-determination rights for the province, which was launched by English-speaking Quebecers who wanted to be heard at the trial level with a bilingual judge, at least functionally bilingual. The case had to be postponed to next spring because no judge offering that capacity was available.
So it exists on both sides of the fence, if I can use that expression. It's a problem that Canadians should see being addressed.
I would say in conclusion, Mr. Fraser, as Official Languages Commissioner, when you realize that after so many years nothing has happened — and I think tabling your report in Parliament is good — I think you should send a letter to the two Official Languages Committees on both sides of Parliament and invite them to look into this. If we want action at that point in time, if your recommendation is buried among X number of recommendations, the risk is that it will go unnoticed. But if you would write a formal letter to those two committees and say, "We need action from Parliament on this because it has been too long where nothing has been done,'' I think it might help push it through the system. Nobody would bar you from doing that.
Mr. Fraser: Absolutely not. Thank you very much for the suggestion. I will consider it very carefully. I don't have much time left as commissioner.
[Translation]
Senator Boisvenu: Is there a table comparing the provinces when it comes to requests to hold a trial in either language? I'm thinking of Quebec in particular. I there a table comparing the requests and the deadlines involved?
Mr. Fraser: We instead surveyed lawyers for their opinion.
Senator Boisvenu: You don't have actual statistics?
Mr. Fraser: No. As far as I know, there's no record. When a lawyer tells a client the trial will be faster and less expensive in English, this type of data is not recorded. It's anecdotal information. I think there's an expression that sums up the idea: —
[English]
The plural of anecdote is not data.
[Translation]
We're continuing to conduct surveys and interviews.
[English]
The Chair: Commissioner and Ms. Giguère, thank you for your appearance here today, and your assistance with the committee's deliberations. It's very much appreciated.
For our second hour, we have with us lawyers who have all been involved in cases where stays of proceedings were litigated on the basis of 11(b) violations. They are Christine Mainville, David Genis, Mary Murphy and John Hale.
I understand you all have opening statements. We'll begin with Mr. Hale and then move across the table. The floor is yours.
John H. Hale, Lawyer, Hale Criminal Law Office: Thank you, Mr. Chairman.
First of all, having looked at the list of people who have spoken before us to this committee since February, I very much appreciate being a part of this. It's a wonderful initiative the committee has taken on to look into the issue of delay.
This morning I was looking at the proceedings from February 3. Senator Baker at the time said in discussions with former Justice LeSage that nothing has changed since Askov or Stinchcombe. That statement is now half right, because now everything has changed with respect to section 11(b) as of July of this year. A year ago this week I was down the road on Wellington arguing the Jordan and Williamson cases. They were decided July 8 of this year. The terrain regarding delay has changed completely. The Jordan and Williamson cases raise as many questions as they answer.
On the one hand, the criminal defence side appreciates having some certainty with respect to what is considered to be the outer limits of acceptable delay, but at the same time, I don't think we would agree that the 18-month and 30- month caps that the Supreme Court set out are in any way acceptable delays. They are at the outer limits. The question is how do we reduce the delays?
I, and my colleagues here, are trial lawyers. We do appeals, but we're all trial lawyers and on the frontlines on the criminal defence side. We see first-hand how our clients are affected by the delays in court, and we see second-hand how their families are affected by the delays.
Last week, as an example, I was in court not far from here, in L'Orignal — an hour east, the farthest point in Ontario — where we were setting dates for simple trials expected to run a half a day. The earliest date being offered at the end of September 2016 was August of 2017. The other dates being offered were in September 2017, so a year away, for relatively simple, not complex, matters.
The reasons why there are significant delays are many. There's a fairly simple equation. This committee has to figure out what recommendations to make. The delay will be a function of how many cases are in the system, how long any given case will take when it's in trial, and what resources are available to prosecute cases through trial. In dealing with those questions, we're going to be looking at things such as mandatory minimum sentences, which have in my view increased the number of trials because accused people feel they have nothing to lose by going to trial and everything to gain in the case of a successful trial.
We have problems with our legal aid system, which lead to more unrepresented accused, who take up a lot more time than a represented accused person. Those are a couple of concrete examples where this committee can make recommendations.
The Jordan case, as I mentioned in the outline I gave, set out ceilings, which I am concerned could be taken as a one- size-fits-all approach. The question hasn't come up — but I expect it will come up in future cases — as to how those guidelines will apply when we're dealing with young people. Both the Youth Criminal Justice Act and various cases under the Young Offenders Act have said that young people have a different perception of time and should be accorded special rights when it comes to speedy trials. Are in-custody people subject to the same ceilings?
In any event, there's no easy solution to the problem of delay, and I'm honoured to be part of the solution and hope to be able to answer some questions.
