Canadian Lawyer

28 J U L Y 2 0 1 6 w w w . C A N A D I A N L a w y e r m a g . c o m number of defendants in half, if governments properly resourced their parents growing up," says Baird Ellan about the cycles of pov- erty and drug addiction that result in certain communities being over-represented in courts. At the same time, once someone is already in the court sys- tem, more resources to try to ensure they do not return would save governments money in the long run, she suggests. "There has always been a short-sightedness to how courts are funded," says Baird Ellan, who retired as a judge in 2012 and ran for the NDP in the last federal election. The focus on trying to be more effective with non-violent offenders is to free up more court resources so more serious crimes can be dealt with, either through a trial or a resolution in a more timely manner. Nearly one-third of all criminal cases in provincial courts are stayed or withdrawn by the Crown before a trial, according to Statistics Canada. In Ontario, that percentage has consistently been slightly higher than the national average. It is also common for multiple court appearances before a decision is reached. From the defence perspective, that is because the Crown office does not take a meaningful look at a file early enough in the process. In response, provincial Crowns in a number of provinces including B.C., Ontario, and Alberta have moved to increased "file ownership" practices, where a prosecutor has carriage of a file at an early stage. Dan McLaughlin, communications counsel for the criminal justice branch in B.C., says its most recent data suggests there has been reduced time to disposition as a result of this policy. "The main objectives of Crown file ownership are to reduce the number of Crown counsel and administrative staff who engage with each prosecution file, to facilitate principled resolution at an earlier stage and enhance trial readiness through continuity of file management," says McLaughlin. As well, the Crown policy manual encourages prosecutors "to initiate early, principled, and informed resolution discussions." Some in the criminal defence community, though, are not convinced increased file ownership has had the desired effect. "I would still prefer to have a safety valve and be able to go to a senior Crown," says Moustacalis. He agrees that creates a "human relations" problem, but that it can be helpful depending on the personalities in a particular Crown office. In Alberta, file ownership has not necessarily resulted in speedier resolutions, says Kelly Dawson, president of the Alberta Criminal Trial Lawyers Association. "For any case of any seri- ousness, early resolution offers are not attractive. You will always do better on the eve of trial, says Dawson, managing partner at Dawson Duckett Shaigec & Garcia barristers in Edmonton. "Crowns procrastinate, defence lawyers procrastinate. That is the nature of it," says Dawson. Chief Judge Matchett says he has placed a high priority on case management initiatives, including more judges in docket courts and increased use of technology. One agreement with the prov- ince, which is still in the process of being implemented, is to put the schedules of Crown counsel online, in the hopes of making it easier to set trial dates. The most recent data on the lead time between when a case is set down for trial and the trial is on aver- age 20 weeks, says Matchett. That is still a reduction from 22.5 weeks when he began as chief judge, despite an increase in the number of overall cases in provincial court. "When you are talk- ing about case management, we believe the best approach is to collaborate with the other players to start to change the culture," says Matchett. Dawson says, though, that there is a way to speed up the pro- cess that does not require new technologies or special initiatives. "The client is often the best engine to get things going. The client complaining is the integrity check. Call me old-fashioned, but technology actually helps make it easier to delay," he says. There has been a recent push in Alberta, says Dawson, for designations from clients in custody. And without enough video rooms in provincial jails, the defendant is not even present long with the spotlight recently thrust on the provincial court in the Duffy and Ghomeshi trials, the scope of its jurisdiction was addressed earlier this year in two signifi- cant rulings, issued by the Supreme Court of Canada and the Ontario Court of Appeal. The decisions clarified the effect of a provincial court judge finding a law to be unconstitutional and the powers of a statutory court to award costs against the Crown. Whether provincial court judges could issue a "declaration" that a law was unconstitutional arose in recent rulings in Ontario and British Columbia. Justice David Paciocco, a former law professor whose legal writings have been cited numerous times by the Supreme Court of Canada, found in R v. Michael in 2014 that the mandatory victim fine surcharge of $100 per offence violated the Charter. The Crown office in Ottawa argued that since provincial courts do not have inherent jurisdiction to declare a law to be of no force and effect, the decision in Michael only applied to that defendant. As well, a Charter challenge would need to be brought every time someone in provincial court was seeking to have the surcharge declared unconsti- tutional. While agreeing that provincial courts do not have the formal authority to declare a law invalid, in a subsequent decision, Paciocco described the Crown's position as unjust. "If the Crown is correct, it means that the Crown is in a position to isolate a Charter challenge that it loses by not appealing that decision to a superior court," wrote Paciocco in R v. Sharkey. Repeated Charter challenges are impractical in provincial courts, stated Paciocco, who concluded that a finding that a law is unconstitu- tional is a persuasive precedent that other judges can rely upon with- out having to re-argue the merits each time. The Supreme Court addressed the issue in its decision in R v. Lloyd, issued this spring. It found that a one-year minimum jail sen- tence for a second drug-trafficking-related offence violated the A ss through continuity nt, says McLaughlin. As well, the Crown policy s prosecutors "to initiate early, principled, and n discussions." pecial initiatives. est engine to get things going. The client complaining is the integrity check. Call me old-fashioned, but technology actually helps make it easier to delay," he says. There has been a recent push in Alberta, says Dawson, for designations from clients in custody. And without enough video rooms in provincial jails, the defendant is not even present h the spotlight recently thrust on the provincial the Duffy and Ghomeshi trials, the scope of its on was addressed earlier this year in two signifi- gs, issued by the Supreme Court of Canada and io Court of Appeal. cisions clarified the effect of a provincial court nconstitutional and the powers of a statutory the Crown. effect, the decision in Michael only applied to that defendant. As well, l a Charter challenge would need to be brought every time someone in provincial court was seeking to have the surcharge declared unconsti- tutional. While agreeing that provincial courts do n t h authority to declare a l d Scope of provincial court jurisdiction

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