I am pleased to be here today to talk to the committee about trends in the criminal justice system.
I will start by discussing the federal, provincial and territorial partnership, as well as the pressure points within the criminal justice system.
The criminal justice system is a partnership between the federal government and the provinces and territories, in which each partner works in its respective areas of jurisdiction. The federal government is responsible for passing laws and regulations in criminal matters, while the provinces are generally responsible for the administration of justice, including the prosecution of most offences under the Criminal Code.
Co-operative federalism is an essential part of Canada's criminal justice system. Neither level of government can successfully carry out its mandate without the co-operation of the other. As indicated, the federal government is responsible for adopting the criminal law, including criminal procedure, and the provincial attorneys general are responsible for its administration, except in the territories where the federal attorney general is also the attorney general for those territories.
In addition, the federal government provides cost-sharing support to the provinces and territories to provide programming in the areas such as legal aid, aboriginal court workers, victims, and policing. Given these shared responsibilities, the federal, provincial, and territorial governments recognize the importance of collaboration in the discharge of their responsibilities.
There are a number of challenges that I would briefly note as common issues across the whole of the criminal justice system and with regard to which the federal, provincial, and territorial governments could work together to attain greater efficiency and effectiveness. For example, despite a consistent decrease in the crime rate, criminal justice system costs continue to rise.
Other areas of mutual interest include bail and remand sentencing, the changing correctional population, and the overrepresentation of vulnerable populations, especially indigenous persons and those with mental health and/or substance abuse issues.
We have provided a deck to the committee. The deck you have been given provides a great deal of statistical information on trends in the criminal justice system. I will not address each slide but will refer to some of the key trends raised in the slide, and I may actually jump around a little bit to follow certain issues rather than taking things slide by slide.
Let me first talk about the rising costs of the criminal justice system. In 2014, the police-reported crime rate was at its lowest since 1969. There has also been a decline in the rate of violent crime, which has been steadily decreasing since 2000. There are regional variations in the crime rates, with the highest crime rates in the north; that is, the territories as well as the northern parts of the provinces.
Statistics also indicate that many crimes are not reported. About two-thirds of crimes are not reported, as shown in the disparity between police-reported crime and victimization surveys. However, despite decreasing crime rates, the cost of the criminal justice system has been increasing over a 10-year period. All areas of criminal justice are seeing an increase, with policing seeing the greatest increase at 43%, followed by corrections at 32%, and the court system at 21%.
Costs have been increasing in both the federal and provincial shares of the criminal justice system.
Crime also has great societal costs. For example the total economic impact of spousal violence in Canada in 2009 was estimated at $7.4 billion. The total impact of violent victimization, for physical assault, sexual assault, robbery, criminal harassment, and homicide is estimated to be $12.7 billion.
I'd like to make a few comments about bail and remand because this is an area the provinces, the territories, and the federal government are examining currently. According to the United Nations globally one-quarter of persons in prison have not received a sentence or are awaiting trial. In Canada over the last decade more than half of those in provincial and territorial custody are in remand. They are not sentenced offenders. They have not had a trial. They are awaiting a trial. In 2013-14 there were over 11,000 persons in remand.
There has also been an increase in the number of days the accused are spending in remand in some jurisdictions, most notably in Nova Scotia, New Brunswick, and the Yukon. Recent statistics indicate that indigenous offenders are overrepresented among those in remand and this overrepresentation is increasing. While indigenous people represent only 4% of the Canadian population, indigenous offenders accounted for 24% of all admissions to remand, up from 19% in 2005-06. There is of course regional variation.
While we lack a full understanding of what is happening with respect to bail, an older study from Ontario found an increase in the number of days required to make a bail decision from about four days in 2001 to almost six days in 2007. The system is also experiencing delays with respect to case length, particularly for certain selected offences. One would expect that the decrease in crime rate and the decreases in the number of adults charged for criminal offences would lead to lower case processing times. However, case processing times for cases in provincial adult criminal court have remained relatively stable over the last decade. There has been an increase in case processing times for cases in the superior courts.
As indicated there is variation in case processing times with some offences, such as crimes against the person and impaired driving cases, taking longer than other types of offences. Cases in Quebec are also taking longer to process through the system compared to the rest of Canada. In a study conducted by Justice Canada, looking at closed cases from 2008 in five courts in four jurisdictions, it was found that 5% of cases required more than two years to be completed.