[Translation]
Christine Mainville, Lawyer, Henein Hutchison LLP: This Committee, in its interim report on delays in criminal proceedings, recommended that the federal government work with the provinces and territories to examine and implement best practices in case and case flow management.
[English]
I would mainly like to address some of what those best case and case flow management practices might be, with a particular focus on complex criminal trials, not only what has come to be known as a mega-trial, but also the trial that while it might at first glance appear simple for whatever reason turns out to have an added complexity.
To that end, I've referred you to my "Report on the Complex Criminal Trials Roundtable,'' held by the Canadian Institute for the Administration of Justice, CIAJ, in May 2014. That round table discussion between various stakeholders in the criminal justice system was intended to take stock of the situation six years after the Code-LeSage report — also referenced in your interim report — to follow up on some of its recommendations and to come up with fresh ideas for better managing complex trials.
I'll be frank: None of us knew the reason we were selected. In my view, I thought it appropriate to bring to your attention this report, which I think could be of great assistance to you. I'll briefly highlight a few best practices mentioned in my CIAJ report and in the executive summary prepared for today, but I encourage the committee to consider all of the recommendations and discussion contained therein.
The first is involving Crowns in large police investigations from the get-go. When it comes to large police projects, Crowns needs to be involved in the investigation as the theory develops and disclosure is being compiled, beyond simply providing legal advice on investigative techniques. This leads to more manageable prosecutions, given that it allows for early discussions as to the scope of the investigation, its targets and the theory of the case before any charges are laid. It also leads to better disclosure briefs.
The second best practice is limiting the number of accused and the number of charges. Crowns should be more surgical when drafting indictments and deciding what charges to pursue. In addition, the number of accused per preliminary inquiry and per trial should be restricted.
Number three is arranging for a single prosecution service to take responsibility for a case. As between the provincial and federal Crown, a single prosecution service should ordinarily take responsibility for a case from the outset. This is to ensure that a case is tightly run and doesn't balloon into a more complex prosecution than necessary.
The fourth is assigning a case management judge at the outset. The trial coordinator should be notified of a complex case from the get-go, and a case management judge should be assigned to shepherd it through. The same judge should follow the case through all of the set dates, the pleas and the preliminary inquiry.
The following five recommendations, in my view, apply to both small and large cases, not only to complex ones. The first is mandating judicial pretrials in any case that remains unresolved following discussions between the Crown and defence, and prior to any preliminary inquiry or trial dates being set. Judicial pretrials, whereby Crown and defence counsel meet in chambers and off the record with a judge prior to scheduling preliminary inquiry or trial dates, tend to favour resolutions, and for cases that proceed, they allow the parties to narrow the issues and resolve preliminary matters.
Next is conducting a follow-up judicial pretrial closer to the preliminary inquiry or trial, as the parties start focusing in on the hearing. A second judicial pretrial a few short weeks prior to the preliminary inquiry or trial can be very useful. With the hearing date fast approaching, the parties are generally more motivated to resolve the case altogether, and they're also better positioned to resolve, or at least address, preliminary motions or other legal issues.
The seventh is conducting "exit pretrials'' at the preliminary inquiry. This should be the norm. Pretrials with the justice who has presided over the preliminary inquiry, at the end of the inquiry offer invaluable insight to the parties. These pretrials are more conducive to resolutions than are the ordinary judicial pretrials.
Number eight is making greater use of "discovery'' or out-of-court examinations in lieu of preliminary inquiries in certain cases. The committee's interim report observed that many routine matters may not require judicial intervention and the use of courtrooms and court staff. While it goes on to discuss having some matters overseen by officials, such as justices of the peace or prothonotaries, I would instead promote the use of the discovery examination method, whereby witnesses are examined out of court before a special examiner in lieu of having them testify in a preliminary inquiry. This can either be done in open courtrooms in the judge's absence or in a special examiner's office.
However, very importantly, these discoveries should not replace preliminary inquiries altogether. Aside from the many important functions it serves, there are many benefits to preliminary inquiries from a case management standpoint.
Finally, I'll mention scheduling the pretrial motions first and ahead of the trial dates. Early rulings on pretrial motions are essential. Many matters might resolve following preliminary motions, without the need to ever set trial dates for many accused.
Mary Murphy, Lawyer, Murphy Toronto Lawyers: I thank the committee for the opportunity to address this very important issue for the courts. Although we now understand that a common element brought the four lawyers here, I think we've all discovered, and I anticipate you'll discover, that we all have very different practices.
Mine is very much the practice of a criminal defence lawyer who is in court every day. I have a significant number of marginalized clients and I represent a significant number of people who have mental health issues. Many of my clients rely on the therapeutic or alternative courts. I've committed some of my thoughts to paper. Going through that, I think you'll find that that very much becomes the tack I take in responding to the committee's report and invitation to address what, in my view, are some of the underlying causes of delay in getting matters to trial.
