Proceedings of the Standing Senate Committee on
Legal and Constitutional Affairs
Issue No. 16 - Evidence - November 17, 2016
OTTAWA, Thursday, November 17, 2016
The Standing Senate Committee on Legal and Constitutional Affairs met this day, at 11:33 a.m., to study matters pertaining to delays in Canada's criminal justice system.
Senator Bob Runciman (Chair) in the chair.
[English]
The Chair: Good morning and welcome colleagues and invited guest. 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 thirty-first meeting on this study.
We're pleased to have joining us from London via video conference, the Right Honourable Sir Brian Leveson, President of the Queen's Bench Division, Judiciary of England and Wales. He is joining us today to talk about his report, Review of Efficiency in Criminal Proceedings, and his experience conducting that review.
As a sitting justice in the United Kingdom, Sir Brian asks that we respect his role as we have for other judges who have come before us and limit our questions to his report and his experiences and not as ask for any comment on the Canadian system. He is here to help us learn from the United Kingdom experience, and we thank him very much for being with us today.
Sir Brian, welcome, sir; the floor is yours.
The Right Honourable Sir Brian Leveson, President of the Queen's Bench Division, Judiciary of England and Wales, as an individual: I feel flattered to have been asked by the Standing Senate Committee on Legal and Constitutional Affairs to give evidence for your study on the issue of delays in criminal proceedings and I am delighted to do so.
At the beginning, as you have just said, I must make it clear that I'm not able to comment on the Canadian system, although I readily recognize that there are very real similarities between the challenges which you face, especially in relation to case management and technology, and those that in 2014 prompted the Lord Chancellor and the Lord Chief Justice to ask me to conduct a review into the efficiency of criminal proceedings.
I was very clear throughout the review that as a serving judge I could not enter the political fray. What I was able to do, however, was to use my experience of practice in the criminal courts of England and Wales of what is, I fear to admit, nearly 46 years to understand how the system has been failing, to harness the goodwill of many other players operating in the silos that form part of the criminal justice system and to look carefully at ways that we could achieve efficiency in that system.
You can find the terms of reference in my review, and I won't repeat them. Essentially I was asked to review from first to last current practices and procedures, including the Criminal Procedure Rules from charge to conviction or acquittal in order to see how they could be reduced or streamlined or improved both generally but specifically with the use of technology.
One the important limiting factors of my review was that I was not able to investigate or recommend legislative change but rather to look for ways we could create a more efficient system working within the current legislative framework. That's not to say I did not think outside those parameters and I will come back to that later.
My starting point was to underline that for the last 50 years at least, we've taken a system originally designed in the late nineteenth century and successively bolted on new protections, procedures and developments. The result has been that this hotchpotch of new and old is simply not an effective long-term solution to the problems we face in the digital age that is the twenty-first century.
Critical to the way in which I went about the task was to recognize that this review had to be inclusive. In truth, there is no single criminal justice system but a series of systems, each player — the police, the prosecution, the defence, the court — interested in its own outcomes. Undertaking the review, therefore, it was vital that everyone was involved.
My review had upon it and included police officers, the Crown Prosecution Service, the bar, the law society, the courts service, including justice clerks, the legal aid authority, the National Offender Management Service, which is responsible for prisons and probation, the Ministry of Justice, academics and of course every rank of judge from magistrates to district judges up to Lord Justices of Appeal.
The diversity of views was integral to the testing of ideas and the formulation of recommendations designed to help and improve efficiency and the throughput of work in the system, and critically, which could and would command support.
I insisted that those involved were representatives who were encouraged to take the ideas we discussed back to their constituencies so as to seek their views and then return with refinements, improvements or new ideas.
My review recognized that unless the system works for everyone, it's likely to work for none. Everyone had to recognize the problems that others faced and be prepared to do their part to resolve them. Without that, the efficiency sought would not be realized. I hope and believe that this is what we achieved, with the result that all parts of the system accepted the recommendations that I made and I'll be happy to give examples if you wish.
Although my remit was to recommend changes that did not require legislation, I did not ignore that possibility altogether, as I stated before. Chapter 10 of my report identifies possible legislative approaches and solutions that have been suggested over the very many reviews of criminal justice that have taken place over the years but not been adopted or taken forward. The purpose was to allow the government and politicians generally to think again about the more ambitious solutions suggested in the past.