The study also found there were various factors related to the length of a case. Cases where legal representation was intermittent had the longest time to case completion at 298 days This compares to 189 days for cases with no legal representation and to 160 days when the accused had legal representation throughout the case. This shows that with counsel or with legal aid the court delays are reduced. Not surprisingly, guilty pleas were found to reduce case processing time. The median case length was 58 days with a guilty plea and 190 days where there was no guilty plea.
There are also specific types of offences that are prevalent in the system and are responsible for a significant amount of resources. Specifically, administration of justice offences, such as failure to appear or breaching probation, as well as impaired driving and theft, account for over 40% of the court case load. Administration of justice offences as a proportion of all criminal court cases has seen an increase, up from 21% in 2006 to 26% in 2013-14.
Here are some statistics on administration of justice offences. As indicated, there has been a 4% increase in the rate of administration of justice offences that resulted in charges from 2006 to 2014. Administration of justice offences are also more likely to result in a guilty plea or guilty decision when compared to the average for all other offences. The most recent statistics indicate that half of these offences also receive a custodial sentence, which is higher than the proportion of custodial sentences for crimes against property and crimes against the person.
In 2014, the highest rate of administration of justice offences were found in the Northwest Territories, the Yukon, Saskatchewan, and Nunavut. These jurisdictions also have higher rates of aboriginal people in the criminal justice system, and although there are no national statistics on this, some research has found that administration of justice offences are overrepresented among aboriginal people.
Just to explain what administration of justice offences are, they include offences of breach of a bail condition or breach of a probation order. Bail conditions can be specific to the offence but they can also be basically conditions of good behaviour: no drinking, keeping the peace, or a curfew to be home by a certain time. Breaches of some of these conditions, if they are charged as criminal offences, can result as a criminal offence even though drinking alcohol and coming in late aren't by themselves criminal offences; they elevate to criminal offences. People can get criminal records quite often, not because they've actually committed a crime such as theft, but they may be in the court for the first time for theft but then they have a whole host of other breaches for things like breaching curfew, drinking alcohol when they are supposed to abstain, etc., and they then end up getting a long list of criminal offences.
I'd like to then talk about sentencing and corrections, things that happen at the back end of the system.
Some of the statistics that I'll be speaking to are not found in the deck. We didn't really have much time. We only had notice, I think, as of Friday for this appearance, so we weren't able to put everything together in the deck before you.
The provincial-territorial correctional population has seen a decrease in the average number of offenders in custody and on probation, as I indicated earlier. More than half of those in provincial custody are there for remand, not serving a provincial sentence. For your benefit, provincial sentences are those that are less than two years. Any sentence of more than two years is served in a federal penitentiary. The majority of custodial sentences in the provincial system are fewer than six months, with the medium length of probation being around one year.
With respect to the federal correctional population, there has been a 14.6% increase in the average number of offenders serving a federal sentence over the last 10 years, with just under half serving a sentence of more than 5 years.
The federal custodial population is also getting older, with 23% of those in custody aged 50 or over compared to 19% in 2010.
Additionally, the number of women admitted to the federal jurisdiction has increased at a rate higher than that for men. In the last 10 years, there has been a 39% increase in the number of women under federal jurisdiction compared to a 12% increase for men.
I want to spend some time talking about vulnerable populations, because the criminal justice system is having a significant impact on these individuals. As I mentioned, there is an overrepresentation of vulnerable populations within the criminal justice system, most notably the indigenous population as well as persons with mental health or substance abuse problems.
Chronic offenders are a small number of offenders who account for a large number of reported offences in the system.
According to the most recent census information, nationally, just over 4% of the Canadian population is indigenous, yet indigenous people account for 20% to 25% of individuals across various points in the criminal justice system. These rates vary, of course, with significantly higher rates in western Canada and in the north where there are higher rates of indigenous population. While crime rates vary across the country, there are disproportionately high rates of crime in jurisdictions such as the territories, which have larger indigenous populations, with the highest crime rates occurring in the Northwest Territories.
Recent statistics indicate that indigenous offenders accounted for 24% of all admissions to remand, up from 19% in 2005-06. Additionally, the proportion of indigenous offenders admitted to provincial and territorial sentenced custody has increased over the last decade and is currently at about one-quarter of all adult males. The most recent statistics indicate that more than one-third of adult women admitted to provincial and territorial sentenced custody are indigenous.
I can indicate more with respect to the statistics, but you have them in front of you.
Given that a large number of the indigenous population compared to the non-indigenous population are young, and crime is definitely a youth-based phenomenon, it's expected that these rates could rise in the future.
