Proceedings of the Standing Senate Committee on
Legal and Constitutional Affairs
Issue No. 13 - Evidence - October 19, 2016
OTTAWA, Wednesday, October 19, 2016
The Standing Senate Committee on Legal and Constitutional Affairs met this day at 4:18 p.m. to continue its study on matters pertaining to delays in Canada's criminal justice system.
Senator Bob Runciman (Chair) in the chair.
[English]
The Chair: Good afternoon. Welcome, colleagues and invited guests. Members, earlier this year, the Senate authorized the committee to examine and report on matters pertaining to delays in Canada's criminal justice system and to review the roles of the Government of Canada and Parliament in addressing such delays. This is our twenty- third meeting on this study.
We're pleased to have with us today, from the Canadian Bar Association, Ian Carter, Treasurer, Criminal Justice Section; and Gaylene Schellenberg, Lawyer, Legislation and Law Reform. Thank you both for being here with us today. You both have opening statements. Is that correct? Ms. Schellenberg, the floor is yours.
Gaylene Schellenberg, Lawyer, Legislation and Law Reform, Canadian Bar Association: Thank you for the invitation to again appear before you on the important topic of delays in Canada's criminal justice system. The Canadian Bar Association is a national association of over 36,000 members, including lawyers, law students, notaries and academics. Our mandate includes seeking improvement in the law and the administration of justice. Our national Criminal Justice Section represents experienced Crown and defence lawyers from all parts of Canada, and with me today is Ian Carter, a defence lawyer from here in Ottawa. Ian will present some further opening statements and respond to your questions. Thank you.
Ian M. Carter, Treasurer, Criminal Justice Section, Canadian Bar Association: Thank you. I appreciate the opportunity to be here. When we appeared last time, it was on relatively short notice, and we attempted to canvas our membership and set out the concerns that were raised by our membership. Ultimately, we have had an opportunity to review the initial report, Delaying Justice is Denying Justice, which in our opinion is very well done and captures a lot of the concerns we raised plus other ones that had not necessarily been on our radar. It seems like an excellent starting point to deal with this relatively serious issue.
As you can imagine, representing lawyers, it is sometimes difficult to pull people away from their busy practices to get input. We have done our best to add to what we had set out before. A lot of what we got was really variations on the themes that we had raised before, and maybe a bit more detail with respect to those particular topics. But maybe, at least for the purposes of my opening statement, one thing that we did get more of, which we had not really stressed in the beginning and which may respond to some of the questions that we were asked, was input with respect to what is happening in the North, and in particular with respect to indigenous persons.
We have had a number of lawyers involved that work up in the territories and have been involved with the CBA, and this time around they gave us quite detailed responses about their concerns. As lawyers who practise in Ottawa, we're just not as familiar with some the issues that arise up there, so I thought it was very valuable to pass on some of the comments. Again, I'm just a conduit here, passing on what I've been told by those who are dealing with the day-to- day realities.
I think it's fair to say that among the responses — and perhaps it's an indication of just how big a concern it is there — we got very lengthy e-mails with strong language about concerns. I would say a fair amount of frustration came through. This is sort of in contrast to lawyers from Toronto or Manitoba that might give us a paragraph that says, "Well, here is something that might be of concern.'' This seemed to be on a different level.
We have tried to distill what we got — there was a lot — and some of it is about the justice system in general, and not necessarily delays. So, I have attempted to crystalize what those concerns are as they relate to potential delays. I guess the number one point I would make that comes out of it is that whatever problems we face in Southern Canada are exacerbated and much worse in the North, generally. There are a few positives I'll mention, but for the most part, concerns that we have are much worse up there for a variety of reasons.
Probably the biggest among them was the one theme that came through from all of the responses we received. That is the problem with what we would term administration-of-justice offences. These are offences breaching bail and probation conditions, and, apparently, probably one of the biggest administration-of-justice offences they have is when they are on conditions not to drink and they get caught with alcohol.
When we're talking about a criminal offence here, we're talking about something that is otherwise legal other than the fact that you're on a court-ordered condition. It's one thing if the administration-of-justice offences are another underlying criminal offence. Obviously you need to deal with that; that's of concern. When you have breaches, those pure administration-of-justice breaches are probably less common here than they are in the North.
That's a real issue because with each person who is arrested and processed, that's a huge amount of court resource and delay that goes into dealing with that issue. I think the expression used in the emails we received was that these offenses overwhelm the dockets in the North.
One thing mentioned in your report that was raised by the individuals we canvassed is that alternative courts would be of great assistance in diverting and streamlining these matters early, before they get too far along and eat up court resources.
In conjunction with that, again, because so many of them are alcohol-related — and some may also be drug-related — there simply aren't enough treatment programs to deal with the underlying concern. So you have the double problem of not addressing the root concern, in part because there are not enough treatment programs, and the indication we are receiving is that for many of the clients, their cognitive level is not such that they could get into the programs that are being offered.
So, you have two problems. You have the underlying problem, the root cause, which is exacerbated by turning those into criminal offences every time they are before the justice system, which, in turn, causes delays.
That is really the main issue that we heard about. Ancillary issues that can also cause delays are what are known as Gladue reports. Gladue reports are ordered for Aboriginal and indigenous individuals before the criminal justice system for the purposes of sentencing. It's to be reflected, and that's really part of the Criminal Code. The problem is that there just isn't enough funding and no network in place to be able to get these reports. There are no criteria or set minimum standards, so going out to try and get this information, which is needed for a judge for sentencing, can cause delays because there is just not the ability to get it.