In January, it will be two years since I issued my report. So what has happened? The recommendations in the report were accepted by the Lord Chancellor, and there was no dissent from what we call in this country the "stakeholders,'' a word I abhor. Work started apace. An implementation board was set up at the Ministry of Justice comprising all the key criminal justice agencies that were needed to deliver reform; this board drove forward those changes that required joint action while the Criminal Procedure Rule Committee, on which I sit, set about changing the rules to achieve the procedural results.
Fifty-six recommendations were made relating to matters as varied as the better use of IT, the allocation of cases between the magistrates' courts and the Crown Court, and better case management and listing for trial.
The majority are already implemented and include changes to court procedures by placing a duty of direct engagement between the prosecution and defence, ensuring effective and consistent management of cases by judges and extending the ways in which directions can be given by the court, creating a default position that evidence is served digitally rather than in paper form with routine management hearings conducted over a live link or by video conference facility, telephone or email correspondence with the court. This has the advantage that the parties need only assemble in court for the trial.
The implementation of a Crown Court performance tool that presents data in a way that permits better assessment of performance, improved accountability and identification of best practice.
On the subject of rules to improve the efficiency of jury trials, these revisions deal with issues such as provision of a written route to verdict, provision of a split summing up delivered in two parts, the first prior to closing speeches and the second after, and streamlining the summing up to help the jury focus on the issues.
I have twice mentioned the Better Case Management Program. Led by the judiciary, it is aimed at improving the way criminal cases are processed through the system by robust case management, a reduced number of hearings and maximum participation engagement from all parties. The program was rolled out nationally on January 5 this year. There are promising signs that this is making a significant contribution to the more efficient running of the courts. There will be a formal analysis next year once enough reliable data is available.
This has been a very quick run-through of what I was asked to do and where we are, but I believe the rest of the session is your opportunity to ask about the review, and I will be very pleased to help in any way that I can.
The Chair: We will now move to questions with the deputy chair leading off.
Senator Baker: Thank you, Sir Brian, for your very informative review and to congratulate you on the great contribution you have made over the years.
In Canada, we have, in my estimation, approximately the same system as you have, as far as human rights are concerned and trial within a reasonable period of time. Those are the words that are in your Charter and in our Charter.
I'd like you to address what the role of the prosecutor is under your review and what the role of the prosecutor should be. Should it be to seek a conviction, or should the prosecutor be a minister of justice? But my main question is this, and it is very important: In Canada, stays are entered after a numerical count of the number of months a trial took minus defence delay. If it goes beyond 30 months, minus defence delay, a stay is automatic.
Now, some members of our committee discussing our procedures here believe we should have a system whereby a stay is not entered and in its place the remedy would be, for example, a reduction in sentence or damages that could be awarded for the accused, whether convicted or not if their rights have been violated, to pay for their lawyer's fees and this type of thing, instead of having the stay.
What do you think about that? That would be, in Canada, a major change to the system we have. In our courts we have stays for persons who are not just charged but convicted. What do you think about that, throwing out the stay and entering a system of reduction in penalty plus a system of damages being awarded in criminal proceedings that we don't have today in Canada?
Mr. Leveson: I will enter the debate with you while underlining I am not an expert on Canadian jurisprudence, but I will deal with it from my perspective.
First of all, prosecutors act as ministers of justice. It is no task of a prosecutor to seek a conviction at all or any inappropriate cost.
I spent my career as a barrister, and I prosecuted a lot of crime and defended a lot of crime, and the great explanation I have given many people over the years is that prosecuting is intellectual. You're trying to put the case before the jury, and you have this other system of trial by the bench, without seeking at all cost to obtain a conviction. Of course, defending, it's emotional. You're trying to obtain an acquittal. That's fair enough. That we understand.
There is also a right of fair trial under article 6 of the convention on human rights, but we do not have an automatic stay. There is a jurisdiction in this country of abuse of process which permits the court to stay a case on the grounds of excessive delay but only if it deprives the defendant of the right of a fair trial. Now, that's very different from what you've identified.
