Justice Committee on Oct. 18th, 2006

[Donald Piragoff]

There's a difference between civil legal aid and criminal legal aid. Each of the provinces and territories has criteria with respect to who may qualify for criminal legal aid. There are differences, but there's a general common denominator: if the result of the conviction would be imprisonment, then the person's entitled to legal aid, subject to income criteria, which vary from province to province.

The federal government does not provide money directly to the provinces for civil legal aid. However, through the Canada social transfer system, it provides grant funding to the provinces, and they're able to use that money for civil legal aid. The types of civil matters provinces would be willing to fund are subject to provincial criteria. Generally, it has been in areas such as family law and certain poverty issues. There is also legal aid available for some immigration matters.

[The Chair, Conservative, Art Hanger]

Thank you.

Mr. Moore.

[Rob Moore, Conservative, Fundy Royal, NB]

Thank you, Mr. Chair, and thanks to the witnesses for appearing.

You spoke about legal aid versus court-ordered counsel. Can you explain some of the challenges faced when there is court-ordered counsel? What does it actually mean, and what are the costs associated with it?

[Donald Piragoff]

The primary difference between court-ordered legal aid and government-funded legal aid is that certain individuals may not qualify for the government-funded legal aid; nevertheless, their personal circumstances, the complexity of the case, the consequences of the case, may be such that the courts, upon application of the individual, are of the opinion that without the assistance of legal counsel the person would not be able to have full answer in defence or a fair trial.

In these situations, the court cannot order the government legal aid system to pay. But judges can say to the prosecutor, the government, that they have to ensure that the rights of the individual to a fair trial are respected under the Constitution by giving the individual access to legal funds. Generally, this has meant that attorneys general, federal or provincial, have had to fund at least a portion of the legal costs directly out of their budget for legal aid. So it doesn't come out of the legal aid program; it comes out of the resources of the attorney general.

[Rob Moore, Conservative, Fundy Royal, NB]

Thank you for that explanation. It seems that could be quite problematic for a system in which there are tight monetary constraints and tight budgets.

I found it interesting when we looked at the numbers that are provided. It's sometimes hard to put them into context. You mentioned the boost in anti-terrorism, and that's all associated with the high-profile arrests that we heard about several months ago. That kind of puts it into perspective. Something like that could come out of the blue for a province.

[Donald Piragoff]

Yes, in particular I believe one of your colleagues on the committee has already mentioned some organized crime trials. If there's a mega-trial for these, with a number of court uses that don't fit the legal aid bill but that require legal counsel, and the judge orders it, then they could create unanticipated costs to the government purse.

[Rob Moore, Conservative, Fundy Royal, NB]

On the issue of these agreements with the provinces--and there are several areas like this--in which there's a degree of uncertainty from year to year, you mentioned there'd been a one-year extension on last year's funding levels for legal aid. What is the value of having a longer term in the agreement? What does that mean? Maybe not so much on the federal side, but what would that mean on the provincial side if we had an agreement on funding that was for longer than one year?

[Donald Piragoff]

Clearly, certainty would be one advantage for the provinces, but I guess you'd have to balance certainty with the need for flexibility sometimes. For example, you don't want to have a period that is too long, because if there are intervening changes and costs have dramatically increased, you can't reopen the agreement because you've signed a long-term agreement.

It's sort of like getting a mortgage. Do you go long with a fixed rate but be stuck with that rate, or do you go shorter and maybe have the advantage of flexibility? The same type of financial consideration that goes into taking a mortgage out on your house also goes into negotiated agreements. Whether you go short or long, there are advantages and disadvantages depending on what happens in the marketplace, or the so-called legal justice system marketplace.

[Rob Moore, Conservative, Fundy Royal, NB]

I think one high-profile instance--not just another drug case or whatever case--if it comes completely out of the blue and hits you with some sort of mega-trial, can have a huge impact on the public treasury, whether it's in legal aid or in the court-ordered counsel.

On the subject of drug courts, can you talk about what going through drug court involves compared to going through what people would think of as a normal criminal course? What is the difference? What advantages are there to proceeding that way? You already mentioned that drug courts don't deal in cases of violence, trafficking, or using a young person, but where someone is in a situation involving drugs. What's the difference?

[Catherine Latimer]

There is a significant difference in terms of both underlying philosophy and approach. In a usual criminal court, someone is being held accountable for their wrongdoing in a manner that's proportionate to the seriousness of the offence. With people who are addicted, there's an understanding that this type of approach doesn't actually work to discourage them from subsequent criminal activity. There's a real problem in terms of recidivism, because generally their behaviour is motivated by a medical condition of addiction.

