What the federal government can do to reduce delays in Canada’s criminal justice system

On February 25, 2016, Legal Aid Ontario (LAO) CEO David Field spoke to the Standing Senate Committee on Legal and Constitutional Affairs. His contribution was part of a national discussion, hosted by the Senate, on delays in Canada’s criminal justice system. Here is a summary of David’s recommendations (Part 2 of 2)

In my last post, I discussed factors that contribute to delays in Canada’s federal criminal law courts.

In this post, I’ll focus on what the government has said it would do, and the specific recommendations I made to the committee on behalf of LAO.

Prime Minister’s recommended areas of focus

The Prime Minister’s November 2015 mandate letter to the Minister of Justice and Attorney General of Canada identified four main areas of focus for the federal government, working with the provinces and territories and with legal aid plans:

  • Exploration of sentencing alternatives and bail reform.
  • Increased use of restorative justice processes and other initiatives to reduce the rate of incarceration amongst Indigenous Canadians.
  • Treatment of those with mental illness.
  • Improved use of information technology to make the system more efficient and timely.

LAO’s recommendations

1. Expand financial support for legal aid plans

Canada needs to make effective legal aid assistance available across the country and implement innovations and best practices that help to improve the efficiency and effectiveness of the criminal justice system.

The positive results of LAO’s expanded financial and legal eligibility initiatives are evidence that properly resourced legal aid plans can improve the entire system.

We are now heading toward our third six per cent increase in financial eligibility. This expansion, supported by financial eligibility funding from the Government of Ontario, has enabled Legal Aid Ontario to implement the most significant and rapid increase in eligibility for legal aid in more than 25 years.

The government’s financial support has also enabled us to substantially expand the scope of coverage for criminal matters beyond the so-called “liberty test.” According to thhis test, the accused has to face a likely sentence of incarceration to be eligible for a certificate. We now also:

  • cover cases where the accused would, if convicted, face serious secondary consequences other than incarceration, such as job loss or deportation
  • cover cases where first-time accused, especially if they are vulnerable parties, can attempt to avoid the life-changing consequences of acquiring a criminal record
  • make more resources available to people seeking bail.

We have also expanded the role for discretionary issuance of certificates at the local level in cases of urgent need.

As well, we have been able to expand coverage in family law and clinic or poverty law.

Last year, we issued certificates for family law matters that served:

  • more than 8,800 people who experienced domestic violence as part of their family law case—an increase of 62 per cent over the year before
  • more than 5,600 people involved in other family law cases—an increase of 52 per cent over the year before.

In addition, we have invested more than $10 million of financial eligibility funding to support the ability of our clinic system to respond to the needs of their clients.

We are on track to double the number of clients eligible for legal aid within the next eight to 10 years. By the end of this fiscal year alone, we will issue 20,000 more certificates, compared to our previous fiscal year.

2. Tackle the “revolving door” problem—hover-representation of vulnerable client groups in the criminal justice system.

As indicated in my last post, Aboriginal people, members of racialized communities and people with mental health issues are over-represented in the justice system.

Federal support to programs and resources to tackle this problem would help keep people who do not belong in jail from becoming enmeshed in the system. This includes more support for:

  • specialized courts
  • diversion programs
  • appropriate assessment, treatment and rehabilitative options
  • cultural competency and awareness training for people who deal with vulnerable groups.

3. Improve the bail system and increase pre-trial release.

We suggest financial support and the development and dissemination of standards and best practices such as:

  • the use of bail supervision programs as an alternative to reliance on sureties (this is already in place, and working well, in parts of Ontario and in British Columbia)
  • reduce the imposition of unrealistic bail conditions that set people up to fail and contribute to the proliferation of additional charges.

4. Revisit recent amendments to the Criminal Code

We need to reduce challenges in legislation and provide incentives to early resolution. We could:

  • revisit the idea of the “safety valve” to allow for the exercise of discretion in the imposition of mandatory minimum sentences
  • reduce the number of offences that attract a mandatory minimum
  • make conditional sentences more widely available.

5. Bring back the former pardons process

Canada’s new record suspension process, which replaced the pardons process, is costly, complicated, and a barrier to finding employment and participating fully in the community, including through volunteer work.

LAO’s Aboriginal Issues Advisory Committee to the Board has advised LAO that the record suspension process has a particularly negative impact on Aboriginal people.

In conclusion

I was pleased that the Committee invited Legal Aid Ontario to contribute to this important study. As the independent statutory corporation which administers the legal aid program in Ontario, LAO has on-the-ground experience of the issues, and is actively engaged in developing responses to problems caused by delays in the criminal justice system.

Now it’s up to the federal government to make changes. Along with the rest of the legal community, I look forward to seeing what happens next.