Please find below the transcript of the OCAA presentation to the Justice Policy Committee on Intimate Partner Violence and Sexual Violence. We will be posting this to the website as well. You can also go to the link to see a transcript from the entire session beyond the Ontario Crown Attorneys’ Association presentation.
LEGISLATIVE ASSEMBLY OF ONTARIO – OFFICIAL REPORT OF DEBATES – STANDING COMMITTEE ON JUSTICE POLICY, INTIMATE PARTNER VIOLENCE – WEDNESDAY 28 AUGUST, 2024
OCAA TESTIMONY (Donna Kellway & Lesley Pasquino)
Link to PDF: chrome-extension://efaidnbmnnnibpcajpcglclefindmkaj/https://www.ola.org/sites/default/files/node-files/hansard/document/pdf/2024/2024-09/28-AUG-2024_JP047.pdf
Ontario Crown Attorneys’ Association
The Chair (Mr. Lorne Coe): Good afternoon, members. I would like to reconvene the Standing Committee on Justice Policy.
I now will call forward, to make their deputation, the Ontario Crown Attorneys’ Association.
You will have 10 minutes for your presentation. When you get to the one-minute mark of your 10-minute presentation, I’m going to ask you to sum up. There will be an opportunity at the question time to respond and expand on the points that you made in your 10-minute presentation.
For the record, please state your name for Hansard, which is the official recording service of Queen’s Park, and then you can begin your presentation.
Ms. Donna Kellway: I’m Donna Kellway of the Ontario Crown Attorneys’ Association.
Ms. Lesley Pasquino: I’m Lesley Pasquino. I’m vice-president of the Ontario Crown Attorneys’ Association.
Ms. Kellway is president of the Ontario Crown Attorneys’ Association.
The Chair (Mr. Lorne Coe): Good afternoon, both of you. Thank you so much for joining the Standing Committee on Justice Policy. You can begin your presentation. Again, I’ll let you know when you’ve got one minute left to sum up.
Ms. Donna Kellway: Thank you, Mr. Chair.
The Ontario Crown Attorneys’ Association represents over 1,200 assistant crown attorneys in the province of Ontario.
I’m speaking today on behalf of the OCAA and not on behalf of the Ministry of the Attorney General or the criminal law division.
Prosecuting cases of intimate partner violence and sexual violence has always been an important part of our members’ job. Crowns work to ensure that the administration of justice doesn’t fall into disrepute, and we have a monumental responsibility in that job to safeguard the protection of the public. If an individual victim’s encounter with the criminal justice system is not positive, then not only do we do a disservice to that victim, but this also has far-reaching future implications. If scheduled trials for these cases are not able to proceed, then victims will have been failed by the system. They’ll be less likely to come forward to the police in the future. And members of the public seeing this will lose confidence in the administration of justice and may also be reluctant to report violence.
We know that IPV is an epidemic in this province. Statistics tell us there’s also an increase in reported sexual violence in Ontario. The increase in IPV and sexual violence cases comes at a time when a confluence of factors means that prosecuting these cases has never been more difficult.
For years, our crowns and our court system have been pushed to the brink by lack of resources. That became even more pronounced in 2016, when the Supreme Court of Canada, in R. v. Jordan, imposed strict time limits for prosecutions to be completed: 18 months in the Ontario Court of Justice and 30 months in the Superior Court.
While still under the strain caused by that ruling and attempting to complete cases within these new stricter guidelines, in 2020 the global COVID-19 pandemic began and resulted in an unprecedented backlog of cases, the effects of which continue to this day.
In the meantime, legislative changes for sexual violence prosecutions have increased the legal complexities in these cases, and advances in technology have increased the practical complexities and the volume of evidence gathered in investigations and the subsequent preparation for and conduct of trials. Against this backdrop, experts are now stressing the importance of having a trauma-informed approach when dealing with these cases.
The combination of these factors means crowns cannot devote adequate, necessary time to these prosecutions. Each of these cases require extensive work. Before a crown can decide what happens to a case, they have to know it in great detail. If matters are not in some way resolved—for example, by a guilty plea—they’re set for trial. However, all the materials need to be reviewed by the crown whether a trial date is set or not and, either way, will involve discussions with victims.