I think that the decision in Jordan has made all Crown and defence lawyers rethink our approaches to trial. One of the important rethinks that I think we all need to engage in is the use of court resources for trials versus the use of alternative courts and alternative means of dealing with parties that come before the courts.
In my experience, very many parties come before the courts because they have mental health, addiction and poverty issues. They have matters that bring them before the courts and into conflict with the law, but the law and the strict application of the criminal justice system does a very poor job of addressing the reasons for bringing them before the court. In my experience, and in my belief in dealing with the parties that I have always dealt with, rehabilitation and a system that is in place to effectively offer tools and strategies to rehabilitate individuals both promotes safety in the community and reduces the need for courts to allocate resources for trial time.
I think Justice Moldaver, in Jordan, noted that. I think it's paragraph 43 where he makes a distinction between using trial time or court time for the litigants who are more in need of time in court. The distinction, obviously, is the need to prioritize matters that come before the court, because there are individuals in conflict with the law because of their own addictions. There are obviously a range of offences that bring parties before the court. Not all of them can be diverted and not all of them are the sorts of offences that require alternative sentences. But in order to separate the ones that can be dealt with by way of alternative measures, it in my view takes a very bold commitment from this committee, from Parliament and from the parties currently involved in the criminal justice system.
Amongst other things, Jordan recommends time limits, but there's a clear recommendation or direction toward parties involved in the criminal justice system to rethink how we deal with parties that come before the courts. In my view, that brings us to bolstering the use of therapeutic courts and alternatives, rethinking the sentences being imposed. As Mr. Hale said, one of the difficulties with things like mandatory minimum sentences is that they make it very difficult to resolve matters in advance of trial.
There are lots of people that come before the courts facing charges that may not be as serious as the ones that require significant trial time, but there are people who simply don't want to acquire a criminal record. I reference things like the Criminal Records Act. For a young 18- to 19-year-old adult who acquires a criminal record, the consequences for that person's employment becomes significant. Even that longer-term consequence becomes something that makes early resolution of matters difficult, unless the matters are diverted. We have to think about diversion measures that will promote public safety but also effectively use trial and court time.
David Genis, Lawyer, The Law Firm of David Genis: I'm very much a trial lawyer. I do a lot of drinking and driving cases. I deal with 11(b) quite often. What my colleagues have said about the minimums resonates with me. Drinking and driving cases are the ones where Parliament has prescribed minimums.
An example of how that minimum would operate, if we have a student who came to Canada on a student visa from overseas, and if he is convicted of drinking and driving, he is deportable.
For example, if a Canadian is convicted of drinking and driving, he can enter the U.S.; it's not considered to be a crime of moral turpitude in the U.S. If an American is convicted of drinking and driving, whether in Canada or the U.S., he is inadmissible to Canada.
So it's not symmetrical. The consequences for drinking and driving are harsh as they are. It surprised me, therefore, to read in the Senate documents about the British Columbia initiatives and how they managed to take drinking and driving cases out of the court system.
The interesting positions on that are quite far part. On the one hand, we want drunk drivers to be punished very severely, and we certainly do punish. On the other hand, somehow we want these cases not to clog the court system.
Giving more discretion to the Crown would help a lot. They used to have more discretion than they have now. But that, I think, is a good example of how the task of that committee is not an enviable one. It's hard to deal with this delay issue. There are far more questions than answers.
Just to throw out a couple more examples of cases of mine that have been adjudicated — and I have more of which I cannot speak because they are still before the courts — one client of mine had a situation where his case has not reached trial three times. In the Ontario Court of Justice, cases are routinely overbooked in anticipation of guilty pleas and of sick witnesses, lawyers and clients. Whatever the case may be, way more cases are booked than there are judges to hear these cases. That is okayed by the courts and is considered to be normal and appropriate because of the statistics. But one client of mine had to come to court three times on a very straightforward case, paying a lawyer every time for his trial dates because his case just hadn't been reached on each occurrence.
Now, in light of Jordan, it's interesting to see that all three appearances happened within one and a half years. I was lucky enough to win this case on the merits, but in regard to 11(b), even though my client had to pay me three times to appear, it would have been an uphill battle asking for a stay based on the delay, because he was just under the one and a half years.
Another example that makes you scratch your head, I had a client who is a foreigner accused of drinking and driving in Canada. He comes to Canada on business from time to time. He had to come specifically for his trial a number of times all the way from Europe, and the trial didn't take place for different reasons. Once there was no interpreter, who had been ordered. There was an issue. It's a bureaucracy; things fall through the cracks. He had to come a number of times. It was just before Jordan that the matter had been adjudicated. Had it been post-Jordan, this client would have had significant difficulty asking the court to stay the charges.
