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.
2:10 p.m.
Former Chief Justice of the Court of Queen's Bench of Alberta, As an Individual
Well, I guess everything's possible, but boy oh boy, it would be very difficult. It would be very difficult, as I see it.
2:10 p.m.
Conservative
March 29th, 2010 / 2:10 p.m.
Conservative
Brent Rathgeber Conservative Edmonton—St. Albert, AB
I thank you, Mr. Chair.
Thank you so much for appearing here today. It certainly is an honour for this committee to hear from a jurist of your experience and expertise.
We heard this morning from the Edmonton police chief--
2:10 p.m.
Former Chief Justice of the Court of Queen's Bench of Alberta, As an Individual
By the way, Mr.Chair, he never did appear in front of me; he was always too afraid.
2:10 p.m.
Some hon. members
Oh, oh!
2:10 p.m.
Conservative
Brent Rathgeber Conservative Edmonton—St. Albert, AB
That's probably why we like each other so much.
Chief Boyd told us this morning, and this has been reported from time to time in the local media, about individuals who were out on judicial interim release, commonly known as bail, and committing crimes. Chief Boyd had some fairly alarming statistics as to the number of offences these individuals were awaiting trial for and how frequent the occurrence was.
One of his observations was that reports that were prepared either by police or by crown prosecutors were essentially ignored by the justices of the peace—who, I acknowledge, did not work for you, as former chief justice--but these matters are all frequently reviewed, as you know, by Court of Queen's Bench judges.
Do you have any observations or insight regarding the suggestion that bail conditions are too loose and that it's too easy to be released on bail in this province?
2:10 p.m.
Former Chief Justice of the Court of Queen's Bench of Alberta, As an Individual
I can't answer for the justices of the peace, and you have recognized that. It's a relatively new procedure that has occurred with the justice of the peace, within the last three or four years, as to how bail is handled at that level.
Appeals that come to our court, which are bail reviews, have increased substantially over the course of time, and they are now much longer. It's the obligation of the crown prosecutor to bring forth the reports. If he fails to bring forth the information, the police or the public suffer the consequences by reason of this person's probably being released when he should not have been released.
A good example of that was a case here in Edmonton called Martin, for an individual who killed his wife when she was pregnant. He was released by a judge from Calgary on the bail review. If you read his judgment, you could understand why he was being released, because all the reports weren't in at that stage. He was released, and there was a hue and cry about this, but it could not be publicized and no information could be given about why he was released. But subsequently, when you read the judgment, you would ask why you would keep the guy in jail in light of the information that came before that particular judge at that time. The court of appeal reversed it, but by that time we had more information.
The feeling I get is that the general public would like to see these people incarcerated until they get to trial, but we have some very practical problems in the remand centre and the capacity in the remand centres. I've done a lot of bail reviews in my time. In fact, one of my decisions really set the guidelines for bail reviews. That was on Lysiak. Lysiak only stole $17 million from the Bank of Montreal—no petty cash--but I released Lysiak on bail. But I tied him down so that he had to live with his brothers in Mundare, and he surrendered his passport. I allowed him to go to church on Sunday. I asked him what church he went to. I knew from my own practical knowledge that this church was only open once a year—so he went to church once a year.
You can really tie up a person. You spend $13 a day, I think it is, for him to be monitored by a parole officer, while you spend $130 a day for him to stay in jail. You have to be practical about this. In this day and age, with monitoring with bracelets and other mechanisms, you can save a lot of money. Unless there is a very good reason to lock up an individual—usually it is for crimes of violence—I'm a great believer that we can release a lot of these individuals and save ourselves a lot of money and get around the problems we have in the remand centres of overcrowding and yet have these people attend.
2:15 p.m.
Conservative
Brent Rathgeber Conservative Edmonton—St. Albert, AB
As a brief supplemental question, if it is true that justices of the peace or judges are ignoring these reports, in your view does requiring judges or JPs to provide written decisions for their decision to release or not to release cause them to go through the mental gymnastics of actually referring to those reports?
2:15 p.m.