In conclusion, I want to say something about modernizing the criminal justice system. There can be no doubt that society has evolved significantly in the last few decades. The issues we face today are significantly different from those faced by previous generations. The has mandated my minister to review changes to the criminal justice system and sentencing reforms over the past decade in order to modernize efforts to improve efficiency and effectiveness in the system. The is mandated to take a hard look at the justice system specifically identifying what works and what doesn't.
The key to modernization is understanding that the current system seems to have more of an impact on certain populations than on others, in terms of both offenders and victims. Many offenders, whether indigenous or not, have some combination of mental and addiction problems.
What if Canadian society did a better job of treating mental illness and addictions at the front end? This could have a significant impact on the justice system at the back end. Many people feel that the justice system is the default system for society's social problems. The question is whether we can change the system. Can we better align it with the needs of offenders and victims? What if an offender's first interaction with the justice system didn't become the first in a series, for instance, of repetitive encounters with the justice system? What if the justice system triggered a mechanism up front that was designed to actually address the factors that inspired the criminal behaviour in the first place?
I think these are the fundamental questions before Parliament and before the provinces and territories.
In conclusion, the criminal justice system is one that incorporates many independent systems and many players. Actions by one level of government or actor within the criminal justice system have an impact on another level of government and on other actors.
It is important to examine the criminal justice system from this perspective when we study ways to ensure that the justice system is effective, efficient, and equitable and that it reflects modern realities.
Further, the criminal justice system, as I mentioned, is often used as a default responder to provide solutions to mental health challenges upstream. More can be done to address these social problems, and we're working with the provinces to look at innovative ways to address social problems in the justice system.
These are just a few of the highlights of current trends in the Canadian criminal justice system. Should the committee be interested in more detailed criminal justice trends and statistics, I'd invite you to speak to the Canadian Centre for Justice Statistics, which is part of Statistics Canada, to provide a presentation.
In addition, the “Corrections and Conditional Release Statistical Overview”, produced by the Department of Public Safety, is also available online. The latest version is 2014, and 2015 stats are to be published shortly.
It's a pleasure for me to be here today to talk about the Department of Justice's approach to supporting our minister, the , in performing the examination of government bills and regulations as mandated by section 3 of the Canadian Bill of Rights, section 4.1 of the Department of Justice Act, and also by subsection 3(2) of the Statutory Instruments Act.
These examination provisions and the process surrounding them play an important role in promoting the rule of law. First, they require the minister to examine every bill introduced or presented to the House by a minister of the Crown to ascertain whether any of the provisions of a draft bill are inconsistent with the purposes and provisions of the Canadian Bill of Rights or the Canadian Charter of Rights and Freedoms.
In the case of draft regulations, a comparable duty is imposed on the Clerk of the Queen’s Privy Council of Canada, in consultation with the deputy minister of Justice.
While the process through which government bills are examined is not exactly the same as that employed for draft regulations, the object of the examination is the same, namely, to ascertain whether any of the provisions are inconsistent with the purposes and provisions of guaranteed rights.
Second, when either the Minister of Justice or the deputy minister of justice forms the opinion described by the examination provisions, they must report it. Either the minister may report it to the House of Commons after first reading, or the Clerk of the Privy Council may report it to the regulation-making authority after consultation with the deputy minister.
For the purposes of today's presentation I will focus on the review of government bills rather than regulations. As you may be aware, there have been no reports of inconsistency with respect to government bills since the enactment of the charter.
In the Department of Justice’s view, this reflects the work we do with the sponsoring departments to ensure that legislation is consistent with constitutional guarantees. It also reflects a careful balancing of the roles and responsibilities of the executive, Parliament and the judiciary in upholding the Constitution and the rule of law.
I would like to take a moment to describe the department's work in more detail.
Officials in my department, the Department of Justice, play an important role in the development and preparation of government legislation, a process that involves many stakeholders.
Department of Justice lawyers provide legal advice to policy officials all across government on how to achieve their policy objectives while respecting the constitution and all other relevant legislation. Most often, any legal risks identified are reduced or mitigated before they reach Parliament. Justice lawyers are typically involved throughout the policy development process, from initial policy development to legislative drafting, by providing advice on any legal concerns which may arise including those related to the charter.
To support this important function, the department long ago created a centre of expertise on human rights. Officials in the human rights law section, for which I am responsible, ensure that the government benefits from expert legal advice on complex and novel human rights questions, both domestically and with respect to our international human rights obligations.
The section also seeks to promote coherence and consistency of legal advice across government on the Charter of Rights and the Canadian Bill of Rights.
