Justice is Served…a Mandate Letter Part II: Criminal Justice & National Security

20 January 2020

Last week, I introduced the Liberal Government’s release of its Mandate Letters and covered the “terrorism related priorities” included in the Minister of Justice and Attorney General’s Mandate Letter in a previous post (Part I of Justice is Service). In this brief post, I wanted to cover three additional priorities included in the Honourable David Lametti’s Letter, each of which might be defined as national security-adjacent criminal justice priorities. They are explained below, with the bullets indicating the relevant Mandate Letter’s priorities.

Criminal Justice Priorities (national security-adjacent category):

  • Provide additional support to help reduce delays across the court system, including hiring new Judges and Crown Attorneys.

These two aspects of the mandate letters are significant for the following reasons. First, for all the intelligence-to-evidence talk, a big problem in that area (and indeed more broadly in the criminal justice system) is the Crown’s disclosure obligations. When we in the legal profession talk about disclosure obligations, what we mean is the duty to disclose to the defence in any criminal trial all materials in their possession that are not clearly irrelevant. As our system has become more technical and law more focused on procedural rights, systemic biases and other important things an advanced justice system should rightfully address, it has also become slower and more technical. Trials are taking longer than they used to, in short. But the delays, some understandable and some less so, were largely left unaddressed by successive governments. There was no massive influx of money, no new hires, for several years under the Trudeau government’s first term a number of judicial vacancies remained unfilled, and so on. In 2016, the Supreme Court of Canada decided to act in a case called R v Jordan. It tackled the “slowness” of the trials head-on by setting “timelines” in a case called R v. Jordan, beyond which there is presumptively a violation of the accused’s Charter section 11(b) rights (the right “to be tried in a reasonable time”). The timelines work as follows: the justice system has 18-months in provincial court (generally less serious/complex matters) from the moment of charge (laid information), and 30-months in a court of Superior jurisdiction (generally more serious/complex criminal matters; the Queen’s Bench here in Alberta, Ontario Superior Court as another example). The default for going beyond the timeline is a stay of proceedings. (This being law, there are of course exceptions to the timelines related, for example, to the complexity of the case—certainly relevant in the national security context; you can also remove time for discrete events, for example if the defence was responsible for a delay while the timeline was running. There are also a series of court cases from various provincial jurisdiction dealing with pre-charge delay; they tend to treat an undue delay here as an abuse of process, a violation of section 7 of the Charter rather than 11(b).)

The Jordan timelines now mean that the moment an accused is charged with a crime the clock starts ticking. This is serious stuff. Nobody wanted long trials. For an accused, it means waiting in purgatory for the resolution of charges, often not knowing if you would be going to jail, for how long, or how much the whole defence would cost. For the Crown, it means cases against accused being thrown out not because the accused was found not guilty, but because, for example, it took so long to provide disclosure to defence that the trial could not be completed in what are now known as the “Jordan timelines”.

Crown and police had to get their disclosure ducks in a row, and the system had to arrange for the “timely” resolution of trials. Provincial governments responded, for the most part, with concrete plans: the triaging of cases, particularly those already bumping against the Jordan timelines and the hiring of new Crown Attorneys. Unfortunately, unlike its provincial counterparts, the Federal government did next to nothing: there was no plan, no systemic triaging ordered, no new hires announced. This has caused problems in all sorts of cases, including surely those in the national security domain. The hiring of new Crown Attorneys at the federal level thus comes as welcome relief to overworked Crowns in regional offices, and those in national security and other areas attempting to meet strict Jordan timelines.

  • Work with the Minister of Finance, National Revenue and Public Safety to develop new policies and legislation to reduce organized crime and gang activity in Canada, including money laundering.

In the past Canada has been particularly prone to a reflexive toggling between prioritizing organized crime (including money laundering) and terrorism, depending on what recent events transpired and where the political incentives lay. After 9/11, Canada made a number of announcements regarding the money and resources they were putting towards tackling terrorism; this was lauded, and for good reason. But in the end, for the RCMP and Crown Attorneys, that often resulted in repurposing resources from organized crime to terrorism, not a host of new money and training for a new priority. This despite the fact that there is overlap in terms of recruitment, overlap in terms of the skills needed to investigate and prosecute the crimes, and certainly both organized crime and terrorism remain a public safety threat. In this sense, seeing a federal government focus on both organized crime and terrorism, as opposed to one at the expense of the other, is welcome and honestly a little shocking—in the best possible way.

  • MANDATE: Adopt all of the recommendations put forward by the Honourable Anne McLellan in her recent review of the roles and structures of the Minister of Justice and Attorney General of Canada.

Remember the whole SNC Lavalin “thing” where several government actors inappropriately or appropriately (depending on your perspective) pressured then-AG/Minister of Justice Raybould? When common Canadians became experts in another “thing” called “remediation agreements” (section 715.31 of the Criminal Code) and the “two hats” worn by the one Minister (hat one = Justice Minister; hat two = Attorney General; or, perhaps, vice versa)? Well, the Trudeau government set Anne McLellan, long-time cabinet Minister and former Justice Minister herself, to investigate whether the roles of the Attorney General and Justice Minister should be separated. Her report found that there was no need to separate the functions of the Attorney General from the Justice Minister, but that several steps could/should be taken to improve the sanctity of prosecutorial discretion under the current system. Her report can be found here. It will now be on the Honourable David Lametti to implement the recommendations found in the report.

In the context of a minority government, it will take a superhuman effort to implement all of the Mandate Letter’s priorities including those discussed herein, those that will be discussed by Professor Laidlaw in the next post, those discussed in my previous post , and a host of other priorities not discussed by us at all. Still, these are laudatory priorities one and all and we can hold out hope that some steps will be taken towards implementing the majority of them, or at least setting the gears in motion to do so. The good news is that for the most part the Mandate Letter has provided important, practical, not particularly ideological or politicized priorities that should find support from one or more of the opposition parties. But now we are talking politics, not law, and in that domain one truly never knows.