Justice Committee on May 1st, 2018

[The Chair, Liberal, Anthony Housefather]

Good afternoon, everyone. I call to order this meeting of the Standing Committee on Justice and Human Rights. I'd like to welcome everybody.

I'd like to welcome our first witnesses. As I've explained to you, there has been a notice of motion put before the committee; that will go first today. We're going to come to you as soon as that motion is over. We appreciate your patience.

I shall turn to Mr. Cooper, who is putting forward a motion.

[Michael Cooper, Conservative, St. Albert—Edmonton, AB]

Thank you, Mr. Chair.

The Minister of Justice has a responsibility to fill judicial vacancies in a timely manner. Notwithstanding that responsibility, this is simply not happening. Today there are approximately 60 judicial vacancies across Canada, 12 of them in the province of Alberta, where the situation in terms of backlog and delay is particularly acute.

A year and a half ago, the Alberta government by way of order in council established 10 new judicial posts to deal with the backlog in Alberta's courts. A year and a half later, the Minister of Justice has managed to appoint one new judge from the province of Alberta.

This would be problematic in normal times, but it is much more serious in light of the Jordan decision. As a result of the failure of the minister to fill these vacancies in a timely manner, what we have is a crisis that has worsened. There are serious costs, including more than 400 criminal cases having been thrown out.

Just a week and a half ago, a case involving notorious gang leader Nick Chan was thrown out of court because of delay. This is an individual who was charged with first-degree murder, who was facing a charge of conspiracy to commit murder and directing a criminal organization. He is the head of the notorious so-called Fresh Off the Boat gang, which is linked to more than a dozen murders. He has been called one of the most dangerous men in Calgary, and today he is walking the streets, in part because the minister has simply not gotten judicial vacancies in the province of Alberta and across Canada filled.

The fact is that Canadians deserve answers. They deserve to know, as these cases are being thrown out, why the minister has not filled these judicial vacancies in a timely manner.

Pursuant to the motion that I have put forward, I have asked that the minister appear before the committee to explain the delay. What's the holdup? Why has it been that in a year and a half, for example, in the province of Alberta, out of 10 new judicial spots that were established, only one has been filled? Clearly that is not a record of action. It is a record of inaction; it is a record of neglect.

In addition to these cases being thrown out and dangerous criminals walking the streets, public confidence in the administration of justice is being affected.

Further to this, I would like this committee to undertake a study about the shortage of judges and the impact it is having on the administration of justice and on public confidence in the administration of justice.

I think it's a straightforward motion; I think it's a common-sense motion. This is a problem that has gone on for now almost two years, and I think the time has come, in light of all these cases that have been thrown out, for the minister—not in a 35-second answer in question period—to come to the committee for an hour or an hour and a half so that substantive questions about a very serious issue can be asked of the minister, we can get some clear answers, and some light can be shed.

I think it would be worthwhile to undertake this study because clearly, when dangerous criminals are walking the streets, when more than 400 criminal cases have been thrown out, and when thousands more are at risk, confidence in the administration of justice is being undermined.

[The Chair, Liberal, Anthony Housefather]

Thank you very much, Mr. Cooper.

Mr. Fraser.

[Colin Fraser, Liberal, West Nova, NS]

Thank you, Mr. Chair.

With respect to the motion that Mr. Cooper has put forward, I do not support the motion, for a couple of reasons.

First of all, I know the motion has been provided in the time required in order to have it before our committee properly, but there was no discussion with any committee members, that I'm aware of, as to the merits of the motion itself. This is unfortunate, and perhaps could have led to some agreements on the nature of the motion itself.

More substantively, there are two premises in the motion itself that I believe are unfounded. The first one is that the vacancies are not being dealt with. I would submit that they are being dealt with. In fact, in 2017, there was a record number of appointments made by the Minister of Justice. There were over 100 appointments made. To date, there are, I believe 168 appointments that have been made by the current Minister of Justice. A new merit-based system, I would suggest, is better than the old way that it was done. It leads to a more diverse bench, but is also a more meritorious appointments process.

