Evidence of meeting #7 for Justice and Human Rights in the 40th Parliament, 3rd Session. (The original version is on Parliament’s site, as are the minutes.) The winning word was gang.

On the agenda

MPs speaking

Also speaking

Allan Wachowich  Former Chief Justice of the Court of Queen's Bench of Alberta, As an Individual
Mahamad Accord  President, Alberta Somali Community Center
Harpreet Aulakh  Assistant Professor, Department of Justice Studies, Mount Royal University, As an Individual
Kate Quinn  Executive Director, Prostitution Awareness and Action Foundation of Edmonton
Norma Chamut  Board Member, Prostitution Awareness and Action Foundation of Edmonton

1:40 p.m.

Conservative

The Chair Conservative Ed Fast

I call the meeting to order.

This is the seventh meeting of the Standing Committee on Justice and Human Rights. Today, March 29, 2010, we're continuing our study on organized crime.

We're privileged to have with us the honourable Allan Wachowich, former Chief Justice of the Province of Alberta.

Is that correct?

1:40 p.m.

Allan Wachowich Former Chief Justice of the Court of Queen's Bench of Alberta, As an Individual

I was Chief Justice of the Court of Queen's Bench.

1:40 p.m.

Conservative

The Chair Conservative Ed Fast

Thank you for that clarification.

As I think you've been told, you have an opportunity to present. Then we're going to open the floor to questions. We have a number of members still to appear, but we certainly have a quorum here.

Please proceed.

1:40 p.m.

Former Chief Justice of the Court of Queen's Bench of Alberta, As an Individual

Allan Wachowich

Thank you, Mr. Chairman.

I don't know whether it's an honour or not to be here this afternoon. It was three weeks ago today that I ceased to be the Chief Justice of the Court of Queen's Bench. Compulsory retirement is at 75, and so I obeyed the law and retired. Up until that time, of course, I could not appear before a body such as this to give you my views, whatever they may be, as they relate to organized crime, particularly what we see of it from the point of view of the bench in Edmonton and Alberta.

I was invited late on Thursday to be here, and I said I could make it. I did a little work with one of our students and circulated a little bit of a paper that you have before you as to where we stand in Edmonton on the matter of organized crime as we see it.

I think we have to go back a little bit. You have to remember that we're a court of general jurisdiction. So my jurisdiction was not only to take care of the civil procedures in court but also the criminal procedures and to assign the judges. The only authority I had was to tell judges where and when to sit. What we tried to do when we got these complex cases relating to organized crime was to assign a judge who had some considerable experience in the area.

The big case that came before the courts in Alberta was Regina v. Chan about five or six years ago, when 30 were arrested. We didn't really know how to handle this because we didn't have the capacity within the courtroom to handle it. This resulted in our building a courtroom for about $2.3 million, fully equipped with adjoining cells in the basement of the courthouse in Edmonton. We had studied what was done in Winnipeg when it had a very similar case starting before ours. Winnipeg had moved its courtroom into an old mill, I think it was, about three or four miles away from the courthouse. We were satisfied to handle a mega-trial of this type, which we'd never had the experience of doing in Alberta before. We had to try to see if we could keep it within the courthouse for security and other reasons.

That trial became very complicated. There were a good number of lawyers. It finally got severed. Most of the accused pleaded not guilty. A few pleaded guilty. The proceedings then commenced and the case collapsed under its own weight, because it was under the section relating to organized crime. Regrettably, the prosecutors weren't really trained to handle that, as it was new to them. There was application after application, including all kinds of applications for particulars and further and better particulars. Finally, these charges were stayed. By that time, probably three years had passed and the people who had pleaded guilty were already back out on the street, while others were still being tried. When they severed the two trials and they were stayed, the crown never appealed. It was a well-learned lesson about gang trials and procedures.

The result is that we have since probably had three trials proceed under that section as it relates to organized crime in Edmonton. One of the trials was called Park, which dealt with a big fraud relating to mortgages. He was acquitted of the fraud charge and also of the charge of receiving benefits from criminal organizations.