There are far more questions than answers. I will welcome a good solution to any of this. But these are very complex issues, and I'm speaking from the trenches.
The Chair: Thank you.
I know there is a lot of interest around the table, and we will begin with our deputy chair, Senator Baker.
Senator Baker: Thank you to the witnesses. You are perhaps one of the most important groups of people to give testimony before this committee. What you've said to the committee is on the record, and we'll be considering it seriously; and anything you provide in writing to us, we'll consider seriously. You were chosen because in the past year you stand out as being lawyers in this jurisdiction who have been successful in trials, that is, successful in arguing the Canadian Charter of Rights and Freedoms, namely 11(b).
The four of you are experts in this field of the Constitution of Canada and 11(b). I'm sorry, but I think you are misinterpreting Jordan. You can still bring an application under the 18 months. You can still bring an application under the 30 months.
I notice you are nodding your heads. What you're saying in the back of your mind is, yes, but the Supreme Court of Canada said it will be a rare case where it will be successful, but you can still argue it. In the alternate courts, of course, people have to plead guilty before they can be considered.
Read all the reports you can read and you'll never come up with this suggestion made to us — and I think it's a legitimate suggestion — that a time limit should be placed on the Crown in giving disclosure prior to trial, that it be set down, that all disclosure to be used in the trial shall be produced prior to the trial starting. And that, yes, the Crown can make an application to the court to enter new evidence on the same grounds as new evidence can be entered in an appeal court, or if you want to re-open your voir dire on a constitutional challenge; that is, that it wasn't available at the time and that you used due diligence in trying to get the information. In other words, there will be a procedure set down.
What do you think of this requirement to be put in the rules of court of each of the jurisdictions to require the Crown to produce all disclosure prior to trial?
Ms. Murphy: My initial reaction, I suppose, is that that sounds like a great idea. What I foresee is that there will be a lot of litigation on the part of the Crown because witness schedules may not necessarily accord with Crown directives. They, I anticipate, would respond to that by continually bringing motions to extend the time for disclosure.
It's a great idea in principle. I'm not sure how effectively it will play out.
Senator Baker: Well, you have to produce all of your Charter arguments prior to trial, don't you? All your pretrial arguments are set down in time. How do you do that if you don't have all the disclosure? I know you have to do it, and the court, no matter what jurisdiction you look at, won't deal with your Charter arguments if the trial is ongoing. So why do you say that the Crown should not be required to produce all the disclosure when you are required to produce all of your arguments?
Ms. Murphy: I'm not saying that I think they shouldn't be required to produce all of the disclosure, but, anticipating how that may play out, I can foresee that there may be challenges presented by the Crown.
I'm not here to defend the Crown, obviously, but there's an important need for flexibility in our court system on both sides.
Senator Baker: It leads to long trials.
Ms. Murphy: It does. I think figuring out ways to balance that need for flexibility with the certainty of getting matters to trial and also effectively using court resources is a very challenging exercise.
Ms. Mainville: On this observation, I do think that's an interesting idea and a good one. Perhaps the only concern is that — and it goes to the criticism of Jordan — I agree that hard and fast time limits are not a bad thing in and of themselves, but the concern is that no distinction is made with respect to the complexity of any given case. So it may be that, in terms of the presumptive ceilings in Jordan but also to your point, a simple case with very little disclosure should have a much shorter time limit for the Crown to produce disclosure as opposed to a large project, in particular one where, perhaps, the police were forced to make arrests before they were ready to. There might be external incidents that force them to —
The Chair: We'll have to leave it there.
[Translation]
Senator Dagenais: My first question is for Mr. Hale. These days, for disclosure, we sometimes proceed by videoconference or electronically. In this case, I'm wondering about the relevance of preliminary inquiries. I would like your opinion on the subject.
[English]
Mr. Hale: I'm not sure that I fully understood the question.
[Translation]
Ms. Mainville: Can I answer?
Senator Dagenais: Certainly.
Ms. Mainville: In addition to the purpose of preliminary inquiries — and I won't repeat here discovery and testing the evidence — I'll focus on the benefits from a case management perspective. It's important not to set aside this process for the following reasons.
If I may, I'll continue English because I made a list.
Senator Dagenais: Okay.
[English]
Ms. Mainville: The benefits of preliminary inquiries, from the case management standpoint, are that, first, they allow the parties to focus their case for trial and narrow the issues before the proceedings in Superior Court. In particular, they allow Crowns to assess the strength of their case by seeing their witnesses testify, which might also favour resolution or abandonment of some of the charges. They allow the defence to test the evidence in a way that might lead to abandoning certain motions or to lay out for their client the reality of the strength of the case against them.