In some areas, as well, lawyers are reporting a lack of access to clients. This can come back to some of the things that are mentioned in the report about using technology such as video. It's not widely available right now, and so for instance in Whitehorse there is a brand new facility that was erected there, and it has only two meeting rooms in the entire facility, and that's for everybody, lawyers included.
Of course, you can't proceed with your court case unless you can get instructions from your client, so the defence lawyer being able to get access to their client is critical to moving the cases along. Certain decisions cannot be made unilaterally by a lawyer, like what the plea or election is going to be. All of those matters need to be dealt with, so access to the client is also a concern up there.
Those are the areas that were raised, particularly with respect to the North, and so I thought that I would pass those along. We can take any questions at this point.
The Chair: Thank you. We very much appreciate your reappearance and additional testimony. We'll begin the questions with the deputy chair, Senator Baker.
Senator Baker: Thank you, chairman, and thank you to the witnesses for their presentation to the committee.
Part of the presentation given to us is also a submission from the chair of the CBA's Criminal Justice Section, a letter from Suzanne Costom, who is the chair. She points out, I imagine after consulting with all of your sections across Canada, the criminal justice lawyers, defence attorneys and so on, that the number one highlighted problem area is Stinchcombe disclosure. Just so we're clear, Stinchcombe disclosure is disclosure that is automatically granted, that you don't need to apply for. It is disclosure that has to be given by the Crown. Is that correct?
Mr. Carter: That is correct.
Senator Baker: That would include McNeil disclosure. Is that correct?
Mr. Carter: Yes.
Senator Baker: The CBA goes on to say that the goal should be to have near-complete disclosure ready at the first appearance — plea — and thereafter to have, available to police services, experienced counsel and support staff to vet disclosure.
By "vetting disclosure'' I imagine she means blacklining and taking out what they don't want to disclose.
But your conclusion here is that the object of the exercise is to have near-complete disclosure. We've heard suggestions before this committee, supported by the Public Prosecution Service of Canada, that there should be a requirement, a written requirement, that the Crown have complete disclosure prior to the commencement of a trial. What do you think of that suggestion?
Mr. Carter: Well, if complete disclosure is not provided prior to the start of a trial and new disclosure comes out, you're almost certainly going to have an adjournment of the trial, unless it's very minor, and that is going to cause significant delays because what has happened is that, depending on the length of your trial, a certain amount of time has been set aside. In Ottawa, for instance, if you had, say, a two-day trial and got late disclosure on the eve of the trial and couldn't proceed, you're looking probably, realistically, at another five or six months to get to trial. So huge delays can occur. So the idea would seem to me to be reasonable.
Senator Baker: Now, the third point, but one of the most important points, I believe, from listening to you, Mr. Carter. You're an experienced litigator. You're reported almost weekly in case law. It talks about something that you addressed to this committee some time ago, and that is technological advances instead of having these constant routine appearances by lawyers before our courts. Would that substantially reduce delay time in our courts if that were to be recommended in our report?
Mr. Carter: Yes. The bottom line is yes. It would be a radical change in how things are done in the courts, and with any change like that, there are going to be people who don't want the old system to change. Just by way of example, the Crown on a trial I had coming up indicated we had to fill in a form as we got closer to trial. We haven't subpoenaed a witness yet. So the judge says, "Okay, everybody has to appear in core court Friday.'' So you have to come, and Friday, at nine o'clock, you show up to deal with the issue. But about 100 other cases are getting that same letter. So I go in there. The courtroom is packed with lawyers. At the end of the day, all that was said on my matter was, "The Crown has now subpoenaed; we're ready to go.'' I waited for three and a half hours in that courtroom to be told that. I didn't even need to say anything. It's an enormous waste of time to drag people into court on a daily basis. An article was just written by a defence lawyer in Ottawa, an editorial by Michael Spratt, who may have appeared before this committee before, for the Ottawa Citizen. Sorry, no, it was in Canadian Lawyer magazine. He raises the same issue about sort of the antiquated nature of the system.
Now, in anything, you have to be careful. If there are individuals without lawyers that don't have access to computers; if you make everything computerized, there are people that have to be reached. But, in my view, there are ways to do it. You could make vast improvements to the efficiencies. There is no reason to have constant physical appearances, whether from the client or even from the lawyer, when it's a matter of ticking off a box to say the subpoena is served. Why can't that be done in an email to me? Someone sends out, "Crown, have you done this yet?'' Yes. Why are we in court addressing those issues?
Certainly, with respect to the civil system, none of that is done. Everything is done behind the scenes until you need to come to court. You have a case management judge to try to push the parties to a resolution or settle the issues for trial, and you go. Up until that point, civil lawyers aren't appearing in court routinely. If you go down to the Ottawa courthouse, what you'll see is everybody waiting. They will go into the courtroom. They will realize it's a two-hour wait. They will go out to the Tim Hortons in the cafeteria and sit and wait, check back in. It's a complete waste of time.
Senator Batters: Thank you to the two of you for being here. I also want to thank you for allowing us to present our interim report on court delays at the national CBA conference this summer in Ottawa. That was a great opportunity. I think it got a lot of attention because you allowed us to present it to some of the people who are most interested in this particular topic.
As we have gone through this, one issue that I've been particularly focused on has been that of impaired driving because that seems to me to be a real glut on the system as impaired driving charges, from the last data we have, take a median number of days to go to trial of 141. There are a huge number of them that proceed. In the last data we have, 2013-14, there were more than 38,000 of those cases. Those two figures multiplied together create quite a glut. Given the canvassing that you did of your clients coast to coast, I am sure that you have heard many different points of view on that. I am wondering if you could provide us with some information specifically related to impaired driving and what concerns and also possible solutions they provided you with on that topic.