Now let me bring in some of the stuff that I was dealing with on the review. The problem is that we have hedged our system with so many protections that delay has become endemic.
When I started at the bar, if I prosecuted or defended a rape, there was a statement from the victim, a doctor, a policeman, maybe another witness, the defendant and maybe one of his witnesses. Now we go to their mobile phones for messages, or Facebook, where everybody has talked immediately afterwards, and there is an enormous amount of material additional to that which has to be investigated, and that all takes a very long time.
The purpose of the review was to reduce delays. One of the principles was to get it right first time. The prosecutor and the police are the gateways into our system, as they are into yours. They decide who to charge, and they've got to get on with it. The duty of engagement, which I talk about in the review, is to make sure the prosecutor and defence look at each other and talk to each other.
My problem, if I might be so bold, and forgive me, if you have an automatic stay, you'll stop arguing about who did what to whom, but who is responsible for the delay? That doesn't seem to me, with great respect, to be a tremendously sensible use of time.
So of course one wants the cases to go on as quickly as they can. One wants to get them on, but it can't be a game. What would happen in this country if we had an automatic bar is that all sorts of challenges would be made that say I was legitimately entitled to ask for this disclosure and you haven't done it, and therefore the delay from the moment that I asked is yours, not mine. We would get submerged by problems like that.
There is much I admire in the Canadian system, but I'm not sure I admire that.
Senator Baker: Sir Brian, you haven't answered my question, though, I'm sorry. I knew you would get to it eventually but I was cut off by the chair because of the time. My question to you — and I'll put it again — was: What do you think of the suggestion by members of this committee that a stay not be automatic after the 30 months, but that there be another remedy, which would be a reduction in sentence or damages being awarded?
Mr. Leveson: I quite agree. The very fact that I said I don't agree with the system should mean there has to be another remedy, and the remedy for me wouldn't be damages because then that creates another argument.
Indeed, it's possible under the convention. If you breach convention rights, the European Court of Human Rights has said that doesn't mean to say you don't get prosecuted, but it can be reflected in the sentence.
I'm sorry I didn't answer your question. I got wound up by the subject matter.
Senator Baker: You've answered it. Thank you.
Senator McIntyre: Thank you, Sir Brian, for your excellent presentation. I know your report was published in January of last year. It contained 56 recommendations and many observations, and then two months later the Government of the United Kingdom responded positively to your report by accepting all of your recommendations in principle. That's quite an accomplishment. Congratulations.
I have two questions, both related to your report. In it, you suggested that the police, the Crown prosecution and defence practitioners should be held accountable for repeated default in complying with various legal and court rules. You've also stated that records should be kept of such defaults and compliance court hearings should be held where a pattern of failure is identified.
My question is this: Could you explain how such an accountability system would work, and what would constitute, in your opinion, a default worthy of being kept on record?
Mr. Leveson: First of all, the great problem in criminal justice is that there isn't a sanction for people not doing what they're supposed to do. In civil cases, if a plaintiff or claimant defaults, you can strike the claim out. If the defendant defaults, you can strike out the defence. But in crime, you can't strike out the defence of a defendant charged with a crime, and you can't — or you shouldn't, or should be very wary — say the prosecution can't proceed.
Trying to find a sanction is still eluding us. We've tried costs, but you enter into a default costs jurisdiction at pain of losing all interest in life, because every single point is taken, and, again, there is satellite litigation which uses up the time of the court unnecessarily.
What a number of judges do is if people fail to comply with the orders of the court, it's all on the record in the sense that the order is on the record and the failure to comply is on the record. Some judges, on a Friday afternoon at four o'clock, require the barrister or the solicitor who is in default to come to court at no fee to explain why they haven't done what they should have done, and effectively to embarrass them publicly for not doing what they're supposed to do.
In some courts that works, but it requires a certain type of judge and it requires a willingness to really get to grips with the problem. But the problem of a sanction for failing to comply with disclosure or with anything else is very difficult. Frequently it's the prosecution, because the CPS is very restricted on funding, and therefore they don't get it together, which is why I focused on getting it right first time and engaging rather than having to correct errors that have been made in the past. But the problem of sanctions is a real one, and if you solve it, I would be very grateful to learn how you do so.
