Reform but no follow-through

When the Trudeau government tabled a package of reforms designed to fight delays in the justice system in 2018, there were mixed reactions to many of the proposals. Critics, in particular, feared Ottawa was tinkering around the edges, not tackling the real causes.

 

But one thing that seemed to inspire support was the creation of judicial referral hearings for bail violations.

 

Per the government, the new measures, which came into effect in September 2019, would "streamline certain administration of justice offences out of the traditional court system where no harm has been caused to victims."

 

These hearings would prevent re-incarceration over minor violations of release conditions, and prevent further administration of justice charges being laid, which eat up significantly more court resources.

 

"We were very supportive of the judicial referral hearing for bail breaches," says Tony Paisana, a partner at Peck & Company and vice-chair of the CBA's executive committee on criminal justice.

 

But there is a growing mystery in the Canadian legal world: Just where are these hearings?

 

Last September, Toronto criminal defence lawyer Harpreet Saini recounted an experience of trying to get his client bail — a saga that lasted the entire day, from 10 am to 4:30 pm, and nearly resulted in a "special bail hearing," he tweeted. "I specifically asked for a Judicial Referral Hearing in my case....no response."

 

Saini told CBA National he hasn't had one of these hearings, or even heard of one happening. Other Toronto criminal lawyers reported the same — "Not a single one," per Sherif Foda. Alison Craig, a partner at Lockyer Campbell Posner, told CBA National she had "not one" of those hearings and "it's never even been given to me as an option." Montreal lawyer Léo Fugazza reported the same: "No. And I have not heard of any either."

 

Paisana, who practises in Vancouver, told CBA National: "I have not yet experienced one of those hearings. I've not heard of many people at all receiving the benefit of those hearings. And, anecdotally, I've heard that many provinces haven't even set up the mechanisms through which such a hearing could even be referred."

 

CBA National asked Justice Minister David Lametti in February: Have these hearings actually been implemented? "We're still gathering data on that," he said. "And so I can't give you an update at this time."

 

Pressed on whether there were delays in implementing this mechanism, Lametti said COVID-19 has presented challenges, but wouldn't get into specifics of why these referral hearings may not be happening. "My understanding is that, particularly during COVID, all of the provinces have made an effort to use procedures that are flexible, to use procedures at a distance, dealing with bail, dealing with other sorts of administrative offenses," he said.

 

The Department of Justice added, "the implementation is the responsibility of the provinces and territories and we defer to them to comment on their progress."

 

CBA National checked in with all the provinces and territories to see whether these hearings are, in fact, being held anywhere.

 

Some provinces report that they have adopted the new provisions, and are actively using them, though they remain relatively uncommon. British Columbia reported having held 48 hearings across the province between December 2019 and October 2020. Yukon's courts say they have scheduled 45 of these hearings since the changes were adopted, while the Northwest Territories have held 22. Quebec indicated its courts can hold these hearings, but that the province does not track statistics around them.

 

Nova Scotia offered more detail: "In 2019, the Provincial Court of Nova Scotia adapted one of its existing court forms to allow for police or prosecution to request such a hearing and for court staff to be able to schedule them on the docket." The province reported that between December 2019 and the end of January 2021, the province held 12 of those hearings.

 

Alberta appears to be significantly ahead: In the 2020 calendar year, the province scheduled some 330 referral hearings. Of those, only six took place. An official in Alberta's justice ministry explained that's because either prosecutors believed the breach of bail was serious and therefore referred the matter to police, or did not believe the breach was serious and opted to take no action. The six hearings that were held appear to have been to modify the release conditions.

 

A spokesperson for Ontario Attorney General Doug Downey wrote that they are "unable to confirm the number of judicial referral hearings that have occurred." Saskatchewan sent a similar reply. Neither province indicated whether they had implemented the mechanisms necessary to hold these hearings.

 

Three provinces told CBA National they simply do not use this new tool.

 

Manitoba and New Brunswick reported that they have not adopted procedures or mechanisms for judicial referral hearings." Newfoundland and Labrador wrote that hearings are "optional" and that "Public Prosecutions in Newfoundland and Labrador is not exercising its option to hold judicial referral hearings and, therefore, there have been none to date."

 

PEI and Nunavut did not reply to requests for comment.

 

All told, there is a huge disparity from one province to the next, as to whether an offender can benefit from judicial referral hearings.

 

Manitoba's response indicated, in practice, what that means: "There are prosecutors and Legal Aid Duty Counsel available 24 hours a day, 7 days a week, to consider whether it is necessary for accused to be detained in custody, including on breaches of their judicial interim release order," a spokesperson wrote.

 

Rather than adopt this new mechanism — that involves little more than modifying an existing form — some provinces are continuing to rely on a system that opts for re-incarceration and more charges as the norm, not the exception.

 

Considering that C-75 was intended to heed the "clarion call" of court delays and the worrying rise in administration of justice offences, Paisana notes that the real-world impact has been blunted. "Really, what is happening is you have this legislative reform that could help, but isn't being implemented."