The Standing Senate Committee On Legal and Constitutional Affairs

OTTAWA, Thursday, February 18, 2016

The Standing Senate Committee on Legal and Constitutional Affairs met this day at 10:30 a.m. to study matters pertaining to delays in Canada’s criminal justice system.

Senator Bob Runciman (Chair) in the chair.

The Chair: Good morning. Welcome colleagues, invited guests and members of the general public who are following today’s proceedings of the Standing Senate Committee on Legal and Constitutional Affairs.

Members, last month 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 fourth meeting on this study. Joining us today for the first hour from the Canadian Bar Association are Ian M. Carter, Treasurer, Criminal Justice Section; Tony Paisana, Executive Member, Criminal Justice Section, joining us by video conference from Vancouver; and Gaylene Schellenberg, Lawyer, Legislation and Law Reform.

We thank you all for being with us and we look forward to your preparations. I understand —

Senator Joyal: On a point of order, Mr. Chair. I’m sorry to interrupt. I apologize to the witnesses.

Yesterday, I raised the issue of the decision of Justice Cournoyer from the Superior Court of Quebec in relation to imposing a calendar of hearings in relation to deadlines that seem unacceptable in the case. I would like to table the decision this morning. It’s in English only. It’s the language of the decision. I feel that colleagues around the table will find benefit from reading through that decision.

The Chair: Thank you. I’m sure they will.

Senator Joyal: Thank you, Mr. Chair.

The Chair: Back to our witnesses, we will begin with Ms. Schellenberg, followed by Mr. Carter and wrapping up with Mr. Paisana, before we move to questions.

Gaylene Schellenberg, Lawyer, Legislation and Law Reform, Canadian Bar Association: Thank you for the invitation to present to you our views on delays in Canada’s criminal justice system.

The Canadian Bar Association is a national association of over 36,000 members, including lawyers, notaries, law students and academics. Our mandate includes seeking improvements in the law and the administration of justice. The CBA consists of experienced criminal lawyers from both the Crown and defence from every province and territory in Canada.

As you said, with me today is Ian Carter, the treasurer of the section, and Tony Paisana, an executive member. Ian practices as a defence counsel here in Ottawa, and Tony is primarily defence from Vancouver. I’ll turn it over to them to summarize our letter and to respond to your questions.

Ian M. Carter, Treasurer, Criminal Justice Section, Canadian Bar Association: Thank you. We received relatively short notice, and we would have ideally liked to have canvassed the members more. I don’t come to speak for myself but on behalf of Crowns and defence lawyers across the country. We managed to canvass a number of counsel from Alberta, Manitoba and out east. We tried to present in our submissions some of the suggestions put forward by our various members.

I’m going to focus on a couple of key ones that I think are particularly important. Obviously the reality here is that much of the administration of justice in the provincial courts is done by the provinces. In terms of what federal government can do, it’s a little more constrained. So I’m going to focus on two areas where I think differences can be made.

The first of those is a position that we’ve taken previously before this committee. It has to do with mandatory minimums. The more mandatory minimums you have, the more matters go to trial, because it’s more difficult to resolve them. That results in greater delays as court time is booked up. There’s obviously a policy element to that in terms of what you want to do with those, but our position is that if you remove the mandatory minimums, it creates greater flexibility for resolving matters at an earlier stage and will free up more court time.

The second point is a bit more policy-neutral and, in my submission, it has the potential to be absolutely transformative of the criminal justice system. I have wish that I came up with the idea. I did not. This was sent by one of our other members.

At page 2 of the submissions, we talk about modernizing intake routine appearances. Let me point a picture for you of what happens on a daily basis in court. There’s what’s called the remand court, where a justice of the peace sits, and hundreds and hundreds of accused people on any given day before the courts come in there to have what is often a 15- to 30-second appearance to update the case. A justice of the peace sits there, Crown counsel is there, along with administrative staff and court clerks. There will be dozens of defence lawyers, paralegals, articling students — all there for a routine, non-consequential appearance.

Historically, this came about because, in criminal matters, unlike civil cases, it was deemed that the accused’s body needed to be before the court. So every time something happens in the criminal justice system, the accused has to be there.

Changes were made to the Criminal Code to ease this slightly. Counsel can now sign a designation form that allows them to appear without the accused present, but it still requires counsel to be there for appearances where nothing of consequence happens. Here in Ottawa, I can indicate they occur each morning starting at 8:30 and can sometimes last all morning — 8:30 to 12:30 to process hundreds of individuals, again where nothing of consequence happens.

Moving to a system closer to our civil system, where if there’s nothing of consequence happening in court where a decision has to be made, it’s all done outside between counsel — that would save an immense amount of court time, and resources from the Crown’s office, from the court and defence counsel. It frees up courtrooms, allows judges to take those courtrooms and hear trials and could potentially cause a drastic reduction in court times.

These appearances are completely unnecessary. Most often counsel will stand up and say, “We’re here to report. I haven’t received disclosure yet. Let’s adjourn for two weeks.” Crown counsel agrees, and the justice of the peace says it’s okay. That’s your entire appearance.

It’s absolutely unnecessary to have that done in court. There’s no reason for it. If we had electronic check-ins where the Crown and defence check in on a particular case, sets timelines — disclosure will be ready in two weeks — set a trial date, then that’s the only time we can have an appearance.

This is an area that can be fixed in the federal jurisdiction by changes to the Criminal Code.

Tony Paisana, Executive Member, Criminal Justice Section, Canadian Bar Association: My remarks will focus on two more area that we highlight in our written brief: Legal aid funding and disclosure management.

To begin with legal aid funding, I think it’s now beyond debate that the state of legal aid funding, or lack thereof, has reached a crisis point. In B.C. legal aid rates have remained largely stagnant for close to 15 years. This reality has led to a cutting of significant coverage, which in turn has added delay to our system. I’ll try to explain how that is.

In B.C., for example, sometimes people are denied coverage for many of the administrative offences that come through the courts because they do not face the likelihood of jail and other individuals, who face much more serious charges, are often denied legal aid because they make a modest employment income. These impoverished and unrepresented accused then languish in the system. They request numerous adjournments to seek low-cost or pro bono services, and when that fails they haphazardly try to defend themselves.

What would otherwise be either a one- to two-day trial takes up several days. Uninformed accused fail to make admissions that, for example, reasonable counsel would make to shorten trials, and the accused — himself or herself — spends hours hopelessly running cross-examinations and submissions that have no prospect of success. These unrepresented accused are gumming up our system and taking up court time that can be used much more efficiently.

With respect to our second point on disclosure management, I think it’s also a well-known fact that contemporary disclosure has significantly decreased the complexity of criminal cases and, as a result, has caused some delays. Most stated concerns are about the volume of disclosure, whereas, as we point out in our brief, the management and delivery of disclosure as an administrative process is also causing considerable delays.

It’s a rather common occurrence, as Mr. Carter has pointed out, for Crown counsel or defence counsel to request multiple adjournments in order to properly obtain disclosure. Crown counsel will usually ask for this process to be undertaken so that they can vet disclosure. That refers to both counsel and police painstakingly reviewing these disclosure packages to redact phone numbers, privileged information and other relevant items to defence counsel. As you can imagine with these large complex files, this is a time-consuming exercise that can take a very long time. Because the accused can’t be expected to make any important intake decisions before receiving disclosure, these various adjournments become necessary.

In our brief we’ve made recommendations on how we can streamline this process and make it more efficient, for example by allowing police services to hire trained staff to vet the disclosure as it’s being prepared and compiled, therefore alleviating the need for Crown counsel to undertake this task once the charges have been approved and the cases are ready in the system. In our view the closer we can get to providing disclosure at the first appearance, the more efficient our system will become.

With that, Mr. Carter and I will be happy to answer any questions you may have.

The Chair: Thank you all.

Senator Jaffer: Thank you very much. Once again on short notice making your presentations, we certainly appreciate that.

I want you to clarify something. We often hear from you about mandatory minimums and why you’re against them. I definitely don’t want you to repeat that, but, from what I understand when it comes to court delays, the challenge with mandatory minimums is that there’s less plea bargaining because of mandatory minimums. Can you elaborate on that, please?

Mr. Carter: Again, I’ll have to speak somewhat anecdotally here as opposed to I don’t have statistics here in front of me. Anecdotally, mandatory minimums can make a difference if, given the particular circumstances of an accused person, the sentence should be lower than the mandatory minimum. In some cases where the sentence would be higher than the mandatory minimum in any event, it won’t play a role, but it plays a role in circumstances where that sentence should be less.

Two things happen. The accused under those circumstances is less likely to plead guilty, which means you’re going to be booking trial time. The back half of that issue is that there tends to be Crown policy in place. Again, I can really only speak anecdotally in Ottawa and my experience with Crown counsel and other jurisdictions that are involved with the CBA. There’s often a policy in place that does not allow Crown counsel to plea bargain away those mandatory minimums easily. They have little discretion in reaching a resolution, so these matters are going to trial more, resulting in trials getting pushed back. At one point in some jurisdictions, for example if I were in Pembroke, where they have a strong dispute resolution system in place and fewer trials pop up, you can get a trial sometimes in four to six months. In Ottawa, you’re looking at 10, 12 or 13 months away.

Senator Jaffer: Yesterday there was a lot of discussion on preliminary hearings. Ever since I’ve been a lawyer, I’ve always heard people talking about getting rid of preliminary hearings. I would like both of your opinions on how effective preliminary hearings are. In my mind they can often save time. I’d like to hear from both of you on that issue.