There's one that's ongoing called R. v. Alcantara, which is a criminal organization. However, this trial is not proceeding under the organized crime section because the prosecutors feel they can better handle these cases without going under that particular section.

We have another case called the Caines trial, with Caines being the co-accused of Alcantara. He will probably be pleading guilty because of a deal that I think is going to be made.

That's the extent to which we have been involved with the organized crime trials that have come before us.

You will see some remarks from a Mr. Finlayson in the paper that I've circulated. It's somewhat interesting, because he gives reasons for not proceeding under the organized crime sections. He says to sever when you possibly can sever, and to lay specific charges because they can be handled a lot more expeditiously, in particular when it comes for demands for particulars and for full disclosure.

I know that the prosecutors would be reluctant to come before this committee at this stage because they're active in these cases, but you at least have the benefit of what a prosecutor has to say to me. This is from the justice department in Alberta. Some other comments in the paper may also be of some use to you.

Organized crime has been with us, in one way or another, for a long time. When I grew up there were zoot-suiters. They were more into mischief than into trying to get proceeds out of organized crime. Organized crime, as I see it in this particular city--and I think this feeling is shared by a lot of my former colleagues--isn't big, because the genesis of the organization does not take place here. It's probably Vancouver. In Ontario it's probably in Toronto. However, the individuals who are organized here are making other people rich. We have to read between the lines and make some inferences, but this is what we see during the course of the trials we conduct. We really don't see that much of it in comparison to other places.

We have a specific problem in Wetaskiwin because its jurisdiction takes in Hobbema, and there is organized crime among the native gangs in Hobbema. That may be one of the areas where there is more intense activity by way of organized individuals; the other place would be Fort McMurray. Once again, they are usually identifiable groups. A lot of them are immigrants. A lot of these immigrants come here with a lot of talent and add to our culture, but at the same time they bring their baggage. Sometimes their baggage is the fact that they've been involved in some type of organized crime activity back where they came from.

As an overall assessment, in Alberta and in Edmonton in particular we're not having any problems now in being able to handle these cases. We recognize that the prosecutors still have some considerable problems in supplying the information that they're obliged to provide under Stinchcombe. These are not easy cases and they're usually adjourned. On a few occasions it was to ensure that all the particulars were given in disclosure. A lot of these prosecutors are young and still learning their trade, and it's not an easy job for them.

The law has changed since Stinchcombe. The law has changed since the charter. I've been a judge for 36 years, and pre-charter it was easy doing criminal cases; if the policeman didn't beat the living daylights out of someone or else promise him everything that you could imagine, the evidence was admissible, but with the charter and the rights that are now given under the charter, it has become very difficult for judges. Judges have a tough time handling the charter.

We're getting better. When I went to law school, the charter was sections 96 and 97 of the BNA Act, and that was it. In 1982 to 1985, we started to learn about the charter. I had a landmark decision in the Bridges case; I had to impose the charter, and the Bridges case changed the warnings that the police had to give all across Canada. We had to advise them of the availability of legal aid.

To be quite frank with you, I hated it, hated doing that. I knew this guy maybe wasn't guilty, but boy, he was involved: scot-free. The police weren't used to dealing with individuals and applying the charter at that stage either, because they were still from the old school.

That to me was a very good example of where I as a judge, who all of a sudden, after sitting for about fifteen years.... You don't like to change, but you do change; you say, the charter is the charter, and that's the law now.

We're getting better at the application of the charter, and I think prosecutors are getting better at disclosure. Cases are running quite smoothly. These cases take a little bit longer, and we often adjourn them, but at the same time, we can give, in Edmonton and Calgary, a trial within seven months or six months after preliminary has been concluded and the person has been arraigned. We're pretty proud of that record. Maybe it's in part because the crown is now proceeding as I indicated.

Thank you very much.

1:50 p.m.

Conservative

The Chair Conservative Ed Fast

Thank you. We'll open the floor to questions.

We'll start with Mr. Murphy. You have seven minutes.

