The Agenda with Steve Paikin (Audio) - Is Ontario's Justice System Failing Victims?

Episode Date: April 23, 2024

Pleas are being made to the provincial government to properly fund and staff the Ontario court system as criminal cases are being thrown out due to delays and backlogs. Victims of cases involving domestic violence and sexual assault are speaking out after their trials have been rescheduled several times, resulting in their alleged abusers freely walking away without any consequences. Due to the Jordan decision, trials must be completed within 18 months of charges being laid or 30 months for federal cases. We dig into what is causing delays and how the situation can be solved.See omnystudio.com/listener for privacy information.

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Cases involving domestic violence, sexual assault and human trafficking are amongst those being dismissed. Joining us now to discuss why the courts are in such apparent disarray, we welcome, in Los Angeles, California, Kate Alexander. She's an advocate and artist. And here in our studio, Stephanie DiGiuseppe, partner at Hennon Hutchison Robitaille LLP and an executive member of the Criminal Lawyers Association. And Kristen Wong Tan, NDP member for Toronto Centre and that party's attorney general critic. Good to have you two here in our studio. And Kate, thanks for joining us from Los Angeles on today's program. And Kristen, I'll put you to work first right away. You obviously watch this as the AG critic for the NDP. What's going on in our provincial justice system today that's got

you so concerned here? It's not just myself that's concerned. Many legal observers have expressed the same concern. And essentially what we're seeing is a historic high backlog in cases taking an extraordinary amount of time to get to trial. And we're also seeing a chronic underfunding of the court system, meaning that it's not adequately staffed. We have sometimes courtrooms going dark, courtrooms not being used the maximum number of optimal hours. And most significantly

for the general public is that we're seeing violent offenders sometimes walking free so that means sexual assault cases as we know charges are being stayed or withdrawn and simply trials are not happening in a timely fashion so all of this is leading to quite a bit of chaos. And I would say that the legal observers are now starting to call it a crisis. And I would tend to agree. Let me get Kate to follow up on that. Why is this issue so critical right now, Kate? It is critical for everyone because it can happen to anyone. I was nearly murdered July 31st, 2021. critical for everyone because it can happen to anyone. I was nearly murdered July 31st, 2021. My abuser was subsequently charged eight times and all eight charges were stayed two times. There was five charges in the provincial court and three charges in the federal court. So that result is

completely abhorrent because now my abuser is free and leased side and free to do this again to someone else without a single consequence. It's terrifying. It creates a very unsafe culture. And unfortunately, given my experience after speaking out about this, thousands of people have reached out to me

and hundreds of victims with the same story. So I am not unique. I just want to be a conduit for change. And we need to change this because it is so unfair to innocent civilians and unfair to the victims and their families. Kate, let me do a quick follow-up here. Did you get an explanation as to why your case ended the way it did?

The attorney general, I wrote to them. I had to write to them. Well, we just, we didn't have time to prosecute it. His Chapter 11B rights overstepped yours, essentially. So his rights outweighed mine this entire time, though I was the victim of attempted murder. And I mean, for my attempted murder, we have it on video. We have pictures of him doing this. We have me in the moment after the SWAT team, if you will, came to my house and found me and pulled my blood that night. And it still doesn't matter. My family hired a high-profile criminal attorney,

and it still doesn't matter. It's not a matter of resources it's a matter of criminal rights outweighing victims right and it canada isn't safe it's a good thing we've got a lawyer here because i think kate just mentioned something that we need some explanation around chapter 11b rights and this kind of thing what's she referring to sure in the canadian charter of rights and freedoms under Section 11b, every Canadian has the right, if they're charged with a criminal offence, to have a trial within a reasonable time.

And the way our Supreme Court of Canada has looked at that is they've said that this is, well, it's a right that belongs to the accused person in a sense. It's also a right that belongs to the public and the whole Canadian community. Because when that right isn't enforced properly, what we see are massive backlogs. The current timetable is about two and a half years to get to a trial. For what kind of case? For a serious case, for an indictable offence, being a reasonable amount of time. And without those kinds of limits

we can start to see backlogs of four or five even six years this has happened historically which is a bad outcome for everyone involved in the justice system including victims their families witnesses and the accused person okay gonna do a follow-up with you too Stephanie because the the case we hear about all the time is the Jordan precedent tell us what that is and why it's impactful here. Jordan is a case where the Supreme Court of Canada changed the way the 11B right was interpreted by courts to try to make it clearer and easier to enforce and interpret. And what they did is they set basically maximum time periods for reasonable delay