Mr. Carter: I’ll go first. First of all, there are only a small number of offences where preliminary inquiries are held. The vast majority of cases are heard in the provincial court either as trials or pleas.

For the few cases that are more serious, where preliminary inquiry may occur, the preliminary inquiry can serve an important role in terms of expediting matters. In some cases where I have evidence, for instance, that the victim might be lying but I need to confirm certain things under oath, I’ll conduct a preliminary inquiry. It tends to be a lot shorter than a trial. Taking that information, I’ll then write to Crown counsel and say, “This person said under oath the following and I have these documents to prove that’s not true,” and the Crown may at that point withdraw the charge. They do serve a function in dealing with charges that shouldn’t go ahead and in streamlining the issues.

Mr. Paisana: I agree generally with what Mr. Carter has outlined. In my experience, in particular with cases that are very serious, like murders, where it’s unclear whether a murder may be manslaughter, I find preliminary inquiries to be a valuable exercise in testing the Crown evidence and exposing the weaknesses in the case thereby alleviating the need for a trial down the road because plea negotiations are easier after those weaknesses have been exposed. It has been a common occurrence in our practice here in British Columbia to do those kinds of preliminary hearings and then, right after the fact, engage in useful discussions that would change a murder case that would take months in Superior Court into a plea to manslaughter in provincial court.

Senator Plett: Senator Jaffer asked the question I wanted to ask you about mandatory minimums, but I’m going to go to another question. I asked this yesterday of witnesses and they said it was not in their area of work, I suppose.

I read an article this week, and I’m sure we all did, about a suspected child abuser who could avoid trial due to delays in the Quebec system. The man was accused of sexually abusing a seven-year-old girl in January 2014 and his trial is still pending. The father was quoted as saying that, “The lawyers of the accused have been benefiting from delays for over one year. The trial hasn’t even begun and already our daughter has forgotten some of the details of the assault.” The parents have also said that the trauma resulting from the sexual abuse is compounded by the anxiety caused by an ill-adapted justice system. This is obviously very serious.

I have two questions. First, how often are very serious violent or sexual abuse cases delayed excessively where a judge would order a stay of proceedings? Second, I’m hoping that you will give me an honest answer to this: How much control do defence attorneys have in delaying the process to the advantage of the accused? In your opinion, how much are lawyers to blame for delays in general in situations like this and taking away from the mandatory minimum aspect of it?

Mr. Carter: I can answer both those questions. The answer to the first question is simple: very rare. For section 11(b), which is the section of the Charter that deals with delays, those applications are most often successful in more run-of-the-mill cases. You see them most often in impaired driving and over 80 cases without death or injury. The more serious the case, the less likely those applications are to succeed. It’s extremely rare.

Senator Plett: But they do happen?

Mr. Carter: They could happen from time to time. I can’t think of a successful one that I’ve heard, for instance, in a sexual assault case. I’ve never even brought one in a serious case before, because the law is such that it’s extraordinarily difficult to succeed in those applications.

The second question relates to the lawyers’ role in delays, and you wanted an honest answer. It depends on the circumstances, but there’s no question that counsel’s conduct and behaviour in a certain case could lead to delays. One issue with respect to defence counsel, for instance, is that if they have a busy practice, their trial schedule is such that they can’t fit a particularly longer trial in until down the line. It’s possible that they’re unable to get instructions from clients to do something and move the matter along. So they can play a role in a delay, just like any other member of the justice system can.

Senator Plett: But do they use it intentionally to help their cause?

Mr. Carter: The jurisprudence with respect to 11(b) applications, the judges divvy up time. If the time is the result of defence, then that doesn’t count toward the delay; in other words, you take that number per month. If the defence is trying to delay things, it will become apparent on the record, and it is not useful; in fact, it counts against them on the application.

There have been a few changes in the law with respect to that. Maybe in the past there were certain things that could be done, and some counsel likely did that. Under the current law, it’s virtually impossible.

Mr. Paisana: I’d like to add to that discussion, if I could. I represented the accused for the Supreme Court of Canada in October on what will be the Askov case we anticipate. Just to give you an idea of how difficult it is to get a stay of proceedings, in that case the accused trial took 49 months from charge to trial — over four years. Over that time, none of it was attributed to the accused, and his application for a stay of proceedings was denied, both at trial and at the Court of Appeal. So it’s a very high standard to meet.

With respect to your second question about the conduct of defence counsel, I echo many of Mr. Carter’s comments, but I think it’s important to remember that, just as the Crown’s case may weaken, so may the accused’s case. In this regard, I found the comments of Mr. Justice Michael Code in his book Trial Within a Reasonable Time, which he wrote when he was a lawyer and right after he had represented Mr. Askov. He said:

The reality of delay trials is that they simply prolong the fear of trial rather than relieving it. Finally, in those rare cases where the delays were so severe that the charges had to be stayed, it could be said that the client had actually benefited from the delay in some attenuated sense. However, this kind of ex post facto analysis of rights violations seems to me to confuse the constitutional remedy for the harm done by delay with a benefit. The Court of Appeal’s approach struck me as profoundly unfair since it blamed the accused and his or her lawyer for their quite natural fear of a trial date and furthermore put the institutional problem of court backlogs. This is what whetted my appetite for the competitive business of litigating the —

The Chair: We’re going to have to move on. I’d encourage our witnesses to tighten up their responses so we can get all of our senators along with their questions.

Senator Baker: Thank you to the witnesses. They are very excellent lawyers. I follow you in case law. Keep up the good work.

I’ll put the questions to each one of you regarding the main issues you raised. First of all, Mr. Carter, you raised the issue of the clogging up of the courts, commonly referred to in most jurisdictions as arraignments — when you have to appear before a justice within 24 hours, relatively speaking, according to the provision in the Criminal Code.

You said that a justice of the peace sits there. A provincial court judge is considered to be a justice of the peace, and in some jurisdictions, only a judge — a JP, a justice of the peace cannot, in several jurisdictions, issue a search warrant, for example, and certainly cannot sit in arraignments.

So your point is it ties up the courtroom, but in some jurisdictions it ties up not just the court but the judges. I think that was your main point.

So what was I going to ask you? I was going to ask you something pertaining to this. The suggestion has been made that perhaps prothonotaries I call them. Ms. Schellenberg calls them by the right name. I’ve mispronounced the word, but you know what I’m talking about. Would it be to our advantage to recommend that perhaps judges and courtrooms not be tied up and that we make use of experienced barristers and solicitors?

I wanted to ask you to explain just how you will overcome this problem of — in the Criminal Code, it says in 24 hours, you appear before a justice. You’ve suggested some solutions. We’d have to change the Criminal Code to satisfy your suggestion. That was my question to you.

To the other witness, disclosure was one of your main points. Let us ask you this: If we were to recommend that, prior to plea, adequate disclosure means that you receive in criminal matters that you handle — for example, officer’s notes, continuation report, the Crown attorney’s case report. In other words, a printed copy of the evidence to be used prior to plea — after plea, we had the Director of Public Prosecutions before us yesterday who agreed that it would be a good idea to have a time set for all disclosure prior to trial — a certain number of days prior to trial, the Crown must disclose all the disclosure they’re going to use in the trial.

He found nothing wrong with that. How do you feel about us suggesting that very thing; that, say 15 or 30 days prior to trial, the Crown must present all of the evidence they’re going to use at trial? Those are my two questions.

Mr. Carter: I’ll deal with the first one. With respect to arraignments and moving the case along, when you talk about the 24 hours, that’s for individuals who are detained and brought to court. The vast majority of people who are arrested are released on either a promise to appear or appearance notice, but they are just given a future court date. They’re not being brought into the courthouse, so there’s no issue with changing the procedure to allow a series — if a designation is filed — of electronic appearances that don’t waste court resources.

In the cases where somebody is arrested and brought into court, you would still need to maintain those appearances. What happens in most of those cases is they either consent to their detention, in which you can then move them into the electronic system where there are a series of normal appearances during the matter to try to resolve the case or get disclosure, or they go to a bail hearing, in which case they’re released, and then you put them in the electronic system.

Changes can easily be made that would not run afoul of any of the other provisions in the Criminal Code.

Mr. Paisana: With respect to your question on disclosure, I would just make a couple of comments in the way you framed your suggestion. First, it should never be limited to what the Crown prosecutor intends to present. Disclosure has to be broad enough to include all material, both inculpatory and exculpatory, in order for the accused to make proper full answer and defence.

With respect to setting your timeline, we have to be careful about setting timelines that are close to trial dates for a couple of reasons. You’d suggested 15 or 30 days. First, whenever we do that in our criminal justice system, we tend to wait until the timeline and sort of organize ourselves to that point instead of making timely disclosure much before that deadline date.

When you get to between two weeks to a month before a trial, you’re getting very close to a trial date. If there are any problems whatsoever of meeting that deadline, you’ve run the risk of adjourning the trial. When that kind of thing happens, that is when the most significant delays happen in our system — when a trial needs to be rescheduled because it can’t go ahead or there’s an underestimation of time. It causes a significant clog in the system.

(French follows — Senator Dagenais: Je ne sais pas qui de vous . . . .)

(après anglais — Mr. Paisana — It causes a significant clog in the system.)

