Interview with Professor Benjamin Perrin: Shining a Spotlight on the State of the Canadian Criminal Justice System
In R v Jordan, 2016 SCC 27 [Jordan] the Supreme Court of Canada noted that the criminal justice system suffers from “a culture of complacency […] towards delay” (para 4). These remarks may come as no surprise to those who have interacted with the justice system in Canada. However, quantitative metrics on the precise extent of those delays by way of data on procedural inefficiencies and challenges have remained, at best, disaggregated in Canada. The recently released Report Card on the Criminal Justice System [Report Card] changes this. By aggregating publically available data around five key objectives of the criminal justice system, the Report Card shines a spotlight on the “justice deficit” in Canada.
Released in September 2016, the Report Card assesses the performance of each province and territory against the objectives of: public safety, support for victims, cost and resources, fairness and access to justice, and efficiency.
While the Report Card is not intended to address the potential causes for difference in performance, the discussion paper preceding the Report Card (Canada’s Justice Deficit: The Case for a Justice System Report Card) presents a high level overview of some of the regional and national challenges that colour the findings. Most notably, the complexity of cases coming before the courts are increasing. Cases are being met with longer processing times and time to trial. Statistics indicate that the number of court appearances per charge have increased and that it “takes almost as many court appearances for the parties to decide whether to resolve a case as it takes […] to conduct an entire trial.” (Case for a Criminal Justice Report Card, 21) The effects of these delays can be seen in the increasing number of individuals detained in correctional facilities on remand.
Such delays are not localized to the most complex of cases. Jordan, described by the SCC as a case of “modest complexity” (para 4), and R v Williamson, 2016 SCC 28, which the majority characterized as “straightforward” and “by no means a complex case” (para 26), are illustrative.
It is of note that many of the issues highlighted in the Case for the Report Card were raised over a decade ago by a national Steering Committee on Justice Efficiencies and Access to the Justice System. This committee released four reports addressing mega-trials, effective case management, jury reform, and early case consideration. The sub-committee on early case consideration in particular examined the issue of how the various actors in the criminal justice system could work together towards the goal of decreasing the number of court appearances to resolve a case. Key recommendations in the sub-committee’s final report included increasing the involvement of the Crown in pre-charge screening, more effective use of case conferences and judicial pre-trials to support early resolution, and implementation of strategies for maximizing court appearances.
This Report Card is timely in light of the decision in Jordan and the mandate of the federal Minister of Justice and Attorney General of Canada to “[u]ndertake modernization efforts to improve the efficiency and effectiveness of the criminal justice system, in cooperation with provinces and territories.”
The Court sat down with Professor Benjamin Perrin of UBC’s Allard School of Law, and co-author of the Report Card, to discuss the challenges facing the Canadian criminal justice system, his work on the Report Card, and the Justice for Victims of Crime Initiative.
Q: What sparked the idea for the Report Card and what gap do you see it filling in our current understanding of the Canadian justice system?
BP: We have report cards on the health care system, education, [and] governance, and have become used to now seeing our public institutions be more transparent and accountable. We thought it was high time for the criminal justice system to get put under the microscope. The cost of public safety in Canada is now almost 11 billion dollars a year. The Supreme Court of Canada has said that our criminal justice system suffers from a culture of complacency and delay in its decision this summer in R v Jordan. The costs of this are really being felt by victims of crime.
In the Williamson decision this summer, the [Supreme] Court stayed child sexual offences charges after an approximately 3-year delay. So the system is failing Canadians and it’s not enough to just continue doing business as usual. The Court has come out and recognized what everyone has tacitly known for years and finally has put some very clear benchmarks for the performance of the time to trial. But that is only one aspect of the criminal justice system that concerns me. I am also concerned with the really high crime rates in many parts of Canada, particularly in the North.[There are] very low levels of support for victims, both in receiving restitution orders by the courts but also, in some provinces and territories, not receiving referrals to victim services, not being able to obtain victim compensation in the territories. Other issues include the level of legal aid funding in provinces that have really cut it to save money. It has not helped because you end up having a higher number of unrepresented litigants, which you have saved money [on] by not giving them a lawyer, but now you are taking the time and resources of the judge, the prosecutor, the court staff who then have to fill the gap of explaining the law and the process to this person. And it really has caused a lot of problems. It is also not fair when someone is facing serious criminal charges not to have a lawyer.