Former Chief Justice of the Court of Queen's Bench of Alberta, As an Individual
If there have been written reasons, they then have to say on what basis they are making their decision and they then have to refer to the reports.
2:15 p.m.
Conservative
Brent Rathgeber Conservative Edmonton—St. Albert, AB
We were talking about disclosure. In civil law these matters seem to be rectified through interlocutory applications. Why, in your view, is this such a problem in criminal law, where we have these lengthy requests and protracted disputes that result in delayed trials?
2:15 p.m.
Former Chief Justice of the Court of Queen's Bench of Alberta, As an Individual
We're partly overcoming this, because we have criminal appearance court every Friday. Criminal appearance court is the time to make those applications. If you do not have particulars that you feel are satisfactory, then you apply for further and better particulars.
Criminal appearance court has become very successful. It was started in Edmonton about three years ago and is now implemented in Calgary. This reform, which was brought about under my watch, has really provided an opportunity for defence counsel to get the particulars long before the trial starts, so that they're not surprised on the morning of the trial that all of a sudden there are more particulars, which weren't disclosed or were lost or whatever it was.
2:15 p.m.
Conservative
2:15 p.m.
Liberal
Brian Murphy Liberal Moncton—Riverview—Dieppe, NB
Following upon Mr. Rathgeber's point about interlocutory measures, let me follow up with pretrial measures.
As you know, on the civil side of things there's usually a pretrial conference judge who is not to hear the actual hearing so he can deliver an unbiased view of it; also, his decision is just for the motion itself. Would you recommend more of those types of procedures?
Secondly, it's the overall role of the prosecutor, the defence attorney, maybe the judge, and the police in a criminal process.... There was some discussion this morning, and there's been some discussion for years, about how these are all the players.
Now, I can tell you that our experience, in the four years I've been here, is that we very rarely hear from prosecutors. Point number one is that they work for government, so they're a little reticent; two, they don't make the money, probably, that defence attorneys do, so they can't really afford to fly off to Ottawa and gab; three, maybe they are busy. And I think there is an overall reticence to speak out about the process. So we don't hear that.
We never hear, as I mentioned, from judges—twice in four years. The last one passed away about a year or two after, so be careful driving home today.
2:15 p.m.
Some hon. members
Oh, oh!
2:15 p.m.
Liberal
Brian Murphy Liberal Moncton—Riverview—Dieppe, NB
I'm just kidding.
But we hear from defence attorneys all the time. Mr. Rathgeber and I share the view that as members of the Canadian Bar Association—and I've spoken with the Canadian Bar Association about it--the only filter we seem to get....
They're very good lawyers. They're criminal defence attorneys. But they are the squeakiest wheel, and they tend to make other people think that's all lawyers think about.
The question is this. How different, really, do you think, in your experience, prosecutors are from defence attorneys in viewing these pretrial procedures and these interlocutory motions to narrow down the discovery process? How far apart do you think they would be, if you could get them into a room?
2:20 p.m.
Former Chief Justice of the Court of Queen's Bench of Alberta, As an Individual
We have pretrial conferences in all criminal trials that are going to be three days or more. Generally speaking, there is cooperation as between the two individuals, or it might be three defence counsel and one prosecutor. Sometimes when you add another defence counsel, then the complications arise.
It is a lot better now than it has been in the past. I think that lawyers, generally speaking, feel they have an obligation to ensure that these matters are proceeded with as expeditiously as possible and within a reasonable time.
So a lot is accomplished in a pretrial conference: no, you don't have to call that witness; just read in his statement, because I'm not going to cross-examine him anyway.
A lot of things can be done at these pretrial conferences. Pretrial conferences are very effective. One of the problems is that the crown doesn't have the resources to conduct them in all occasions, or sometimes they have to send someone who's not going to handle the trial, so it's not effective. It's a staffing problem that causes that problem. At the very same time, we are a little bit proactive: Can we resolve this case? He's been charged with assault causing bodily harm. It was a black eye. Can we bring this down? Can we save a couple of days?