Mr. Carter: This is an issue because our executive has not taken a formal position. As you're aware, we're a mix of Crown and defence lawyers that meet. We don't represent one side or the other. So, on some issues, I want to make sure that I'm presenting a united front with respect to what I'm hearing. That being said, I have relatively strong opinions about this that I am prepared to address, not wearing my CBA hat, if you wish.
Senator Batters: Sure.
Mr. Carter: Okay. First of all, the statistics bear out what I see in practice, which is that these cases go to trial almost more than any others do, or historically have, and tend to clog up the court system. So what the statistics are telling you, I see in practice.
There has been a change to that, though. In Ontario, maybe four or five years ago now, a change was introduced to what was available as a disposition at the end of these cases. If you pled guilty earlier, rather than having a 12-month driving prohibition followed by 12 months with the interlock device, which you blow into to drive your car, as a result of an initiative of all organizations of Mothers Against Drunk Drivers, they changed it to be eligible for only three months of no driving and nine months with the interlock. It may seem counterintuitive to say you're lessening the punishment, but what the studies had shown was that people that use the interlock device don't reoffend. So MADD pushed this, and what happened in terms of what I see with respect to the practice is that the reason to litigate the trials was reduced. It was not eliminated, but, for some people, being able to drive sooner was an advantage, and you could only take advantage of this if you pled guilty and did it within the first three months. Before, you got the same driving prohibition whether you pled guilty earlier or waited until after trial. There was no incentive to plead guilty. Now, there is. I would say that 60 per cent to 70 per cent more clients opt to go that route. There is far less clog.
If you want to go to the extreme end and see what has happened with that, you can turn to B.C. I used to practise out there. I don't practise anymore. When I go out for a CBA conference every year and see defence lawyers, many of the defence lawyers' practices have been absolutely gutted. If you're talking about whether that's good for the system, it probably is. This is why I'm speaking for myself, not the CBA here. Some defence lawyers aren't going to be happy with this.
At that point, you have an administrative driving prohibition, which is similar to what we get here, but you have it without having a criminal conviction, which is the one other stumbling block I get with clients still who don't want the criminal record. They see the lesser driving prohibition, and some say, "Yes, I'll take it.'' Some see that and say, "I don't want the criminal record.''
Once you remove both of those things, you've got a huge incentive not to fight it in court, and from all the accounts that I'm hearing, those cases do not go to trial anymore and at the Main Street courthouse in Vancouver, where a lot of them were litigated, there are tumbleweeds blowing through there because it is cleared out.
I'm being forthright, here. I haven't seen any studies to say whether it is effective or whether it has made any difference with respect to drinking and driving. Has it worsened or improved it? I can't speak to that. But I can say that from everything I have seen and heard, it is having an effect in terms of delays in the system. That's my personal opinion, and not the CBA's.
Senator Joyal: Thank you and welcome again.
I would like to thank you for your positive remarks on the report of the committee. As you know, once the committee completed the first part of its hearing, there was a Supreme Court decision that rejigged the card games by establishing parameters.
Could you give us your comments as a litigator? I'm not asking you to comment on the decision of the court in relation to delays, but from your own perspective and experience, as a litigator, what is your assessment of the framework that the Supreme Court has established, and what would the changes imply if we really want to meet the deadline that has been established at the two levels by the court?
Mr. Carter: Normally what happens any time you make a significant change in the law is that there is more litigation related to it, and there is no question about that. There are areas of ambiguity and uncertainty with respect to the decision and what it means, and those are being litigated. Those may cause some initial delays because of that.
At the same time, my experience here in Ottawa is that it has all of the players in the system very, very concerned and aware of delays in cases now, in a way that they may have grown complacent about before. Files are getting flagged by Crown prosecutors over concerns of delay, and the court is raising concerns and creating purge courts where they bring stuff forward to try to get it moving along. I would say the system is responding to the decision, and while it's impossible to predict long term whether they keep it up, it certainly points to the decision having the effect of forcing the players in the system to speed things up.
Senator Joyal: As the Canadian Bar Association, did you strike a committee to share best practices with lawyers to be sure that everyone is aware now that there is a different set of parameters and an honest effort is required from everyone to adjust to the calendar of any important case, in relation to what you called complacency prevailing in the system?
Mr. Carter: We discussed the issue at the executive. We don't have a committee for it, but in fairness I would say that everyone who practises in the Canadian justice system is acutely aware of the decision and its impact. It is being felt, so there is not a need to discuss it with members. Everyone is well aware of the situation and what's required.
Senator Joyal: I don't want to upstage what could come out of this committee, but in your notes you say that changes made to the drug-impaired driving law that would attract similar legal scrutiny should be approached cautiously. On what basis can you make that comment and print it in your brief, in relation to being impaired or under the influence of drugs, if that is a specific offence clearly recognized in the Criminal Code?
Mr. Carter: What we have attempted to do here is bring forward views of different members. I think the concern raised makes clear the point that all that we're saying is just to approach cautiously what you do, because when you make changes to new areas of law it can have unintended consequences and, for instance, create a lot more litigation. You want to proceed carefully so that you don't have constitutional challenges and various issues that come up and need to be litigated.