These victims of IPV and sexual violence are primarily women, vulnerable physically, economically, emotionally. They’ve contacted the police in an extremely stressful and dangerous time in their lives. We meet with these victims and we ask a lot of them. In preparing for trial, we require them to relive trauma that they’ve experienced, whether about a single assault or a years-long abusive relationship culminating in the current charges. We ask them to watch their statements again, to review photos of their injuries, to listen to 911 calls in which they were frantically trying to seek help. Sometimes these calls and security footage are capturing portions of the assaultive behaviour itself.
Preparing for trial, victims revisit all this trauma then have to go into a public setting and do it all again—tell all this to a judge, the accused, the accused’s lawyer, the crown, and a courtroom possibly packed with people. We now know that there’s a special way in which we should be doing this preparation in order to get the most accurate information in the most sensitive way from these victims, to follow that trauma-informed approach. This takes time; it takes empathy and patience. It’s not a process that can be rushed. Preparation happens before, during and after meeting with the victim, and meetings can occur multiple times.
Victims are scared, and they’re emotional. But these cases are emotional not only for the victim; our members are personally impacted by the trauma, as well. Vicarious trauma, depression and anxiety, among other health difficulties, result from careers of passionately doing this kind of work.
Despite striving for these cases to be set for trial as soon as possible, the post-pandemic backlog exists alongside new cases entering the justice system every day. At a time when cases are more complex to prosecute, with technology, legislative amendments and increased pretrial applications, crowns have less time to prosecute them. The combined effect is that these cases are in danger of not being reached, being stayed for delay, with no trial on the merits. When cases are stayed, the police investigation and the preparation for trial by the crown with the victim and police witnesses will all have been for naught. The increased anxiety that a victim has felt as the trial date approached was unnecessary; the arrangements often needed to be made by a victim—taking a day off work, making child care arrangements—all wasted. If a trial date can’t be reached within Jordan guidelines, it will result in a presumptive stay. The matter will not proceed, and all the resources that have gone into the case to date will have been for nothing.
There are only so many crowns and so many courts, and a case being stayed for a lack of resources is a tragic situation for everyone.
At the end of 2023, an Ontario Court of Justice practice direction was put in place to set trials in a time frame that’s meant to ensure cases are completed within 18 months. This has led to a practice called stacking. Stacking means a number of different trials are set in the same courtroom on a trial date that, if reached, is within the right time frame. The problem is, there are only so many hours in the court day. And in the current reality, it’s unlikely if not impossible that more than one trial matter will proceed in a courtroom on a given day.
Crowns have little to no input regarding which cases get stacked, so if two different IPV cases and a sexual assault trial are all scheduled to proceed in the same courtroom, it’s almost inevitable that only one of those three matters is going to be able to proceed. Two of those victims will need to be told that their matters are not going to be reached, that their trial will not be happening that day, that their matters will be adjourned, and then, based on Jordan guidelines, a date is unlikely to be able to be set for a new trial that won’t result in a stay of proceedings. For a victim, this can be devastating, and for the crown who spent the time preparing, it’s also very frustrating. And if that same crown has carriage of all three matters in that courtroom, then that crown will not be able to carefully explain to the victims what’s happening and why another particular case was prioritized over theirs.
Adequate resources need to go into ensuring that there are sufficient crowns to properly and sensitively prepare for trial and conduct trials in adequately staffed courtrooms to see these matters to conclusion.
As an example of how things are being done elsewhere, a Quebec pilot project that has specialized courts and services devoted to these charges has been referenced in our submission.
Without a properly resourced criminal justice system, victims and justice are not served.
Lack of resources takes a toll on our crowns, as well. We’re losing senior experienced crowns for whom the tension of trying to do more complicated cases and do them faster without sufficient resources, with inevitable frustrating results, is untenable.
If the police get necessary resources to investigate and make arrests but there are not enough crown resources to bring those matters to trial, then a meaningful opportunity to combat this violence and hold the perpetrators accountable is lost. We can’t treat victims as if they are products on an assembly line. These cases require time and sensitivity. They need a properly resourced system with crowns and courtrooms.
Crowns have a unique perspective from working with victims, but we’re not their lawyers; we represent the public interest.
We know that in order to properly deal with any epidemic, we need to have a properly resourced response.
Safe and healthy courthouses, with properly staffed courtrooms, in which victims can feel safe and be confident that their matters will be reached—
The Chair (Mr. Lorne Coe): Excuse me. You have one minute left.
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Ms. Donna Kellway: Thank you—that a well-prepared trial will be heard on its merits.