Loss of the preliminary hearing, in my view and in the view of participants at the CIAJ round table, would likely simply back-end issues into motions in Superior Court. In large prosecutions, preliminary enquiries may also be the right opportunity to cut loose some of the more minor accused, the more minor players, and narrow down the number of accused for trial, instead of preferring an indictment, for instance, and arriving at trial with a plethora of accused and an unmanageable trial and prosecution.
Preliminary inquiries, finally, allow the parties to obtain the perspective and guidance of the judge at an exit pretrial, which I mentioned, which very much favours resolution. So I would not dismiss them simply from a case management perspective.
[Translation]
Senator Dagenais: We visited other provinces last week. As we were told, 80 per cent of the work carried out at the courthouse involves many administrative duties before the trial. You're all defence lawyers. Don't you think, when preparing for a trial, to speed up the process and reduce delays, some tasks could be performed by public servants?
Ms. Mainville: Absolutely. If you're talking about appearances, for example, some tasks could be done by computer or online, at least for the accused people represented by lawyers. The pre-trial conferences could be held by teleconference.
[English]
Mr. Hale: I heard the translation was "preliminary investigation,'' and now I understand that it's "preliminary inquiry.''
The Supreme Court, back in 1984, in a case called Skogman, recognized the importance of preliminary inquiries for the long-standing reason that preliminary inquiries protect an accused from a frivolous prosecution and from a public trial that subjects the accused to a number of prejudices.
But the preliminary inquiry has also evolved into a discovery tool. In fact, while it's a discovery tool for the defence, it's also a discovery tool for the Crown. In many cases, especially, as my colleague Ms. Mainville told you about, exit JPTs, after a preliminary inquiry, many cases end up resolving. Once we all know what the strength of the Crown's case is and we have the input of the judge who heard the preliminary inquiry, I think the preliminary inquiry actually stops many cases from going to jury trial. I think it's an effective tool in preventing cases from taking up time in the Superior Court.
Senator Joyal: Welcome, all of you.
I was particularly attracted by your fourth recommendation, Ms. Mainville, assigning a case management judge at the outset. We have wrestled with that, that the judges who are responsible for the management of the case are rather loose in terms of giving authorization to postpone or accepting very easily that, in fact, a delay could be granted.
From your own personal experience, would you say that there is a need in the system to better train the judge in terms of the management of the case and set the timeline in a much stricter form than we have had? I feel that the judge is the boss of his court, and I have seen it myself. It's so easy to get a postponement. Oh, the lawyer is caught in another case that lasts longer and that sort of thing, all kinds of arguments that nobody really checks. It's just granted because it's requested.
The same with, as you know, the length of the proceedings. I have been involved myself in some cases, and the judge asks, "How many hours do you think?'' You always, of course, play safe, so you always ask for more than you think you could achieve.
It seems to me there is a need to strengthen the capacity of judges to better manage cases and have stricter guidelines for them to follow. I can accept the principle that the judge is King or Queen of his or her own court, but it seems to me there is somebody, somewhere, who really needs to strengthen the way the system operates.
I was triggered by reading that in your own account because, of course, your daily experience is with the court, contrary to us who are legislators. How do you assess the way the system works in terms of your own experience in relation to the delays?
Ms. Mainville: I would say, first of all, that a lot of powers already exist for judges to better case manage trials or proceedings. Some judges excel at it. I think the judiciary has the tools, but they're not always known or not all the judges feel comfortable enforcing those powers. So better case management training would be excellent for the judiciary. I think they already know they can improve that, and they should make it a focus of training for new judges.
I might simply add that one thing that has occurred to me is that Crowns would very much benefit from case management training because they have a lot of discretion. They make a lot of decisions that impact delays, such as elections and how many accused to put on an indictment, how many counts to include and overcharging and whatnot. I think some Crown offices are better than others. It often trickles down and there's a certain culture, depending on the office. So I think Crowns could also very much benefit from that training and from having it impressed upon them that there are many things they can do to improve delays in the system.
Ms. Murphy: If I could add one thing, it's fair enough to say that the judge is in charge of the judge's courtroom, but at a case management level, the judge doesn't always have the ability to force the Crown to exercise its discretion one way or another. That often contributes to matters being set for trial when a judicial opinion at an early stage might be that the reasonable prospects of conviction are limited or there are reasons to resolve things with a lower disposition than the Crown might be suggesting. The judge, although managing the matter prior to trial, doesn't have the ability to make a ruling of that sort. Some encouragement or direction one way or the other towards Crowns and judges at those stages of proceedings might be of benefit.