Le sénateur Dagenais: Je ne sais pas qui de vous a fait allusion à l’aide juridique, mais j’aimerais mentionner un fait à ce sujet.

On sait que les gens appartenant à des gangs de motards ne sont habituellement pas les plus pauvres, mais souvent, leurs richesses sont détenues par des prête-noms. Au Québec, un mégaprocès a été intenté contre des gangs de motards à la suite de l’opération SharQc. Lors de ce mégaprocès, des motards ont eu droit à l’aide juridique. Pour les contribuables, il est difficile de comprendre que des motards extrêmement riches puissent avoir bénéficié de l’aide juridique.

Mais j’aimerais revenir sur la question des délais.

La plupart des avocats de la défense qui ont témoigné devant nous semblent vouloir rejeter un peu la responsabilité des retards sur l’administration des tribunaux. Ne pourriez-vous pas faire comme les médecins qui refusent de rencontrer un patient qu’ils savent ne pas pouvoir opérer dans un délai raisonnable?

Ma question s’adresse à nos deux invités.

(anglais suit — Mr. Paisana: Are you asking whether or not counsels…)

(Following French — Senator Dagenais cont’g — à nos deux invités.)

Mr. Paisana: Are you asking whether or not counsel is under an obligation to refuse a client in order to preserve the administration of justice?

(French follows — Senator Dagenais: Ne pourriez-vous pas tout simplement…)

(après anglais – Mr. Paisana cont: the administration of justice? )

Le sénateur Dagenais: Ne pourriez-vous pas tout simplement refuser le mandat lorsque vous savez pertinemment que vous ne pourrez pas défendre votre client à cause des délais déraisonnables qui font que vous devrez reporter la cause sans cesse, ce qui pourrait faire avorter le procès?

C’est d’ailleurs ce qui s’est produit lors du mégaprocès SharQc. Les délais ont été tellement déraisonnables que le procès a avorté. Il me semble que dans des cas comme celui-là, quelqu’un, quelque part, doit être au courant de ces faits.

(anglais suit — Mr. Paisana: You’re struggling with what many…)

(Following French — Senator Dagenais cont’g — au courant de ces faits.)

Mr. Paisana: You’re struggling with what many lawyers in the court struggle with, namely the conflict between an accused’s right to counsel of his choice under section 10 of the Charter and the accused’s right to a trial within a reasonable time under section 11 of the Charter. The issue has been raised before about whether or not a lawyer can force a client off the case because his calendar can’t accommodate it in a timely manner. That’s a tricky because you have to balance these two rights that theoretically can come into conflict. At the end of the day, the way we’ve been dealing with that problem in recent years has been to ask the accused on the record to waive his right under section 11(b) to a reasonably timed trial. What that looks like is the accused arrives and says, “I want this lawyer. That’s the lawyer that I want, but he’s only available in a year and a half.” The court then says you, “Well, you can’t complain in a year and a half from now that the trial is taking too long. I’m asking you to formally waive that right.” That’s typically how it’s been done.

(French follows — Senator Dagenais: Je revien au proces…)

(après anglais — Mr. Paisana cont.: that’s typically how it’s been done. )

Le sénateur Dagenais: Je reviens au procès des gangs de motards. Certains motards choisissaient parfois un avocat qui ne pouvait être disponible avant un an et demi, fait dont ils étaient parfaitement au courant. C’est d’ailleurs ce qui a fait avorter le procès. C’est pour cela que je dis qu’à ce moment-là, l’avocat devrait refuser le mandat.

Vous m’avez bien répondu. J’ai compris. M. Carter vous aviez un commentaire?

(anglais suit — Sen. Joyal: I have two main questions…)

(Following French — Senator Dagenais: Monsieur Carter, vous aviez un commentaire?).

Senator Joyal: I have two main questions, the first is one in relation to your brief on page 2, at the bottom of the page, under the title, “Prioritizing Early Resolution,” and I’ll read it:

The most efficient way to cut delay in the system is to encourage timely resolution of cases.

Mr. Carter or your colleague, are you aware that in civil matters in Quebec there is a new code of civil procedure that has been implemented starting January of this year? In that code — and I’m talking here about a civil matter — the legislature in Quebec has taken the approach that everything should be done to try to reach resolution instead of trial. It seems to me that it’s time to review the criminal procedure to have a similar approach to try to solve at the first level anything that could avoid being litigated in the court.

That has changed totally the approach of the system. In other words, you have to go through that process first before you can say I want to go to court. It seems to me that there are lessons to learn there, because if we want to unclog the system, we will have to, in my opinion, change the approach to the preliminary procedure, and the philosophical approach of let’s start first to avoid the trial and see if we cannot spend the means that an accused is entitled to have, but at least to have made an effort in that direction.

Mr. Carter: My short answer is I agree. Our position sets out as much, namely that we believe procedures set up front with respect to resolving matters is in the interest of the administration of justice.

Again, returning to the issue about modernizing intake routine procedures, the criminal law, I think, can draw on lessons learned in the civil area, and that’s one of them. Civil lawyers don’t have to show up in court every couple of weeks to speak to their matter and tie up resources. They spend their time focusing on getting settlement conferences. Again, I’m not an expert in civil law, but from the civil lawyers I speak to, that kind of organization would be beneficial in the criminal justice system. That’s the point we make.

Part of the issue here — and speaking to colleagues from across the country and partly in preparation for coming here today — is that different jurisdictions have different systems, some more organized than others. In Ottawa, in fairness, our system is fairly well organized in terms of resolving these matters before setting trial. You’re mandated to set up a meeting with the Crown counsel, on every case — that is, to speak to one Crown who has carriage of that file. You have to have that meeting with them to discuss resolution.

If you’re not able to resolve it, but you’re close, you then have to do a judicial pretrial. If you’re going to set a trial that’s any more than three quarters of a day long, which is most trials, you have to do a judicial pretrial. What happens is a Crown lawyer, a defence lawyer and a judge is there in the judge’s chambers and the judge is pushing the parties to together try to resolve the matter and, if they can’t resolve the matter, at least narrow the trial issues. Say I went in and I said I needed five days. The judge will say, “Justify that, Mr. Carter. Why do you need five days? Why can’t you make an admission here? Do you really need this witness?” In Ottawa that works well. Other jurisdictions I talk to don’t have that in place and I think would benefit from it. There was some griping from defence lawyers about being forced to do all this, but quite frankly in my experience it benefits the system.

Senator Joyal: In this decision of Justice Cournoyer that we tabled earlier, which is a recent decision from January 27, at paragraph 214, I read this:

Unless the prosecution makes submission to the contrary, the court is therefore inclined to conclude that the threshold test is met for an abuse of process hearing.

I repeat, “the threshold test.” In other words, the courts are in a position to determine at a point in time that there is an abuse of procedure. It seems to me that we have to work on the threshold test. In other words, see how it is implemented in cases and see if the various criteria that the judge has to find in the case are met. In other words, we have to look into the jurisprudence and determine if that threshold test that exists in the court means to determine that the hearing has to take place one day, that this would be one of the issues we should canvass to make sure that we review the procedure in a full way.

The Chair: A “yes” or “no” answer. We have to move on.

Mr. Carter: I haven’t read the decision. All I can say is Justice Cournoyer is a very respected criminal justice.

Senator McIntyre: My question is simply a follow-up to one of the issues that you raised a while ago, Mr. Carter, and it has to do with modernizing intake routine appearances. Alternative measures, as you know, are defined under section 716 of the Code and they are measures other than judicial proceedings. What has been the experience of your members with those measures?

Mr. Carter: “Alternative measures” is commonly referred to as diversion.

Senator McIntyre: Diversion programs, sentencing circles, victim/offender mediation, and so on?

Mr. Carter: Yes, and valuable programs.

In terms of how it related to modernizing intake procedures, despite the fact that it’s alternative measures and called diversion, you still end up with a whole series of court appearances. If I speak to Crown counsel and they say, “Look, we’re open to diversion or alternative measures in this case,” typically I go into court like I would on any othger remand appearance and say, “We’ve got to do an application for diversion. Let’s put the case over two weeks.” I come back in two weeks and am asked, “Is the application submitted?” Well, it hasn’t been received yet. Let’s come back another two weeks. Even in those diversion or alternative measures cases, you are still looking at three, four, sometimes five, needless court appearances. If you are able to complete all of that in a way that avoided the court appearances, it would be great.

One area where it is done without court appearances is under the Youth Criminal Justice Act. Police officers have an ability to divert a young person without putting them in the system at all. I’ve dealt with police officers, and they’re great to work with. I talk to them and say, “Listen, this is what I want to do with your client: He has to accept responsibility. I will give him a stern talking-to. You can come down to the station and be there if you want.” It’s all dealt with then and there. The young individual in this case is shaken up and learns his lesson and moves on and we don’t have five or six court appearances to end up at the same result down the line.

Senator McIntyre: What about case management judge provisions, which were recently introduced in the Criminal Code? Have those provisions been working for your members?

Mr. Carter: Highly effective.

(French follows — Senator Boisvenu: Je remercie les témoins pour leur présence…)

(après anglais — M. Carter — … Highly effective.)

Le sénateur Boisvenu: Je remercie les témoins pour leur présence. Selon les statistiques, le Québec est dernier de classe en ce qui concerne les retards dans son système de justice criminelle. D’ailleurs, un grand nombre de ces procès sont reliés aux agressions sexuelles, particulièrement contre les enfants. En cinq ans, les temps d’attente ont augmenté de 300 à 700 jours.