Senator McIntyre: In your report, you have also suggested that there should be an amended fee structure in order to reward significant engagement by a defence lawyer with the prosecution.
My question is this: How would such a structure operate? Is there a risk that lawyers may seek to move too quickly through criminal proceedings and thereby prejudice their clients?
Mr. Leveson: There are, in our system of legal aid, perverse incentives, and it is to remove the perverse incentives that I've been very keen to encourage a way forward. Indeed, I know that the Ministry of Justice has been working very hard with the legal aid agency and the professions to try to reward efficient work and ensure that inefficiency is not perversely rewarded.
It won't, I believe, force or encourage lawyers to act against the interests of their clients in relation to when they dispose of cases, but I'm just keen to remove the perverse incentives. I want people to do the work early and so achieve resolution where resolution can be achieved — of course, that's not always possible — in the most efficient way. What is the worst of all worlds is everything is prepared for trial and then the defendant pleads guilty.
Some defendants will want you to get all the way to trial before they plead guilty, but if it's because there's been some failure earlier in the system and they've only corrected it at the last moment, that is a failure which we needed to address.
Senator Joyal: Thank you, Sir Brian, for your contribution to our reflection. My first question will be about the management case capacity of judges.
What is your approach with relation to providing the judges with the capacity to intervene in the management of cases so that there is no undue delay or slowdown of the machinery in proceeding with the accusation and trial and so on? How do you approach that question?
Mr. Leveson: Well, what happens is this: If a defendant is charged with a crime — these days if he's going to the Crown court, that's judge and jury for trial — it will be sent within a day or so to the Crown court and the defendant will be arraigned. Thereafter, there will be a preliminary hearing to ensure that the defendant has got everything and to set the timetable for trial.
One of the things that the report has recommended is to adopt what has been developed in the IT field, which is the common platform. The common platform is an IT device that ensures that the police can upload the prosecution papers direct to online. Then they are accessible by the defendant and, more importantly, also by the court. One thing we're encouraging is for the judge to take ownership of the case, not on a docket system but the cases come for review, and he can make orders online which he sends to the parties, and they can make applications online. It doesn't mean everybody has to go to court to argue about something. The whole thing can be done digitally.
Equally, defendants can appear in court digitally. I am talking to you in Canada, but it's very hard sometimes to talk to the local prison because of video problems.
We're trying very hard. One of the recommendations is to ensure there is much greater use of the technology to ensure that we don't have to bring everybody together. If we bring everybody together it costs a lot of money. If we can do it digitally, then the lawyer with ownership of the case can be the one who sends the email. The fact that he's in the middle of trial doing something else doesn't matter. He can send his email at ten o'clock or nine o'clock in the morning and the judge can respond when he has time. There's a greater hands-on approach to the administration and management of cases. That's the idea, and that's working quite well.
Senator Joyal: That was my second question. Your report contained a recommendation on the use of digital means that is affordable today with new technology. How much of a positive answer do you have from what we call here "a culture of delay''? How much has the media been responding to the approach of using digital means to avoid having all the parties in the court at the same time, which is difficult for all kinds of reasons, taking into account all of the agents that are involved in the holding of a trial? How much of a favourable answer do you have with the bar, with the police, with the Crown prosecutor and with the defence?
Mr. Leveson: Everybody's learning; there is the truth. You've got to remember that lawyers in this country were more used to using a quill pen, and a typewriter was a real innovation. So this is difficult. What is particularly difficult is to work on the papers digitally, rather than having them printed in front of you. I've made no bones about it. I find it very difficult to read papers and prepare on screen as opposed to in printed form, but my understanding is that the bar and the law society, the solicitors and the bar, are embracing the system because it saves so much time and money.
I've got an interesting statistic. You may know in London that there's a building called The Shard.
Senator Joyal: I do, yes.
Mr. Leveson: I am told that, every month, we are saving an amount of paper that, if put one on top of another, is 2.7 times the height of The Shard. That's how much paper we are saving every single month.
The great thing about it is that, for lawyers, time is money. If we allow them to work in this way, they can be much more efficient in their work. As a result, this is — and I will touch wood — going well. Of course, we've got to wait and see, make sure that all of the wrinkles are ironed out, but we are very pleased with the common platform system.
