Consultation with Canadians report - Criminal Justice System

Appendix A: Choicebook interactive tool survey

Welcome

Welcome to our Choicebook on transforming the criminal justice system.

Canadians expect their criminal justice system to keep them safe while protecting individual rights and freedoms. The review of the criminal justice system is looking at ways to improve the system to better serve all Canadians, especially those involved in the criminal justice system. This means understanding what is working well, what isn’t and where we can improve. This is an opportunity to think differently about Canada’s criminal justice system.

Your views are very important. As you go through this, please think about your own experiences, if any, with the criminal justice system and what you think is or is not working well and what should be changed.

Guiding Principles

This Choicebook is one part of the Government of Canada’s efforts to look closely at our country’s criminal justice system and hear from Canadians.

There are four principles that are guiding our work:

  1. Safety for Canadians: This is about keeping Canadians safe and holding offenders to account.
  2. Compassion for victims: The system needs to show compassion for the experiences of victims.
  3. Needs of vulnerable populations: This is about addressing the needs of vulnerable populations, including Indigenous peoples and those with mental illness and addictions.
  4. Integrated approach: Developing an integrated approach with other social support systems (e.g., the health sector) can help connect people more seamlessly with the services and supports they need.

Please keep these principles in mind as you learn more about some of the issues impacting the system.

About you

Please answer the following questions, as they will help us better understand your perspective. Please note that no information is being collected to identify you as an individual. All responses will be aggregated for analysis and reporting purposes.

Q. Where do you live? [Options – Provinces/territories]

Q. Are you First Nations, Métis or Inuit? [Options]

Q. What best describes your perspective in completing this Choicebook? [Options below]

The Criminal Justice System

Responsibility for the criminal justice system is shared between the federal government and the provinces and territories. The criminal justice system is made up of many different parts, such as the criminal law, law enforcement, courts, victim services, and correctional services (including prisons, rehabilitation and community supervision).

Together these form the system that handles criminal offences from when they are first reported and charges are laid, through the trial process and for persons convicted, to sentencing, jail and prison, and then to release and rehabilitation.

Given all of these separate but connected parts, the criminal justice system is very complex for anyone trying to navigate through it, particularly as victims and offenders.

Canada’s Criminal Justice System

Q. When you think about Canada’s criminal justice system, how important are each of the following for you?

Q. To what degree do you think we need to make changes to the Canadian criminal justice system? [Likert scale – No changes needed at all– small change – moderate change – significant change – need for complete transformation]

Trends in the system

Many things have changed over time, such as how much crime occurs in Canada, what type of crime is most common, and how much time and money it takes for a case to work through the system.

Please answer the following true or false questions.

Q. In 2016, Canada’s crime rate was half of what it was in 1991. [True or False]

Q. The rate of violent crime has been generally decreasing since 1992. [True or False]

Q. The amount of money spent on Canada’s Criminal Justice System is increasing. [True or False]

All of the previous statements are true.

Evidence shows that police reported crime rates in Canada have been decreasing, generally, for decades (with 2003 and 2015 as exceptions). The 2016 crime rate was 28% lower than in 2006. The rate of serious crimes reported to police, including violent ones, has also gone down.1

Most people in the justice system have committed non-violent crimes.2 However, the 2016 National Justice Survey found that most Canadians overestimate how much crime is committed, especially violent crime.3

While the crime rate is going down, the total cost of the criminal justice system continues to rise. 4

Who is in contact with the criminal justice system?

Offenders need to be held accountable for crimes they have committed, yet there are many vulnerable and marginalized people (e.g., those with mental health and addictions issues, the homeless, Indigenous people, women and black Canadians) coming into contact with the criminal system and ending up worse off, making rehabilitation or reintegration back into the community more difficult.

At least half of all offenders in custody report a history of childhood physical, sexual or emotional abuse. The socio-economic status of this population is low, as indicated by substandard housing, low employment rates, low educational achievement and low income status.

When thinking about the best outcomes for Canadians, we need to find a balance between protecting society and holding individuals to account fairly.

A small number of people (“chronic offenders”) are responsible for a large volume of crime committed in Canada, mostly for non-violent offences.5 Many of these people live in poverty, do not have housing, are suffering from drug and alcohol abuse, are struggling with mental health problems, or have been victims of crime themselves.