I would note that one of the early impaired driving cases involving drugs was argued at the Supreme Court of Canada just last week, in a decision called Bingley. The counsel is a close friend of mine, and that's a case that went from provincial court to superior court, back for another trial at the superior court and to the Court of Appeal. It has been through a lot and caused a lot of litigation. Again, the Supreme Court will give its final word on it, but the point is that the clearer you make legislation, the less chance there will be of ambiguities that require the Supreme Court of Canada to step in. That's why we say approach cautiously — not to avoid making changes, but approach cautiously.
Senator Joyal: Would you go so far as to suggest to us that we consider in our recommendation that, when it is requested of Parliament to consider adding to the Criminal Code, in either sentencing or creating a new offence, there should be an evaluation of the impact on the justice system? Then we would measure, having full knowledge of what the consequences would be for the functioning of the system if Parliament moved in such a direction. It would be a kind of template for the evaluation of the impact of a decision related to the Criminal Code.
Mr. Carter: I will be honest: I hadn't turned my mind to that suggestion, but it makes considerable good sense to me. It's always the unintended consequences of adding things to the Criminal Code that can spill over into other areas, like delay, for instance. Measuring that at the outset, or at least thinking about it, may not change your mind about whether you want to introduce new legislation, but considering would make sense.
Senator Joyal: Normally, the federal Attorney General, when they meet with their counterparts or representatives and they have representations regarding the creation or recognition of a new offence in or important changes to the Criminal Code, that should be measured for the impact it would have on the system, because the administration of justice, as you know, is a provincial responsibility, and they are on the front lines of the impact of the delays in the court system.
It seems to me if we are conscious that this is an issue that has been the object of a decision of the Supreme Court, the courts are very well aware that delay now is an important daily factor in terms of their decision in relation to the management of any case within the time frame that has been established. I think it would make sense to make sure that everyone that is part of the system understands that what they do is not time-impact-neutral on the functioning of the system. That seems to me to be an important factor to consider.
Senator McIntyre: Thank you both for your presentations.
Mr. Carter, in your presentation and your brief, you list on page 2 areas of concern and the impact court delays have in territories and on the indigenous people. You list 10 items, and one of them deals with mandatory minimum sentences.
In your opinion, do you think we should do away with mandatory minimum sentences in the case of people with mental health issues? In that case, instead of facing a longer jail term, they could be moved more quickly through the restorative justice programs.
Mr. Carter: Yes, the CBA's position throughout is that we're opposed to mandatory minimums, and there are various ways to deal with that. But certainly on the issue of individuals with mental health issues, it comes back to what I was saying earlier, that addressing the root causes of the issue is critical in terms of making sure that people aren't needlessly going through the system. It's one thing to have a mandatory minimum or a high jail sentence, for instance, for a calculated drug dealer, based entirely on greed, but if you have an individual with mental health issues who is struggling with poverty and other issues, it's a different set of circumstances, and having a one-size-fits-all penalty can be problematic. Certainly, in those cases, I think it would make sense not to have mandatory minimums.
Senator Sinclair: I heard my question being answered already, so thank you.
[Translation]
Senator Dagenais: Welcome to the committee, Mr. Carter. In terms of impaired driving cases, I must tell you that, as a police officer and a breathalyzer technician, I have testified in a good number of cases.
Rightly or wrongly, the defence can call on expert witnesses to contest breathalyzer tests. I can tell you that, today, the 0.08 limit is not going to result in a charge, but rather 0.14. Then the Crown can provide evidence above and beyond the breathalyzer test and present a second opinion.
Do you agree that the use of expert witnesses further extends procedural delays? We know that expert witnesses testify in murder trials, but my question is specifically for impaired driving cases.
[English]
Mr. Carter: The first answer is that any time you have experts involved, you're going to have delays. It complicates cases.
As to the increased use in impaired driving cases, I would say that the opposite has occurred in recent years.
What used to happen is when the defence of being able to run evidence to the contrary, sometimes known as the Carter defence or the two-drink offence, that necessitated calling a forensic expert for the defence in every case and allowed you to do that.
Now, for all intents and purposes, that defence is virtually non-existent. It only exists in very rare cases, and it is prohibitively expensive for the defence to hire an expert to testify about the issues now because it has to do with the functioning of the machine, et cetera. So there has been a drastic reduction. We used to have a forensic expert here in Ottawa who was making a living testifying to these cases. As a result of these changes to legislation, he's out of business.
In the cases where the samples are taken past two hours and the Crown loses its presumption, they need to call an expert. They have to get somebody from the Centre of Forensic Sciences in Toronto. But the way our courts have pushed this is they've pushed defence lawyers to accept that that person can give evidence by telephone so that it keeps expenses down.
I would say there has been a drastic reduction in the use of experts in impaired cases. Other cases are a different story, murder or anything else, and those complicate matters. But certainly with the drinking and driving legislation there has been a significant reduction.
The Chair: In your submission related to the impact on territories and indigenous people, you speak to waiting for disclosure of evidence sent to labs in Southern Canada. We heard some of that concern expressed during our trip out West as well, and the time lost waiting for results from labs. I gather there are only two RCMP labs in Canada; I'm not sure. We are having witnesses to speak to this in the future.
If you look not just at the territories and the indigenous people element of this, but on a broader scale, is this a significant problem from the CBA's perspective?
Mr. Carter: Yes, delayed disclosure is normally what causes all of the delays in your intake period at the beginning. Again, we have cobbled together responses that we've got, and this was raised by individuals in the territories. If I'm going to be honest with you, what they view as a problem up there is a much worse problem down here. They're complaining about not getting disclosure until two days before their first appearance. If we get half of our disclosure on the first appearance, we're lucky. I would say their problem is not as significant as we have it down here.
