Thank you.
Mr. Woodworth.
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.
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.
2:25 p.m.
Conservative
Stephen Woodworth Conservative Kitchener Centre, ON
Thank you very much.
Thank you, Justice Wachowich, for being with us here today. It is certainly good for us to hear a judicial perspective.
I'd like to go back to some questions regarding sentencing that were raised with you earlier. You began by saying that you had no problem with minimum sentences for serious cases, such as organized crime. That tweaked my interest, I guess because I have sometimes wondered how we can balance the sentencing factors, if you will, and on the one hand take full account of the necessity to sentence offenders as individuals in their own individual circumstances, and yet at the same time try to achieve sentences that are proportional to the offence. It sounded to me as if you were saying that there still is a role for proportionality and that a sentence that reflects the gravity of the offence is still an appropriate consideration.
Am I on the right wavelength there?
2:30 p.m.
Former Chief Justice of the Court of Queen's Bench of Alberta, As an Individual
Yes, I agree with you completely.
2:30 p.m.
Conservative
Stephen Woodworth Conservative Kitchener Centre, ON
All right.
Then would it be in order for a legislator or a legislature to say that when we have an offence that is extremely grave—for example, the trafficking of young women—even what might be considered minor complicity in facilitating such a grave offence might justify a serious penalty?
Would that be in accord with your thinking?
2:30 p.m.
Former Chief Justice of the Court of Queen's Bench of Alberta, As an Individual
Yes.
2:30 p.m.
Conservative
Stephen Woodworth Conservative Kitchener Centre, ON
Thank you.
Then I also want to ask you about some of these disclosure questions, because they are rather difficult. We've heard some comments about the fact that judges sometimes err on the side of more disclosure than is necessary and that sometimes defence counsel are just out on fishing expeditions. You've heard that phrase, I'm sure, more than once in the years you've been on the bench.
The idea was that Stinchcombe seems to have a very low threshold for disclosure requirements. I'm not as familiar with it as I should be, but the idea was suggested that if anything is...as long it's not irrelevant—put it that way—the onus is on disclosure.
I wonder whether you have any observations about whether it would be legitimate and possible to tighten that up a little bit, in order to reduce the disclosure burden on crowns.
2:30 p.m.
Former Chief Justice of the Court of Queen's Bench of Alberta, As an Individual
What is relevant in the eyes of one person may not be relevant in the eyes of another person. It's a very difficult thing to be able to balance, in certain ways.
When Stinchcombe came to us, it really changed procedures completely at that time. I agree that it had a low threshold, but as we go through a process, you keep adding on and adding on, it seems. When you have now full disclosure, you have to give them the full cabinet and say “take a look”, which should not be necessary. You can run these defences when you get the information that is relevant to the case. The important thing is that you're not hiding anything that is of importance.
I couldn't tell our judges how to deal with applications relating to Stinchcombe. The independence of the judiciary is such that I could not do that. But at our coffee talks, we would say, well, we're going too far; this isn't necessary; you can get to the truth without having to disclose everything in sight.
A lot of it is due to the fact that there are certain lawyers out there whose duty is to their client, first and foremost, and what they're trying to do is get disclosure that gives them information about other unrelated matters—how the wiretaps were done, who else was involved, and maybe we can get even with this other guy because we found his name on this file through disclosure. There is this surreptitious kind of conduct that goes on. In my view, we should tighten up on Stinchcombe.
2:35 p.m.
Conservative
The Chair Conservative Ed Fast
Thank you.
Right now would be the Liberals' opportunity. I'm going to allow three more questions. There would have been one there and two more on the other side of the table.
Do you want to take a question?
2:35 p.m.
Liberal
Brian Murphy Liberal Moncton—Riverview—Dieppe, NB
Yes, I will.
One of the things that also aggravate attorneys general—from time to time we get them in here, or their counterparts or whatever—is scheduling and use of resources. It's a curious thing that federal judges are appointed by the federal government, but most of their staffing requirements....
You mentioned Chief Justice Smith. He's building a nice big courthouse in my city of Moncton. It's beautiful, but I think it's pretty big coin.
2:35 p.m.
Former Chief Justice of the Court of Queen's Bench of Alberta, As an Individual
You know I call him “Kowalski”, don't you?