The ability to get legal aid in Canada essentially [means] that you only have a lawyer if you are incredibly poor or very rich, and everyone else who falls in the very large majority of the middle, if they can afford a lawyer, it will be because they had to cash out their pension, mortgage their house, or take out a line of credit. The cost of standard trials now has gotten so high that it is out of reach of most Canadians so that puts more pressure on the system.
There is also the very serious and persistent problem of the disproportionate incarceration of Aboriginal offenders. Our study actually breaks this down by province and territory and really highlights the very dismal performance of Ontario and western provinces in respect of that issue.
Q: As you went through the data collected for this project, what were some of the most surprising findings and what stood out as areas where the system as a whole is underperforming?
BP: The high level, stepping-back-from-the-data finding that we have is that Canada really is suffering from a “justice deficit”. That is this huge and growing gap between the goals of the justice system and its actual performance. There are only a few areas in the country where you can see action being taken and the results are fairly modest. At its core, I think one of the major challenges and reasons for why this situation exists is that we have many actors responsible for the criminal justice system but no one is accountable for it.
So what that means is: the courts have independence to do their work, so does the Crown prosecution services, the police, defence counsel, provincial, territorial and federal governments- they all have their own constitutionally protected independence. But the costs of that is that none of them are accepting accountability for changing the system, and my view is that independence is not and cannot be a reason for failure to reform and that we need to break down the psychological barrier (which is all it is) of working together cooperatively to improve the system. It’s ok for judges, Crown counsel, defence counsel, and police to sit together in a room and talk about how we reduce delays in bringing cases forward to trial. That would be completely acceptable and it would be, in fact, furthering the duties that each of these key players have towards enhancing the respect for Charter rights for Canadians.
But unfortunately, in many parts of the country, this is still viewed with a grave suspicion. It’s allowed business as usual to continue, which means that we see crime rates going down but costs and delays going up and the rates of incarceration of Aboriginal offenders going up at the same time.
Q: As you mentioned, one of the issues contributing to the challenges in the justice system is the various actors with different mandates. We’ve seen recently that the SCC has come out in R v Jordan and made bold comments on the current state of the justice system. Can you speak to what you think might be the role of the courts and the legal profession more broadly in starting to address the issues raised in the Report Card?
BP: I think the courts have a huge role to play. Most courts in Canada are still functioning in a paper based, 19th century universe. Technology needs to be embraced and utilized. I am encouraged that the Attorney General of Ontario has made very strong comments about modernizing the system. I hope that follows through with action and that the other players, particularly the courts, get onside with that.
This is not a problem that requires just more resources, it’s not an issue where you say just throw money at the system. In BC, we did an extensive review of the efficiency of our justice system – more judges were not the answer. [The answer] was more efficient processes. If you simply put more judges into the system, the system will gobble up those resources and use them, and it won’t make them any faster or better. So it doesn’t encourage counsel to streamline cases or bring cases forward sooner when you have more judges, it just encourages them to continue doing business as usual.
Q: The Report Card relied on publically available data primarily from Statistics Canada. Are there any pieces of information that were missing and is there better data collection that could be done in Canada on the justice system? If so, what are some of those metrics we need to be measuring?
BP: Our original plan was to do a report card not only for the criminal justice system but also for the civil justice system¾the system that deals with private litigation in Canada. And there [were] so few data points for that, we couldn’t even do a report card. There is nothing that would be substantial enough to put together and measure. So there is a huge gap in terms of our civil system that needs to be addressed.