In terms of experts and testing that needs to be done, the biggest problem is with respect to forensic analysis of computers. As you can well imagine, the use of phones and computers plays a much more significant role in the criminal justice system now, and there can be massive delays because of the limited resources. For instance, the OPP has a centre in Orillia, and all the work is done out of there, and they are so backlogged. It's a sad thing to say but there has been an explosion of cases of child pornography on the Internet. We never used to see these cases, and now there are hundreds of them, and speaking to the officers involved, it's like a needle in a haystack. They're just picking a few cases that they can handle. The problem is much worse.
What happens is that there is such backlog in having experts prepare a forensic analysis of the computer now to pin down who was on this computer. How can we say they were looking at these pictures and when? Only a handful of them can do it. The prosecutors in Ottawa won't even order the report until they know the case is going to trial, and that puts the defence in a difficult position: How do we know you can prove your case? So then you have to set a trial date. In a recent case I did, I set the trial date eight months ago, and I got their forensic report a week ago. It took them eight months to do it, I gather, because there is a massive backlog. That's an area where the offences are on the rise, and the delay in disclosure on those issues is acute.
If we come back to some of the recommendations about vetting early, the other area where you get large disclosure tends to be on large drug or gang cases. They require a lot of vetting, and they've gotten much better at it. But those are the cases where you show up and you a have a bare minimum on the first appearance, and there is so much material generated, it's just not ready to go. Those are two of the bigger areas.
If all disclosure was ready, then you could put the pressure on defence counsel: You've got it all; make a decision. But what happens is the defence comes and says, "I'm missing A, B, C and D,'' so it goes to another court appearance two weeks from now: "Do you have it all now?'' "I have A now but not B, C and D.'' It goes over another three weeks, and it might be two months of coming into court to check every three weeks to see if it's ready, and you can't make any decisions until you have it.
The Chair: Last time you were here you described the Ottawa bail court as chaotic and encouraged us to visit, and maybe we will yet. But from the CBA's comments with respect to Ontario, we're standing out like a sore thumb here. I wasn't aware there was much of a distinction in the way bail courts operate in Ontario versus other jurisdictions in the country. Has the CBA not urged the Ontario government to look at this? They're very much aware of the problem, so I'm wondering what kind of reaction you're getting from the Attorney General's ministry with respect to distinctions between how bail operates in other provinces versus Ontario.
Ms. Schellenberg: I don't think we highlighted Ontario.
Mr. Carter: We have meetings once or twice a year with the Department of Justice over key hot-button topics. They had a committee on this at the meeting in the spring. The disparity in the bail system across the country was an area of concern to them. They had flagged that as an issue. We spoke on it and raised our concerns.
I have had the benefit of practising in both British Columbia and Ontario. I have also appeared in many other jurisdictions, Saskatchewan and New Brunswick. While some things are done better in Ontario, there is no comparison in the bail system in B.C. It takes far longer here. In B.C., everything is done on submissions of counsel. You don't call any witnesses. It seems to work just fine. I have never seen any statistics that show that more people are released or getting out earlier.
In Ottawa, and Toronto as well, an officer gives evidence at the hearing. It's normally just someone who is a court liaison. They are not even an investigating officer unless it's a bigger file. They read in the allegations. The defence is required to call sureties to testify, and they are cross-examined by the Crown. Sometimes a bail hearing can take three quarters of a day for a relatively straight forward matter.
When I was in B.C., the bail court there was running through 30 or 40 matters a day in one court. So the difference is astronomical. Our system in Ontario is terrible, quite frankly, in terms of causing delays on that issue. It's far more cumbersome. There have been numerous recommendations. A bail committee was struck in Ottawa that the CBA is not involved in. It has been doing work on that issue as well as others.
Senator White: Thank you very much. I apologize for being late.
You talked about British Columbia in comparison to Ontario. Do you think the fact that British Columbia has charge approval is helpful or harmful to the delay in the system?
Mr. Carter: I can't say. The Globe and Mail had an editorial recently about why Ontario should move to that. To be honest, I don't have any statistics. The CBA has not taken a position, so it's difficult to say how much change that would have.
Senator White: I know in British Columbia for commercial crime offences, they have fewer of the 147 charges laid from December 2012 until January 2016. They have more of one charge laid between dates of one crime in excess of. Do you think that would have an impact when it comes to trial delays? Rather than managing multiple offences, you're managing one?
Mr. Carter: Anytime you can narrow the issue at the outset, it is beneficial. I can tell you from personal experience, the commercial crime prosecutions in British Columbia were highly organized at the police level in conjunction with the Crown's office. As a defence lawyer, when they make the decision to lay charges, they have their stuff together. It has been well investigated. It has been screened. It has been narrowed already so that they are not throwing out issues. It makes a huge difference.
Senator Baker: On the other side of the scale, Ontario per capita has less violent crime than any other jurisdiction in this country. It has the second-lowest incident per capita of property crime.
You made reference to a case before the Supreme Court of Canada recently. Is that the one where the question is whether or not the person making the decision on drug-impaired driving is actually an expert?
Mr. Carter: Yes, that's the one.
Senator Baker: That was a law this committee passed here in 2008. Questions were raised by certain members in this committee, one who is presently present sitting at my right. This decision will be coming down shortly from the Supreme Court of Canada.
Senator Dagenais a moment ago asked you about expert testimony. That's the expert testimony he was referring to, drug-impaired driving cases where there is a lot of confusion.
