Judge decries ‘horse and buggy’ justice system

Ontario is functioning with “horse and buggy” technology to keep track of its incarcerated offenders, says an Ontario Superior Court judge.

The problem is so great that agreed statements of fact, presentence, psychological, and psychiatric reports, and even victim impact statements are “not making it” to provincial institutions and are “hit and miss” in making it to penitentiaries despite legislation that mandates their transmission.

These are some of the “startling” conclusions reached by Justice Arthur Gans in a recently released paper that points to gaps in the information that correctional authorities receive from the courts and when it comes to what underinformed judges intend when they impose jail terms versus what happens in prison. Despite protests to the contrary by some court services personnel, “we in Ontario are presently functioning with ‘horse and buggy’ technology in respect of provincial-federal document retrieval and transmittal,” wrote Gans.

Lawyers found the report troubling. “Justice Gans’ report uncovers troubling aspects of the manner in which sentencing recommendations are processed and acted upon by correctional authorities,” says Andras Schreck, a lawyer at Toronto’s Schreck Presser LLP who serves as vice president of the Criminal Lawyers’ Association. “He has documented what a lot of us practising criminal law hear anecdotally on a regular basis.”

Indeed, Gans’ paper focuses “on the disconnect and communication problems” between the judicial and corrections systems. They include issues, Gans admitted, “in respect of which I had preconceived (and erroneous) notions, or no sense or understanding at all.”

There’s no evidence, however, that Gans’ recommendations have made any impression on governments. He originally prepared the paper for the Canadian Judicial Council in March 2011. Sources say it made its way into the hands of the Crown law office before the council authorized its release to the Criminal’ Lawyers Association last year. Anecdotal evidence suggests defence counsel have since been using the recommendations in support of sentencing submissions.

At the outset, Gans quickly discovered that judges could only make institutional and programming recommendations and couldn’t mandate where an offender should go, not even to receive treatment programs that “I thought existed or might exist in any particular institution.” Worse still, Gans discovered that judicial recommendations weren’t transmitted to the Correctional Service of Canada unless specifically endorsed on a warrant of committal. Reasons for sentence weren’t transmitted to provincial institutions at all for offenders serving a sentence of six months or more. They were transmitted to federal institutions only over time and in many cases beyond the initial 75- or 90-day classification period that determined where correctional authorities send offenders to serve their sentence.

These failures are all the more significant because the mandating legislation, found in s. 743.2 of the Criminal Code and arguably in ss. 4 and 23 of the Corrections and Conditional Release Act, was passed more than 20 years ago in the wake of at least four notorious rapes and murders.

“Suffice it to say that each of the murders was committed by an offender on parole or probation in circumstances in respect of which, arguably, each tragic event could have been avoided had there been better communications between the various justice stakeholders,” Gans wrote.

“Simply put, there was an appalling lack of information sharing between corrections, on the one hand, internally and externally, and the Crown, police, community resources, and courts on the other.”

As Gans sees it, nothing has changed. “One would have thought that the communications between the justice partners would have improved markedly and with dispatch.”

Indeed, transmission of documents from the Crown to the appropriate authorities “is still something of a discretionary act” that, even when it occurs, includes a “significant time delay” after sentencing.

Some of these problems, Gans suggests, might be less prevalent if Crown attorneys could access the information on the Ministry of Community Safety and Correctional Services’ computer system.

Gans also suggested that defence counsel could be more proactive either by encouraging presiding judges to staple certain documents to the warrants of committal that accompany offenders to their first place of incarceration after sentencing or by sending copies of relevant documents to the appropriate authorities and institutions.

As well, Gans recommends simplifying the court services procedure for transmitting documents, better training for staff, and the adoption of an integrated justice electronic information system that allows for timely transmittal of documents from one ministry to another and access to electronic files by other justice stakeholders. The latter recommendation comes as Law Times has reported on fresh delays by the province in implementing planned electronic services.

Judges, Gans wrote, should also be proactive by ensuring that institutions receive mandated documents in a timely fashion. He suggests that they attach draft reasons for judgment or sentence to the warrant of committal, order that the relevant exhibits be annexed to it, and note that the attachment must be transmitted to the first institution for input into the offender tracking system.

This last suggestion would avoid the anecdotal information provided by a staffer “who noted that he witnessed the separation of documents from the warrant of committal by the bailiff’s or sheriff’s officers, a statement with which [the Ministry of Community Safety and Correctional Services] took issue when I tried to chase this ‘rumour’ down,” Gans wrote.

For more, see "Ontario lagging in court technology."

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