Justice Committee on Oct. 31st, 2006

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

Thank you, Mr. Chairman.

I was pleased to hear that the duty counsel program in Ontario seems to be going fairly well. I don't know what proportion of your budget goes to the duty counsel program, but dare I presume it's just a fee for service per hour for a duty counsel?

[George Biggar]

It's about 12% of the budget for the duty counsel program as a whole. The services are provided by about 2,000 per diem lawyers in the province. The program is anchored by about 100 or 110 full-time duty counsel, most of whom we call supervisory duty counsel, who work as the lead hands to coordinate the per diem part of the service.

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

And are they paid out of the legal aid program as well?

[George Biggar]

Yes.

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

They are.

Going back to trying to figure out where the legal aid programs came from, I went to the charter, of course. There is a right to retain and instruct counsel if a person is in custody or under arrest. Other than that, there does not appear to be an actual absolute right, although the courts have given signals that accused and perhaps those in some other contexts might require some representation. In some cases a judge may actually insist on it, presumably foisting that burden on the provincial legal aid plan when that happens.

I don't know how prosecutors respond, but assuming some of that happens and pops up from time to time, I was curious about your reference to the refugee component. As far as I understand it, these individuals would not be residents of Ontario or a particular province. Are they served by duty counsel, or would they actually have the ability to obtain a certificate?

[George Biggar]

They have the ability to obtain a certificate. The duty counsel model is not appropriate for refugee cases. It doesn't work, so you have to use the certificate model or staff lawyers, and we have both in Ontario. We have a few staff lawyers, but mostly it's done through the certificate program. I believe that is pursuant to a Supreme Court of Canada case that was decided twenty years ago. I think the Singh ruling said that refugee applicants, once they reached Canada, were in fact residents of whatever province they were in and were entitled to legal services.

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

If they're not residents, they're certainly here. They're certainly present.

It seems odd to me that, in terms of priorities, a refugee claimant who happens to be here for a couple of days would have priority over the guy who has four kids, is making $29,000 a year, and can't get a certificate. Do you subject the refugee certificate applicants to the same financial means test?

[George Biggar]

Absolutely.

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

Of course, they probably don't have a record of earnings at all, do they?

[George Biggar]

Right, and in some cases they're not allowed to work.

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

Good point.

[George Biggar]

They generally tend to arrive penniless, and the consequences for them in these hearings are very significant.

It's an ongoing debate about priorities for legal aid, and well-meaning and intelligent people can disagree about those priorities. In Ontario, we've had fairly stable percentages of the program devoted to family and criminal and refugee over the past decade.

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

Could you just flag those percentages again for us, if you have them at hand?

[George Biggar]

I think we spend about $175 million on certificates, of which about $90 million is criminal. On family, we spend about $50 million. For refugees, it's about $13 million to $14 million. And then there's still a residue of some other civil legal aid, particularly Consent and Capacity Board matters for people who are suffering from issues related to their mental health status.

Up until the early nineties, we had a significant amount of civil litigation being funded through Legal Aid Ontario, but that has virtually all been eliminated over the succeeding decade. At the height, $25 million a year was being spent on other civil litigation, and it's now down to a million or two million dollars.

[The Chair, Conservative, Art Hanger]

Thank you, Mr. Lee.

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

Thank you, Mr. Chairman.

[The Chair, Conservative, Art Hanger]

I have one quick question, and that will bring us to the conclusion of our session here.

Is there a policy in legal aid to support Canadians who are charged outside of the country?

[George Biggar]

No, we do not provide legal aid to people charged outside the country, period. Legal Aid Ontario restricts its services to residents of Ontario, and I believe all the other legal aid plans do the same as well.

[The Chair, Conservative, Art Hanger]

Thank you very much.

We'll suspend for about one minute.

[The Chair, Conservative, Art Hanger]

I'll call the meeting back to order.

Now we have the issue of the drug treatment courts for further examination. We have two witnesses appearing in front of us: Mr. Richard Coleman, the coordinator of the Toronto Drug Treatment Court; and Mr. Kevin Wilson, senior counsel with the Federal Prosecution Service.

Mr. Wilson, I believe you are going to provide us first with an overview.

[Kevin Wilson, Senior Counsel, Federal Prosecution Service, Department of Justice]

Yes, thank you, Mr. Chair. My thanks to the members of the committee for giving us the opportunity to appear here this afternoon to discuss how drug treatment courts operate in Canada. My colleague Mr. Coleman and I will speak from the perspective of the Toronto Drug Treatment Court, but there are substantial similarities between our court and the other courts across the country.

The Toronto Drug Treatment Court is an intensive, court-supervised program of drug treatment designed to deal with addiction-driven, non-violent criminal behaviour. It's a partnership between the criminal justice system, the treatment system, and the community. Mr. Coleman will talk more about the treatment and community components and I'll restrict myself to the criminal justice system.

The criminal justice system goal of a drug treatment court is increased public safety through reduced crime by way of reduced recidivism. The idea is to identify people who are facing criminal charges and whose criminal conduct is driven by addiction to, in our court, cocaine, methamphetamine, or opiates, including heroin, and to deal with the criminal conduct by dealing directly with the underlying addiction.

