Provincial court snakes & ladders

The two most high-profile criminal trials in Canada in the past year were ones that took place in provincial court. The prosecutions of Senator Mike Duffy and former CBC radio host Jian Ghomeshi were the source of voluminous media coverage — by national media outlets, on social media, and the subject of endless commentary by columnists, pundits, and academics. As well, the courtroom actions and eventual rulings by justices Charles Vaillancourt and William Horkins were subject to intense scrutiny.

The spotlight was an anomaly though for provincial courts across the country. More than 95 per cent of criminal cases in Canada are completed in this level of court, along with some family court responsibilities and smaller civil claims in certain jurisdictions. It is the face of justice for nearly all people who come into contact with the criminal courts. Yet, its public profile, with the rare exception, remains relatively low. Outside of an unusually high-profile trial or a news outlet coming across a decision that it will find someone to be outraged about, the participants in the provincial courts are not often on the media radar.

Administering an efficiently run and fair court system, with appropriate outcomes for defendants depending on their offence and their background, is not necessarily going to be highlighted by the media. Yet, it continues to be a very challenging goal in 2016 for provincial courts. Many of the current issues — such as court backlogs, services for offenders with mental health and addiction problems, co-operation among the parties, and making use of technology — are ones that experienced lawyers will remember from their early years of practice. Unreasonable delay motions are still common as well, especially in impaired driving cases, more than 25 years after the Supreme Court of Canada issued its ruling in Askov.

These issues are at the forefront of what the chief judges and justices of provincial courts across Canada are focusing on in their duties, all of whom are looking for effective ways to deal with these chronic problems. “The first step is to get buy-in from all the justice system stakeholders,” says Chief Judge Pamela Williams, of the Nova Scotia Provincial Court. “It does require judicial leadership,” she says, including the development of strategic plans. “What is our goal? Is it to punish or is it to protect society and repair harm?” asks Williams.

About 50 per cent of Criminal Code offences heard in provincial courts are either property offences, such as shoplifting, or administration of justice cases, such as breach of probation or failure to comply with a court order. Many of the people facing either of these two types of charges are chronic offenders, often with mental health or addiction issues or both.

Williams and her counterpart in Alberta, Chief Judge Terrence Matchett, both speak of the need for a better “triage” system to try to deal with these individuals more effectively. “We need to think which matters don’t need to be in the [court] system at all?” says Williams, who was appointed chief judge in 2013 and has spent considerable time in recent years presiding over the mental health court in Dartmouth, N.S.

In reference to chronic offenders who come before the provincial courts, “by the time we get to them, they are in the emergency ward of the justice system,” says Matchett, a former prosecutor and senior provincial justice official, also appointed chief judge in 2013. “There is no magic bullet. All courts need to specialize more on the health of the person,” says Matchett. “We need to do a better job of explaining why restorative options in certain cases will make the community safer.”

The median length of time it takes nationally to complete a case from the date of first appearance is 123 days, according to the most recent data released by Statistics Canada in its annual criminal courts survey. That figure is relatively unchanged, even though the total number of criminal cases nationally had dropped nearly 10 per cent in the previous five years.

Many provinces take issue with some of the methodology of Statistics  Canada in these annual reports, including what is the precise definition of a case. Williams explains that a bench warrant is considered a case and may not be acted upon quickly by the authorities, which could skew the numbers. Still, she would ultimately like to see a time when what she describes as less serious cases are dealt with in 30 to 60 days.

The president of the Ontario Criminal Lawyers’ Association says a broad culture change is necessary to make the provincial courts more efficient. “There needs to be less resistance to innovation,” says Anthony Moustacalis. As someone who has worked as both a Crown attorney and defence lawyer for more than 30 years, Moustacalis is calling for a different way of thinking about the disposition of less serious offences. “The Crown should develop a management approach to files, rather than a can-we-prove-it approach,” he suggests.