These prosecutions for IPV and sexual violence have to be identified as a priority and resourced accordingly. That is the bare minimum required.
Thank you very much for this opportunity, and thank you to MPP Dixon for the invitation to present.
The Chair (Mr. Lorne Coe): Thank you very much for your presentation.
We’re going to start our questions and answers with the official opposition. MPP Wong-Tam.
MPP Kristyn Wong-Tam: Thank you to both presenters for your excellent written submission. I think that you have brought a lot of passion and, I would say, even urgency to this discussion. We have, in this committee, at various times talked about the lack of access to justice that is efficient and impartial, to be quite honest.
I want to be able to unpack what you’ve said, because you’ve actually brought forward to us some suggestions about having the courtrooms and the staff levels right-sized in order to meet the workload, and in particular also recognizing that when it comes to violence and IPV and GBV, there has to be a different level of care—a high level of care, and then a higher level of care that is trauma-informed.
Do you know how many crown attorneys are required for you to meet the proper threshold of ensuring that you have enough staff to do the work? I’m not talking about the support staff in the trial room, but specifically the number of crown attorneys we should have on the roster in Ontario.
Ms. Donna Kellway: We know that we need more. Right now, we know that the levels that we have are insufficient. Even with increased judges on the horizon and increased hiring that is anticipated, we know that we simply don’t have enough.
Right now, cases are, as we’ve indicated—if a stacking trial court has a number of different matters, whether it’s three or more, we can’t reach them all. It’s not just that additional crowns are needed for that, but additional courtrooms are needed for that.
If you build it, they will come. If people see that their trials are reached and they have confidence in the system, then they may be more likely to report the violence that’s occurring. We know that under-reporting is a huge issue, and we know that right now, in terms of choices that are needing to be made when trials aren’t able to be reached, those same choices won’t need to be made with increased resources.
Can I give you the exact figures that would solve the problem? The population is growing every day, and the number of charges we see is increasing. So all I know is that our membership has been increasing, but it isn’t increasing at a fast-enough rate.
And if my colleague could add—
MPP Kristyn Wong-Tam: Yes, please. Go ahead.
Ms. Lesley Pasquino: We have 54 crown offices throughout Ontario, and they’re representing different jurisdictions of different sizes. So it’s difficult for us to say, “Well, we need X number of crowns,” because they would be spread out throughout Ontario.
For example, if the government follows through with its appointment of 25 more judges, the way we’ve been told it works—the Ministry of the Attorney General rubric—is that there will then be two crowns and one business professional for each judge. So say 25 judges get appointed in Ontario; that’s 50 crowns. That’s less than one crown for each crown office throughout Ontario. Those crown offices are usually located in courthouses. So that’s clearly not enough. What concerns us is that even though an announcement was made on May 30 indicating an appointment of 25 more judges, if the current rubric is followed, it’s a decent start, but it’s not anywhere near enough.
Again, as Ms. Kellway said, we’ve seen a mass exodus of our senior and experienced staff just because the situation has become untenable.
MPP Kristyn Wong-Tam: The Auditor General, who was just here before the lunch break, has been sounding the alarm bell since 2019. She even cited that the work of the Auditor General goes back to 2013. So this has been a long-standing problem and deficiency in the Ontario justice system, albeit made worse by COVID. But we’re into 2024 now; it has been four years since the pandemic around the COVID virus first came into Ontario. There’s a level of expectation from the public that the Legislature must get a handle on this.
We’ve now heard criminal defence lawyers, we’ve heard crown attorneys—including yourselves here today—and other advocates and observers of the legal system really describing the court system in crisis. I don’t think that this is a group that uses the language “crisis” very often and very lightly.
In your opinion, is the legal system in crisis as it pertains to the lack of access to a timely trial for those who are seeking it? Specifically, is that an accurate way to describe the justice system as it pertains to survivors and families of victims?
Ms. Donna Kellway: Right now, any victim of IPV or sexual violence who can’t see a trial happen on its merits because of a lack of resources is fair to call a crisis. We try to deal as best we can with the resources that we can, but more are desperately needed. That lack only grows every day that you’re not able to properly address it.
So, yes, I would fairly describe it—for any victim who’s not able to at least have a trial happen on its merits when one is warranted.
MPP Kristyn Wong-Tam: I recognize that crowns are operating in the public’s interest, and I recognize that your members are doing some extraordinary work under some very difficult conditions. Because they’re only able to work with what they have, I can also see the fact that it becomes just overwhelming. The burnout rate, I suspect, is high. People are struggling with the cost of living—because they know in the private sector, compensation is much greater.
