Canadian Lawyer

w w w . C A N A D I A N L a w y e r m a g . c o m J U L Y 2 0 1 6 27 Canada in these annual reports, including what is the precise definition of a case. Williams explains that a bench warrant is con- sidered a case and may not be acted upon quickly by the authori- ties, which could skew the numbers. Still, she would ultimately like to see a time when what she describes as less serious cases are dealt with in 30 to 60 days. The president of the Ontario Criminal Lawyers' Association says a broad culture change is necessary to make the provincial courts more efficient. "There needs to be less resistance to innovation," says Anthony Moustacalis. As someone who has worked as both a Crown attorney and defence lawyer for more than 30 years, Moustacalis is calling for a different way of thinking about the disposition of less serious offences. "The Crown should develop a management approach to files, rather than a can-we-prove-it approach," he suggests. The head of the country's largest defence lawyers' organization recounts two recent examples that highlight inefficiencies in terms of court resources. In one, he was called by an individual who was fac- ing criminal charges for stealing a chicken from a grocery store, because the person had already gone through diversion for a previous minor offence. In another, while waiting to represent a client in plea court, Moustacalis observed a 10-day jail sentence and probation imposed on a chronic offender with mental health issues convicted of shoplifting two steaks. "It costs about $300 for every day you are in jail," he notes. A greater priority should be placed on alternative measures instead of short jail sentences, for certain offenders and certain offences, he says. The chief judge of the provincial court in Sas- katchewan says while judges can only deal with the cases that come before them, it is important to consider the background of the defendant when imposing conditions for probation or conditional sentence orders. "I try to be careful not to load up orders with terms that will do nothing to rehabilitate the offender or provide safeguards to the public," says Chief Judge James Plemel. "There is no utility in imposing conditions with which an offender has no chance of complying. We should think twice before we order an alcoholic who has drunk alcohol every day for the past 10 years to not drink for the next six months. Just as judges should carefully consider imposing inappro- priate conditions, Crown and defence should ask for or agree only to those which they feel are appropriate." He also points to specialty courts, such as aboriginal courts in northern Saskatchewan, as another way to more effectively consid- er the background of the defendant. Some of the proceedings and sentencing are done in the first language of the accused, depending on the language ability of the judge. "Aboriginal judges help build important bridges between the court and aboriginal individuals and communities," says Plemel. Another potentially resource-heavy proceeding at the front end for provincial courts is bail. There were nearly 11,500 individuals in provincial jails awaiting trial or sentencing in 2014, accord- ing to Statistics Canada. That was more than those convicted and serving sentences in provincial institutions. In part, that is because of a greater reluctance by the Crown to consent to bail, say defence lawyers. Boris Bytensky, a defence counsel who was one of the members of a Bail Experts Table commissioned by the Ontario government in 2012, says there has been slight progress in this area. "I think there has been an emphasis placed on putting the right personali- ties in bail court. Otherwise, you have a backlog," says Bytensky, a lawyer at Adler Bytensky Prutschi Shikhman in Toronto. In some jurisdictions there is a regular bail Crown, which is more efficient. However, the tendency to be "risk averse" for fear of consenting to the bail of someone who might end up committing a serious crime is still too prevalent, says Bytensky. "We over-condition people. We over-surety people," he says, which slows down the courts. Bytensky says he does not believe it increases public safety. Unexpectedly, one policy change that has reduced the size of the docket in some Toronto courts is the recent suspension by police of street checks or "carding" of individuals, says Bytensky. "There are now fewer people arrested for breach charges." The use of speciality courts for certain types of low-level offenders or the push for alternative resolutions is a reflection of the social-work component within the courts. Carol Baird Ellan, who was chief judge of the provincial court in British Columbia for a five-year term between 2000 and 2005, says court backlogs are fundamentally a social issue, not a judicial one. "You could cut the B.C. $242,464 Alberta 279,825 Saskatchewan 272,295 Manitoba 239,000 Ontario 284,276 Quebec 238,379 New Brunswick 246,880 Nova Scotia 231,500 P.E.I. 243,537 Newfoundland 216,124 Note: The government in Alberta accepted an independent commission's recommendation to boost salaries in that province to the level of their counterparts in Ontario starting in 2016. Some salaries are as of April, 2014, because decisions have not yet been made related to the fi ndings of independent compensation commissions. Sources: Saskatchewan Provincial Court Commission, Alberta Judicial Compensation Commission, Ontario government salary disclosure Provincial court judges salaries (2015) n- ori- y like e dealt ation says ncial courts d and se because of a g say defence lawyers Boris Bytensky, a defen of a Bail Experts Table commissi in 2012, says there has been slight prog there has been an emphasis placed on putting ties in bail court. Otherwise, you have a backlog, say $242,464 279,825 72 295 0 (2015)

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