Un sondage effectué auprès des victimes montre que presque 50 p. 100 des victimes abandonnent leur plainte pendant ou avant le début des procédures. L’une des plaintes les plus récurrentes se rapporte aux retards considérables. Les reports d’audience sont également un irritant pour les victimes. À Saint-Jérôme, une dame qui a été agressée sexuellement a dû attendre cinq ans avant que son procès ne puisse commencer; ce procès a été reporté 37 fois.

Y aurait-il moyen d’entrevoir des mesures — soit dans le Code criminel ou je ne sais trop — pour faire en sorte de remédier à ce problème? Ne devrait-on pas donner plus de pouvoir aux juges afin qu’ils puissent être plus rigoureux? Les retards dans le système actuel « victimise » à nouveau les victimes et favorise les criminels. Ce système de justice n’est qu’apparence de justice pour les victimes. Ne pourrait-on pas intégrer des mesures dans le Code criminel ou dans l’administration de la justice pour limiter ce nombre de reports trop souvent exorbitants et exagérés?

(anglais suit — M. Carter: First of all, we would agree that long delays are very hard on complainants and victims…)

(Following French — … limiter ce nombre de reports trop souvent exorbitants et exagérés?)

Mr. Carter: First of all, we would agree that long delays are very hard on complainants and victims. It does a disservice to the justice system. It’s also hard on accused people.

Judges have the power now to control. They can decline adjournment requests from one or the other parties. I think the solution lies in really doing everything you can in the system to streamline it. It’s a fact-specific thing with each case, but if you take measures that will open up more courts and have more cases resolved early so there’s more space and you can focus on getting the cases where you need them most to trial early, that would be a benefit to the system.

For instance, when I do sexual assault cases, particularly involving children, the Crown will prioritize those cases. In other words, they will say, “Look, we’re going to do something at our office to move other trials that are less important. This has to get on early.”

From my perspective, my client often wants to get the case on early as well, so in my experience, Crown counsel will make efforts, at least in this jurisdiction, to get those cases on as soon as possible. Making changes in the system that will allow them to do it even more easily I think would be beneficial.

Mr. Paisana: We have what’s called the K-file system, so all domestic violence cases involving a spouse or a child are given priority in the system, and counsel are mandated to set them earlier than otherwise would be the case.

(French follows — Senator Boisvenu: Depuis environ 20 ans, Statistique Canada nous dit que le taux de criminalité…)

(après anglais — M. Pasiana — … to set them earlier than otherwise would be the case.)

Le sénateur Boisvenu: Depuis environ 20 ans, Statistique Canada nous dit que le taux de criminalité au Canada baisse constamment alors que les délais en cour augmentent sans cesse. Comment pouvez-vous expliquer cela?

(anglais suit — M. Carter: I don’t have the statistics to be able to explain that…)

(Following French — … Comment pouvez-vous expliquer cela?)

Mr. Carter: I don’t have the statistics to be able to explain that. All I can offer is the anecdotal experience that I have gathered from colleagues across the country as to what they’re seeing and what they view as contributing to delays. We’ve attempted to put them in here.

Senator White: Thank you very much for being here today. I appreciate your response in relation to alternative justice.

Just for the people here, would you also walk through the pre-charge restorative justice programs that are running successfully, like in Nova Scotia? For example, there is the NSRJ-CURA, which I know is now embarking on adult pre-charge as well, so not involving courts. There may be a defence lawyer involved but only from an advice perspective.

Mr. Carter: I can’t speak to those specific programs because I don’t have the information off the top of my head.

What I can say is, generally speaking, there has been a push within the criminal justice system to have these kinds of pre-charge programs in place. Studies have shown they’re beneficial for all parties involved when they can work.

But I can also indicate, from my experience here in Ottawa, for instance, we have a collaborative justice program. I have a client in it right now. Collaborative justice is underfunded and constantly in danger of closing. There’s an issue with funding for many of these programs. They always seem to be at death’s door, if I can put it that way, but studies show that they work.

The Chair: Mr. Carter, you mentioned one of your priorities was getting rid of meaningless appearances. How significant is that in terms of occupying courts’ time?

Mr. Carter: I’ll speak to Ottawa. Every morning, Courtroom Number 5 is the remand court appearance. It starts at 8:30. It runs until whenever they finish. There are often hundreds of accused people in there for meaningless appearances. A Justice of the Peace sits. The Crown counsel is there with at least with two support staff to go through the hundreds of files they have. The room is full with defence lawyers, articling students and paralegals as they sit and work their way through. That’s every morning, five days a week.

It doesn’t end there. In the afternoon, the court reconvenes for the video appearances, which is for all the people that didn’t get bail and sit in prison, and that runs from 1:30 — and it’s the same system — until whenever it’s done. Those prisoners have to be brought in. So in addition, you have all of the support staff that brings them from the jail —

The Chair: I take it the word is “significant.”

Mr. Carter: It’s significant.

The Chair: I’m looking for solutions here. You mentioned one in your letter, about developing an online system for routine appearances. I’m just wondering, how would that work?

I was involved years ago in something called integrated justice, which sort of stalled when it got to the court system. I’m not sure what has happened in the intervening years. How would you see this system working?

Mr. Carter: It has to be fleshed out in a number of ways. There are two different routes you could go. One is to keep it as a system of check-ins initially between Crown counsel and defence counsel after the first appearance.

For people in custody, again — this was mentioned by Senator Baker — they have to be brought in. That’s under the Criminal Code. For everybody else, you could have a series of check-ins that’s done electronically between Crown and defence, or if you wanted to move to a system where —

The Chair: Are you talking like through email? Is that the sort of thing you’re talking about?

Mr. Carter: Yes, or a computer system. The Crown has a computer system here in Ottawa and you check off. You could do it through email.

If you wanted a judge involved, you could also involve an administrative judge in the process to make sure that everything is occurring. There could be, for instance, a set date. Rather than do a bunch of appearances, okay, you check off in either the program or the email, we’ve got all the disclosure, we’re ready to proceed, let’s put it back in court.

The Chair: We’re not going to have a lot of time for responses in this setting, but if you want to provide more fulsome responses, Senator Joyal’s issue and these kinds of suggestions, perhaps you could provide them to the committee going forward. That would be appreciated.

Mr. Carter: We can do that.

The Chair: I haven’t finished yet, but go ahead with a quick supplementary.

Senator Plett: Thank you, chair. Maybe I missed this, but what is “meaningless”?

Mr. Carter: You show up in court for a first court appearance. The individual has been charged. Typically, the Crown tries to get the disclosure package ready by the first appearance, but maybe it’s not. Defence counsel has a bin at the courthouse. I just go and pick the disclosure up. I don’t have to go to court to do it. Typically what happens, I show up in court —

Senator Plett: You answered it. I thought you meant meaningless cases.

Mr. Carter: No, not meaningless cases; meaningless appearances.

Senator Plett: I appreciate that.

The Chair: Maybe you’re reluctant to speak to this, but I’m curious about the role of chief judges in terms of case management. We’ve heard it with respect to supernumerary judges, for example, who are effectively part-time judges. Their caseload is not being managed properly. The chief judge is stepping in, in some of these instances. I’ve heard these points made; how accurate they are, I’m not sure.

I know you talk about judicial resources here, but the judges themselves obviously have significant responsibility, and the chief judge, to oversee that. Do you have any comments with respect to how it’s being managed “from the top,” if you will?

Mr. Carter: I have to appear in front of these judges, so I don’t want to make any comments about them. All I can say is this: Over the space of my practice, I’ve seen a drastic change in this jurisdiction and jurisdictions in eastern Ontario where the focus is very much now on administration for the judges. They are very concerned about these issues, and there’s a much greater focus than there ever used to be.

The Chair: I just look at a certain TV personality whose case has been before the courts for 10 months. Now we will hear closing arguments. This will be at least a year — when you see adjournment after adjournment, for sentencing and final arguments. I have difficulty with that perspective.

In any event, we can move on to a second round, if anyone has additional questions.

Senator Fraser: This is actually more a comment than a question, chair, arising out of your own comments.

I noticed with interest and appreciation the statement in your letter to us that, because you didn’t have as much notice as you would have liked, you’d be happy to come back with more notice, with additional detail. I would like to suggest that we do precisely that — that we invite you back. Because this study is not going to be concluded by tomorrow afternoon, much as we might wish that would be the case.

The Chair: Certainly.

Senator Baker: Mr. Paisana, I would like to get back to you for a yes or no on the question regarding disclosure. The Director of Public Prosecutions said that he would not be opposed to us recommending a deadline for the Crown to provide disclosure in a criminal case. What he said was that it normally happens anyway, so he could see no objection to it, to my direct questioning. When I asked you the question, you took my two weeks. The reason I said 15 days is because normally in provincial trials, where I come from out East, that’s your deadline to submit a Charter argument and so on to get the pretrial arguments under way.

But do you agree that the committee should look at or recommend a deadline for the disclosure of the material to be used at trial prior to the trial commencing? That’s the main question. What is your answer to that?

Mr. Paisana: I agree that would be a helpful suggestion. My comments were directed toward the timing of that deadline and how that should be set. But the general idea that a timeline should be set is a useful exercise, and it would get everyone thinking about the case long before it comes along, which is always good for efficiency.