for cases prosecuted in the Ontario Court of Justice. It's 18 months. In the Superior Court of Justice, it is 30 months. And that delay is focused on delay created by the state. And so delay created by the defense or by an unexpected event like an illness or something like that, you go to trial on the first day and the judge is ill, those delays don't count. But delay that is caused by the prosecution or congestion in the court system does count towards that time frame. We've got some numbers on this, and I'm going to ask our director, Sheldon Osmond, to bring these graphics up, and I will basically describe what's in them for those listening on podcast who can't hear.

So according to data, this is from the Ontario Ministry of the Attorney General. In the last couple of years, we've seen a record number of Jordan applications. In other words, this case is taking too long to get to court. And therefore, applications have been granted in Ontario. And let's just go back and look at the numbers here. In the year 2022, 125 applications were granted, and that is more than double from the year before. We haven't seen numbers quite as high since 2017, and that was just a year after the Supreme Court of Canada ruled on the Queen versus Jordan. Okay, Kristen, you've seen these numbers before,

obviously. What do you make of them? Well, it's not surprising. The Jordan decision came down in 2016. We know that the courts were never always moving as quickly as it could be. It always needed to be resourced. You have to have a number of staff in the courts in order for the trial to proceed.

But what we've seen is this chronic underfunding of the court system. And so when you don't have staff to actually run an efficient trial, But what we've seen is this chronic underfunding of the court system. And so when you don't have staff to actually run an efficient trial, those cannot proceed. So part of the problem we're seeing is that even in the 2024 budget that's before us in the House right now, the government has a choice. They can move forward to adequately resource the courts to make sure that they're staffed, to make sure that courtrooms are functioning and safe and to just move everything along and guide it by the Jordan decision but instead we have no

mention of bail we have no mention of funding new funding to clear the backlog there's no mention for funding for the judicative tribunals which we're seeing record-high backlogs and just explain that because how would funding help ease a backlog? So we need to be able to recruit staff. We need to be able to have the staff working in the courtroom so that the trials can proceed. What we've heard from criminal lawyers, we've heard from defense lawyers,

is that oftentimes, and complaints from the Crown attorneys, I must say, we've heard that courtrooms are sometimes double-booked, sometimes they're running dark, that the optimal time of a courtroom usage set by the Ministry's own standard is about 4.5 hours per day. On average, it's sitting less than 2.8 hours. So simply, people are not getting to work.

And the judges alone cannot administer a trial. They need to have the court reporters, they need to have all the different staff that are there to support it and they just don't have the staffing levels. And this was raised on repeat occasion by the unions that represent the court workers. This was also raised by advocates and lawyers

and the legal observers. And the judges have, as of late, they've been really loud and vocal that the government underfunding of the court system has really undermined the justice system overall. Let me get you on this, Stephanie, because I guess I should ask, have you ever filed or been on the receiving end of a Jordan application? So I have represented clients both in pursuing Jordan applications where I'm representing the accused person, and I have also been counsel

for complainants or victims when they are experiencing a Jordan application in their trial. So I've been on both sides of this issue. And I can tell you that it is a difficult issue all around. Well, obviously, if your charges are stayed, in a sense, that's a good outcome if you are an accused person facing charges. In another sense, you never have your day in court. And it can be emotionally complex to deal with the idea that the side of your story is never heard, that you are never exonerated if you maintain your innocence, and that the charges which stick around on the internet for the rest of your life will always be left with that lingering question mark. That's an interesting take on it because, of course, most of the time when we think about

this issue, we think about, quote-unquote, those who are getting away with it because they didn't get their case dealt with quickly enough. But you've pointed out there's a flip side to this as well. It can cause lasting trauma for those who may be not guilty beyond a reasonable doubt. The Charter is there to protect innocent Canadians. And it is, we have to understand that some of the people whose charges are stayed, they may be innocent of the charges they were accused of, and they will never get that result. These days are bad outcomes. They're bad outcomes for everyone involved in the justice system,

but they have a communicative function, which is that our system is in crisis, and we need politicians and government to pay attention to that crisis and deliver emergency relief to the justice system. That's why such a drastic result is the communication method that's used. Kate Alexander, let me get you back in here because we just put that graph up showing those numbers.