Senator Batters: I really appreciate you being here, Sir Brian. As to the comment that you made that, for lawyers, time is money, absolutely. I practised law, so I certainly know that. Also, of course, for the clients of lawyers, time is money, and, for taxpayers, time is money. So, for all of these players in what we're dealing with here, it's so important. I wanted to let you know that, unfortunately, our system in Canada is really reaching a crisis point because yesterday, on our Canadian national news, there was a report of the alarming news that yet another murder charge had just been stayed because of a court delay. So it's really alarming. We had another one about a month ago as well.
Mr. Leveson: I promised myself I would not comment on the Canadian system, but I find that really remarkable. Please don't tell the English lawyers about that. Otherwise, I will have many applications.
Senator Batters: Yes, absolutely. Thank you so much for your report. Technology, as you've implied here, is a challenge, but it's also an opportunity in this sort of situation. I'm wondering if you could tell us in more detail perhaps about the types of technological advances that you are using in your system now to create some real opportunities to save court time.
Mr. Leveson: Well, there are a number. One that I've mentioned is the common platform system and the ability for lawyers to communicate. Let me go back. In a civil case, the two lawyers will communicate with one another. In this country, in the criminal cases, the lawyers are in court. They're not available; there isn't anybody who's got ownership of the file. One of the requirements was that somebody had to have ownership. There has to be a name on the case, who has ownership of it, and then they are encouraged to communicate by email to resolve issues themselves, to ensure that, where they can't, they communicate with the court. The court will then engage.
I've got a noise coming. I'll have somebody come out. Can you still hear me?
Senator Batters: Yes, absolutely. Very well.
Mr. Leveson: Fine. Somebody will come and take the note on my screen off. Sorry.
Senator Batters: It's fine; go ahead. You're coming through very well.
Mr. Leveson: That's fine. I had an enormous bar across my screen, with a noise being made at me.
So that is one system, the common platform system that we're developing, and we hope to take out a lot of the paper, as I was saying. The Chief Justice of New Zealand recently visited one of our Crown courts, Cardiff Crown Court, and in a room that would have previously been full of files, there were six files. That was it in paper. The rest was all digital.
We're doing much, much more than that. Now our witnesses, particularly our vulnerable witnesses, can give evidence from a distance, over a video link. I know this is using an ISDN line to communicate with you, but, if I can speak to my brother-in-law in Brisbane on Skype, I don't see why I can't talk to the local prison on some equivalent system.
That has lots of impact. Defendants don't like to come to court frequently because they lose their place in the cell. They have to book out, and then they may not get their cell back. So they prefer not to come to court. So we're doing much, much more over video link for defendants. The victim can give evidence remotely. The defendant can give evidence remotely. More significantly, police officers can give evidence remotely. How many courts have you been in where there are police officers hanging around, doing nothing, waiting to give evidence, who have then found that their evidence is agreed anyway and that then they have to go? One of the ways we're trying to improve efficiency across the system is to allow many, many more people to be available on some sort of digital system, such as Skype or FaceTime or one of these business devices, in order to ensure that their time is used most effectively.
I'll give you another example of the same thing. I don't know if the same is so in Canada, but, if lawyers want to see their clients in prison, they have to turn up to the prison. They have to go through security. Then, by 11 o'clock, it's lunchtime for the prisoners. I never understand why it's so early. Then they have to leave, so they may have had an hour with the prisoner. If you can communicate with them over a link, then, actually, you can spend hours and hours with them from the comfort of your own office. Of course, you have to make sure that the defendant can't dial his local drug dealer on Skype, but that's all doable. The National Offender Management Service is very keen on doing this, not least because we spend a fortune moving people about in prison cells, in vehicles and to and from court when it's not necessary if they can just do it on Skype, not for trials but for everything short of a trial.
There are some cases in which defendants are sentenced over a link, even as far as that. There are issues about whether that's appropriate, and there are some cases where it's not because there's a public element to it as well. Although our courts are equipped with very large screens so that everybody can see whoever is there.
I'll give you one more example, the Court of Appeal criminal division. Lots of defendants never attended, but now they can attend on video link. So there are some examples.
Senator Batters: Excellent. Thank you so much.