In fact, in Alberta, as Mr. Cooper referenced in particular, my understanding is that the vacancies are all new positions that this government has put forward. Granted, not all of them have been filled yet, but the new process will allow the appointment of justices, who will fill those positions shortly.

With regard to the other part of the motion dealing with a substantive premise, there is no evidence that the cases that have been stayed as a result of Jordan are due to the judicial vacancies themselves. Given those two premises not being founded, I do not support the motion.

I do find it a bit interesting that a Conservative member is bringing forward this motion, when we know that for many years under the previous government, there was a chronic number of judicial vacancies. In fact, Mr. Cooper may know this from being a lawyer from Alberta, according to a friend of mine who practises law in Alberta, it suspended some of its mandatory rules in its court in the years 2012-13, under the Conservative government, because of judicial vacancies. Those rules were suspended, which of course was a problem for people seeking justice in that province.

With all of that said, I think we need to address the issue of delay in our courts. Obviously, the Jordan case is a reality that we must deal with, but I don't think this motion address that at all.

I also would suggest that Bill C-75, which is now before Parliament, does address some of the issues with delay, and I know our committee will be dealing with it soon.

For all of those reasons, I do not support the motion.

Thank you.

[The Chair, Liberal, Anthony Housefather]

Thank you.

Mr. Nicholson.

[Rob Nicholson, Conservative, Niagara Falls, ON]

Thank you very much.

I think what my colleague here is asking for is very reasonable. Just to talk about the premise of what this is all about, we are now not having a merit-based system which is something new to this country. We've had a merit-based system of appointing judges in this country for decades. Indeed, under the previous administration, there were judicial advisory committees made up of representatives from the legal profession, from the provinces, from the federal government, from people who were coming together for no other reason than for the best interests of this country. I think everybody can be very proud of all the appointments that were made during those years.

There are challenges in the province of Alberta in terms of the increase in population, of course, over the years, related to the demand for judicial services. It's important to do that. There are new jobs created. I think if the honourable member has a look over the last two and a half years, he'll see there has been a consistent difference between Alberta and many other jurisdictions in Canada. If there are a couple of vacancies in Ontario, I understand that. There are people who resign or retire, or whatever. It has to be done on a continuing basis. To have that many at one time.... I would be interested to hear from the minister saying, “Okay, if there's a problem maybe people aren't applying.” If that's the problem, great, we get the message out there. Get your name in if there's a problem with that. I'm hoping that she would agree with me that in the years that I had a look at the judicial applications in the province of Alberta, I never saw a shortage of people, quite frankly, who were qualified to sit on the Queen's Bench in Alberta.

That being said, with the number of vacancies there are now, I understand where my colleague is coming from. And he's right. When you get very serious cases thrown out, it does hurt people's confidence in the criminal justice system. I'm sure you hear this yourself. What's going on that this individual is getting a chance to walk without having to face the consequences of the charges levelled against him or her? That being said, there are more things we can do. We can encourage people to get their applications in, that sort of thing. I'm absolutely convinced there is no shortage of people in the province of Alberta who have their names before whatever, for the composition of the new judicial advisory committee. I'm sure there must be enough.... If there's some sort of a problem with their getting together and making these decisions.... They come on the recommendation from those committees to the Minister of Justice. If she tells us she's only had three in the last year, that's an issue, or if people aren't applying.

I think that's what Mr. Cooper is looking for, just to have a discussion around this table. What better place to have it than right here at this committee.

[The Chair, Liberal, Anthony Housefather]

Thank you, Mr. Nicholson.

Mr. MacGregor.

[Alistair MacGregor, NDP, Cowichan—Malahat—Langford, BC]

Thank you, Chair.