Within the criminal justice system, we have some really big holes that we are missing. The biggest, I would say, is recidivism rates. Statistics Canada does not report by province and territory whether someone who has been through the criminal justice system is reoffending or not. Whether new charges are from first time offenders or repeat offenders, we actually don’t know and that is a huge measure of the health of the criminal justice system and its success in rehabilitating and deterring offenders.
In addition to that, we also had to calculate quite a few data points. For example, the data on Aboriginal incarceration rates. We were able to get population statistics from Statistics Canada and custodial admissions by Aboriginal status, but we actually had to do some calculations to bring them together to give a meaningful figure, which is a ratio of the two. Statistics Canada can definitely do more in terms of packaging this data  and making it more meaningful for Canadians.
It is also buried. It took us from start to finish [over] two years, from really starting to work on this project to releasing the report card, [with] a small team of student research assistants who worked to try to locate this data. It is very hard to find and you have to run your own tables and pull the information from Stats Canada’s website It is not all that accessible.
Q: One of the areas where the deficit is quite pronounced is in the provision of victim support services. You have written a book on victim support in Canada and you also head the Justice for Victims of Crime Initiative at the Allard School of Law at UBC. Can you share the objectives of that Initiative and some of the high levels issues relating to support for victims of crime in Canada?
The book is entitled Victim Law: The Law of Victims of Crime in Canada and it is going to be released in the spring by Carswell. Essentially, it looks at this entire body of law that has developed in the last 30 years, law that is designed to recognize the legal rights of victims, provide them with support, reduce their secondary victimization by the justice system, facilitate restorative justice, and perhaps most challengingly, reconcile the rights of victims with the rights of the accused and third parties like the media.
The book addresses not just criminal law and issues related to victims of crimes in the criminal justice system but also deals with provincial and territorial laws that exist to provide victims with compensation, legal protection orders that exist in cases involving domestic violence, information, and restitution.
It is particularly timely because we now have a federal Canadian Victims Bill of Rights, which recognizes that victims not only have legal rights but also that they have quasi-Constitutional status – which means that if there is an inconsistency between these rights and ordinary statutes, these rights prevail. That is a really historic development. However, the courts have not yet grappled with or interpreted and applied these rights to any real degree. The new law came in 2015 so it is very new, [and] so we thought it was time to consolidate all this law.
Again, this is another project [that] involved a huge number of students. We had a group of 13 students who were part of this Justice for Victims of Crime Initiative. Each of them took one province and territory and basically became an expert in the law. They looked at literally every statute on the books because what we found was that these measures are buried. For example, in your residential tenancy law you might have a provision that says if you are a victim of domestic violence, you still have a legal right to remain in the residence if your spouse has been ordered out by a court. Let’s say that the spouse was on the lease but the victim was not. That would ordinarily make the victim liable to being evicted. So if you don’t have a provision like that in your law, that victim is vulnerable to lose their housing just by reporting a crime.[A]s a result of doing this research, we found hundreds of legal provisions scattered throughout these statutes,  we brought them together in one place and consolidated them. This book will ideally be a resource for judges, Crown prosecutors, victim services workers, as well as corrections and conditional release staff, and people who work in the youth criminal justice system- which has a very different and more developed way of dealing with victims of crime.
Q: Having reviewed the data and the various government and Commission reports on the criminal justice system in Canada released in the past few decades, are there any recommendation that you think would be a good starting place to consider in terms of reform?
BP: It is an interesting thing, because as I said earlier as well, this is not the first time that someone has raised these concerns. All of the concerns that have been raised -the high rates of people in remand, the legal aid issue, the aboriginal representation in prison- these are well known issues and problems. The problem is that they haven’t been quantified in a public way. That’s why we thought using a statistical approach would be a good idea, comparing provinces and territories.
Most of the reports that are [discussed] in the Case for the Report Card were just provincial studies, so they don’t provide context and they were not really reported outside of their provinces. There is something different that happens when national coverage is given, and national attention is given, to the situation (as in Manitoba and up north, where they scored lowest in our report card). That does something, that makes an impact. Particularly with new governments in some of these provinces, it is an opportunity for them to break with the past and commit to changes.