As crowns are leaving, are they leaving in greater numbers than the government is able to hire and replace them? Is that also contributing to the problem?
The Chair (Mr. Lorne Coe): Excuse me, MPP Wong-Tam. That concludes your time.
Back to the government members: MPP Dixon.
Ms. Jess Dixon: Thank you both so much. I appreciated you bringing up the trial stacking, which is something I’ve also experienced personally.
I wonder if you can explain to the committee a little bit how crown resourcing impacts the ability to handle bail, bail review, estreatment, sentence reviews and that catch-release cycle.
Ms. Donna Kellway: Our crowns are expected to move quickly but expeditiously. We’re given a tremendous number of cases per day; it’s going to vary by the courtroom. We need to be able to ensure that we properly review every case that comes before us, whether we’re consenting to a release or contesting a release and having a bail hearing on it. Obviously, we need to be able to do the proper job reviewing that to make an informed decision and then to be properly prepared for any hearing that’s ongoing. Obviously, the number of cases that come in impact—and crown resources are absolutely impacted by that.
If a decision comes through that needs to have a bail review, or if estreatment is needed in a particular case, then obviously, resources are needed to be able to pursue those remedies as well.
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It’s a matter as well, then, of court resources. Is a court available to hear a bail review? We know from our history of bail hearings and bail reviews that if a matter is not able to proceed in a reasonable time, we’re dealing with stays there as well. The Simonelli case dealt with just that issue. That’s exactly the type of thing that we need to be able to avoid. Everything that I said before about the stacking of cases—this is just cutting a case off at the knees before a case potentially even starts.
So, absolutely, resources are a crucial issue there.
Ms. Jess Dixon: Can you talk a little about what it looks like from—doing CPTs and JPTs—a plea bargaining standpoint when you’re dealing with a large number of outstanding files, like an individual accused who may have 10-plus outstanding SCOPE files?
Ms. Lesley Pasquino: What happens if an accused is released on bail and then they’re arrested again and released on bail again, arrested again and released on bail again is, the complexity grows, the volume grows. Those releases may be in different jurisdictions. Although we now have a centralized database called SCOPE, what results in happening is—when I was in a trial office, I would then have to mine data in SCOPE and find out the details of all those other cases in order to put together a package to know the full history and story of where this accused is in our justice system, where those other cases are, whether they’re going for trial, whether they’re going to be withdrawn. You have to do all that research.
So then when it comes to me having a crown pretrial, which is a meeting with the defence lawyer to discuss what’s going to happen on a particular case, I’m not going to deal with that in isolation. If somebody is facing a theft from Walmart in Ontario but gun possession in another jurisdiction, I have to take that into account to see what risk to the public a further release of this person is going to pose, because they’re clearly not complying with their bail release on the gun case because they’ve got into conflict with the law again.
The catch-and-release adds to the complexity of the cases for us crowns. Certainly, when you’re in a busy bail court—what people don’t understand, I think, is that bail court can have up to 30 cases in it and one crown dealing with it; maybe one crown outside the courtroom vetting. So when you’re going through all of those cases and somebody may have 11 outstanding sets of charges, it’s a lot of work to get through all that information and pull it together.
As Ms. Kellway said, that’s why instead of one crown in the courtroom and one crown outside of the courtroom doing that digging and that data mining, we need two, maybe three in the courtroom and two people outside of the courtroom. When you’re in a busy bail court, you start your day at 6 or 7 o’clock in the morning. That’s when the police start pushing through materials, and we have to get it as soon as it comes in because we have to put a case together to put before the justice of the peace. And these are all new cases. Some of them are still being investigated—you have police officers turn up.
Ms. Jess Dixon: One of the things that I’ve encountered that not everyone understands is this idea that when you’re dealing with an accused who has multiple outstanding files, even in the same jurisdiction, if you are looking to go to trial on those or you’re negotiating with defence counsel—many people don’t understand that you can’t hold an accused person’s trials all together, all at the same time.
If you can explain that a little bit more for people—and also what impact that has, then, on an ultimate criminal record, when you’re having to plea bargain with that many outstanding files.