In the initial phases of the policy development process, government officials work closely with Justice Canada's legal counsel to address human rights and charter concerns. All through the process, the policy can be adjusted as required to minimize any risk of inconsistency with guaranteed rights.
These adjustments inform the recommendations that are made to cabinet and take into account all the identified legal risks including any with respect to compliance with charter rights. For example, where a sponsoring department's options raise significant legal risk, policy officials and justice counsel would report their concerns to senior management for discussion. This would include a discussion of risks up to and including those that would trigger the minister's obligation to report an inconsistency.
If the discussions don't lead to changes, the human rights law section will participate alongside other justice counsel in briefing senior departmental officials on the legal advice provided so that discussions at the senior level and the cabinet table are properly informed. Finally, at the cabinet table, the minister herself can again raise any significant legal concerns and advise her colleagues in respect of the constitutionality of the proposal being proposed. Once policy direction is received from cabinet, the legislative drafting process begins.
Legislative Services counsel are specialized lawyers responsible for drafting legislation. They are also responsible for examining legislation and regulations for consistency with guaranteed rights. In fulfilling this responsibility, legislative counsel work closely with other government lawyers, including lawyers from the human rights law section. Once again, they will seek to mitigate any charter or other legal risks that may be identified at the drafting stage.
The chief legislative counsel provides final examination from the branch of all government bills for consistency with guaranteed rights in consultation with the human rights law section as required. As you can see, before legislation is introduced in Parliament, it has gone through a very rigorous review by the Department of Justice.
At this point I'd like to take a moment to speak more specifically about the scope of the duty of the Minister of Justice, who has to report to Parliament any provisions that are inconsistent with the charter or the Canadian Bill of Rights once the proposed legislation is drafted and ready to be introduced.
The government’s position on the scope of the minister’s duty has been described to Parliament many times over the years, including by several previous ministers of Justice. It has also recently been the subject of a legal challenge brought by former Department of Justice counsel Edgar Schmidt. As you may be aware, we are still awaiting the decision of the Federal Court in this matter.
If at the conclusion of the legislative drafting phase the Minister of Justice is of the view that there is an inconsistency between a provision of a government bill and a guaranteed right, it is at this stage that she must report the inconsistency to the House. In practice this would be tabled after first reading. In plain language, section 4.1 imposes on the minister the duty to ascertain that a proposed government bill is inconsistent with government rights. Given that responsibility, the reporting standard must reflect the wording and intent of the provision. In the case of government bills, the minister has the duty to ascertain the inconsistency and may do so, informed by the legal advice of the Department of Justice, and of others if she so desires.
Therefore, it is ultimately the minister who must come to her own assessment based on the advice she receives, as well as her own appreciation of the legal issues at stake.
As you may be aware, the government's long-standing position is that the minister's obligation to report only arises when there is no credible argument to support the constitutional validity of the legislation. A credible argument is an argument that is reasonable, bona fide, and capable of being raised before and accepted by the courts. This standard requires substantial but not absolute certainty of inconsistency, and it's not based on fixed percentages.
As you might suspect, this kind of assessment can sometimes be a challenging exercise. It's made by applying a law to a set of facts at a particular time. However, facts relating to a law's impact can change as society evolves, including facts that speak to either the purpose of the measure, the rational connection between the measure and its purpose, and the proportionality between the nature and scope of rights infringement and the importance to society of the objective that's being pursued.
The jurisprudence about guaranteed rights is also constantly evolving, sometimes very significantly and unpredictably. There have been many examples of this over time, including, to give just one example with which Parliament is now grappling, significant shifts recently in what had appeared to be settled law under the charter in relation to assisted suicide.
I wanted to take this opportunity to highlight the broader principles that have informed the department's approach in supporting the minister in exercising her powers and duties. Under our constitutional system of government all branches of government—Parliament, the executive, and the courts—have responsibility for ensuring that protected fundamental rights and freedoms are respected.
The system of examination put in place by the department to support the minister and the deputy minister is intended to ensure respect for the role that each branch performs in this regard. The examination provisions mark the outer boundary of when Parliament must be informed that a bill, which it's about to debate, is clearly inconsistent with a guaranteed right. However, within that boundary there remains considerable scope for debate in Parliament as to whether laws may be found consistent with guaranteed rights, and the Constitution, more generally.
The credible argument standard takes into account the multiple roles that the minister performs in Canada's constitutional democracy. It's sensitive to the duty to uphold the rule of law and the Constitution, while ensuring that the minister, through the exercise of statutory duty, does not foreclose legislative debate over policy except in the clearest cases of inconsistency with the charter.