[Translation]
Senator Dagenais: Thank you, sir. You talked about simplifying things. Do you not think that the prosecution should clean up the evidence it intends to use in a trial and focus on simpler facts to present to the jury, thereby limiting objections by defence counsel?
[English]
Mr. Leveson: Absolutely. I entirely agree. The Crown must ensure that they are only presenting relevant evidence that is pertinent to the case.
The trouble is this: Very frequently, the prosecutor feels that evidence might be very relevant to one side — for example, similar fact evidence. We now permit evidence of bad character, so if it reveals a propensity to commit the crime, then the prosecutor will want to adduce that evidence. Then there will be an argument about it.
The prosecutor also has to cope with what I call the "CSI effect,'' which is that everybody has seen the television program "CSI'' where every crime is solved by some forensic genius. In truth, though, we haven't got the money to use forensic science in every case; therefore, juries are frequently asked by defence lawyers "where is the scientific evidence?'' You have to say, "Wait a moment. This isn't "CSI,'' where they spend more money on one program than the whole of the forensic science service spends.'' But that means they do try to ensure that whatever evidence they've got is available, because they have the burden of proof beyond a reasonable doubt, as I'm sure is the same in Canada. So I agree with you.
[Translation]
Senator Dagenais: I know that you are not going to comment on Canada's justice system, but in recent years we have had what we call megatrials, particularly in Quebec. They involved criminal gangs with dozens of criminals being tried at the same time. I have to say that this was an unfortunate failure for our court system. Have you ever experienced this kind of situation, where dozens of accused persons were tried in megatrials? If so, how do you assess this system and the effectiveness of megatrials?
[English]
Mr. Leveson: I have very strong views on this subject. First of all, there's a limit to the number you can try in any one case, and "dozens'' is far too many — 8, 9, 10, 11 — even if you split them among one trial.
What bothers me about the number of trials is where the trial takes longer than the eventual sentence. That is particularly so for frauds, which are very complex. Now, I understood that in Canada it was possible to be tried by the bench; in other words, without a jury and by the judge alone. Many people elected to be tried by judge alone.
In our country, such is the faith in the jury system and the inherent belief in the jury system that we can't do so. It's one of the suggestions that I've thrown back in chapter 10, because there have been a number of reviews about whether some cases shouldn't be tried by judge alone.
But I do think there is a very real problem about exceptionally complex cases being tried at the speed of the slowest juror. Have we cracked that? No, we have not. We're using visual displays, and we're using pictographic presentations.
One of my problems is that, as we develop as a society, with more and more time spent online looking at smartphones and electronic devices, we are less able to concentrate on the written material, and that makes these complex fraud trials extremely difficult.
I haven't solved that problem, and if your deliberations resolve it, I will read them with very real interest, as we certainly have the same problem. But there must be a limit to the number of people you try in one trial.
There was a murder in Victoria Station for which 20-odd young people were prosecuted. I think there are four trials of the same facts in order to make sure they were manageable for the jury to understand.
[Translation]
Senator Boisvenu: It is an honour to welcome you here today, sir. During our hearings across Canada, people focused on two main issues: the lack of resources and the culture of delay. In your work in England and Wales, did you come up against these two issues? How did you address them in your report?
[English]
Mr. Leveson: Delay has been endemic, not only because of inefficiencies in the system — there have been many — but also because of the pressure on the courts.
The nature of the crime that we are trying in this country is changing. When I was a young barrister, we started out with thefts, burglaries, street fights, robberies, rapes, murders and some sex. Now, I'm sure you're aware of our investigation of historic sexual abuse. The real problems we've got are historic sex, counter-terrorism, cybercrime and child exploitation.
These are very difficult to investigate, complex to prosecute and take a long time. So that is adding to the delay in our trial process. I can't do anything about the complexity of the cases that come into the system, but I have focused on what the police are doing and what the CPS is doing.
If you look at chapter 9 of my review, I call for more resources for the prosecutors. The trouble is that we've gone through a terrible period of austerity, as I'm sure you're aware, and everybody's money is being cut. The trouble with that is that, as I said before, the police and the prosecutors are the gateway into the criminal justice system. They decide what to bring into the system, and then we have to cope with it. But if they are starved of resources — they haven't got the answer right the first time, and they are constantly reviewing, changing and modifying.