[Translation]
Senator Boisvenu: Ms. Mainville, your recommendation to limit the number of charges bothers me. In terms of crime data, the recommendation is quite perverse. I'm thinking in particular of the man in Sherbrooke who was charged with 90 sexual assaults on students. In Quebec, we routinely ensure that people plead guilty whenever possible to avoid overloading the courthouses. The man in question pleaded guilty to 20 sexual assaults. As a result, 70 sexual assaults were eliminated from the crime statistics.
To count statistics using Juristat, there must be a charge and a recognition of criminality for the accused to be found guilty. Limiting the number of charges also has the perverse effect of reducing the crime rate.
Think of the 21 members of Hells Angels in Quebec who were released from their trial involving about thirty homicides. The homicides, in this instance, are not included in the crime statistics. Think also of Robert Pickton, who murdered 49 women in British Columbia and who was convicted of six murders to avoid overloading the court. In that case, the 43 other women are considered missing and not murdered. Limiting the number of charges therefore has a perverse effect, since it influences crime statistics.
I'll go back to my question. You also recommend moving trials to other locations and providing flexibility in that area. Do you think the situation may put the victims and their families, who must follow the trial at their own expense, at an unfair disadvantage? We know that, in the accused's case, whether the trial is held in Montreal, Sherbrooke or Gatineau, the government will cover travel costs.
Ms. Mainville: Regarding your first point, I would say the perverse effect occurs when too many charges are laid and the trial becomes unmanageable. You mentioned at least one example. As a result, there's no conviction and no criminal responsibility.
In the end, the Hells Angels trial that followed Operation SharQc did not lead to any convictions. There was a stay of proceedings, because the trial was totally unmanageable. There was also the Norbourg case, the Vincent Lacroix case, and so on.
Give a jury a list of 50 charges and the situation becomes totally unmanageable. In such a case, even a judge would have difficulty. There would be potential for error and a risk that the trial would lead to an appeal. In my view, the most significant perverse effect is the fact that people will not be held responsible for their crimes at all because the proceedings are too complex.
Senator Boisvenu: Don't you think implying the crime rate is dropping has a perverse effect? The crime statistics have indicated a decrease in the crime rate for the past 20 years. However, in principle, there are fewer charges to avoid delays in the justice system.
Ms. Mainville: I disagree. I think there are different ways to collect crime statistics. There are also a number of ways to assess criminality. We talk about the dark figure of crime and everything that's not reported. Assessments are conducted to try to determine how many offences are committed and how many end up in court.
If you want to review how these statistics are collected, please do so. It would be helpful for everyone to have the most reliable statistics. However, I don't think the solution is to issue indictments containing as many charges as possible.
In terms of moving trials to other courthouses, in my document, I suggested moving them to a courthouse within the same region, not too far. I know this is done in some locations, where buses transport witnesses and the jury. Maybe measures could be taken for victims as well.
[English]
Senator Batters: Thanks very much. This has been a very helpful, panel.
First of all, I want to say to Ms. Mainville that you have some really helpful suggestions in your brief and what you have outlined today. I think assigning a case management judge at the outset is a really great idea and could be something that we work with.
Mr. Genis, you are speaking from the trenches, I agree with that. What would you suggest to us with regard to impaired driving cases, which I've consistently during this study pointed out is a glut in the system? They are serious charges, yet at the same time they are clogging up the system. Speaking to us from the trenches, what would you suggest would be the top two or three practical ways to reduce court delays?
Mr. Genis: I wish I had a good suggestion. As I said, there's an impasse. There is a very serious societal interest to stop this, and there's a very serious societal interest to not allow the courts to be clogged by this and to not allow criminals to go unpunished.
I would think that giving the Crown more discretion would help, because now it seems that in Ontario they have been pretty much stripped of discretion. Almost all the cases go out to trial, and because of the minimums, people are defending to the bitter end.
I wish I had a suggestion. I realize that drinking and driving cases often go to 11(b) hearings. There are a lot of them in the courts and the reason is really the minimums, much like now we have minimums on other offences. As my colleague just said, these cases now go to trial even though before they wouldn't have to. When somebody's back is pressed against the wall, people are going to defend. I wish I had suggestions for you. It's a very difficult topic.
Discretion to the Crowns would help. Other than that, I cannot see how that conflict can be resolved.
Senator Batters: Do you practise in Ottawa?
Mr. Genis: In the Greater Toronto Area.
Senator Batters: Thank you.
Mr. Hale: I'd like to make a suggestion, if I could.
Senator Batters: Please, yes, Mr. Hale.