Senator Dagenais is an expert in impaired. He is qualified as a court expert as far as the authorization of alcohol impairment is concerned, correct?
Senator Dagenais: Yes.
Senator Baker: The certificate is all that is needed. He doesn't have to go before court. The code that says his signed certificate means there is the evidence. We don't have that in the drug-impaired driving provision.
Some complicated drug trials take a lot of disclosure, and several warrants are issued. Would you agree that common sense would dictate that the 186 warrant, which is always present, the wiretap warrants in complicated drug cases, the big 800-page warrants, a thousand pages, contains all your previous warrants? I have read them. They contain all your previous warrants to back up your 186 warrant. If you use common sense, that warrant should be disclosed immediately to the court, to the Crown and to defence counsel with the appropriate vetting. Don't you agree that we can make accommodations for these complex trials that make sense? McNeil disclosure could be done on every police officer long in advance of any trial ever commencing. Do you agree with that?
Mr. Carter: Yes. On those cases they tend to be as a general warrant now, so you'll have the wiretapping in conjunction with a series of other elements they are looking for.
Senator Baker: 187(1.2).
Mr. Carter: In the information to obtain, if you have that final one ready, it does tend to be a summary. It piggybacks on all the other ones. You will have for defence counsel what the case is in a nutshell. Defence counsel must do their due diligence and go back. If you have the final one ready, it will move the process along.
Senator Batters: After canvassing your lawyers of all backgrounds from coast to coast, I'm wondering if you heard some common proposed solutions to this issue that maybe we have heard about, maybe we haven't. I wanted to give you more of an opportunity to discuss that.
Mr. Carter: Just generally?
Senator Batters: Yes.
Mr. Carter: There will always be disagreement about the minutiae, particularly because there are variations between provinces and different jurisdictions and how they do things. There is nothing really outside of what has been highlighted. There are some things that I have not included because it's a member's opinion and I made the executive decision that it's not worthwhile to discuss.
We tried to look for patterns — disclosure practices, modernizing routine appearances, legal aid, and dealing with underlying issues, particularly alcohol. We are hearing from people things like diversion programs, alcohol and drug treatment courts, many of which are already addressed in the report.
So the highlights you have hit in the report are an accurate reflection of what people are saying, which is a pretty good sign.
Senator Sinclair: I was curious about some of the comments you made around the question of northern courts and indigenous accused and the delays relating to their cases because I presided over a study that was done in Manitoba when I was a judge, and I've also have read most of the reports that were done around indigenous people in the justice system.
So my question really was, to begin with, did you reference any of those in your preparatory work for coming here, the work that was done, the studies that have been done into the issue of delay in northern communities and indigenous people in particular?
Mr. Carter: Again, what we did is canvass our members, in particular members who practise up there, because I don't profess to be an expert on that. For instance, one of the lawyers who works up there was referencing the Auditor General's report on the Yukon, which there is extensive reference to; in particular, that report raised the issue of people being arrested and being denied bail for alcohol-related breaches. So that specifically came out of the Auditor General's report on the Yukon.
There are also a number of references to the Truth and Reconciliation Commission finding. Those were the two reports that were referenced in the responses we got back from those practising.
Senator Sinclair: Other than the Truth and Reconciliation Commission, the studies that have been done that look at the administration of justice, particularly in northern parts of Canada, identify a number of systemic issues that contribute to delay, not least of which is the infrequency of court sittings in the circuit courts, the problems relating to circuit court, the issues around translation, the lack of court-approved translators and the difficulties in finding appropriate translators, the issues around disclosure, of course, that you have already identified, but also that a single remand in a northern circuit court is essentially one month long, whereas a remand in an urban area like Toronto could be just a matter of a day or perhaps a week. I know that when we conducted the Aboriginal Justice Inquiry of Manitoba, we discovered that indigenous accused experienced longer time delays before they got to trial but fewer remand delays. They actually went to trial after a longer period of time, but they only experienced three or four or five remands before they went to trial. Whereas, in the South, three or four or five remands might be a month, whereas in the North it's six months. Did any of your colleagues comment upon those systemic issues?
Mr. Carter: This is just one lawyer's opinion, and, again, we threw it out there to get a response. We got some. Maybe the best thing to do is just read the response I got on this issue. It surprised me a little bit. It's one person's opinion, but she writes — and she practises in the Northwest Territories — "I do not actually find geography creates delay. Crown, defence and the judiciary are all attuned to the importance of ensuring that as much work as possible gets done on a circuit. We are fortunate to have a fantastic group of Crowns at the moment who are not afraid to, early on, get rid of charges that will clearly never get to trial and offer plea bargains that are actually enticing. We also have a keen group of defense lawyers who care about their clients, so clients can develop some rapport and trust their advice. This is not to say that flying in and out for a day is a good way to bring the justice system to small communities who may not be culturally familiar with the notion of justice as a public good, but that is a different problem entirely.''
So that's the response that we received, the only one on that issue, that the circuit courts and the geography weren't necessarily causing delay. It doesn't address some of the other issues that you have raised, though, about length of time to get to trial, even though there are fewer remands. Again, I simply don't have answers on that. We did our best to canvas with the lawyers, but I don't practise up there.
Senator Sinclair: One of the issues you flagged in your material that was filed with the committee ahead of time had to do with the issue of time to obtain legal aid certificates, and you didn't talk about that in your presentation very much. I wanted to know, in Ontario, in your experience, how long does it take before an accused who qualifies for legal aid is able to get approval from legal aid in order to get legal representation before the lawyer can even start to ask for disclosure?