1:50 p.m.

Liberal

Brian Murphy Liberal Moncton—Riverview—Dieppe, NB

Thank you, Chief Justice. I have read about your career and your sense of humour and your accomplishments in the legal field. I'm very impressed.

I am from New Brunswick. The eastern part of Canada has a different sort of criminal mindset, for sure, and what we are discovering in this tour around the country is that there are different problems in different locations. But there are some constants, and one thing that we grapple with and that divides us sometimes is the usage of judicial discretion. Some offer solutions, as legislators, to legislate and to bring in mandatory minimums or very strict directions to judges of the first instance as a way of helping situations of leniency, increasing deterrence, and generally making the criminal element be more regulated.

I would be interested in your perspective on whether there has been too much judicial discretion. We had witnesses this morning from the police community who suggested that the system is not working in part because judges are not paying sufficient heed to evidence in bail hearings, show cause hearings. I know that as a chief justice you may not be in the provincial courts of first instance that much, but the mistakes generally trickle up to where you were for so many years.

It's a general question. As I say, I'm a big believer in judicial discretion, but as with apples, there are some judges who don't get it right. Presumably courts of appeal and Canadian Judicial Council hearings help with that.

The other aspect I'll ask you about is along the same lines. There have been suggestions at this committee, and I have been here for four years, about judges being totally unaccountable. We don't get to interview many of them. The idea is that there is the Canadian Judicial Council and there are the criminal courts to take care of judges, but that you are not as accountable as a group as we are, let's say, because every so often we have to knock on doors and be rejected or not. In some cases, if you don't go door to door, you do better, but....

Do you think judges are accountable enough, and do you think judicial discretion is way overboard?

1:55 p.m.

Former Chief Justice of the Court of Queen's Bench of Alberta, As an Individual

Allan Wachowich

We're a human system. We've created a human system in our judicial system in Canada. In a human system you're going to get strengths and you're going to get weaknesses.

It would be easy to get rid of judicial discretion by having a grid system like the one they have in California and say “three strikes and you're out”—third time with a loaf of bread, 21 years.

Judicial discretion, in my view, goes part and parcel with judicial independence. You can make mistakes at a trial level, and the solace is this: that they can go to the court of appeal and be straightened out. But I find that judges, generally speaking, are very careful when it comes to judicial discretion. If it's exercised, it's exercised for a good purpose. It's exercised because they feel the consideration not only of punishment, but that the person has some redeeming qualities and may be able, over the course of time, to do something about straightening out their ways.

We get this criticism all the time, that we're not hard enough. We could be hard enough; it's easy to be hard enough. Then we're in a new business, and that's building prisons. We have a prison population right now.... In Alberta we have 3.8 million people, I think it is, and Holland has 14 million people, and we have twice as many people in prison. It's easy to be hard; it's hard to use discretion.

Discretion used by individuals who are properly appointed—and usually the people who are appointed are of the best from the profession and are very careful when they use judicial discretion.... The matter of accountability is that we are accountable as judges. We are accountable first of all to our own conscience, and that's most important. The people who are there are there with a conscience. Once again, the solace is that if we are wrong in the decisions we make, the court of appeal is there to straighten us out, and the crown usually then appeals those decisions.

Accountability is something that I feel we have in Canada; we are accountable as judges. The Canadian Judicial Council receives complaints, probably 150 to 175 a year. We've never in Canada had anybody thrown off the court by Parliament. We've been close on a couple of occasions. We have 1,200 judges, more or less, in Canada in the federal system and have about 120 to 170-some complaints. California, which has a population the size of Canada's, has more than 3,800 complaints each year. There are full-time judicial councils and sub-councils sitting to hear the complaints. Where do the complaints come from? Usually they're from elected judges. We've done a pretty good job of appointing judges in Canada; we really have. Your government has; prior governments have.

Every so often something happens. You tell your Chief Justice Smith in New Brunswick that he was a mistake. Just tell him I said that.

1:55 p.m.