We triple-book criminal trials in Edmonton. Some are adjourned, some plead guilty, and yet we have enough judges and all the trials are heard notwithstanding the fact that we triple-book. We have eight judges, and we have about 24 cases that we book each day. We weed them out through pretrial conferences or whatever it might be. Very seldom do we have to send anybody home. I think it was twice last year. They got a trial the next week if they wanted or when it was convenient to them.
We've done very well by what we call these kind of reforms, which are our own initiatives: the effective use of pretrial conferences and the criminal appearance court, and what we call mini-trials. Those mostly are civil cases, but the odd time they have also been criminal cases.
I think that the bar now is cooperating. There used to be a time when it was such an adversarial position that they adopted, they wouldn't even speak to each other until they got before the court. Judges would then start court a little early and ask if they'd spoken to each other about this. The answer would be no.
We're in a more civilized era now than we used to be. The adversarial system also demands that there be cooperation.
2:20 p.m.
Bloc
Serge Ménard Bloc Marc-Aurèle-Fortin, QC
Indeed!
I began practising criminal law in 1966 and I have stayed pretty close to it all along, in the crown's office and in defence, and then as Minister of Public Safety, Minister of Justice and now my party's Justice critic.
I would like to say something about the disclosure of evidence. I practised criminal law at a time when there was no mandatory disclosure. I saw it come in with the Stinchcombe decision, but it began in England with the case of the Guildford Four, which was a huge scandal. In that case, the police had not revealed that they had questioned a witness who confirmed the accused's alibis. There was a commission of inquiry and recommendations were made.
Here we have a system in which part of the defence's work is to look at the investigative methods of the police. The system costs a fortune and has multiplied the cost of bigger cases by two or three times. I wonder what the solution really is. I have practised more as defence counsel than as a prosecutor, but I can see that we are reaching the limit. And yet, in the end, what we were aiming for was an ethical guideline that could be generally respected. When the evidence is in the defence's favour... In any case, I observed that every time a police officer had evidence of someone's innocence, it was disclosed. Some evidence was ambiguous.
Could we not replace that with professional ethical obligations: prosecutors have an ethical obligation to disclose evidence that might be favourable? It would be an obligation for the police as well. If the rules were not respected and that was discovered later, there would be sanctions. Perhaps that could replace the strict, formal rule that everything must be disclosed. That rule is costing a fortune and enabling organized crime to prepare its strategy for committing crimes in the future. What do you think?
2:25 p.m.
Former Chief Justice of the Court of Queen's Bench of Alberta, As an Individual
Well, you will always have, in every organization or every profession, some people who are unscrupulous. You're going to have your fair share of bad apples in the defence bar, and sometimes for the prosecutors, where they just don't comply. When that happens, it frustrates the whole system.
The obligation of a prosecutor is not to get a conviction. The obligation of a prosecutor is to disclose the truth that comes before the court. If the disclosure of the truth is the processes in full disclosure of all the evidence, that's the obligation. That has to be remembered at all times. Some prosecutors are saying, “I'm out for a conviction here.” You see this on American television all the time. The Canadian system is different. We are here to paint a picture, bring forth the truth, and let the judge decide.
So good organizations like the defence bar, when it's well organized and you have good leadership, will remind some of the younger ones who sometimes fall into the trap of trying to make a name for themselves and to be obstructionist in some way and to fight for their clients no matter what. Well, you have an obligation to your client, but you have a higher duty--a duty to the court, a duty to the judicial system itself. These lawyers have to be reminded of that. Sometimes they just get carried away, and there's not much you can do with the odd few except through the law society, if it's worthy of reprimand, and also judges. We've told our judges at times, when we see this kind of conduct continuing, to come down hard on the lawyer. In more complicated cases we also have case management of those cases to try to eliminate that.
2:25 p.m.
Conservative
The Chair Conservative Ed Fast
Actually, we're out of time. I'm going to move on to the next speaker.
2:25 p.m.
Bloc
Serge Ménard Bloc Marc-Aurèle-Fortin, QC
But I can tell you that I was trained that way as a crown attorney—the way you said.
2:25 p.m.
Former Chief Justice of the Court of Queen's Bench of Alberta, As an Individual
That's good.