Mr. Carter: I have only a limited legal aid practice, myself. I tend to do bigger cases like murders, so that's a different situation with legal aid and takes some time, et cetera. I gather from talking to lawyers that the concern is with the day to day, particularly people that are remanded in and not getting released on bail, and being able to get legal aid quickly enough to have them dealt with in a period of time. So, for instance, if you have a Crown position that, "The person has been out over the weekend. This isn't a serious offence, but they have a big record. We'll give them time served,'' the defence lawyer is in the awkward position of saying, "Well, that's obviously best for the client, but there is no way I can get my legal aid certificate in time.'' Some lawyers are simply pleading them out. So that's one issue.
I think the bigger issue is with what I would call the working poor who will not qualify for legal aid but really don't have the funds to pay for a private lawyer, particularly if there is any complexity. That's the bigger issue, rather than those who are obviously going to qualify for legal aid. There is a system in place. Sometimes it's a little too slow. But your bigger problem is individuals that will not get legal aid that can't afford a lawyer. The cutoffs for getting legal aid are extremely low. They haven't changed much over the years. The Ontario government changed them recently and upped them. I can't remember what the current figure is now, if you're single. Yes, if you're making more than $17,000 a year, you can't get a lawyer; $17,000 a year doesn't get you very far if you have to buy a house, housing, groceries. So there is no way these individuals are going to. So then you have the problem of self-represented accused, and they really slow down the justice system because a judge has to bend over backwards to make sure they are getting a fair trial. They don't know how to run the system; they can't do things like make admissions. To be fair, they can't be expected to. They're not lawyers.
Senator McIntyre: My question has to do with the advancement of alternatives to the criminal justice system model, including alternative courts and therapeutic courts, such as drug treatment courts, mental health courts and domestic violence courts. What experience, if any, do you have with those courts? In your opinion, do they reduce recidivism? What impact, if any, do they have on court delays?
Mr. Carter: It's a hard one to answer, I think because the results have been mixed. What can happen with drug treatment court is that it creates long delays because you need that time to assist these people. If they graduate from the program and it's successful, it's well worth the time invested. If they fail and it's a plea and a prosecution at that point, you have lost a year or so.
It's a difficult question to answer in terms of delays. It's the CBA's position that they bring value to the system outside of the issues of delay. They do good. They give people a chance where they otherwise might not have it. Certainly, they are not going to get that chance in jail.
Senator McIntyre: Surely there has to be a way to move those people into those courts more quickly. I don't know if we need a psychiatric evaluation first, then determine whether they are exempt from criminal responsibility — in other words, if they are criminally responsible or not criminally responsible because of unfitness, or, if fit, not criminally responsible on account of mental disorder. But we have to find a way to move them into that system and into the system of a restorative justice program.
Mr. Carter: What we have in Ottawa is different from the drug treatment court. We have a mental health court. You can go there if you want to get a formal assessment. The doctor I think comes twice a week and is there in court and has an office outside one of the courtrooms and can assess individuals down in the cells, et cetera. You can use it to raise issues of NCR, not criminally responsible. But also, the vast majority of cases don't fall into that. It's not so severe that it would be a defence, but they have mental health problems. That's really where the value of the mental health court comes in. It's hard to say whether it has more value than a drug court. It's hard to compare them. Certainly, a lot of people fall into that category that are well serviced by that court, because there are support workers there. You have various players, organizations that can offer services to them, which is what they really need, that can be prepared to monitor them if they have the resources. I can't speak to the rest of the country, but we already have that mental health court in Ottawa. No system is perfect, but it's a step in the right direction for sure.
Senator Joyal: I have not studied personally the condition of the administration of justice in the North, but certainly reading from the testimony that you present to us today on page 2 and having read Senator Sinclair's report, as he was then the chair of the Truth and Reconciliation Commission, I feel helpless. I have the impression the problem is there. We have the consciousness and lucidity of knowing it, but it is —
[Translation]
It's a hydra, a many headed monster, so to speak.
[English]
It's an animal with a hundred heads. I don't know what starts first. It seems unsolvable. I feel uncomfortable with that because our group is tasked with the responsibility to come forward with recommendations. I have the feeling today, when I read that and I listen to Senator Sinclair, that we will work in good conscience, but we won't really solve anything. I feel, as I say, helpless as a parliamentarian. I have a responsibility. I want to fulfil it. How can we address that?
I know it is not you. You pass on the information that has been given to you by somebody who lives in the field and knows very well the day-to-day administration of justice. There is no doubt in my opinion at first sight I would like to listen to that person from the floor.
I tell you I have uneasiness in relation to this committee approaching this issue while in fact we will just do good conscience by mentioning it but not really come forward with any initiative that will be taken as the beginning of a permanent solution. I want to register those comments and reactions because we are all now much more conscious of the need to take initiative, that the Government of Canada must take initiative, but in relation to this, the administration of justice is the responsibility of the territorial governments and the provincial governments in the North, as Senator Sinclair said, with Manitoba, Alberta and Saskatchewan. Saskatchewan is probably even worse considering the number of Aboriginal people who are in jail. There are correlative factors in relation to this situation. I don't know what else to say in relation to that.
How should we approach this? Should the government establish a permanent working group to address all those simultaneous issues that make up the situation? I really don't know. I don't know if we have an agenda in our future days or weeks to identify some witnesses or initiatives we can take to make sure that our report will be significant and will trigger some actions. I don't know. I have nothing to offer to you today, except my helplessness in relation to this.