The Chair: Thank you all for your appearances and your assistance on very short notice. Following up on Senator Fraser’s comments as well, I wouldn’t let appearing preclude you from getting additional information or suggestions to us. We can then pursue them when we do have another opportunity to have you around this table. Thank you very much for your attendance here today.

Joining us for the second hour, from the Criminal Lawyers’ Association, are Leo Russomanno, Member and Criminal Defence Counsel; and Dominic Lamb, who is a member of that organization. Also with us today, from the Canadian Council of Criminal Defence Lawyers, William Trudell, Chair; and Greg DelBigio, Member.

Thank you all for being with us today. We very much appreciate it.

I gather, Mr. Russomanno, you will begin, followed by Mr. Lamb; and then we’ll move to Mr. Trudell and Mr. DelBigio.

Mr. Russomanno, the floor is yours.

Leo Russomanno, Member and Criminal Defence Counsel, Criminal Lawyers’ Association: Good morning. Thanks for having us here to speak to you about this very important topic. It’s a pretty broad topic, and I’ve been listening closely to the testimony that’s been given on previous days.

On behalf of the Criminal Lawyers’ Association, Mr. Lamb and I are here to discuss several different areas where we think delay is concerned.

I want to touch briefly, if I could, on how this debate should be oriented. I think it’s important to emphasize that delay does not help an accused. Delay prejudices an accused. When we talk about trial within a reasonable time and delays, there are two considerations: mainly, the impact on the accused, the prejudice to the accused, and of course the prejudice to society for not having cases decided efficiently with witnesses that have a clear recognition, et cetera.

Prejudice to an accused is significant in terms of delays in proceedings. I can say anecdotally that I’ve never, ever had a client say, “I want you to delay this as long as possible. I want to be on strict bail conditions for a very long period of time” or “I want to be in custody for a very long period of time and drag this out.”

Defence lawyers don’t have anything to gain from lengthening the proceedings. As I think Senator Baker mentioned in one of his questions the other day, the accounting of reasons for delay in an 11(b) application is quite meticulous and there’s time attributed to defence delay, Crown delay and institutional delay, et cetera. There’s nothing to be gained from defence bringing late disclosure requests on the eve of trial or lengthening the proceedings. I think we need to keep that in mind: delay does not assist an accused; it prejudices an accused.

What I want to touch upon is the issue of conditional sentences. Over the years conditional sentences have been watered down. It’s been more difficult to get a conditional sentence. I believe Mr. Carter, on behalf of the CBA, mentioned the issue of mandatory minimum sentences and how that reduces incentives to plead guilty when you know there’s a mandatory minimum jail sentence.

Conditional sentences are a part of that. When you make conditional sentences harder to get, an accused will have nothing to lose by rolling the proverbial dice and having a trial, because there’s simply nothing to lose. There’s nothing to lose from having a trial, because something could happen at trial and jail might be avoided, which is a certainty upon conviction. If you hold out that hope of a conditional sentence, then things may change. That’s not to say that a conditional sentence will be granted, but it’s the hope of the conditional sentence.

I will leave the rest of my time to Mr. Lamb to talk about some of the other issues that are important to us.

Dominic Lamb, Member, Criminal Lawyers’ Association: Mr. Chair, honourable senators, thank you so much for giving me the opportunity to speak to such an esteemed group of Canadians. Having had an opportunity to watch previous sessions, one thing that I thought came up again and again in questions from the members of this committee was the importance of the preliminary hearing.

I just wanted to take a moment to briefly highlight a few things that are important about preliminary hearings and why we should be careful before considering abolishing it or reducing it to the point that it’s not really there. I provided this in a brief outline in my speaking notes that were provided to you.

One, it’s an opportunity to weed out the cases that don’t belong in our trial courts. In a word, it separates the wheat from the chaff. Cross-examination is the key engine of that search for truth in the trial process. It highlights weaknesses where witnesses otherwise may seem to be credible, reliable, and it’s a very efficient way to see those weaknesses and opens the door to resolution in cases that are otherwise destined for trial.

As well, defence lawyers take instructions from clients. It’s an opportunity for those accused of crimes to see what’s coming down the pike. There comes a point — and it happens a lot in preliminary hearings — where accused people are going to see the strength of the Crown’s case and they’re going to come to terms with the crime that they have committed and accept responsibility. The preliminary hearing does that in a very cost-effective and efficient manner, not a full trial.

Finally, from the perspective of the Criminal Lawyers’ Association, and defence lawyers more generally, we don’t often have preliminary hearings anymore. I would urge the committee to seek out the specific statistics on this. I can tell you anecdotally, from my perspective, that most of the time I don’t elect to have preliminary hearings except in the most complicated and serious of cases. There are times where it’s both important and necessary for everybody to get their ducks in a row. That’s particularly true when you’re bringing in 12 citizens of the community to judge a case after the fact. Everybody should be ready to go in the case — both from the perspective of the Crown and the defence — and it should be set up in such a manner that it’s run in as efficient a manner as possible. I’ll leave it at that. Thank you.

William Trudell, Chair, Canadian Council of Criminal Defence Lawyers: Thank you very much, chair. Honourable senators, you know we’re very grateful for the opportunity again to appear in front of you. The members of the board thought I have been here so many times that I should bring someone along who knows what they’re talking about, so Mr. DelBigio, pre-eminent counsel from B.C., is here to help out.

I want to take you back about eight years. Eight years ago, the Canadian Association of Chiefs of Police, with some judges’ input, decided that we should have a conference. Fifty people were invited from across the country — judges, lawyers, police officers, some civil servants — in a closed-door session, no agenda. It was called the Symposium on Reinventing Criminal Justice.

A day and a half later, we found out that we had more in common than we thought. The eighth symposium just finished. We’ve studied bail, we’ve studied mental health, and we just did a conference on vulnerability. Those reports come out, and they’re going to be available.

What I wanted to say is this: Collaborative efforts have been going on now within this industry, talking about some of the issues that are of concern to you, and the symposium is one example. It has been remarkably successful.

The second thing is that about 10 years ago, the Department of Justice struck the National Steering Committee on Justice Efficiencies and Access to the Justice System. That committee, 15 strong, with three Superior Court Chief Justices, three provincial court Chief Justices, deputy ministers, some defence counsel, has studied a number of different areas: juries, early case consideration, some of the areas that you’re talking about today.

I urge the members of this important committee to access those reports, because some of the issues that you are talking about here have been already addressed but in a collaborative way. I think the importance of what’s happened over the last 10 years, and maybe even over the last 5 years, is there’s a collaborative approach involving the police, defence, Crown — all to figure out how the systems should be run better. The collaborative approach has worked and there’s a lot of information out there.

I think that probably what comes out of those reports and experiences are silos. We treat criminal justice as a silo, and criminal justice is not a silo. Someone said at one of the last conferences that government should fund issues, so that you can’t have justice in one room and health in the other room, because mental health clogs up the criminal justice system. So the collaborative approach also applies in relation to the silo approach.

There are too many cases coming into the criminal justice system. The criminal justice system is almost a catchment for all kinds of problems in the communities, but we can’t solve all those problems. We’re not equipped to deal with mental health, et cetera.

So there are all kinds of aspects of criminal justice that are being looked at.

One of the things I heard as I was listening was an invitation to come back, and we would be delighted. When I was looking at this, I was thinking that this is like a law reform commission. As we get focused with some of the issues — the Canadian Council, with representatives from right across the country — we would be very grateful for the opportunity to come back on specific issues.

In my respectful submission, the system works when people have discretion, from the police at the front end to the Parole Board. That is something that we have to think about.

Last, and I think we’ll get to it, the administration-of-justice offences are clogging the courts. There are committees working right now on issues of bail and administration-of-justice offences that clog up the courts that we may take another look at.

Greg DelBigio, Member, Canadian Council of Criminal Defence Lawyers: Thank you. It’s a pleasure to be here.

I would urge you to, as you examine this topic, to not lose sight of the many successes that the Canadian criminal justice system has. It’s a remarkably good system. It is characterized by fairness; the outcomes are outcomes that are fair and proper.

It does not mean it should not be examined to make it better, but worldwide, it is a system that we can be proud of.

The issue of delay means different things in different jurisdictions. Some jurisdictions really don’t have delay problems at all. Those jurisdictions that have delay problems have them for different kinds of issues.

My colleague Mr. Trudell mentioned the symposium. I’ve had the pleasure of going to those symposiums. It was a bold experiment at first. They were not sure how it would work to have judges, police officers — chiefs of police, primarily — Crown and defence lawyers, and other representatives sitting in a room talking about these issues. There was concern that that would simply be a compilation of people that would not work; however, it has worked with remarkable success, and the collaboration has resulted in very interesting outcomes. There has been much more agreement than disagreement.

I suggest to you that as you examine the issue of delay, you should examine what it is that goes into the criminal justice system and what the criminal justice system is well used for. How do we best use the important resources of the criminal justice system?

There are many cases, it’s well recognized, where the offenders suffer from mental illness, substance abuse, poverty and homelessness. There’s a cycle, and it’s a cycle down: An initial sentence for a minor offence is a fine and because of the way the criminal justice system works, when that person comes back into the criminal justice system, the penalty is more severe, such a little bit of jail or a longer jail sentence.