Participation in the court is voluntary and the criteria for eligibility are quite strict. Applicants to the court are screened out for violence, for commercial drug trafficking, residential break-and-enters, involving someone under 18 in the commission of their offence, or committing a drug offence at a school, park, or other place ordinarily frequented by young persons. Applicants to the court are typically facing a fairly significant jail term if they are convicted and sentenced in the regular court system, but if they successfully complete the program, they generally receive a suspended sentence and a period of probation.

The typical Toronto Drug Treatment Court participant is what we refer to as an addict-trafficker, someone who sells small amounts of drugs just at the subsistence level to support their addiction or someone supporting an addiction by shoplifting or committing small-scale break-and-enters into businesses or vehicles.

I think the committee was left with the impression on October 18 that all trafficking charges are ineligible for the Toronto Drug Treatment Court. That's not actually true. People who traffic for profit are certainly not eligible, but we actually have quite a few subsistence-level addict traffickers participating in our program.

Participants plead guilty before being accepted into the program. It's a post-plea system. They get the advice of private defence counsel or duty counsel before doing so. They are released on stringent bail conditions, including a specified residence, a 7 p.m. to 7 a.m. curfew seven days per week, random urine screens, and a strict honesty requirement, among other conditions. Dishonesty about their substance use in the program can result in their bail being revoked, or even in the participant being expelled from the program. Honesty is a key component of a drug treatment court.

When participants first enter the program, they're required to attend court every Tuesday and Thursday, and to attend treatment at least three times a week to begin with. As they progress in the program, their court attendance is gradually relaxed, and if they're doing well, their curfew may be relaxed as well.

Procedurally, each participant's case is discussed at a closed, pre-court meeting of the court team prior to each sitting of the court, and the participants then come before the court and report on their progress themselves, including admitting any drug or alcohol use since the previous court appearance. Serious breaches of the drug treatment court bail, such as lying about their substance use, missing court without, say, a medical note or some other valid reason, or missing one of the random urine screens without a valid reason, often result in the participant's bail being revoked temporarily. Less serious breaches of the bail—for example, perhaps missing a treatment session—often attract a sanction of community service hours. If somebody misses a two-hour treatment session, they generally get four hours of community service that they have to perform.

The program takes about a minimum of nine months and usually more than a year. In order to graduate from the program, there are formal graduation criteria.

The participant has to abstain from their drug of choice--that would be cocaine, the opiate, methamphetamine--for at least four consecutive months; have stable housing; have regular employment or be at school full-time, and if that's not possible for some reason such as a disability, then at least be participating regularly in some sort of volunteer activity.

Graduation from the program is formally the participant's sentencing hearing, where the period of probation is imposed. The conditions of that probation always include a requirement that they come before the court on the first Tuesday of every month to report on their continuing recovery. So there is that additional support after the more formal treatment part of the program to ensure that they're not simply completing their treatment and then being let go.

Mr. Coleman can go more into the treatment and community side.

[The Chair, Conservative, Art Hanger]

Thank you, Mr. Wilson.

Mr. Coleman.

[Richard Coleman, Coordinator, Toronto Drug Treatment Court, Centre for Addiction and Mental Health]

I don't want to take up too much of your time. I think Mr. Wilson has given you a fairly clear picture.

What I would like to add is that our typical participants in drug treatment court programs are people who are severely marginalized individuals. They are also very expensive citizens. They are heavy, heavy consumers of resources within the community. They are often in and out of jails. They have no housing. About 85% of our participants are without housing when they enter the program.

We're looking at a type of person who commits crimes. There are policing costs involved in bringing them before the courts and the cost of prosecuting them. They're jailed, then they get out, and they're generally housed within the shelter system until such a time as they commit another crime and the whole process starts again.

These people haven't had jobs for many years. Their income is primarily provided by social services and through their criminal activities. They can commit substantial amounts of crime, even at small levels. A person with a $500-a-week crack cocaine habit will support that habit, if they're shoplifting, for instance, by stealing approximately $5,000 worth of goods, because they get about a 10% commission from the people they're selling to.

We're also dealing with people who don't have family doctors, so most of their health care is occurring through accessing emergency departments in hospitals. I consider them to be very expensive citizens.

When they come into the drug treatment court, the system is supported, not just by justice and the treatment provider, but also by the community. In Toronto, we have the benefit of approximately 50 community partners on our advisory committee and many more that provide direct services to our clients.

We use the court to start coordinating the delivery of services for these people. We're getting them into community health centres and substantially reducing their health care costs from the get-go. We're hooking them up with community colleges and getting them back in school.

Ultimately, the goal of the program is to get people engaged in the community, to end the criminal behaviour that's associated with supporting their drug use, and then to get them employed. At the end of the day, that means a successful drug treatment court participant is paying taxes and actually returning some of the costs that were initially borne by the program.

Beyond that, I would leave things for your questions.

[The Chair, Conservative, Art Hanger]

Thank you, Mr. Coleman.

Ms. Barnes.

[Sue Barnes, Liberal, London West, ON]

Thank you very much.

Recently this committee, on Bill C-9, conditional sentencing, reduced the scope.... I want to know, if conditional sentencing had not been available to some of these people who, say, take crystal meth or Ecstasy or heroin or crack, what impact that would have had on the drug treatment courts.