Justice Committee on May 6th, 2009

[Joe Comartin, NDP, Windsor—Tecumseh, ON]

Do you have opinions from your department as to, given the same fact situation, same scenario, people in pretrial custody for extended periods of time because of backlogs in the courts? I want to say to you that in Ontario the backlog in the courts is getting close to what it was when Askov came down in the early 1990s, and all those 40,000 or 50,000 cases were dismissed in Ontario as a result of that decision. We're getting pretty close to that again. I'm just wondering if any analysis has been done. I'll ask specifically for Ontario, because I think our backlog's the worst in the country right now. Are we at a risk of a charter challenge on that, because it has been that backlogged, they've been in custody that long, that limiting the one to one or the one and a half to one will offend section 12 of the charter in particular?

[Rob Nicholson, Conservative, Niagara Falls, ON]

We're satisfied that the legislation is compliant with both the charter and the Canadian Bill of Rights. And then, that being said, I rely on our discussions with the provincial attorneys general and specifically the Province of Ontario. It has been indicated to us that this will have the exact opposite effect—there will be more correctional space, the courts will be less clogged, and this will have an overall positive effect on what's happening in our criminal justice system in the province of Ontario as well as other provinces.

[The Chair, Conservative, Ed Fast]

Thank you so much.

We'll have one more question, and we'll go over to the Liberal side.

Mr. Murphy.

[Brian Murphy, Liberal, Moncton—Riverview—Dieppe, NB]

Thank you.

Again, it sort of meshes what we're talking about with what we heard out west, and it's the general concept of judicial independence and accountability. Those are the two horns of the dilemma, in that I think everybody would agree it's important to have an independent judiciary. There's no question. But we certainly heard from some witnesses out west, and occasionally here, that there is a lack of judicial accountability. How is this relevant, you're probably wondering by looking at the ceiling. What I mean, Mr. Minister, is that this bill itself is dealing in part with...I wouldn't say curbing, but at least better defining to what extent judges will have discretion in awarding time credit for dead time served.

On the other hand, I thought your comments were very proper, encouraging, and just what you'd expect a Minister of Justice to say about our judges determining the law as it's written by Parliament, which is what I said out west. Frankly, the House of Commons is responsible for writing the laws, and if there's a problem with it, it may lie with us as parliamentarians, as lawmakers, and more so, even as the Minister of Justice, who proposes the laws to the lawmakers.

We heard a number of people say that the problem lay with judges. Particularly, I think the comment was in British Columbia, where there were studies talking about leniency and all that sort of thing.

My general question is this. You converse with attorneys general. I know my own attorney general, T.J. Burke, the first aboriginal attorney general in Canada, talks to chief justices at provincial and federal levels and talks about managing court time and all that sort of thing. I know there is a Canadian Judicial Council, which sort of oversees the issue of inappropriate behaviour. Are you confident, Mr. Minister, first of all, that our judiciary is acting independently—I think that's a given—but also that there is accountability? Do you foresee any changes necessary other than from time to time tweaking the law with respect to discretion? If one were to believe everything one heard from some of these people, like Darryl Plecas—I'll put it on the table—a lot of this is a judge-made problem.

[Rob Nicholson, Conservative, Niagara Falls, ON]

I don't think there's a problem with our judiciary, and I actually think it works very well in this country. Judges have to deal with the laws that are before them, they have to deal with the decisions that are made by appeal courts, and they look for the guidance that is the proper role of the legislative branch. That is what we do. I guess in every piece of legislation we have maximum penalties. In a number of cases we have minimum penalties. We give specific judicial discretion, as we do here in this particular legislation. I think it works. I've had people ask me why we are putting minimum sentences here and why we are pointing out to the judges, and I've said we do it for maximum sentences, and we've always done that.

I was recently looking at a chart that showed I was a part of 35 legislative committees on pieces of legislation. I remember one of my colleagues coming to me and asking, “Why are you only putting a five-year maximum sentence on this? Let the judge decide. Why don't you just have a ten-year sentence?” “Just a second,” I said, “We're putting a five-year maximum because we think it fits in with other like-minded sections.” That's our role, to put the five years in. Somebody may argue, as I've had colleagues say, that maybe it should be ten years or it should be greater than that. But again, we make that call. That's what we do as legislators. Just as we make a call at the maximum end, it's within our rights and our responsibilities to call at the minimum end, if that's what we deem appropriate. Then the judiciary takes that and they deal with it, with the guidelines that have been given to them by Parliament.

It's a system that has worked well, and again, I believe it's one of the hallmarks of a successful society, and ours is certainly a successful society.

[The Chair, Conservative, Ed Fast]

I thank all three of you for appearing before us. We're at the end of our time and we'll let you go.

Members of committee, we're going in camera to discuss some committee business and the work plan.

[Proceedings continue in camera]