The problem with dealing with certain individuals in the criminal justice system is that it does nothing to address the underlying cause of why that person is in the criminal justice system. It does not address the poverty, the mental illness or the substance abuse. In fact, for some of those people, when they get out of jail, if they had a house or home, it’s gone. If they had employment, it’s gone. When the home and employment is gone, that can affect families, and it cycles down.

By keeping certain kinds of cases out of the system, the resources could better be used to address the kinds of cases that really should be in the system.

Thank you.

The Chair: I’m sure you’ll have time to elaborate during questions. We’ll begin with the deputy chair.

Senator Jaffer: Thank you to all of you for being here. From all the things you have said, there are so many questions. I’ll start with one.

The theme of all of you speaking today is to look at the individual so they are not back in court — issues they face. I was under the impression that specialized courts were set up to look at the whole individual, whether it be services — and hopefully that person would not come back.

I’d like to hear from you as to how effective these specialized courts are, drug courts and violence courts. Is that one way of reducing delays in the main courtrooms?

Mr. Trudell: First, those who work in specialized courts will tell you that they work but, of course, they’re not available across the country. Specialized courts like mental health court and drug treatment court are new vehicles, really, in the history of criminal justice, but what are their main purposes? Their main purpose is that maybe there are person shouldn’t be here; maybe there’s another way we should do it. That kind of specialized court works its way out into is the community, like with the hub program in Saskatchewan, things like that.

Specialized courts are very important because they recognize a special need without the revolving door. The problem is that they are not available everywhere; they’re available in some big centres.

But the resources to recognize there are people in the criminal justice system who have specialized needs is very important.

Mr. DelBigio: To add further, after the person is arrested, after the police have taken time to prepare all the reports necessary and after a person has been taken into the court system, by then, in many ways, the inefficiencies have begun for certain kinds of cases. If there was more police discretion for, for example, pre-charge diversion, that would assist in keeping those people out of the courts.

Those courts are important — there is no doubt about it — but things such as pre-charge diversion would assist, and so, too, would dealing with more cases through administrative procedures. For example, in British Columbia there is now the system in which many of the impaired driving cases are dealt with; namely, by way of administrative driving procedures. That has reduced the number of cases in the courts by thousands.

Senator Jaffer: Can I go on second round, please?

The Chair: You have time left for a brief second question.

Senator Jaffer: I have a question for you, Mr. Russomanno. I know all of you have been in the system for a long time, working in it. If there were three things very quickly you could say that would make a difference right way — things that we could implement that would make a difference — can you suggest three things?

Mr. Russomanno: Just to follow up on the comments with respect to diversion and dealing with pre-charge diversion and basically giving the power to avoid the need for a criminal proceeding and have people go an alternate route — that would be one thing that should be the focus of this committee. That would deal with the problem at its source and only deal with the cases that truly need it. Justice LeSage in his testimony talked a lot about administrative offences and people being released on strict bail conditions.

That leads to another point about bail and bail reform. He used the statistic that 50 per cent of people that are in custody in provincial institutions are on remand. In other words, they’re still innocent until proven guilty; they’re not convicted or serving a sentence. This causes a lot of problems with respect to delay. People that are on strict conditions who are released on virtual house arrest when there are delays in proceedings that take up to a year, and a person is on house arrest where they’re not allowed to leave the house except in the presence of a surety is a very serious problem. That leads to breaches of those bail conditions.

Something needs to be done about the plethora of these administrative proceedings.

I could add more in the sense of dealing with legal aid and adequate federal funding for legal aid. It often takes several court appearances for a person to get legal aid or be rejected for legal aid, and then have to bring an application to force the Attorney General to pay the person’s defence when they’re clearly not in a position to pay for themselves. The funding for legal aid is grossly inadequate.

Those are the three I would mention.

Senator McIntyre: Thank you all for your presentations. In my home province of New Brunswick and in the provinces of Quebec and British Columbia, Crown attorneys are involved in screening charges before they are laid. What has been the experience of your members with charge screening? Do you recommend that it be implemented in all jurisdictions?

Mr. Trudell: I’m going to ask Greg DelBigio to speak to the experience in Vancouver, but quite some time ago, the late distinguished Mr. Justice Martin held an inquiry called the Martin Inquiry. Pre-charge screening was something that came up then involving the Crown. At that particular point in time — I think it’s probably different now — the police felt that they were the ones who had to lay the charges. It doesn’t exist in Ontario as a recognized vehicle; however, when you ask police officers to make decisions that are legal decisions in the front end, I’d respectfully submit that the whole system right across the country would work much better if there were designated Crowns to give advice at the front end before matters come into the system.

Senator McIntyre: My second question has to do with foreign jurisdictions. Are you aware of any successful models to manage criminal proceedings and limit delays that have been employed by foreign jurisdictions and that Canadian governments should consider studying?

Mr. Russomanno: I can’t say I know of how foreign jurisdictions have tackled the issue of delay.

Mr. Trudell: I don’t want to sound intelligent because I’m going to steal this from Senator White, but I know Australia. There’s a ticketing system for minor offences, if we can categorize those, and other offences. Other jurisdictions around the world look at that. Not all offences have to move into the same funnel.

In terms of the symposium and of the Justice Efficiencies Committee, this type of alternative approach has been discussed quite often — I think Greg referred to the situation in British Columbia. I think that other countries are experimenting with a different approach, maybe a two-tiered approach. Australia is a good example. I think Sweden is another country where there are these kinds of approaches. I think we probably all know that every country in the world is looking at ways to deal with these kinds of issues. I think at the top of everyone’s list is mental health.

Mr. Russomanno: If I may add something, this doesn’t necessarily deal with other jurisdictional studies, but we often will go to the Trial Coordinator’s office to set a trial date and they’ll say, “We don’t have a judge or courtroom available; now you’re stuck getting a trial in 2017.” I don’t want to suggest this is a panacea, but if we had more courtrooms and judges available, that would assist with dealing with delays. Quite simply, there are often delays that are just institutional because we don’t have judges available and we don’t have courtrooms available. Of course, this committee has to consider budgetary constraints. I’m not suggesting we throw a bunch of money at the problem because the other things mentioned are important in terms of efficiencies, but that’s a concrete issue we deal with on the ground day-to-day.

Senator Baker: Or the judges who are available could be conflicted out because they’ve issued a warrant or a process during the particular case under review.

Let me stick to that question. I have just two questions — I’ll put them initially so there won’t be any supplementary — to Mr. Lamb and Mr. Russomanno, involving that very thing. Mr. Russomanno represented Mohamed Harkat in the Federal Court in 2010. At paragraph 47, the judge says:

Through the intervention of Prothonotary … a small number of documents were … returned to the Applicant.

That’s in Federal Court. The Federal Court has this procedure whereby they have prothonotaries available to free the judges. We’re dealing with criminal matters. There’s criminal jurisdiction as well in the Federal Court; we know CSIS cases, and so on.

I’d like to ask one of the two, either Mr. Lamb or Mr. Russomanno this: If this committee were to suggest the use of prothonotaries — these are experienced barristers — to do all pretrial arguments before a judge is assigned to a trial, what are your thoughts?

My question for Mr. Trudell and Mr. DelBigio, two very experienced lawyers — I’ve looked at their cases — involves 11(b). We’ve got a big problem with CDSA cases that are very involved with 11(b) and a lot of adjudication done in which someone is freed after a period of four or five years before the courts for an 11(b) argument.

A suggestion was made before this committee yesterday by the Director of Public Prosecutions, who said that he would not be opposed to the committee recommending a deadline for the disclosure of material to be used at trial prior to trial. That is a deadline, a day set, which we don’t have under our system today.

I’d like to know your opinion on that, given that you will be one of the very few lawyers we will have who is experienced in the 11(b) argument. I went back. You were a Crown prosecutor once and you even lost a case on 11(b), a drunk driving case in 1987. Since then, you’ve had 300 or 400 cases. To look at your resumé is incredible. What do you think of us suggesting that there be a deadline for the Crown to produce all disclosure prior to trial?

Mr. Lamb: The issue I see arising with the concept of the prothonotary is this: Most if not all pretrial applications in the criminal courts relate in one way or the other to the Charter of Rights. The Criminal Code mandates trial by a judge if it’s an indictable offence, by a judge of the Superior Court in Ontario or by judge and jury. Those pretrial applications are considered part of your trial.

My concern would be that, absent legislation, it might be constitutionally vulnerable. It just might not stand up at the end of the day. I can’t say that, but that seems to me to be the issue. Unlike a civil proceeding, where a prothonotary or an equivalent master under the Ontario rules of civil procedure, where a master is going to do these pretrial conferences, that’s not what’s happening in the criminal process because what you’re dealing with is actual Stinchcombe disclosure problems; that is, violations of one’s fundamental rights as guaranteed by the supreme law of the land. I think that’s where the prothonotary problem might run into challenges in the courts themselves.

The Chair: We’ll move on to Mr. DelBigio.

Mr. DelBigio: I’d forgotten about the case that I lost.

Senator Baker: It was in 1987.

Mr. Trudell: When you only lose one case, it’s not a problem.

Mr. DelBigio: Generally, I’m not in favour of bright lines. Disclosure is an important process. Sometimes it’s easy to provide. In more complicated cases it’s remarkably complicated.