I'll be lending my support to the motion. If I could offer one criticism, I think judicial vacancies are one part of the problem, and it could be expanded to broadly cover other things. I think one of the things that are important about the committee structure, as a body of the legislature, is that we're here to hold the government to account. That goes for my honourable friends on the government side.

One of the things that I've always appreciated about sitting on this committee during the last year was how respectful we are because of the weighty subject matter we deal with at justice committee. I've always felt that on this particular committee we've had some great camaraderie. I think Mr. Cooper has a point, that because of the charged atmosphere that exists during question period, it's really impossible to have a fulsome conversation on this matter. I feel that given the justice minister's previous appearances at this committee, I think we can hold ourselves to the same standard that I witnessed during 2017, and have a respectful conversation on this subject.

One criticism I could offer, it could be a much broader conversation, but I still think there's no harm in having the justice minister come here so we can do our jobs as parliamentarians and conduct ourselves as an investigative body and come up with some helpful solutions. I offer my comments, and I hope that my Liberal colleagues will take them in the spirit they're given.

Thank you.

[The Chair, Liberal, Anthony Housefather]

Thank you very much.

Is there anybody else who wants to intervene who hasn't intervened yet? No.

[Michael Cooper, Conservative, St. Albert—Edmonton, AB]

Thank you, Mr. Chair.

It's disappointing, but not surprising, that government members are not going to support this very simple motion.

[Rob Nicholson, Conservative, Niagara Falls, ON]

On a point of order, I think it was just Mr. Fraser who said he wouldn't. We don't know what everybody else—

[Michael Cooper, Conservative, St. Albert—Edmonton, AB]

Let us hope, but we'll see in a few minutes.

I'll speak to a couple of points that were made.

To Mr. MacGregor's point, I wholeheartedly agree with you that filling judicial vacancies is not the be-all and end-all, but it is the easiest thing. It is the most straightforward thing the minister can do, which is to get these vacancies filled in a timely manner. As for the Jordan decision, it doesn't mean that we won't continue to see cases that are thrown out due to delay, but we can help solve the problem, as a first meaningful step, by doing the obvious and simple thing, which is getting these vacancies filled.

Mr. Fraser made a couple of points. The first point he made was that the minister is, in fact, appointing judges. Well, obviously it's not fast enough—not fast enough when there are 60 judicial vacancies across Canada; not fast enough when it has taken the Minister of Justice a year and a half, and she has managed in that year and a half to fill only one of the new judicial posts in Alberta; and not good enough in the face of the Jordan decision, whereby the whole landscape has changed in terms of cases being thrown out due to delay. She has introduced a bill, Bill C-75, which in fact is probably going to make the situation even worse, but we can have that conversation another day.

In terms of the minister doing her job, to the first point that Mr. Fraser made, it in fact took the minister more than six months to appoint a single judge. For more than six months, she sat on her hands. Indeed, for a minister who is supposedly doing her job and filling these vacancies.... This is a minister who has presided on several occasions with a record number of vacancies, so it is not the case that the minister is dealing with it. To the degree that the minister is going to hide behind Bill C-75, I say it is too little, too late.

With respect to there being a lack of evidence that these vacancies are perpetuating the backlog, which in turn is perpetuating a crisis that is resulting in these cases being thrown out, with the greatest of respect to Mr. Fraser, for whom I do have a lot of respect, it is an absurdity. It is a matter of common sense that 10 or 12 judges in Alberta, for example, but also in other provinces, can hear a lot of cases. With respect to Mr. Fraser's point on that, I would suggest he tell that to former chief justice Wittmann of Alberta, who rather unusually, spoke out publicly expressing his deep frustration at the minister's inaction when it came to filling judicial vacancies.