Also, the number of police is reduced, and they have so many different things to do. They are less familiar with what needs to be proved to establish a case. So there is a training need for the police and for the prosecutors before you get to the court.
I've said that money has to be put into the system at the front end in order to save money throughout the system. That is a submission that I made that the Treasury accepted. They did give more money to the prosecutors to get their act together and to get things in better order at the time of the beginning of an investigation rather than picking it up six months later.
But our delays are not only endemic in the court system but are due to the pressure generally of work and the type of work. It is also due to the number of defendants who now don't admit their guilt. When there were robberies and burglaries, people pled guilty. Historic sex abuse generally goes to trial; there are people who plead guilty, but a lot of it goes to trial. They are also hard-fought trials that take a long time.
It is multi-factorial, but you're quite right: Resources and delay are both problems in the system.
Senator Sinclair: I've been listening with interest to your presentation. For your information, I was a judge in Canada for 28 years before I was appointed to the Senate. Recently, the Supreme Court of Canada has set hard timelines for our trials to occur. I often wondered and debated with my colleagues when I was on the bench: Why do we not set trial dates on the first or second appearance and require the parties to agree to those dates so that we can ensure that the parties are working to a deadline?
Do you have any thoughts on that which you'd like to share?
Mr. Leveson: We do frequently set dates. We almost invariably set a date. I mentioned the PTPH here. There tends to be one management hearing. Then there should be a date set for trial. And then everything is organized around the date set for trial, so that the timetable comes from the date set for trial. We don't let people just meander through the system. Ten years ago certainly we may have done so. When I was starting at the bar, we certainly did. The case took as long as it took.
But now we not only impose time limits to do things — this is why we were talking before about what happens when things aren't done on time — but we can also set time limits for the trial. You are not going to have as much time as you like. Time is an expensive commodity for everybody, and therefore this is how long this case should take and now we've got to fit around it.
The idea of fixing a deadline, after which you've got a get-out-of-jail-free card, quite literally — if I borrow the Monopoly analogy — it doesn't surprise me that people will, as it were, try to throw the penny as near as they can to the wall, to say, "Well, it's not our fault that there's been delay on behalf of the Crown. We've not been at fault. Yes, please let us out now.'' I would be very concerned if anybody suggested that here.
Senator Pate: Thank you very much, Sir Brian. I have a couple of questions around your mandate and whether you considered a few things.
In Canada, one of the issues we have is that the clogging up of the system is in part because we've been increasingly using our criminal justice system and our courts to deal with eviscerated social safety nets and inadequate health and mental health systems in particular. So we start to see people who are predominantly indigent, vast over-representation of our First Nations and other Aboriginal peoples, as well as other racialized groups.
I wonder if you considered in that context, if you have a similar issue — when you talked about the police and prosecutorial branches being part of the gateway into the system — whether you looked at guidelines that would urge that there be — we have something in our youth justice legislation here, but arguably not in our Criminal Code, that says that you have to first look at other systems and determine whether this is the appropriate venue to be processing someone.
Second, one of the ways efficiencies have been encouraged in this country, we actually see many of those individuals more likely to plead guilty and often not represented in court, which may make it more efficient but doesn't necessarily make it more just or fair.
Mr. Leveson: I recognize that. This was not about who should come into the system. My review wasn't about who comes into the system. But I have strong views upon all that you have just spoken about.
If you'll forgive me for being personal, my father was a consultant psychiatrist. When we shut the long-term mental hospitals in this country in the 1970s, he said, "Well, that's fine; we can do that, but you will silt up your prisons very quickly,'' and that is exactly what has happened. A very large number of our prisoners are suffering from mental health problems. An even larger number are illiterate and innumerate, and they come into prison with a vast rainbow of social problems that started at or before birth. There ought to be better ways of dealing with them.
There is a real look at the question of diversion, which is what you're talking about, away from the criminal justice system. Indeed, in a report I think published only today, David Lammy has been asked by the Prime Minister to look at over-representation of Blacks and other minority ethnics in the justice system. One of the things he considered — he concluded provisionally, as this is only an interim view — is that they are over-represented. I think a large part of that is because kids, young adults and adults, where they have socially cohesive backgrounds, may very well be cautioned or warned or diverted away from criminal justice, whereas somebody who doesn't have those advantages thinks, "We had better put them in the system,'' and then they develop a criminal record, which then makes sentencing almost a self fulfilling prophecy because they come back and back.