The problem with a bright line, it’s an incentive to get it done on time. But the number of working pieces that result in it being handed over to defence counsel are many and not always within control of the prosecutor. Quite frankly, I want it in a timely fashion when I’m doing my job for clients, but I think the problem with the bright line is that it creates an incentive. You have to then ask, what happens if that bright line, if that deadline is not met? Is a case prohibited from being prosecuted because that time has not been met? If that is the case, I’m not quite sure, quite frankly, if the administration is well served because disclosure is not met according to the stipulated date, even though there might be good reason for that to have occurred.

Again, I believe that there should be incentives for the providing of disclosure in a timely fashion, but I’m not sure that a bright line is the way to address that.

(French follows — Senator Boisvenu: Merci beaucoup à nos témoins…)

(après anglais — 11h50 — M. DelBigio: …bright line is the way to address that.)

Le sénateur Boisvenu: Merci beaucoup à nos témoins. Je ne sais pas qui de vous a déclaré tantôt que les délais n’aidaient pas les criminels, mais j’étais un peu surpris de cette affirmation. Je me souviens, dans les années 2011-2012, plusieurs ministres de la Justice provinciaux, entre autres M. Jacques Dupuis, ont interpellé directement le ministère de la Justice du Canada pour mettre fin aux comptes en double, en triple, du temps pré-sentenciel. Cette période donnait lieu à des abus de la défense pour faire en sorte que le criminel reste le plus longtemps en prison avant son procès et s’assurer ainsi que, une fois que le procès a lieu, ce temps vienne réduire d’autant la sentence attribuée par le juge. De mon point de vue, qui est celui des victimes, je vous dirais que les délais affectent beaucoup plus les victimes que les criminels.

Monsieur Russomanno, vous êtes souvent venu ici témoigner sur des projets de loi que l’on adoptait pour durcir le Code criminel. Bien souvent, un de vos arguments était de dire: pourquoi on adopte des lois plus sévères alors que la criminalité baisse au Canada? C’est un peu l’argumentaire des avocats de la défense.

Si la criminalité diminue — ce qui est un de vos arguments — pourquoi les délais dans les cours augmentent-ils? Notre système de justice est-il rendu à ce point bureaucratisé que ce n’est plus la rapidité ou l’efficacité de la procédure qui est importante, mais d’étirer le processus le plus possible? Je ne sais si c’est parce que c’est plus payant. Si la criminalité diminue, pourquoi les délais augmentent-ils et que l’on vienne dire qu’il faudrait plus de juges, plus de salles d’audiences? Il y a quelque chose de contradictoire dans votre argument. Pourquoi avoir plus de juges et de salles d’audience si la criminalité diminue?

La juge en chef adjointe de la Cour du Québec a fait une déclaration aux médias, il y a deux semaines, fait plutôt rare, à l’effet que notre système de justice est malade et que si nous ne faisons rien pour changer nos habitudes, on va frapper un mur. Il y a donc un problème fondamental avec notre système de justice, qui est malade, ne croyez-vous pas?

(anglais suit — M. Russomanno: Because you mentioned 11(b) and the prejudice of criminals…)

(Following French — Senator Boisvenu – . . . de justice, qui est malade, ne croyez vous pas?)

Mr. Russomanno: A couple of comments, because you mentioned 11(b) and the prejudice of criminals. I refer to “accused” because they’re presumed innocent. I take your point, sir. I would not dispute at all that a delay prejudices victims. Obviously having a proceeding, which does not come to a conclusion, drag on puts victims in a terrible situation. Memories are flawed, and just having those proceedings hang over a victim’s head makes things more difficult. That does not mean it doesn’t prejudice an accused that may be on strict bail conditions or awaiting the resolution of their matter in custody. I would say the delays are not caused by accused people who want to drag things on, because they have no incentive to do that; and lawyers have no incentive, whether legal or financial, to drag things out.

The problem in Quebec appears to be considerable because when you look at the median length of cases, at least in adult criminal court by province, Quebec has close to 250 days in terms of length of delay, and in some cases that’s double what other provinces are. I’m not familiar enough with the Quebec system to give you a specific answer why. I can show you the chart. The longest bar there is Quebec, and it’s way ahead of every other province in terms of delays; so that would require a more extensive analysis as to what’s going on in Quebec.

It’s indisputable that crime rates are decreasing. You pose an interesting question: Why is it that, in the face of historical trends downwards of crime rates, that we’re seeing increasing delays? I think part of it — and this is mentioned in the Code LeSage report — has to do with increasing complexity and disclosure requirements. It might have to do with an average decrease in the amount of funding that the criminal justice system gets. We have a decreasing crime rate but an increasing population.

Senator Joyal: Welcome. I want to come back to the major point of the Canadian Bar Association brief, and I quote:

The most efficient way to cut delay in the system is to encourage timely resolution of cases.

There is the word “time.” By “time,” there is a reference to the factor that my colleague Senator Baker raised. In Justice Cournoyer’s decision he concluded that the court is inclined to conclude that the threshold test is met for an abuse of process hearing.

In other words, the courts are entitled to apply a time factor, if I can use that word, in proceedings that seem to lag or that don’t seem to meet the objective of a resolution. It seems to me that we’re caught in that conundrum to try to resolve everything as much as possible before court; and at the same time, as Mr. Lamb has mentioned, that in fact the time factor might open a Charter challenge.

The court can devise criteria, as the justice said, the threshold test. The court can define some criteria that would meet section 1 of the Charter, what is reasonable and acceptable in a free and democratic society, especially considering the denial of justice that happens at the end if we don’t intervene. How do you reconcile all those elements to make sure the system works fairly?

Mr. Trudell: I read Justice Cournoyer’s decision, and it’s a reflection of something that you probably heard about here, and that is meaningful case management.

The national steering committee is working on this now. What you need is proper case management, and Justice Cournoyer was referring to that. Everybody has to get on side. Let me give you an example. If I have a case that’s scheduled to go to trial at some point in time, there will be a Crown pretrial where we discuss the issues, and then there will be a judicial pretrial. If the judge at that pretrial is not prepared to move the yardstick or is not good at mediation or bringing people together, then that pretrial is not going to be successful. If the Crown comes in, and they don’t own the brief, or they don’t know anything about it, or the defence counsel comes in, or because they’re not being paid, they send a student, and so that opportunity to look at managing that case on the front end has been lost throughout our system.

We need to emphasize, as Justices LeSage and Code did, and as Justice Cournoyer has really focused on, properly managed pretrials. Everyone has to be on the same page. If not, as Justice Cournoyer was talking about, the Crown didn’t seem to be interested in a particular area, and so there was a sanction that came down. One of the most important things we have neglected is proper case management for all cases in the system.

Mr. DelBigio: I’m going to speak based upon impression for a moment, because I have not conducted a precise analysis, but in British Columbia it is very, very rare that a case is going to be judicially stayed as a result of delay. The jurisprudence has evolved so that if a delay application is being made, a court is going to carefully scrutinize how long the delay is, and those factors that have contributed to the delay; and based upon that, whether the most serious of remedies, a stay of proceedings, should be granted.

It is my impression that the jurisprudence works well right now in terms of deciding when that most significant of remedies should be granted. In British Columbia, it is just about never.

I agree with Mr. Trudell that rather than the proper approach or better approach, rather than scrutinizing the test that is presently employed for determining when a case is too delayed, the better analysis or focus should be figuring out what should be in the system in the first place, keeping appropriate cases out of the system, and when cases are in the system, properly managing those cases.

Senator White: Thanks to all of you for being here today. I’m going to bring Mr. Trudell and Mr. DelBigio, if you don’t mind, back to some of the discussions around proportionality that have been held.

Twenty-five per cent of all cases in Ontario end up in an absolute discharge, conditional discharge or suspended sentence, factually, yet they have an average nine appearances per case to get to a successful conclusion.

The discussion you had around administrative options when it came to impaired driving would make absolute sense to me that we need some other way other than the Criminal Code of Canada and the courts around that, and it would solve our problem around whether we have enough courts, judges, lawyers and time if we had some other way other than the same stick every single time to beat this with.

Can you give some thought to other options that would be available to us besides the system we have now, which would allow us to move some of those cases the cops know shouldn’t be there anymore but really don’t have any other options?

Mr. DelBigio: The problem with categorizing a case as criminal, regardless of whether it is murder or some form of trespass, is that once it’s categorized as criminal, there are a whole series of Charter protections and processes that are engaged. That’s just the way it is. That can be avoided, though, through treating some cases through administrative processes.

The B.C. experience with the administrative driving penalties is a very good example. The province decided that it could take jurisdiction over those cases. It is still punitive. It is very expedient in the sense that these prohibitions are issued at roadside. There is an administrative procedure for dispute, and so far as I understand it, the constitutional permissibility of doing that has been upheld. I see no reason why that couldn’t, and indeed shouldn’t, be used for a whole variety of other situations. I think it would work.

Mr. Trudell: We have to be not afraid to touch the cases that we are almost afraid to touch. One of them is partner assault. Spousal assault, I’m not in any way suggesting is not serious, but there are so many cases where a police officer goes to the door, there’s a family court order here and then there’s a criminal complaint there. Some jurisdictions are thinking about protection orders, other ways to keep these things out of the criminal justice system because, as Greg said, as soon as you bring someone into the criminal justice system, that label is there: family, job, all kinds of things that the criminal justice system probably didn’t anticipate.

So let’s take the cases like impaired. We were afraid to talk about impaired, but there are areas to deal with it. I think that in search of a better term, the minor partner assaults that clog the system and that lead to specialized courts and end up with discharges, we have to really look at a different way, because that’s a silo approach. We’re not thinking about the impact on the family.