Mr. Hale: I do practise in Ottawa and around here. A colleague, who passed away earlier this year, was well known locally. He was featured in the local newspapers, a lawyer named Gerry White, recovered from alcoholism, went on to law school and then his practice was devoted to alcoholics. His problem with the Drug Treatment Court — and we all agree Drug Treatment Court is essential and does a wonderful job — is it's restricted to people who are addicted to drugs, and people who are addicted to alcohol do not have access to the Drug Treatment Court or any equivalent. The Drug Treatment Court allows people who would otherwise be facing a mandatory minimum sentence to avoid that minimum sentence if they take part in this year-long program. It's quite a commitment, but if they get through it, and they have tremendous incentive to get through it, they come out better and society is better protected in the long term because this is a person who is no longer using drugs, and the individual avoids the minimum penalty.
Perhaps it could be considered that Drug Treatment Court could be expanded or there could be something similar that would be a substance addiction treatment court that could include alcoholics who may also be able to avoid a minimum penalty if they take part in a program that is therapeutic. Nobody is cured of alcoholism, but it could help them come to grips with their alcoholism and bring it under control.
Senator Batters: Thank you for that suggestion.
Senator Sinclair: Thank you for your presentation, counsel. I'm tempted to ask you a bunch of questions, but in the interests of time I'll keep it down to one. It will take either a very short response or a very long response.
Here's the question: A lot of people are blaming you for delay, defence counsel. What do you think of that?
Ms. Mainville: We take offence to it.
Mr. Hale: I think we would vote 4-0 against that proposition.
The problem is way more complex than defence counsel being to blame. We're here to clean up the problem after the fact. We see so many people being charged. We see zero tolerance policies that handcuff the Crowns so they have no discretion whether or not to prosecute certain types of cases. We see prosecutions becoming more and more complex. We see murder trials that used to take a few weeks now take months because we have cellphone tower data, DNA, search warrants, DNA warrants, et cetera, and challenges to all of that.
The vast majority of accused people plead guilty in the Provincial Court of their province or territory. That leaves less than 10 per cent, I would imagine, to go to trial.
I know this was expressed by one jurist in the past few years who laid a lot of the blame at the feet of defence counsel, but in my view it's way more complex than that. The delay has many reasons and it has spread amongst the police, who may lay too many charges, the Crowns who may over-prosecute and the complexity of cases.
Yes, of course, there will be a few defence lawyers who may play loose with the Charter, but that's a tiny minority. In the cases I'm aware of, it's all done in good faith. We're representing our clients' Charter rights to trial within a reasonable time and it's a genuinely felt application. It's not done as a game.
Mr. Genis: If you're talking about defence counsel being blamed for manufacturing delays to successfully argue 11(b) cases, I should say our judges are way smarter than that. You have to give credit to the judges. That's not going to fly. It's that simple.
The Chair: You may not get any disagreement on that one.
Senator Sinclair: Not from this end of the table anyway.
Senator White: Thanks to each of you for being here. Having been at the other end of that spectrum, when we talk about over-charging, I think there's always a concern about negotiating deals; you have to have enough to have enough. I think that's part of the issue that we face.
However, my question is about impaired driving. We still know it bogs down our system. If we follow Colorado with the legalization of marijuana, we will see more driving offences as a result of marijuana use, so I would suggest it's going to get worse, not better.
Do you have an opinion as to the administrative practice being used in British Columbia today instead of the criminal charge practice for impaired driving, whereby instead people follow through an administrative process and lose their licence for a period of time, which happens automatically in Ontario anyway, rather than going through the criminal process?
Mr. Hale: I see a lot of benefit to that. Here in Ontario, you lose your licence automatically for 90 days. That puts an incentive on people to plead guilty within those 90 days so that their Criminal Code prohibition runs simultaneously with those 90 days. "Decriminalizing'' may not be the right word, but when we're dealing with the lower end impaired, the under 100 or around 100 blood alcohol concentration, it makes some sense.
My clients fight impaired charges not just because of the conviction and insurance consequences and the inconvenience, especially in the rural areas where there's no public transportation, but also pardons were removed and we now have record suspensions that take five years instead of three years. The collateral consequences of a conviction last even longer, so all the more reason to fight charges.
Ms. Mainville: I would simply add that I agree. As I understand, it likely has a greater deterrent effect. There's sort of a certainty of a penalty and it's difficult to appeal or have it reviewed. I agree.
I don't practise in impaired cases, but I do see some benefit for those cases that are less serious impaired cases.
Ms. Murphy: The opportunity to impose sanctions without saddling an individual with a conviction is a step forward. Because of the consequences of the Criminal Records Act and because of things constantly now being maintained in police databases, the consequences of a conviction have become much more severe for individuals. It's much more difficult to move on.
Mr. Genis: I have already mentioned that it's a difficult proposition. First, we already have that in many ways. We have the 90-day suspension, so we sort of have that. We also have a penalty for blowing between 50 and 80, much like British Columbia does. We are not that far from them. But is the proposition to absolve those who are blowing over 80 of criminal responsibility? What's to propose?
