Overall, the justice system in Ontario has improved in the last year, but it still has glaring shortcomings in judicial efficiency and the disproportionate representation of Indigenous people in prisons, according to a new justice system report card.
The Macdonald-Laurier Institute, a public policy think-tank, released on March 5 its second annual report card on Canada’s justice system. The report used data from Statistics Canada to gauge how each province faired in public safety, costs and resources, fairness and access to justice, support for victims and efficiency.
Ontario placed fourth, climbing upward from its seventh spot in the inaugural report. The province scored high for its relatively low levels of violent, traffic and property crime and received an “A+” in confidence in the justice system. Less brag-worthy is the province’s showing in efficiency, where Ontario had the highest proportion of charges stayed or withdrawn in the country.
Atlantic Canada scored in the top spots, according to the report. PEI, New Brunswick and Newfoundland and Labrador took first, second and third place, with Nova Scotia right behind Ontario.
Manitoba, Northwest Territories and the Yukon were at the bottom of the list and received an overall grade of “C”. “The territories have shockingly high rates of crime per capita,” states the report.
Quebec placed sixth and struggles with the lowest-weighted non-violent-crime clearance rates in Canada. But the worst province when it comes to convicting for violent crimes was 10th-place British Columbia, with a 51-per-cent clearance rate. B.C. also fails to convict on almost 80 per cent of non-violent crimes.
Benjamin Perrin co-authored the report and is associate professor at the Peter A. Allard School of Law at the University of British Columbia and senior fellow in criminal justice at the Macdonald-Laurier Institute. He says that the lack of efficiency and overpopulation of those awaiting trial can be attributed to the fact that charges are laid by police in Ontario without requiring review by the Crown.
“There are some long-standing and very significant problems with Ontario’s criminal justice system,” he says. “At the top of that list would be the significant proportion of people who are accused of crimes who are awaiting trial on remand.”
Ontario’s lack of efficiency was due to the system’s saturation of incarcerated who will never be convicted of a crime.
Forty three per cent of charges in Ontario are stayed or withdrawn. That number is 7.4 per cent in Quebec and the national average was 30.9 per cent. Ontario also has, proportionally, the second highest number of accused on remand.
“What that means is people get charged who, ultimately, maybe shouldn’t have been charged. There was either not enough evidence or it wasn’t in the public interest,” Perrin says.
With the “no-review” system, he says, an accused is often held in custody until the Crown finally sees the file, which could be a week before the trial date, and decides that these particular charges are not fit to proceed. Meanwhile, the accused has spent months in jail and the system has spent resources unnecessarily.
Changing to a “charge-approval” system, where the police need the go-ahead from the Crown, would help to alleviate some of this stress on the judicial process, says Perrin.
“I am in favour of a system that charges people when there is reasonable likelihood of conviction and it’s in the public interest. That decision needs to be made by the prosecutors who will be responsible for prosecuting the case,” he says. “You need to have an independent third party who is the Crown prosecutor, whose job it is to objectively and dispassionately consider the charges.”
A bright spot and evidence of Ontario’s improvement are the province’s ratings is in the area of “fairness and access.”
How the justice systems served access to justice was measured by the level of legal aid funding for criminal matters per crime. Ontario took home an “A” in this category, with a legal aid system that has seen steady increases in funding for the last eight years.
The provincial government has shown its support through financial infusions and the creation of a criminal justice modernization group, says David Field, CEO of Legal Aid Ontario.
“The province has made a pretty significant commitment to legal aid. They’re expanding our financial eligibility again in April,” he says. “So, we’re moving in the right direction in terms of funding and accessibility. There is ongoing demand for our services that presents some challenges for us as an organization. But I do think the province recognizes that and has made a long-term commitment to access to justice by providing us with additional resources.”
In Legal Aid Ontario’s 2016/17 annual report, there is a $19.1-million increase in provincial government funding, with another $7.7-million increase in the federal government’s contributions.
Ontario received a “C “ for its proportion of Indigenous people incarcerated in the province. The report states that while this is a problem in every jurisdiction in the country, the Ontario justice system “has one of the most disproportionately high levels of Indigenous incarceration anywhere in Canada.”
Many factors outside of the criminal justice system play a role in the overrepresentation of Indigenous people in the system, Perrin says.
“You could think of it like if you were dealing with something like the health-care system and people dying of heart failure. If you’re only going to deal with that problem at the very end of the day when they’re having a heart attack, that kind of critical moment, you’re really not going to do very well. You need to be dealing with people sooner in the process and dealing with root causes and symptoms,” he says.
Indigenous people in the justice system appear statistically to face unique challenges at every step of the process.
“They’re less likely to have a lawyer. They’re more likely to get charged. They’re more likely to face multiple charges. They’re more likely to be denied bail. They’re more likely to be found guilty. They’re more likely to be sent to prison and they’re likely to spend longer times incarcerated and less likely to be released early,” he says. “On virtually every measure of the criminal justice system, Indigenous persons are doing far poorer than non-Indigenous persons. There’s a real need to look at why that is.”
The numbers also need to be seen in a wider context. One of the reasons crime rates are declining, says Perrin, is because of Canada’s aging population and the fact that the demographic who commit the most crimes is young men. The Indigenous population in Canada is younger than the general population and so it has higher numbers of young men.