2:35 p.m.
Former Chief Justice of the Court of Queen's Bench of Alberta, As an Individual
That means “Smith” in Polish, you see; I've given him a new name.
2:35 p.m.
Some hon. members
Oh, oh!
2:35 p.m.
Liberal
Brian Murphy Liberal Moncton—Riverview—Dieppe, NB
Oh, okay.
Anyway, look, the struggle between provincial attorneys general and federal lawmakers is pretty evident now, too, because we have enacted a lot of laws—this was on the front page of the Globe this morning, so it must be true—that deal with increased expenses for correctional services. There will be more need for police officers, probably, and there probably will eventually be more need for judges. But that is a federally mandated volume that affects the provinces quite severely.
Then you get talking to attorneys general, and they'll talk to people like you--and “Kowalski”--about using their resource to the maximum.
Do you feel that federal judges—I don't mean Federal Court judges, but section 96 judges, such as you were formerly—are being used adequately? Do you think judges are working hard enough? It's a complaint that attorneys general make when they're arguing with federal governments.
2:35 p.m.
Former Chief Justice of the Court of Queen's Bench of Alberta, As an Individual
When I started as a judge, it was a nine-to-five job with no heavy lifting. That was back in 1974. Judging has completely changed: completely changed. With computers and the changes in the law and the shift in domestic cases and the way there are more long trials, it's a completely different kind of profession, or part of the profession, from what it was 30 years ago. If you go down to the courthouse now, the parking lot by eight o'clock is filled. Back 30 years ago, there were maybe two cars, and they were all waiting until ten o'clock, because all they did was just their cases and nothing more.
With pretrial conferences, case management, and with preliminary applications, the hallways are very busy. We're packed to the roof in Edmonton now; we have no room for anybody else. We have one judge for every 54,000 citizens in Alberta. Back about 1993, there was one judge for every 43,000, more or less. We were fifth in Canada at that time. We are now number one in Canada. Ontario and Quebec and British Columbia are behind us by way of the ratio. But our judges are working to full capacity.
In my case, I haven't had a holiday, because the foreman who's on the job.... If you have six people with shovels, you're going to have to have a foreman; if you have 60 people with shovels, you still have to have a foreman. I haven't had a holiday of more than ten days in over 20 years. One of the reasons is that we've had to try to maintain what we call that “lead time” that is respectable. We've been able to do it; we've been innovative. If we have to sit on Saturday, we'll sit on Saturday.
Judges are now very busy. Had it not been for the assistance of some legal students and legal counsel to assist us, we would really be behind the eight ball. In Edmonton, when I left, there wasn't one judgment that was not rendered over four months--not one. Calgary's a little different
2:35 p.m.
An hon. member
There's always that rivalry.
2:35 p.m.
Former Chief Justice of the Court of Queen's Bench of Alberta, As an Individual
I'm just telling you now that judging has changed.
March 29th, 2010 / 2:35 p.m.
Conservative
Daniel Petit Conservative Charlesbourg—Haute-Saint-Charles, QC
Good day, your honour. I have been a lawyer in Quebec for about 37 years. Thus, I have met a lot of judges during my long career, in both civil and criminal cases.
When people look at the justice system, they do not necessarily know whether the crown prosecutors and defence lawyers have done their job well or poorly. What the public has an opinion about is the judge's decision. It is what is reported in the papers. It is all the people are aware of. As a general rule, people feel positively about the decisions of the provincial courts and the criminal courts, such as Quebec's Superior Court or Court of Appeal.
The problem begins with the Supreme Court, when decisions become more political. In general, judges' decisions are legal, rather than political, in nature. Be that as it may, when organized crime is involved, we hardly dare create any more mega-trials because the Supreme Court decided, in one instance, that evidence had not been disclosed. The rights of criminals are so strong that the Supreme Court's decision was almost anti-government. For that reason, I am interested in organized crime.
I am sure you have studied these decisions. They end up affecting all the other courts and they end up doing us a disservice. The Supreme Court's guidelines begin at the top and reach downward. A Supreme Court decision is like a law, in practice. The public has the impression that there is no actual decision involved, and that the judges are simply following the rules step by step. I do agree with you that in certain cases it is not easy.