Some hon. members

Oh, oh!

1:55 p.m.

Liberal

Brian Murphy Liberal Moncton—Riverview—Dieppe, NB

In ten seconds, do you think there is any room for a mix, with an elected judge at the first instance level, at least? Sometimes those people are weather vanes for what the public wants in terms of law and order, and if they make mistakes in charter application and voir dires and all that stuff, it can be sorted out by a section 96 judge, or a court of appeal judge.

2 p.m.

Former Chief Justice of the Court of Queen's Bench of Alberta, As an Individual

Allan Wachowich

What I hear most about any kind of election of judges is that once you are in the election process, you're beholden to someone. We cannot be beholden to anybody; I don't care what the level of the court is. The provincial attorney general, when he makes the appointments, has to do this with great scrutiny. They now have committees that go through the names, and their selection process now is, I would dare say, vastly improved from what it was years ago.

2 p.m.

Conservative

The Chair Conservative Ed Fast

Thank you.

We'll move on to Monsieur Ménard.

2 p.m.

Bloc

Serge Ménard Bloc Marc-Aurèle-Fortin, QC

Thank you, Mr. Chair.

We are here because we are continuing a study of organized crime in general. I would like to hear your opinion: what do you think of minimum sentences? Are they a good way to fight organized crime, as some people think, or, on the other hand, are judges perfectly capable of recognizing different degrees of involvement and responsibility with respect to organized crime?

2 p.m.

Former Chief Justice of the Court of Queen's Bench of Alberta, As an Individual

Allan Wachowich

I have no difficulty with minimum sentences in serious offences. In my view it is a serious offence if a person is found guilty for participating in organized crime. This undermines our whole social structure, undermines our society; it is an evil that has to be eradicated. You just can't have these organizations controlling us. We have a democratic system, and organized crimes are just completely contrary to the democratic system.

I personally can live with minimum sentences in organized crime offences. That's a decision of the legislature. I don't think judges would say, “I should have a discretion at this level.” I don't think they would argue with that at all. I think when it comes to organized crime, if Parliament in its wisdom decides to put in minimum sentences, the judges would say that they accept that.

2 p.m.

Bloc

Serge Ménard Bloc Marc-Aurèle-Fortin, QC

The definition of the French word “complice” in the Criminal Code is very broad—accomplice, confederate and co-conspirator are some of the English equivalents—and that means that people may be convicted of the same offence with completely different degrees of responsibility.

I remember one suspended sentence—but that would be a long tale to tell. There were three instances of trafficking in heroin and the principal was sentenced to 12 years in prison. Both sentences were justified.

In terms of organized crime, I know that criminal organizations often use relatives and friends to do errands and small things that are not illegal in themselves but which help, such as renting cars that will be used somewhere else. Would you apply the same reasoning in such cases, or would you like to see some discretion?

2 p.m.

Former Chief Justice of the Court of Queen's Bench of Alberta, As an Individual

Allan Wachowich

In all cases there are degrees of participation. They used to say that if you robbed a bank, the getaway car driver shouldn't get the same as the guy who held the gun. But he's an integral part of it, and therefore if you get life for robbing the bank, then probably the guy who drove away in the getaway car is going to get life as well. I agree that there are degrees of complicity, and some people are taken in. But I would think that you could measure that minor involvement in comparison to what I call the major involvement in these crimes, whereby you might have a discretion for the 18-year-old boy who does something by way of assisting his older brother who's deeply involved in organized crime and assist in that way.

I really don't want you to think that I am vacillating, but what I'm saying is that I recognize the fact that there's minor participation, there's major participation. For major participation, I don't think that any judge would argue with minimum sentences in those. It's the minor participation that is perhaps where discretion might come into play because of youth and other mitigating factors.

2:05 p.m.

Bloc

Serge Ménard Bloc Marc-Aurèle-Fortin, QC

In other Commonwealth countries, when minimum sentences are applied, there are saving clauses. They enable a judge who thinks a minimum sentence is not justified in certain cases not to impose it, on condition that he explain his reasons, sometimes in writing and sometimes orally—but always from the bench, so that it is part of the record—for not applying the minimum sentence in that case.