And we want to remind everybody that those are not just numbers on a graph. Those are real people's lives. Those are individual people's cases. And when you see the kind of Jordan applications that have been granted over the past couple of years that are sort of twice, more than twice what they were before that, I'd like to know how you react to those. I would like to know why less serious crimes

are taking precedence over violent human on human crimes. There was a rebuttal with Premier Ford and I would still like to have an open and honest conversation with him that auto thefts were clogging up the court system and we should go easy on the justice system because there's too many trucks being stolen. And I question the humanity of prosecuting auto thefts over human lives.

I nearly lost my life that day. And I am not alone in that feeling. I also struggle with those numbers because I think they're incredibly inaccurate. I don't think that the attorney general has to take actual take accountability or actually has to report how many cases they actually stay. I don't think federally it's a requirement.

So the data is inaccurate and I don't actually believe that that's the number. Stephanie, can I get you to react to the comment just made that there are too many cases of auto theft clogging the courts and therefore we can't get to the much more serious human-on-human violent crimes? It's a very good point. I mean, the court system does prioritize sexual offenses and violent offenses for trial.

That said, there is way too much what I'm going to call clutter clogging up the system that takes away from that attempt to prioritize these offenses for good reason. And so increased prosecutorial discretion, a change in the culture of the Crown's office to eliminate cases from the system or withdraw charges for non-violent offenses where people are taking rehabilitative steps. These are the kind of changes that are needed in conjunction with additional resources in order to tackle this crisis. Kristen, we would love to have had someone from the Attorney General's Ministry here or even the AG himself, but they declined to participate.

But you've presumably brought this issue up in the House on prior occasions. What kind of feedback do you get from them? I'm bringing this issue up with the AG and the government almost weekly, as are other members of our caucus. We recognize that the crisis is only going to get worse unless the government is able to address it and also even to acknowledge it. And what we're seeing now is that 82% of people who are sitting in detention are in pre-detention. So that means that they've been charged with the crime, but they have not been tried. They're not found guilty, but they're sitting there for extraordinary amounts of time. We're also seeing that the AG, or in this case, the Crowns,

are oftentimes withdrawing those charges, especially around sexual assault cases. In 2022, we saw over 1,300 cases, charges withdrawn or stayed, largely because they couldn't get to trial in time. So Kate is absolutely right, and the numbers are significantly higher because we also know that 80% of sexual assault that takes place is actually not reported. So the government's response so far to all of these identified situations that's clearly within their purview,

they are the sole ministry responsible for the administration of courts and justice, has been denial. They have been extremely, I would say, dismissive. Kate Alexander and another survivor who came to the House to hear their question asked during the question period, Emily Agar, was really clear that they wanted to just have an answer from the AG. What is he going to do about it? What is the government willing to do about it? And he couldn't even look at them.

And so I think that there is a lack of trust in the public. People are starting to lose faith in their justice system because the government is not acknowledging the problem, but they're also not listening and applying the solutions. Kate, can I ask you about that day when you went to Queen's Park? And did you try to communicate with Attorney General Doug Downey then? And if so, how did it go? I've tried to email him before.

It was placating, avoidance, victim blaming. We will learn from your case. Sorry for our misjudgment of how serious this is which is just utterly ridiculous you know any grown adults even a young person would realize you know if someone's bleeding from their skull that should be prosecuted sorry to be graphic but these are facts and the entire experience throughout the justice system was equally as abusive as the day I was nearly murdered. It was, I caught the prosecutors in so many different lies about how they were going to proceed. Again, I hired a criminal lawyer to effectively work for me, which is not in most people's resource house.

And it still meant nothing. people's resource house and it still meant nothing so here we are in this situation where victims are simply not being listened to regardless of how open closed their cases and I am not an anomaly I must stress that more and more I I am someone who's in a position who's willing to come forward most people don't want to be sitting here right now talking about this over and over and over again so when the attorney general on march 28th came back with some nonsensical you know partisan answer about blaming the liberals from whatever ago it just it again it's nonsense and then to have that it's just it re it reaffirms everything that we're already saying. Stephanie, let me pick up on one thing that Kate just said, which was that

her situation is not extraordinary. In fact, there is more of this happening than we think. Is that true? In terms of the number of cases that are being stayed, I think it is it has reached crisis level. The courts are in crisis. And so we have a large number of cases being stayed on the flip side. And Kristen's earlier point is quite accurate as well, that for the numbers you see where there's a judicial decision, she's staying in charge. she's staying in charge, there is going to be, under that iceberg, a whole host of cases where the Crown attorney voluntarily stays the charge because everybody acknowledges this isn't worth litigating. The case has gone so far over the time limit. Kristen, I don't want to be inflammatory here unless it's necessary. And if it's necessary, you tell us. but do you think situations like this cause the public to have a loss of faith in our justice system? It absolutely does.