Ms. Donna Kellway: Ultimately, what charges proceed to trial depend on the charging document, information or the indictment, and there are rules about how you can combine them if they’re not all part and parcel of the same incident or at the same time of arrest. So if they’re from different jurisdictions, unless there is a consent to have trials all happen at the same time, even if we wanted to use the facts from one case on another, we would need to bring a special application on prior discreditable conduct or different applications to allow evidence of one alleged offence into another trial.
So there are some—I wouldn’t call them inefficiencies, but there are just legal rules of procedure that you need to follow that then impact on whether or not a trial can happen on a number of different outstanding sets of charges at the same time. You also have to balance, then, obviously—the same right to a trial within a reasonable time happens on all of them, and different jurisdictions have different rates of delay and different backlogs. All of that is going to be taken into account in ultimately setting or resolving trials.
The Chair (Mr. Lorne Coe): We’re now going to move back to the official opposition for further questions. You have two minutes and 30 seconds. MPP Wong-Tam.
MPP Kristyn Wong-Tam: I’m going to ask again, is the Ministry of the Attorney General hiring crown attorneys at the rate that crown attorneys are exiting?
Ms. Donna Kellway: We are definitely having an issue with retention and recruitment. Generally speaking, when you’re recruiting lawyers, obviously, hiring new, inexperienced crowns is not going to be the same as replacing a lawyer who is leaving after 20-plus years.
When I say that we’re losing the experienced people, it’s losing people to retirement, losing people to leaves—perhaps health difficulties—losing them to other areas of the ministry, or losing them to the defence bar, just leaving the crowns system entirely. The amount of dedication that’s there—but the frustration of not being able to do the job the way that they’d like to see it properly done can wear after years. They’re trying their best with the resources that they have—and that’s getting to a dangerous level, as well.
MPP Kristyn Wong-Tam: So what you’re saying is that it’s not as simple as one in and one out. We’re talking about different levels of experience as well as—how fresh you are coming into the job probably is another consideration.
The Auditor General, who was here earlier, was—she had a report, as I mentioned, in 2019, and she says this is a long, ongoing issue. She also said that the Ministry of the Attorney General has pretty much said that they are not going to implement recommendation 1, which is broken into four sections, and then recommendation 4, and that they’re just constantly reviewing it. At the same time, we know that the courts are backlogged. You’re not the first one to tell us it’s under-resourced. The Auditor General said that the Attorney General’s office told her that they just couldn’t do what she was asking for, which included identifying cases that were tossed out, and charges dropped, because they would have to review all the transcripts—
The Chair (Mr. Lorne Coe): Excuse me, MPP Wong-Tam. Your time is gone.
We’ll go to the government side. MPP Dixon.
Ms. Jess Dixon: We have another two and a half minutes.
I would like you to talk a little bit more about the experience that crowns are having in doing the work under this resource strain, the burnout—but also if you can kind of describe for the committee what it’s like for your members when they are having to explain to victims why they might not be getting justice.
Ms. Donna Kellway: Well, it’s almost like trying to explain the impossible. Explaining to a victim that their matter wasn’t reached on a date in which it was impossible to reach everything that was scheduled; explaining this to a vulnerable person who has overcome so much to be able to go to the police in the first place, who has relived that trauma in preparing for the trial, who has made all kinds of arrangements to be there for that day—this day might have cost them in their job, in their child care—and then letting them know that they’re not getting reached, even though it was pretty unlikely they were ever going to get reached because we scheduled way too much for this day. That is soul-crushing, because we care about the case. We don’t represent this victim; we represent the public interest. We don’t win or lose. We’re there to see that justice is done, but it’s hard to contemplate that justice is being done for this individual if we are telling them that, essentially, the impossible couldn’t happen.
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As I’ve said before, you might not even have the time because you’re expected to run that other trial. Even if you’ve explained that in advance—that this is a theoretical possibility—that’s equally soul-crushing. To say to a complainant in advance, “You might take the day off work, you might arrange babysitting for your kids, you might come there and still have to face the accused because he might be waiting in the hallway and in the courtroom”—but now, we’re telling you in advance, “You probably won’t get reached.” If you say, “You probably won’t get reached,” then maybe I, as a victim, won’t want to show up. Why would I want to waste my time doing that?
We have hope. We want to make sure that we’re fully prepared, that we’re ready to go and that our victims are ready to testify. But doing that and trying to explain that to victims is very disheartening.
The Chair (Mr. Lorne Coe): Thank you very much for that response.
That concludes the time that we have available for your presentation. We appreciate very much you taking the time to be with us today. Good day.