With respect to his comments about the previous Conservative government, there was no Jordan decision under the previous Conservative government. We have now lived with Jordan for almost two years, and nothing has changed in terms of the manner in which the minister has been moving to expedite the appointment process. Clearly, once the Jordan decision was rendered, there should have been an emphasis on the part of the minister to expedite the process to see that these vacancies were filled in a timely manner. When you have 60 that are vacant across Canada today, and it's taken a year and a half and all the minister has managed to do is get one of the new judicial spots filled in Alberta, the only conclusion one can come to is that the minister is not taking seriously her responsibility of filling judicial vacancies in a timely manner.

Thank you, Mr. Chair.

[The Chair, Liberal, Anthony Housefather]

Thank you, Mr. Cooper.

We've had debate back and forth, so I'll now call for a vote on Mr. Cooper's motion.

(Motion negatived on division [See Minutes of Proceedings])

I'm sure the committee will engage privately in discussions.

I don't want to take away any longer from our witnesses who are now here before us, so I would very much like to welcome, from the Probation Officers Association of Ontario, Mr. Chris Podolinsky, who is the President; and Ms. Christine Beintema, who is the Vice-President.

Welcome. Thank you so much for being before us. I will turn the floor over to you to talk about the bill we have before us, which is Bill C-375.

[Chris Podolinsky, President, Probation Officers Association of Ontario]

I can start by thanking the committee for inviting the Probation Officers Association to speak on Bill C-375.

The Probation Officers Association was established in 1952. We're a voluntary, non-profit organization, representing professional interests of the probation officers and probation and parole officers across the province of Ontario. POAO is not a union, but an association of like-minded professionals, who believe in the work they do and the role they play in the criminal justice community in Ontario. POAO is an autonomous representative of probation officers and probation and parole officers in Ontario and is committed to the preservation of the fundamental role of the probation officer within community corrections.

Our association encourages members to improve their knowledge and skills by engaging in continuous education through seminars, workshops, and courses, with mental health being a topic of interest for the past several years.

As mentioned, my name is Chris Podolinsky. I'm the current President of the Probation Officers Association of Ontario. I am based out of Windsor. I work in the Ministry of Children and Youth Services, dealing with youth between the ages of 12 and 17. I've written many pre-sentence reports over the years, but they are governed under the YCJA Act. To my left is Christine Beintema, working in Chatham probation and parole. She's written many pre-sentence reports over the years.

We're here to speak on Bill C-375, which proposes an amendment to subsection 721(3) of the Criminal Code, that any mental disorder from which the offender suffers as well as any mental health care programs available to them are to be included in pre-sentence reports. Bill C-375 concerns the preparation of pre-sentence reports that are prepared by probation and parole officers. The bill proposes that pre-sentence reports are to include information about any mental health disorder from which the offender suffers as well as any mental health care programs available to them.

In recent years, mental health has been identified as a significant concern. It's estimated that 10% of the general population suffers from a mental health disorder and the rates of mental health disorders experienced by those within community corrections and institutions are significantly higher, 26% for males, and estimated over 50% for females in the corrections system.

POAO continues to advocate many forums for increased mental health services for our offenders. POAO is pleased that improvements have been made in recent years to destigmatize mental illness. However, it recognizes that there are still many steps that need to be taken.

The bill requires in federal legislation that pre-sentence reports provide, unless the court orders otherwise, information on any mental health illness that offenders may suffer and any mental health care programs available to the offenders. Our association agrees that the issue of mental health is of significant concern to the criminal justice system and should be taken into consideration when making sentencing decisions.

In Ontario, the role of a probation and parole officer already includes a requirement to provide information related to an offender’s mental health in court reports. Feedback from our members, the members of POAO, with respect to the bill, concern the process of gathering the required mental health information, physical and mental limitations of the clients, and the lack of available resources in the community.

The association wishes to highlight that probation and parole officers in Ontario currently conduct skill-based interviews with offenders for the purpose of gathering information to prepare comprehensive pre-sentence reports. Investigative information is provided by the offender and collateral sources including but not limited to family, employment, counselling resources, community agencies, and health information, including mental health for inclusion in the pre-sentence report.