It has been thought that you need to completely change the dynamics, and these drug courts allow for a therapeutic regime to be interposed into the justice system so that the judge and the prosecutor both become part of a therapeutic team that is attempting to address the addiction issue. There is constant sampling to ensure there is no reuse of drugs. There's encouragement. The idea is to put them through a program of one year to sixteen months in which their use of illicit drugs is monitored and discouraged in an effort to try to get them past the addiction. If they withdraw from the program or fail in the program, it is certainly possible to proceed against them in a criminal manner for their wrongdoing, in order to hold them accountable for that.

It is an effort to try to deal with a long-standing and difficult problem in the criminal area, which is that some criminal behaviour is motivated by conditions that are not amenable to the usual criminal justice approach.

[The Chair, Conservative, Art Hanger]

Thank you, Mr. Moore.

I don't know if this has been addressed yet, but I think the question has been skirted a couple of times on Bill C-9. It has a ten-year maximum. Traffickers basically end up with a 14- or 15-year sentence, maximum. Simple possession would not be captured under Bill C-9, but trafficking could be. What would happen in a drug court if you had a trafficker who has an addiction?

[Donald Piragoff]

He would not be eligible, because the drug treatment courts exclude people who are involved in commercial drug trafficking.

[The Chair, Conservative, Art Hanger]

Okay, so traffickers are not included.

[Donald Piragoff]

They're not eligible.

[The Chair, Conservative, Art Hanger]

It's not even a point then.

[Donald Piragoff]

It's not, no.

[Sue Barnes, Liberal, London West, ON]

Actually, there is a point here. The organized crime has to have three or more, so it's your major trafficking.

[Donald Piragoff]

No, it doesn't have to be organized. It doesn't have to fit the definition of organized crime. If the person is involved in commercial drug trafficking, they are ineligible.

[Sue Barnes, Liberal, London West, ON]

Well, it's the same thing.

[The Chair, Conservative, Art Hanger]

Mr. Lee.

[Derek Lee, Liberal, Scarborough—Rouge River, ON]

I want to ask some number-crunching questions. The big one has to do with the bigger planning and priorities issue.

I'm looking at the trend line on spending here, and I actually don't understand it. There's something happening here, and what it is ain't exactly clear.

There is a huge drop two years out. You guys obviously must know about it. The budget moves from around $1 billion and drops $275 million in 2007-08. That's a 25% drop in departmental spending. Had you noticed that?

If I've taken you outside the envelope that you had prepared for today, we can address this at another time with the minister, but your department is looking at a 25% drop in its budget two years from now or a year and a half from now. My question was going to be, who is getting fired, and are you planning to privatize in some way?

Again, if it's outside the envelope, I'll....

[Donald Piragoff]

It's outside the envelope. That would be best addressed by our corporate people in the department who are responsible for the general financing of the department. We're here to address the financing of two specific programs, and that's why we have the experts from these programs.

[Derek Lee, Liberal, Scarborough—Rouge River, ON]

Mr. Moore and Mr. Petit are just dying to get into that issue.

Moving on to my second question, we've talked about the cuts to the legal aid plan, but it's not clear to me that we've established why. The upcoming cut to the legal aid plan is one-third. That's huge. I did the math on it and it's exactly 33.3%. It's as though somebody said we're going to cut this by one-third, so get out the calculator and do the math. What's the rationale for the one-third drop?

[Donald Piragoff]

There is no actual drop. It is a result of the budgeting cycle. The government was not able to meet the budget cycle for main estimates because the existing three-year agreement terminated on the 31st. Therefore, there was a certain amount of money in the system already, but the rest of the money missed a cycle because of the election and the new government. That's why the minister is coming back with supplementary estimates in December. It's to top up the amount to last year's levels.

[Derek Lee, Liberal, Scarborough—Rouge River, ON]

That's fine. So there isn't anything strange happening there. The department may be one-quarter going out of business, but other than that minor detail—which I'm sure your colleagues won't care much about....

I want to ask about something that's referred to twice, both under grants and under contributions in table 7 of the document. In terms of grants and contributions, the contributions are $2.1 million to the victims of crime initiative, and then a $500,000 grant, also to the victims of crime initiative, in the next year.

Most of us realize around here that the victims envelope is managed usually by the provinces. Is this a new victims initiative? If so, what is the victims of crime initiative and how are we funding it? How are we using our money? I realize it may not be seen as a ton of money, but it comes out to about $2.5 million.