Senator White: In fact it is. It's people who typically would be charged at 110 or 120 instead receiving an administrative breach and their licence is suspended for I believe six months. I don't think it's 90 days. Regardless, it's up to the province.
Mr. Genis: That would be interesting to look into. We used to have that, and we almost have that, I would say. These directions come from the Crown's office. It seems they are not quite official, but there are policies. Then, these numbers are being played with — 100, 110. We used to have situations where people would be receiving "careless" for 120 and even over that almost automatically, even if there is no impaired charge and no other significant consequences.
Some people asked for uniformity and said, "We need to come up a system that needs to be the same everywhere.'' We have more liberal jurisdictions and less liberal jurisdictions. It's interesting to look into.
Then again, you'll see MADD other victims advocate, saying that, according to the toxicologist, people are impaired at 50. That is why, between 50 and 80, Ontario has an administrative penalty.
These are not easy issues to tackle.
Senator Baker: There are so many questions I have for these experts, because they are experts in their field. I'll throw out a question.
With a typical impaired case, you have two charges, 253(1)(a) and (b). The one is a charge and a number, the other is impaired driving. They're Kienapple'd out in the end, usually, depending on the jurisdiction. If they're Kienapple'd out, you say, "Why were they charged in the first place? Why not have one?''
Do you ever give consideration to how much time is spent once the 0.08 may be thrown out for any reason or the 254 for not blowing into the machine — the initial roadside? When that's thrown out, the Crown usually proceeds to try to prove the indicia of impairment, which leads to further disclosure, further argument and so on.
Do you have any thought that perhaps the Crown should concentrate on just having one charge instead of charging twice and having it Kienapple'd out if they're successful?
Mr. Genis: It's really over 80 that produces disclosure, and it's complicated. Impaired is simple and straightforward, usually. Sometimes a smart Crown would recognize that issue and would drop the over 80. That's how they do it.
Senator Baker: Okay.
Mr. Genis: The charges are there for a pretty good reason. The law casts the net wide. You can have an inexperienced drinker who crashes his car and blows 70. That's straight impaired. Or you can have somebody who seems totally fine — a functional alcoholic — blows 180. He looked really well, but he probably would have killed somebody half an hour later. You have to have these two charges, it seems. It makes sense.
In terms of prosecuting it, it's really the over 80 that's the difficulty. Impaired is straight up.
Senator Joyal: My question is about what you propose about mandating pretrial and the other two recommendations in your paper, Ms. Mainville. Could I get some additional comment from you on how you argue that it would have a significant impact on reducing delays?
Ms. Mainville: I will say this: I've practised in Montreal. I'm currently practising in Toronto. With the judicial pretrial, the way it happens in Ontario was a big surprise to me when I arrived. In Quebec, there are facilitation conferences with a judge, but they are not as systematic as they are in Ontario. I believe the rule for there to be a mandatory pretrial conference is that you need to be setting dates for a two-day proceeding, two-day trial, whereas in Ontario, if it's going to be more than four hours, you have to first attend a judicial pretrial.
I've seen a lot of benefits to judicial pretrials in Ontario. Many cases are resolved or the issues are very much narrowed. It helps to have a judge's input, both from the Crown and the defence perspective. It does facilitate resolutions.
To have a more uniform standard across the country — I don't know the situation in other provinces outside of Quebec and Ontario, but I would think that making that pretty mandatory would be helpful.
The Ontario Court of Justice, I believe, has a best practices document in relation to judicial pretrials that sets out those best practices. It's important, though, that it be made clear that judges should be encouraged to play a very active role in those pretrials; otherwise, they're not really helpful.
Senator Joyal: That's why I linked that recommendation with the other one that you've made in terms of the responsibility of the judge to manage the case in a stricter approach than we have seen in the past.
Ms. Mainville: Exactly. If it becomes mandatory or encouraged across the country, then training should be given at the same time so that judges know what role they're expected to play in these settings.
The Chair: Witnesses, thank you all for being here this evening. Your testimony has been very helpful.
Members, we meet again tomorrow morning with one witness, the Metis National Council, and then we'll go in camera to deal with committee business.
Senator Joyal: Mr. Chair, there were two announcements recently while the committee was travelling across Canada. The Minister of Justice of Quebec announced a set of recommendations to shorten the delays. That was last week, as a matter of fact. I have brought some documents to circulate among members. They will be very helpful for our visit, because the Chief Justice of the Superior Court was in attendance when the minister made those announcements.
The Macdonald-Laurier Institute also published a report, so maybe we should share with all members the recommendation and analysis they made of the delays. That might be helpful to the committee.
With your authorization, I will give the documents to our clerk and make sure they are circulated.
The Chair: I would appreciate it.
(The committee adjourned.)