The trouble is that rehabilitating and trying to divert people successfully is itself a very big ask, and also very expensive. My own view is that we should be doing a lot more for a lot longer. The problem you identify is endemic, absolutely endemic. We don't have First Nation problems, but everything else we do.
The Chair: Sir Brian, I think in response to Senator Joyal, you talked about preliminary hearings. Are you familiar with preliminary inquiries in the Canadian system?
Mr. Leveson: No, I'm afraid I'm not.
The Chair: I wanted to pose the question, because we've had a number of witnesses before the committee suggest that in many instances, if not all, we should be looking at eliminating preliminary inquiries in terms of the impact they have on the timing of trials. If you're not familiar with the process, maybe you could tell us what a preliminary hearing in Great Britain involves.
Mr. Leveson: It involves the judge getting to grips with the case, trying to find out what the real issues are. There's been an issue about that — I've not talked about this part — because of the right to silence. My attitude — and it's identified in the review — is that the right to silence is fine, but criminal justice isn't a game. The defence could no longer just say, "I'm not saying anything. You see if you can prove it.'' We need to know what the issues are, what the jury has to focus on. The only way we get the parties to come to grips with what the case is about, what really requires to be tried, what witnesses really need to come, and who can give evidence over video link and who has to be there, is by way of a preliminary hearing.
The Chair: So this encompasses full Crown disclosure?
Mr. Leveson: Absolutely.
The Chair: You also mentioned robust case management. We've had testimony from more than one chief judge during the study that chief judges don't view themselves as the boss. They're colleagues of other judges, and they don't feel comfortable insisting they take measures to more aggressively manage cases, for example. You talk about robust case management. I'm wondering if the judiciary in Great Britain has the same view with respect to perhaps coming down a little harder on some of their colleagues if they're not managing cases as well as they perhaps could.
Mr. Leveson: I had the advantage of attending a conference of chief justices in Canada six or seven years ago, which I thoroughly enjoyed. I have enormous respect for your chief judges.
I would commend to you to consider our Criminal Procedure Rules. I don't know whether you've seen those. The Criminal Procedure Rule Committee is a committee chaired by the chief justice but normally by a lady justice of appeal. I sit on it; other judges sit on it; lawyers sit on it; the ministry sits on it. Again, it's the same sort of collection of people as the review undertook, and we write the rules. The Criminal Procedure Rules are part of the lords' secondary legislation, and that mandates how proceedings should be conducted. So I have no problem at all in saying, "This is what the rules say you must do; do it,'' because every judge has taken an oath to try cases according to the laws and usages of the realm. The Criminal Procedure Rules are part of our law.
Now, some people don't like it, but that's the law. If you have Criminal Procedure Rules like that, I commend to you, they're all online. I could send you which particular ones to look at because it's quite a thick volume.
Some judges would be aggressively against what we say. Some academics think that we're stretching the right to silence, but my view is that the state, as a state, is entitled to say that we have this much money. We must use it efficiently and effectively to try people fairly, which means get to the issues and get on with it.
The Chair: Sir Brian, we've run out of time. We want to thank you. You've been very generous with your time and very helpful with the committee's study. It is much appreciated, sir.
Senator Joyal: Very much, so. Thank you, sir.
Mr. Leveson: You're very welcome. If there is anything else to come from this discussion that I can help with, feel free to contact my office. I wish you well in your deliberations.
Senator Joyal: I have a point of order. Sorry to inform the members of the committee that I just read this morning that in Quebec they have a special report following the mega-trial. This report has been handed to the Director of Public Prosecutions at her request. I think it would be helpful for the committee to have a copy of the report and maybe review it, because as you heard from Mr. Leveson, the issue of mega-trials is a very important issue. We have been seized with it when we were in Montreal, and I think it would be very helpful to review which recommendations stem from that report. I'm sorry I don't have a copy of it. I just read it in the morning paper.
The Chair: That is a good suggestion. Meeting adjourned.
(The committee adjourned.)