So we have to be courageous and look at what’s clogging up the system and say, “Wait a minute, there’s a better way.” That might be a good example.

Senator White: There was a discussion a year ago among a number of members of Parliament and a few senators about using the Contraventions Act and ticketing offences specifically for minor drug possession charges. That would take it out of the court system, someone could plead not guilty and find themselves back in if they choose to, but the option would be left with the police officer and with the accused.

Do you think that’s a possibility for a group of charges? I use shoplifting or trespass by night, and I can go through it, or do you think we should be more formal and engage with the provinces to develop provincial legislation to manage those cases?

Mr. Trudell: Risk aversion. If a police officer knows that he can ticket as opposed to arrest and his superiors will back him up, if a Crown knows he can withdraw and his superiors will back him up, if a judge knows he can give this type of sentence and know he will be backed up, defence counsel can do this and know there are no repercussions, then I think — the police are way ahead in criminal justice.

Senator White: No further questions, Your Honour.

Mr. Trudell: Police are way ahead because they see it at the front end. They know that everything can’t be brought into the system, and that’s what these collaborative meetings are. We’re all looking at a different approach to criminal justice.

Senator Batters: Thanks very much to all of you. It’s nice to be working together on this issue. I really appreciate all of the practical suggestions you’ve given us today to help decrease court delays in Canada, which is such a big issue.

I’m wondering if each of you could very briefly give me your top practical suggestions specifically regarding impaired driving charges. I’ve heard already from the witness who is sitting closest to me about the B.C. administrative provisions, so perhaps that would be his top practical suggestion, but I’m wondering if you could all provide me with your top practical suggestions about that. To me, it seems like a huge clogging-the-courts issue. Mr. Lamb, if you would start.

Mr. Lamb: Certainly. Thank you very much. My top practical suggestion would be, one, adopt the B.C. model for simple impaired driving cases. Leave it to the discretion of our policing agents to determine what that line is.

Alternatively, one thing I’ve heard discussed in the past — I think I’ve seen this in other countries — is lowering the legal limit from where it stands and taking that lower limit completely out of the Criminal Code, simply making it a provincial offence. Instead of .08, whether it was .02 or .05, the reality is if you make an administrative provincial penalty, you take out the entire requirement that attaches to criminal procedure and the rights that are demanded when you’re in the criminal courts. The reality is people shouldn’t be driving when they’re drunk anyway.

Senator Batters: We had better go on so I don’t run out of time here. Mr. Russomanno?

Mr. Russomanno: I agree wholeheartedly with what Mr. Lamb says. I don’t think I have too much to add.

I guess I could add this: The mandatory minimum sentence is a $1,000 fine and an automatic criminal record. Many cases of impaired driving are individuals who aren’t otherwise entangled in the criminal justice system; they don’t have a prior criminal record. And the incentive more often than not is to have a trial. It’s a technical area of the law; defenses could arise.

So I think that is a nice illustration of how mandatory minimum sentences create further delays by removing any incentive to plead guilty.

Mr. Trudell: Education is key. I think we find that a lot of young people now have got the message from incredible educational advertising and media campaigns about the risks and causes of impaired driving. It’s my experience that kids are finding their own designated driver.

I don’t think the criminal justice system needs to solve this problem. It could be a ticketing offence and a loss of license under the provincial statute.

Mr. DelBigio: To the extent that deterrence is found in the immediacy of enforcement, administrative procedures provide that immediacy.

Senator Batters: I know in Saskatchewan, referring to Mr. Russomanno’s comment earlier about the need for more courts and more judges and that sort of thing, Saskatchewan has produced this innovation — I think it originated there — about shadow courts. I’m not sure if you’ve heard of that. It’s basically kind of a phantom court set up on paper. There are so many trials that fall apart at the last minute as a result of a plea bargain or an accused pleading guilty at the last minute, but because they’re on paper, they have theoretically more courts available than they can actually plug people into physical courtrooms, so they make sure they’re making the best use of that, knowing there’s such a high percentage of trials that fall apart at the last minute.

Have any of you heard of this innovation? If one of you has heard of it, maybe you can comment on that.

Mr. Russomanno: I haven’t heard of it, but it does rise to my mind an interesting point that I think was made on behalf of the CBA with respect to remand court, that when a process is initiated, a person has a first court appearance. Then there will be a handful of court appearances, sometimes even a dozen or more, before you have your counsel pretrial, judicial pretrial and then trial or sentencing.

Those are administrative appearances where often the accused has to appear, and it does he create a number of delays.

I think we could probably be more efficient on how we deal with that, maybe on paper, even — something akin to what you were describing is what comes to mind. There might be a way that we can reform remand courts in order to make the process more efficient.

The Chair: We have brief time for a second round.

Senator Baker: Mr. DelBigio, you’ve been very judicious in your answer regarding bright timelines. We live with bright timelines in court proceedings. Defence counsel must provide their Charter arguments prior to trial — prior to the evidence even being given. I leave it to you to convince the judge that there’s a Charter argument that came up during the trial. There are timelines. Morin set timelines for trials — 11(b) — six months here, eight months there and 10 months there.

Would you agree, then — because you didn’t agree with my suggestion of setting a timeline for the Crown to provide a clear timeline — would you then entertain the suggestion that if we said the Crown must provide the disclosure prior to trial — a certain period of time — and defence, as well, as far as material evidence to be used at trial? Would you go down that road? Would you agree with that? Because you haven’t agreed with setting the timeline for Crown to produce disclosure.

Senator White: That’s a great idea.

Senator Baker: The police officer says it’s a great idea, by the way.

Mr. DelBigio: I’m listening carefully.

With respect, I must disagree with you a second time. To impose a disclosure requirement of that sort upon the defence would be to really stand — the system now is on its head. There are certain obligations under certain circumstances — for example, with respect to some Charter applications — where there is an onus on the defence to present information that it will rely upon if it wishes to advance a certain application. It works in that circumstance.

But I would certainly suggest that to place a general obligation upon the defence to provide disclosure to Crown in advance of trial with respect to the defence evidence that might be called is a very significant step that would require a lot of discussion, and I would be opposed to it.

Mr. Trudell: Senator Baker, you haven’t talked about the obligation on the police. They are under a great deal of pressure to get disclosure.

Senator Baker: And MacNeil.

Mr. Trudell: Exactly. It has to start on the front end, and the police need the resources to do it, so it runs all the way through.

Last, in terms of defence disclosure, if you have a meaningful judicial pretrial and a judge says, “You know what, Crown? I’ve looked at your case. You’re not going to be successful here. Mr. Trudell, you don’t have a defence.” So make us come to the table, but we know we will get some judicial help here, as opposed to just backing off and waiting for the trial.

So if I know a judge is going to do the work, and I know a judge is going to embarrass me if I’m not ready and embarrass the Crown and say, “Crown, I don’t care what your policy says; there’s no reasonable prospect of conviction here.” This is what I’m saying to you. The defence and Crown can’t just walk away from that meeting and say, “Okay, well, we didn’t like what we heard there.”

So it’s front-end management.

Senator Joyal: Let’s take that on. We come back to what we were raising as an approach from the beginning. How can we make changes in the system that the approach you just described is the one the judges will follow? Are judges trained for that at this stage? How do we have to change the system in order that this approach is the one that would be — I hate to use this word — but compulsory for the judge to follow?

Mr. Trudell: Senator Joyal, you’ve been on this committee for a long time.

Senator Joyal: For 18 years.

Mr. Trudell: I’ve been coming for 19 years. But you have some experience in criminal law. If you weren’t on this committee, or other members weren’t on this committee, it would be a waste. If you have a judge who has experience in mediation — a judge who can move the yardsticks — that’s the person you put in judicial pretrials. You don’t just put somebody in there who is ticking off the box.

There’s a specialization in this kind of work. Some judges just aren’t trained or don’t have the capability of saying, “Sorry, ladies and gentlemen; this isn’t going to wash.”

Proper people in that job — and that’s the responsibility of chief justices and regional senior justices across the country, and this is not something that isn’t happening; the national steering committee is looking at this very issue.

Mr. Russomanno: There’s no stick. I agree with everything Mr. Trudell said about having specialized judges with skills and mediation, but if the Crown can sit there and basically weather the storm and know they will have to go back and explain to their superior why they capitulated and decided to withdraw a charge that has no merit in the face of a policy that says otherwise, then that’s what it comes down to. There’s many a case. It might make us defence lawyers look good when the Crown decides to withdraw a charge, but really a lot of the delay comes down to the fact the police or the Crown never should have proceeded with the charge in the first place, and policies that interfere with that.

Mr. Trudell: Management of the system applies to legal aid, too. Legal aid manages now. If you get a Legal Aid certificate in the Province of Ontario, there’s big case management. You have to justify how much you need.

What we’re doing is we’re looking at the criminal justice system as a business — really, as a proper functioning vehicle — because if we don’t, it’s not going to work. But it’s right across the board.

The Chair: Gentlemen, thank you all. I know I cut you off midstream on a couple of occasions, and I want to extend to you the invitation I did to the preceding witnesses that if you wish to expand on anything that you were responding to or one of your colleagues was responding to, please feel free to get in touch with us and give us that information. We would very much appreciate it, as we appreciate your appearance here today, and your testimony.

Senator Joyal: We have many more years to go, Mr. Trudell.