Through this investigative process, probation and parole officers comment on general patterns of behaviour; psychiatric, psychological, physical, and cognitive limitations; and disorders that may impact the offender’s pattern of criminal behaviour. In the event that the offender has a mental health diagnosis, probation and parole officers will investigate and confirm through contact with mental health professionals where possible. In instances where there is no confirmed mental health diagnosis, but reports of related mental health concerns from the client or collateral sources, probation and parole officers will comment on observed or reported behaviours.

[Christine Beintema, Vice-President, Probation Officers Association of Ontario]

Probation and parole officers recommend conditions in a pre-sentence report that best suit the needs of the offender, with consideration, of course, to victim safety and the safety of the general public.

One of the challenges faced by probation and parole officers is that community agencies often provide services on a voluntary basis. They are not equipped or prepared to provide services to offenders who are resistant or unwilling to attend for treatment. Although an offender may be directed to attend a particular service or agency, the agency is not compelled to provide services to an offender who is disinclined to seek treatment. In addition, offenders who are motivated to engage in mental health treatment or supports may lose motivation because of lengthy waiting lists at community agencies.

In many instances, offenders will advise that they have been diagnosed with various mental health issues but are unable to provide details or confirm that they've been formally diagnosed. During the process of gathering information, they can tell us many different things but not always be willing to give the information or be able to provide the correct information for us to follow up.

In such cases it's difficult to gather the appropriate information necessary to confirm and provide an accurate and thorough report. Bill C-375, if passed, should consider legislation that would assist in facilitating the sharing of information between Corrections and the health care systems. As gathering health care information can take a longer period of time, the court should also consider granting probation and parole officers additional time to investigate, for these reports, diagnoses that are reported but unconfirmed.

Currently, probation and parole officers experience difficulty when attempting to obtain information from medical professionals related to the mental health diagnosis or otherwise. Probation and parole officers must consider and are limited by the offender's right to privacy and must have the offender's consent to access health records. If this consent is received, obtaining health records can take an extended period of time, which affects the amount of time needed to adequately prepare a pre-sentence report for court.

If Bill C-375 passes, perhaps the new legislation would encourage changes to the health care system to require medical professionals—of course, where release of information is signed by the offender—to provide requested mental health information to probation and parole services in a timely manner, at no cost, and in a language that is suitable for the layperson.

That's one of the complications we run into: we're often sent a bill for information we're requesting, which we are not permitted to pay for. It often takes a long time. We understand they're busy, but we have timelines to follow. Oftentimes we'll have notes from a medical professional that are handwritten and be unable to read them but also to understand them, because we aren't medical professionals.

POAO members have suggested that if mental health concerns are being identified at court, as specified on a request for a preparation of a pre-sentence report, perhaps representatives at the court could facilitate offenders' signing of releases at that time, because at that point they're willing to provide permission for us to investigate and to reach out to their medical professionals. Sometimes, by the time they get to our office, they've said, “No, this is what we wanted. We wanted you to prepare a pre-sentence report, but now we're here and we're not really sure that's what we'd like to see happen”—which is their prerogative, but it would be nice if we could catch them at the court.

POAO members note that probation and parole officers are limited to providing information relative to the offender's willingness to co-operate and ability to make informed and appropriate decisions. We are restricted to being able to access only information and records to which the offender provides consent. That's something to keep in mind: even if the bill goes further and we are compelled to include that information, we can only include the information the offender is willing to provide.

POAO expresses the need for more comprehensive and organized information regarding the availability of mental health resources throughout the province and in individual areas. Ontario is a vast province, and resources vary in availability from region to region. The spirit of the bill, which is compassionate and noble, does not align with the reality of available services. Those involved in the justice system are often unable to access psychiatric services, as psychiatrists and mental health professionals are overburdened by the ever-increasing demands for services in the community.