Mr. Carter: I'm obviously not in a position to address all of the larger issues. I can say this, having been involved with the CBA now for a number of years: We have our meetings and we have our representatives from the North that come down every year. We meet over a number of days, and we have our provincial and territorial representatives that come down. We go around the table and raise the issues.
To be honest, when the rest of us say, "Oh, we've got this problem in Ottawa,'' or "We've got this problem in Regina,'' or whatever it is, it just seems to be so small and minor in comparison to when we hear representatives that come from the territories, from the Yukon, what they are dealing with. Again, reading these emails we got, these are individuals I have known for a long time through the CBA, who work tirelessly up there under very, very difficult situations. The problems that we hear about up there are so much bigger than the issues that we face.
I read a small portion that was positive about the circuits, but that's the last paragraph in a three-page email complaining about everything else, from delays to discrimination to everything else. All I can say is that from what we hear from the CBA members up there, the problem is significant, and I think it needs to be addressed. It just needs to be addressed.
The Chair: We did have witnesses who were scheduled to appear. Because of the big storm, I think it was in Saskatchewan, they had to cancel. We have rescheduled or are attempting to reschedule. Some Aboriginal groups are lined up for next Thursday. We are hoping as well to get one of the Aboriginal workers from the Gladue court in Toronto to appear as well.
Senator Joyal: Thank you.
The Chair: Hopefully, we'll get some more input on those issues.
[Translation]
Senator Dagenais: Mr. Carter, I would like to go back to two little things you mentioned in your presentation.
You said that we need experienced criminal lawyers to be judges and legal aid lawyers. Do you think that having experienced criminal lawyers will improve court delays?
[English]
Mr. Carter: Yes, particularly that issue is more acute with respect to bigger and more complicated cases because experienced lawyers, but experienced lawyers who are good, who have not just been around for a long time but who also understand the issues, what they bring to the table is an ability to narrow the issues, so some judgment is brought to the table — in other words not a series of endless motions that are never going to win in a case, dragging it out from what should be two weeks to three months. Good experienced lawyers bring that to the table.
The reality is that the tariff for legal aid is so low, and the discrepancy between that and what a private lawyer can charge. Here in Ottawa, it's one thing. You go to Toronto, I'm shocked to hear what they charge, but there is a big discrepancy.
You're never going to close that gap, and I don't think you need to. I just did a two-month double murder trial, and they suck up all of your time and resources. When you do these cases, you have to be committed to doing them, and I think the good lawyers in the bar are prepared to do them. But if they're for such a paltry amount that it makes it totally uneconomical — I think good lawyers are prepared to do them for less as a service to the bar and to the administration of justice. It shouldn't be at rates that they charge privately, but it has to be at a model in which you're not essentially losing money over it because of your overhead costs, et cetera.
As long as it's in line with that, I think good lawyers will step forward to do those big cases. They shouldn't be expecting to make the same money they make privately, but it has to be at a level so that they're prepared to do that and are not losing money.
[Translation]
Senator Dagenais: In your brief, you made some interesting recommendations. You mentioned that, in British Colombia, their work methods are perhaps a little more meticulous in evaluating evidence before charges are laid. I assume that would cut down on the delays?
[English]
Mr. Carter: Yes, and those remarks I made were in particular reference to commercial crime, where I noticed it more.
I haven't seen the study itself, but I believe it was in The Globe and Mail just last week or two weeks ago where the statistics were compared. What you have in Ontario is a large number of charges being laid, but not many convictions because you've overcharged. What you had in B.C. was far fewer charges being laid but a much higher conviction rate, because the charges that are laid have much more merit to them.
Any time you carve things down you will save time and resources if you do it at the front end. At the back end, when you have so many charges, that can cause problems with respect to defence counsel being able to resolve the matter for the client, and agreeing to A and B, but not C, D and E. Then you have to do horse trading, and it if doesn't work you get to trial and it's resolved at the last minute, and you've lost court time. But if it's all done at the beginning, and you've narrowed it to what the case is really about, you're going to save time and resources.
Senator White: Thank you for being here. I want to talk about the number of cases you're seeing that involve either mental health, drug addiction or a concurrent disorder of both, and whether or not the resources are available. Twenty per cent of calls for service for police in Canada right now are mental health calls, and in my experience, certainly, the drug addiction among people involved in the justice system is rampant.
You're seeing the same numbers I saw, right? Our intervention model has six-month wait times to get into drug treatment, but if you look at countries that have been successful, like Norway, Sweden and Portugal, they intervened earlier. Initial offences and charges often result in drug treatment for 90 days, rather than bail.
Has the CBA done work on making recommendations to the federal government about a full review, from a health perspective, on the impact we're seeing on our justice system when it comes to addictions and mental health?
Mr. Carter: I paused for a second because the issue has been raised for sure. I think we dealt with it more on a piecemeal basis, when a particular issue has arisen like fetal alcohol syndrome and its effect, but we have not done an all-encompassing position that deals with all of it. I would agree with you that those cases make up a vast majority of what's processed through the courts every day. It's number one.
Senator White: If you look at our national drug strategy, we probably haven't done an update in 12 years that focuses on the impact it's having. We talk about the impact of addictions, but seldom the impact addictions have on our justice system. Do you think CBA could take that role on and be an advocate for a greater national strategy to reduce the harm?
Mr. Carter: It's an excellent suggestion, and we'll take that back to the executive, for sure.
Senator White: Thank you very much.
The Chair: I echo that, and I am sure all the members of the committee do. Thank you very much for being here and assisting the committee with its study.
(The committee continued in camera.)