The head of the country’s largest defence lawyers’ organization recounts two recent examples that highlight inefficiencies in terms of court resources. In one, he was called by an individual who was facing criminal charges for stealing a chicken from a grocery store, because the person had already gone through diversion for a previous minor offence. In another, while waiting to represent a client in plea court, Moustacalis observed a 10-day jail sentence and probation imposed on a chronic offender with mental health issues convicted of shoplifting two steaks. “It costs about $300 for every day you are in jail,” he notes. A greater priority should be placed on alternative measures instead of short jail sentences, for certain offenders and certain offences, he says.

The chief judge of the provincial court in Saskatchewan says while judges can only deal with the cases that come before them, it is important to consider the background of the defendant when imposing conditions for probation or conditional sentence orders. “I try to be careful not to load up orders with terms that will do nothing to rehabilitate the offender or provide safeguards to the public,” says Chief Judge James Plemel. “There is no utility in imposing conditions with which an offender has no chance of complying. We should think twice before we order an alcoholic who has drunk alcohol every day for the past 10 years to not drink for the next six months. Just as judges should carefully consider imposing inappropriate conditions, Crown and defence should ask for or agree only to those which they feel are appropriate.”

He also points to specialty courts, such as aboriginal courts in northern Saskatchewan, as another way to more effectively consider the background of the defendant. Some of the proceedings and sentencing are done in the first language of the accused, depending on the language ability of the judge.
“Aboriginal judges help build important bridges between the court and aboriginal individuals and communities,” says Plemel.

Another potentially resource-heavy proceeding at the front end for provincial courts is bail. There were nearly 11,500 individuals in provincial jails awaiting trial or sentencing in 2014, according to Statistics Canada. That was more than those convicted

and serving sentences in provincial institutions. In part, that is because of a greater reluctance by the Crown to consent to bail, say defence lawyers.

Boris Bytensky, a defence counsel who was one of the members of a Bail Experts Table commissioned by the Ontario government in 2012, says there has been slight progress in this area. “I think there has been an emphasis placed on putting the right personalities in bail court. Otherwise, you have a backlog,” says Bytensky, a lawyer at Adler Bytensky Prutschi Shikhman in Toronto.

In some jurisdictions there is a regular bail Crown, which is more efficient. However, the tendency to be “risk averse” for fear of consenting to the bail of someone who might end up committing a serious crime is still too prevalent, says Bytensky. “We over-condition people. We over-surety people,” he says, which slows down the courts. Bytensky says he does not believe it increases public safety.

Unexpectedly, one policy change that has reduced the size of the docket in some Toronto courts is the recent suspension by police of street checks or “carding” of individuals, says Bytensky. “There are now fewer people arrested for breach charges.”

The use of speciality courts for certain types of low-level offenders or the push for alternative resolutions is a reflection of the social-work component within the courts. Carol Baird Ellan, who was chief judge of the provincial court in British Columbia for a five-year term between 2000 and 2005, says court backlogs are fundamentally a social issue, not a judicial one. “You could cut the number of defendants in half, if governments properly resourced their parents growing up,” says Baird Ellan about the cycles of poverty and drug addiction that result in certain communities being over-represented in courts.

At the same time, once someone is already in the court system, more resources to try to ensure they do not return would save governments money in the long run, she suggests. “There has always been a short-sightedness to how courts are funded,” says Baird Ellan, who retired as a judge in 2012 and ran for the NDP in the last federal election.

The focus on trying to be more effective with non-violent offenders is to free up more court resources so more serious crimes can be dealt with, either through a trial or a resolution in a more timely manner.

Nearly one-third of all criminal cases in provincial courts are stayed or withdrawn by the Crown before a trial, according to Statistics Canada. In Ontario, that percentage has consistently been slightly higher than the national average.

It is also common for multiple court appearances before a decision is reached. From the defence perspective, that is because the Crown office does not take a meaningful look at a file early enough in the process. In response, provincial Crowns in a number of provinces including B.C., Ontario, and Alberta have moved to increased “file ownership” practices, where a prosecutor has carriage of a file at an early stage.