One suggestion is to hire psychiatrists to work exclusively out of correctional institutions or probation and parole offices, which would allow clients direct access to services. At present, many offenders are compelled to seek services from their family doctors, who, while skilled, lack the knowledge and experience of a qualified psychiatrist.

[Chris Podolinsky]

The association appreciates the opportunity to share knowledge and experience with the committee and speak on behalf of probation and parole officers in Ontario.

POAO would like to thank Mr. Jowhari for bringing the bill forward and to paraphrase Mr. Jowhari, while the bill is a small change to legislation, it may have considerable impact on our work and on some portions of the justice system. The bill is a necessary first step toward addressing the lack of resources and gaps in the system for clients with mental health needs.

As an association, we're committed to ongoing communication and consultation regarding this bill as the committee sees fit, in an effort to support this change to the Criminal Code. We are committed to supporting our membership and colleagues as one component of the criminal justice system and to continuing to do the best work possible through professional development and advocacy.

I have a couple of points to add. The pre-sentence report is generally when it's ordered at court, at least in Ontario. We're provided four to six weeks to complete the report. If they're asking us to get the mental health information, a four- to six-week window may not be enough, based on the hospital or doctors getting the records required. This may extend that for a six-week period.

The report itself takes about 10 to 15 hours to complete, at least in Ontario. That includes all the interviewing, gathering the records, and then the actual writing of the report. Depending on the office—some offices are very busy; there's a shortage of probation officers in the province. They are overburdened and with multiple reports on top of the other duties they are currently assigned, it's a difficult process.

On the last point, and you touched on it, there are cases in the province where information about mental health records is being suppressed. There's a fee for that, and it adds to the burden of budgets for these costs.

We'll turn it over to any questions.

[The Chair, Liberal, Anthony Housefather]

Thank you very much for your testimony.

We will turn to Mr. Nicholson for the first question.

[Rob Nicholson, Conservative, Niagara Falls, ON]

Thank you very much for your testimony here. You've given us a whole new insight into this bill.

One of your last comments was that right now it takes about 14 to 15 hours to put together a report. Obviously this is going to increase the time available for that. How many hours do you think it will take if this bill is passed? You've already said it will go beyond the three or four weeks that you have to prepare these things.

[Christine Beintema]

Absolutely. Each report is different, so if we have a first-time offender in front of us with no mental health issues, you could probably prepare a pre-sentence report in 10 hours. The average is about 15 hours.

To clarify, we already include this information in our reports. This will legally compel us to do so, and so the reports we're writing right now, if there is a mental health issue that we need to investigate or gather information about, probably adds another four to five hours, depending on the complexity of the situation and the availability of information.

In Chatham, I work right beside the Canadian Mental Health Association so if we have the proper releases of information signed, it can go fairly smoothly, but it's all dependent on area and resources and accessibility of information.

[Rob Nicholson, Conservative, Niagara Falls, ON]

Now it's going to be mandatory in all cases.

[Christine Beintema]

Yes, exactly.

[Rob Nicholson, Conservative, Niagara Falls, ON]

One of the interesting things you said as well is a lot of these individuals don't want to get treatment because of the lengthy waiting lists to get treatment. This is certainly going to compound that. I appreciate your recommendation that we tell the provinces to provide more resources and all that, but we have to accept the situation as it is now, and this is definitely going to increase it, isn't it?

[Christine Beintema]

Yes.

[Rob Nicholson, Conservative, Niagara Falls, ON]

You say there is nothing compelling the health care professionals to share the information with you. I had a look at the bill, and I don't see anything in there that directly addresses that issue.

[Christine Beintema]

No. I know that's an ongoing concern for us. We can gather the released information, and the client could be willing to have us gather that information, but when you forward the information to the physician...there have been issues with having them send us a fee for service or for preparing that report: lack of time, or not feeling you are entitled to that information, and that's up to them to decide, but our focus is our clients. We want to make sure the proper information is relayed to court so that an appropriate sentence can be handed down and can benefit the client.