If it is decided to make more use of minimum sentences, do you think this would be a good idea?

2:05 p.m.

Former Chief Justice of the Court of Queen's Bench of Alberta, As an Individual

Allan Wachowich

If a judge veers from the minimum, the judge has an obligation at that stage—and they presently have an obligation—to say why they are veering from the minimum, in the same way as when you have the crown and defence counsel agreeing on a sentence, with a joint submission, and the judge says, “No, I'm not going to go for that; I think this should be higher.” Or the judge may think it should be lower.

In those cases, judges are obliged to set out the reasons. The same thing would apply when it comes to the minor involvement of individuals in organized crime.

2:05 p.m.

Bloc

Serge Ménard Bloc Marc-Aurèle-Fortin, QC

Do you think that provision should be included in the law?

2:05 p.m.

Former Chief Justice of the Court of Queen's Bench of Alberta, As an Individual

2:05 p.m.

Conservative

The Chair Conservative Ed Fast

Thank you.

We'll move on to Mr. Comartin for seven minutes.

2:05 p.m.

NDP

Joe Comartin NDP Windsor—Tecumseh, ON

I'd like to go back to the mega-trials. From what I'm hearing you say, the likelihood of those occurring in Alberta, at least for the foreseeable future, is basically nil.

Am I understanding you correctly?

2:05 p.m.

Former Chief Justice of the Court of Queen's Bench of Alberta, As an Individual

Allan Wachowich

No, I wouldn't say nil. What the crown has done, I think because of lack of resources and because of the fact that these cases became so complicated.... They learned lessons from that mega-trial that sort of blew up. The result is that I think they would now pick and choose which ones they are going to go with.

I don't think they have closed the door on these. Some of the ones that have come up since have proceeded under this section, although the number of accused has been substantially less.

I would dare think, if we ended up again with another trial with 30 accused, that I don't know what they would do. I really don't know what they would do, just because of the experience of the last time. Concerning the way they would handle it this time, the crown would really have to consult amongst themselves as to what they felt was the best procedure.

2:05 p.m.

NDP

Joe Comartin NDP Windsor—Tecumseh, ON

Perhaps you can help us with this. We had a prosecutor here earlier today; I'm left with the understanding, from what he was telling us, that by going with the smaller number—four or five, as opposed to twenty or thirty—they are then more limited in their ability to convince judge and jury of the scope of the crimes that have been committed.

Would you share that type of opinion; that is, that by going with the mini-megatrial, if I can put it that way, we are not going to be able to as effectively fight organized crime, because we can't demonstrate beyond a reasonable doubt the magnitude of the offence?

2:05 p.m.

Former Chief Justice of the Court of Queen's Bench of Alberta, As an Individual

Allan Wachowich

Off the cuff, I would agree with that. The crown has the obligation of deciding how to proceed. The judges don't get involved in this, except that sometimes we might make a comment--i.e., “Why are you proceeding in this matter? Why don't you sever the charges?” You know, we can ask those questions, but still the crown has the final decision as to how to proceed.

In these mega-trials, one of the biggest problems is that you may have nine or ten lawyers, all of whom have different ideas as to how to defend this particular case. The frustration that results is that it never gets off the blocks. What they're doing is trying to be expeditious, to bring it down to three or four, and therefore the applications that are made are probably going to be general, as they relate to those three or four individuals. There's no shotgun approach to this. That being the case, they can get the case heard; the case can finally be disposed of.

When it comes to thirty or forty people, you see no end. You just never see the light at the end of the tunnel.

2:10 p.m.

NDP

Joe Comartin NDP Windsor—Tecumseh, ON

From the perspective of the judicial figure, again assuming there's no jury, is it possible to avoid that frustration? If you are trying to balance ten defences, so that they're treated fairly in front of you, is it in fact possible to do it? I'm speaking from the judicial standpoint, not prosecutorial.