Dan McLaughlin, communications counsel for the criminal justice branch in B.C., says its most recent data suggests there has been reduced time to disposition as a result of this policy. “The main objectives of Crown file ownership are to reduce the number of Crown counsel and administrative staff who engage with each prosecution file, to facilitate principled resolution at an earlier stage and enhance trial readiness through continuity of file management,” says McLaughlin. As well, the Crown policy manual encourages prosecutors “to initiate early, principled, and informed resolution discussions.”

Some in the criminal defence community, though, are not convinced increased file ownership has had the desired effect. “I would still prefer to have a safety valve and be able to go to a senior Crown,” says Moustacalis. He agrees that creates a “human relations” problem, but that it can be helpful depending on the personalities in a particular Crown office.

In Alberta, file ownership has not necessarily resulted in speedier resolutions, says Kelly Dawson, president of the Alberta Criminal Trial Lawyers Association. “For any case of any seriousness, early resolution offers are not attractive. You will always do better on the eve of trial, says Dawson, managing partner at Dawson Duckett Shaigec & Garcia barristers in Edmonton. “Crowns procrastinate, defence lawyers procrastinate. That is the nature of it,” says Dawson.

Chief Judge Matchett says he has placed a high priority on case management initiatives, including more judges in docket courts and increased use of technology. One agreement with the province, which is still in the process of being implemented, is to put the schedules of Crown counsel online, in the hopes of making it easier to set trial dates. The most recent data on the lead time between when a case is set down for trial and the trial is on average 20 weeks, says Matchett. That is still a reduction from 22.5 weeks when he began as chief judge, despite an increase in the number of overall cases in provincial court. “When you are talking about case management, we believe the best approach is to collaborate with the other players to start to change the culture,” says Matchett.

Dawson says, though, that there is a way to speed up the process that does not require new technologies or special initiatives. “The client is often the best engine to get things going. The client complaining is the integrity check. Call me old-fashioned, but technology actually helps make it easier to delay,” he says.

There has been a recent push in Alberta, says Dawson, for designations from clients in custody. And without enough video rooms in provincial jails, the defendant is not even present remotely for a court appearance. “Sometimes, the client is the only one who is not being heard,” states Dawson.

While the caseload is lower in provinces such as Saskatchewan, it has also been more successful in reducing the time before a trial, according to Statistics Canada data. Possible dates for trials of relatively straightforward matters are posted on the court’s web sites, says Plemel. “In almost all cases, we will be able to offer a date within three to seven months,” he says. “I get monthly updates in my office, and as the chief judge, if I see the delay is getting close to or exceeds seven months, I will contact the judge or administrative judge in the area to see if assistance is needed.”

Not surprisingly, by far the busiest provincial court is Ontario, with more than 215,000 “cases received” last year, according to annual statistics issued by the Court of Justice. On average, it took 4.5 months and close to seven appearances to dispose of a case, which is better than a number of smaller provinces. There is a very wide range, however, depending on the offence. Administration of justice offences averaged 83 days to disposition in 2015, while it was an average of 280 days from the first appearance in court to the end of a sexual assault case.

“The statistics on number of appearances and the time to trial are ones we monitor closely,” says Ontario Court of Justice Chief Justice Lise Maisonneuve. Last fall, she established a criminal modernization committee that she co-chairs with the province’s deputy attorney general. Other members include senior corrections and policing officials as well as Crown, defence, and legal aid representatives. “One of our court’s priority initiatives and one I am personally very committed to is enhanced judicial pre-trials. This is an area where I believe judicial leadership is critical,” says Maisonneuve. As well, a greater use of technology in areas such as electronic forms for bail, recognizance, and probation orders permit court staff to process these documents immediately, saving time for defendants, she points out. “Sometimes, the improvements don’t need to be dramatic new technology to be meaningful,” she says.

The Ontario Ministry of the Attorney General is also in the process of expanding a new case management system known as SCOPE, which facilitates electronic disclosure from police to the Crown.
Brendan Crawley, a spokesman for the ministry, says the system includes tracking features, with automated followup messages to try to ensure that material is received in advance of court appearance dates. “SCOPE also eliminates delay in receiving paper briefs physically from the police. The minute they are ready on the police side, they are transmitted electronically to the Crown side.”