How do you know that? I know this because survivors are coming forward and they're saying to us, we don't want to report anymore. So although they are seeing the conversations such as we're having today, the fact that Kate has been such an effective advocate, you know, through her social campaigns, Survivors themselves want to tell their story, but they don't want to go through the justice system. And, you know, I think, you know, this is really a big part of the problem is that we are seeing a government in denial that the courts are in crisis. You know, 2019, an auditor

general's report simply said to them, they have to track the sexual assault cases. This is the most violent crimes. And they need to be able to put out an annual report to baseline where are we with respect to sexual assault cases, how many of those charges are actually going through with prosecution, how many of them are being stayed. And that was five years ago. Nothing has been done. Trying to get this information from the Ministry of the Attorney General is extremely difficult. So the public, and especially for the community of

survivors and victims and families who support them, they are losing faith in the justice system. And the Crown attorneys themselves are very frustrated because they oftentimes are the face of the justice system. And the justices, as I've mentioned before, their rulings, their verdicts have been quite pointed in their remarks about the fact that this person probably should be in jail and the trial cannot proceed. They have been laying that blame directly at the foot of the Ford government. Kate, I know you have lost considerable amount of respect and trust and faith in the justice Kate, I know you have lost considerable amount of respect and trust and faith in the justice system, but do you think it goes beyond people

who are immediately affected by these decisions? It's beyond people because for every case that's stayed where there is a criminal involved, someone who isn't, you know, wrongly accused, which I agree is that is a terribly terribly difficult and treacherous situation but for every single victim there is a perpetrator who is then free on the street so this is not a victim isolated insular situation typically and studies have shown this we don't need more research on this

and studies have shown this, we don't need more research on this. Perpetrators re-offend. I've had other women come forward about my abuser since I've gone public. People who do these extremely violent, extremely abusive, sexually extremely violent, physically, mentally, emotionally, what have you, they do it again and again and again until something is actually done. They don't self-rehabilitate. They don't have those abilities. And they actually are empowered by these loosey-goosey stay of charges and, you know, I got off on it. They enjoy this. They enjoy the power that they get from being absolved of responsibility. And

it breaks my heart. Let me raise with the two of you here in the studio something else that I hear from time to time, which is that one of the reasons that these cases are being delayed so much has been a failure by the federal government to appoint enough judges in order that the system works like a well-oiled machine. For what it's worth, the AG's office denies this, recently having told the Toronto Star that 118 new judges have been appointed across Canada in the last 12 months. That's from the federal AG.

Stephanie, start us off. What's the real story here? I think there's no denying that there has been a delay in appointing judges. I understand it's been a tumultuous four years for Canada and the world, and their government has a lot going on, but this is the direct effect of not appointing enough judges and having judicial vacancies, significant numbers of judicial vacancies across the province lingering for unconscionable amounts of time. Everything Kristen said earlier about needing staff, needing facilities, all of those things are true.

But the apex of that is a judge. And no trial is proceeding without one. There is a critical lack of judges in Toronto and elsewhere in this province. Is there an understandable hangover from COVID-19 in the lack of judges having been appointed? You know, that excuse may have worked perhaps maybe two years ago, but I don't think so anymore.

And although the federal government may have been dragging along with the judicial appointments, when it comes to court administration through the management of trials, the scheduling of trial, that's solely within the province. So all of that compounds the situation that we're seeing today, which is why we're hearing legal experts, judges calling this matter a crisis. And the only one that don't, that the only people that don't seem to acknowledge it as a crisis is the federal, sorry, is the federal government perhaps, but in this case,

it's the Ford government. And the Attorney General has been, I would say, you know, woefully incompetent in addressing this crisis that everybody is laying at his feet. A spokesperson for the Ontario AG has said that it is time for Ontario lawyers to do their part to streamline and prioritize how they, meaning you, use court time. Is that legit? I think it's a bit rich. The truth is, is that there has been legislation put in place over the last 10 years, much of it for good reason and a lot of it in the context of sexual off which has made defending offenses much more time-consuming and complex. The government had its reasons for putting that legislation in place. It