I would like you to say whether, in your opinion, the Supreme Court—and I am not referring here to the appeal courts—sometimes makes political judgments. It is a tiresome phenomenon.
2:40 p.m.
Former Chief Justice of the Court of Queen's Bench of Alberta, As an Individual
I am not going to accuse the Supreme Court of Canada of political decisions. I think that when the Supreme Court of Canada made the decision as it related to the impracticality of these mega-trials, the court realistically saw that they were in fact that. We found that out first-hand in Alberta.
There has to be another way. I'm not too sure what the other way is, but if we clog up our whole system with mega-trials in Quebec, Alberta, and Ontario, we frustrate the whole judicial system. It undermines the whole system. One way or another, we have to find a way to deal with these kinds of trials in a way that allows us to bring them to a conclusion in one way or another. I think Alberta in part has done some of that.
We've had conferences. I was on the reform committee for the justice department. It consisted of three members of the Canadian Judicial Council and attorneys general in Canada. One of the big things we were dealing with was the mega-trial. We studied the mega-trial. There's a good paper on the mega-trial out of that committee. I think that committee is still meeting. I am not on it any longer, but I was on it for about five years; there was Justice Kennedy from Nova Scotia, me, and Associate Chief Justice Pidgeon from Quebec.
So this is being studied from the judges' point of view as well. We're also studying case management, which I think will solve a lot of the problems. We're also dealing with possible reform of the jury system, which we haven't looked at for years.
Justice reform is going on at the same time that your committee is studying one aspect of it. This is relatively new, and I'm pleased that a committee of Parliament is looking at this issue, because if we had organized crime in this country of the type we have in some other countries, God help us.
I'm a proud Canadian. My grandparents came here from the old country. As far as I'm concerned, we're living in the best country in the world. I've taught in Russia and I've taught in the Ukraine, and boy, we're ahead of everybody. What did the Ukrainian judges do after the fall of the Iron Curtain? Out of all the countries, they came to Canada, because they said they wanted to adopt a system that was similar to Canada's. They went to Hamilton. They went to Winnipeg. They went to Edmonton. There were 30 of them. They came back two years later, after going back to Ottawa to review what they had learned, and said we were doing great in Alberta and that they were coming back to Alberta. In a way they adopted us.
What it really indicates is that our system is imperfect--it can't be perfect unless we have a dictatorship--but we can be very proud of our record when it comes to handling cases. We should be prepared to adapt and adopt and to change if necessary, and change is necessary in this particular area. I'm therefore very pleased that something is being done.
2:45 p.m.
Conservative
The Chair Conservative Ed Fast
Thank you.
We're pretty well at the end of our time, but I have one last question. There's something that hasn't been touched on here, and it has come up at our committee. It's the whole issue of designating criminal organizations. Designating a gang or a criminal group as a criminal organization has been frustrating crown attorneys for some time. The suggestion has been made that it would be easier if government used some process to create a list that would designate the Hells Angels, for example, as a criminal organization so that you wouldn't have to prove that in court anymore. There are many of the opinion that it would not work, or that it would be very difficult if not impossible to do. The whole issue of taking judicial notice of previous rulings has also been raised at this committee.
Do you have any suggestions on how we could streamline the process to prevent some of these lengthy trials from being even longer than they should be?
2:45 p.m.
Former Chief Justice of the Court of Queen's Bench of Alberta, As an Individual
I'm no expert on how these criminal organizations are organized and what subsidiaries there may be and how they could be designated as criminal organizations, although everybody recognizes that the Hells Angels, for example, are involved in criminal activity.
2:45 p.m.
Conservative
The Chair Conservative Ed Fast
It would have to be proved in court, though, each time, which is very time-consuming and takes up a lot of resources. Is there any way of reducing that burden?
2:45 p.m.
Former Chief Justice of the Court of Queen's Bench of Alberta, As an Individual
You can have a commission to which references are made to determine whether or not this organization is to be designated a criminal organization as such, without further proof thereof in criminal hearings.
The problem is that these organizations change along the line. Sometimes somebody sees the light and says, “We're now going to have Sunday mass at the Hells Angels clubhouse”, or whatever it might be.
2:45 p.m.
Some hon. members
Oh, oh!