Both the ministry and the judiciary have recently focused on a few specific issues in terms of trying to make the provincial courts run more smoothly, says Moustacalis, which he believes is a more effective strategy. He also supports other proposed technology-based initiatives such as the use of a secure video link so that a lawyer can speak with a client who is in custody without having to travel to the jail.
“That is a good innovation,” he says.

For the changes to have real impact though, all of the different participants in the court system need to be more collaborative, including defence lawyers, suggests Moustacalis. “You have to be motivated to make it work.”

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Scope of provincial court jurisdiction

Along with the spotlight recently thrust on the provincial court in the Duffy and Ghomeshi trials, the scope of its jurisdiction was addressed earlier this year in two significant rulings, issued by the Supreme Court of Canada and the Ontario Court of Appeal.

The decisions clarified the effect of a provincial court judge finding a law to be unconstitutional and the powers of a statutory court to award costs against the Crown.

Whether provincial court judges could issue a “declaration” that a law was unconstitutional arose in recent rulings in Ontario and British Columbia.

Justice David Paciocco, a former law professor whose legal writings have been cited numerous times by the Supreme Court of Canada, found in R v. Michael in 2014 that the mandatory victim fine surcharge of $100 per offence violated the Charter.

The Crown office in Ottawa argued that since provincial courts do not have inherent jurisdiction to declare a law to be of no force and effect, the decision in Michael only applied to that defendant. As well, a Charter challenge would need to be brought every time someone in provincial court was seeking to have the surcharge declared unconstitutional.

While agreeing that provincial courts do not have the formal authority to declare a law invalid, in a subsequent decision, Paciocco described the Crown’s position as unjust. “If the Crown is correct, it means that the Crown is in a position to isolate a Charter challenge that it loses by not appealing that decision to a superior court,” wrote Paciocco in R v. Sharkey.

Repeated Charter challenges are impractical in provincial courts, stated Paciocco, who concluded that a finding that a law is unconstitutional is a persuasive precedent that other judges can rely upon without having to re-argue the merits each time.

The Supreme Court addressed the issue in its decision in R v. Lloyd, issued this spring. It found that a one-year minimum jail sentence for a second drug-trafficking-related offence violated the
Charter, because the provision could also capture addicts who sell small amounts to pay for their own drugs.

At the original trial, B.C. Provincial Court Justice Joseph Galati ruled that the mandatory minimum was unconstitutional. While agreeing with this conclusion, the Supreme Court stressed that the law is clear that provincial court judges cannot issue a formal declaration that a law is invalid.

However, in reasoning similar to that of Paciocco, the Supreme Court suggested that full Charter challenges are not required each time. “It is open to provincial court judges in subsequent cases to decline to apply the law, for reasons already given or for their own,” it stated in Lloyd.

The scope of the power to award costs arose in a long-running legal battle over properties that included a former Molson Brewery plant north of Toronto, later discovered to be the site of a large marijuana grow-op. The federal Crown alleged that the owners were using the properties as an instrument of crime.

Ontario Court Justice Peter West ultimately ordered $1 million in costs against the Crown after a lengthy court hearing where he dismissed the application to have the properties forfeited. West made the award as a result of what he called the “hardball” attitude of the Crown that was a “marked and unacceptable departure” from the standards expected of it.

The Court of Appeal, in its April decision in R v. Fercan Developments Inc., agreed that provincial courts have the jurisdiction to make a costs order in appropriate circumstances. Justice Harry LaForme, writing for a unanimous three-judge panel, found there is an “implied power” for statutory courts to be able to award costs as part of its authority to control its own process.

As well, since the authority of provincial and superior courts is similar when the Crown is bringing a forfeiture application under the Controlled Drugs and Substances Act, it would be unfair for them not to have the same powers. Otherwise, the Crown could engage in severe misconduct without cost implications in provincial courts, noted the Court of Appeal. “This would undermine the efficacy of forfeiture applications heard in provincial courts,” wrote LaForme.
— SK

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