requires multi-staged motions for all sorts of different evidentiary issues in sex assault trials, but you have and those trials have become more complex. You have to recognize that that is going to create a resource drain and prepare for that if that's the policy that you want to implement. And that was not done. And so it is true that sexual offenses in particular, which are a bulk of the cases that go to trial in our legal system, have become increasingly complex. And the reason for that is changes in procedure, which are legislated in the criminal code, not actions of defense lawyers. So to be clear, you don't think defense lawyers gumming up the works and trying to delay things in order to help their clients. That's not what's going on

here. In the Jordan decision, the Supreme Court made it clear that those kinds of tactics, if they were used in the past, were not going to work anymore. And so the idea that defense lawyers are artificially creating delay in order to make these results happen, I obviously can't speak to every case, but I don't think that that is the crux of the problem here. The problem is that we have a complex legal framework to implement in these trials, and we don't have the resources to get it done. Get it done. That's a familiar expression around Queen's Park. The Premier says that all the time. Yeah. Okay, Kate, let me get you back in here because you, unfortunately, much to your chagrin, have a kind of expertise and knowledge about the legal system now that you surely wish you never had to have. There is a very good chance that there's somebody watching or listening to this

program right now who is, if not in the same circumstances as you, close enough that they need some advice. What advice, your having been through all this, would you give them? Your having been through all this, would you give them? Create a safety plan. Call a shelter. And they are so overfull. I'm personally trying to help as many people who have reached out and shared their stories who are panicked about either their situation that someone's already been charged or they're in a domestic situation that they can't get out of

and i i'm very honored to be able to assist everyone so thank you for reaching out the the advice is create a safety plan the police will help you in a domestic situation they do have to enter the premise so So call the police if needed. Reach out to, I'm working with a charity called Shelter Movers. They're incredible. We just had a gala last week. We raised a million dollars to help victims get out of domestic situations.

Call your family and friends, even if you've been isolated. My family and friends saved my life that night. I would not i would not be here if it weren't for them make sure that you listen to your gut instinct if something hasn't even accelerated to the level of violence yet if you're sensing that there's something going on follow follow your instincts you you know better than anyone victims know better than anyone how to remedy the situation and what is actually going on and what their abuser is capable of. But call people, call the helplines.

And I know that the shelters are full, but we have a responsibility. Call a neighbor. Just get out. It's so simple, and I know it's so complex, but there are people out there who will help you. Kristen, in terms of assisting victims of violence, what beyond what Kate just put on the record would you add to that? You know, it's interesting because, you know, Kate is one person doing everything she can with the powers that she has

to assist and support survivors and the victims of crime. And yet the system itself is supposed to be funded to provide those supports. That means adequate funding for women's shelters, adequate funding for legal aid, which the government has cut $133 million their first year, which is creating additional delays in the court because self-represented litigants means that it takes more time. They should be funding more bail beds. They should

be funding rehabilitation programs. They should be funding supports of survivors through the victim quick response program. But none of those systems and programs are being adequately funded to a point that it works well, meaning that those who need it can access those services. So people like Kate and everybody else out there, outside the system, is acting as a response to a network that's broken down. So again, this is laid squarely at the foot of the provincial government

that they can help by using the powers and the resources that they have, including the 2024 budget, which is woefully underfunded with respect to all of these programs that I've just mentioned. Kate, I am down to my last 30 seconds here, but I feel I should ask you how you're doing now. You know, since going public, and I must thank everyone for validating me and listening to me because the justice system didn't and I'm alive and a lot happier and a lot more liberated in the last month because of that so from the bottom of my heart to everyone out there who's reached out

and supported me means everything and we will do we will not stop until this is fixed because I don't want anyone else to lose their life. So well enough. We are delighted to hear that. And we are truly grateful that you could spare some time for us here on TVO tonight and help us better understand this situation. Kate Alexander, advocate, artist in Los Angeles, California. Kristen Wong-Tam, the NDP member for Toronto Centre and the attorney general Critic for the Official Opposition, Stephanie DiGiuseppe, partner at Hennon Hutchison Robitaille LLP and an executive member of the Criminal Lawyers Association. Thanks so much, everyone. Thank you very much. Thank you.