In addition, Indigenous people are disproportionately represented in the system as both victims and offenders – while they make up a large portion of people in the justice system, they are only a small portion of the Canadian population.

It has been suggested that the criminal justice system is becoming the default system for dealing with broader societal problems and that many of the people who are repeatedly coming into contact with the criminal justice system could be better served by greater coordination and integration between the criminal justice system and other social systems.

Please answer the following true or false questions.

Q. Indigenous adults make up more than 25% of admissions to federal and provincial/territorial custody. [True or False]

Q. More than one-third of Canadians with mental health and addictions issues have had contact with police. [True or False]

The previous statements are also both true.

Indigenous adults make up more than one-quarter of those in federal and provincial/territorial custody. However, they only make up about 4.1% of the Canadian adult population. Indigenous people are also far more likely to be victims of crime, particularly for homicide and spousal abuse.7 It is acknowledged that while the rate of imprisonment of Indigenous adults, and their contact with the criminal justice system - both as offenders and as victims - significantly exceeds that of non‑Indigenous Canadians, the overwhelming majority of Indigenous adults never commit criminal offences.

Additionally, in 2012, 34% of Canadians with a mental or substance use disorder reported coming into contact with police, twice as many as those without a disorder (17%).

Canada’s criminal justice system is about more than just putting people in jail or prison. Providing access to effective programs and services that are integrated across social systems can provide better support for individuals and lead to better outcomes for Canadians.

Pressure points in the system

Now let’s look at how the system is currently working.

Case completion

The number of cases that are completed in adult courts has decreased by 20% since 2010. The time it takes to complete a case has also slightly increased.

Provincial court cases, which represented over 99% of the completed case load in 2014/2015, had a median case length (half the cases take longer and the other half take less time) of 120 days, and a median of 5 appearances. Superior court cases had a median case length of 565 days, and a median of 15 appearances.

Administration of Justice Offences

Administration of justice offences (AOJOs) are Criminal Code violations and mainly include failing to comply with conditions, failing to appear in court, and breaching a condition of probation. AOJOs do not involve behaviour that is popularly considered "criminal“, rather they involve disobeying orders of the court or other system actors. They rarely involve harm to a victim, but do impact the functioning of the justice system. They are often committed only after another offence has already been committed, or alleged.

Over the years, the number of individuals charged with an AOJO has been increasing, despite a consistent decrease in the volume and severity of crime in Canada.  Police lay charges in cases of an AOJO more often than for other Criminal Code offences. Charges are laid against 91% of all persons accused of an AOJO compared to 49% of all persons accused of other Criminal Code offences.

These are additional things that put pressure on the system, and ultimately impact how well it works.

Stories in the system

The following series of stories highlight the things that can impact how the criminal justice system works, as well as the needs of those impacted by crime, and how different approaches might help better meet these needs.

These stories are meant to spark thinking and discussion on how the system might be changed to better support community safety and improve outcomes for victims and offenders.

Story 1 (Administration of justice violation)

Dana is a young woman who was found guilty and sentenced to two years’ probation for a shoplifting offence she committed a year ago. As part of her probation order, she has certain conditions she must follow, including a curfew, not to consume alcohol nor associate with certain people.

One night, Dana is found by police drinking with friends after curfew. As a result of her drinking and being out past her curfew, Dana is charged with breach of probation (an Administration of Justice Offence) and is sentenced to a period of incarceration, followed by another term of probation, with additional conditions.

Did you know? Administration of justice violations make up close to one-quarter of all cases in criminal court.

Q. Do you disagree or agree that going to jail is a fair sentence for Dana for breaching her probation by drinking with friends after curfew? [Likert scale – Strongly disagree to Strongly agree]

Q. Judges have several sentencing options at their disposal, including those listed below, or a combination thereof. How do you think Dana’s breach of probation charge (an Administration of Justice Offence) should be dealt with? (Check all that apply)

AOJOs are the most common offences in adult criminal court in Canada, and are more likely to receive a jail sentence than any other type of offence. AOJOs can include missing curfew, not showing up to court on time, and drinking alcohol or going to an area after being told not to. Dealing with these behaviours in criminal courts contribute to pressure on the courts, and lengthy court delays for other cases before the criminal courts.

In Dana’s case, the original offence was shoplifting, for which most first time offenders do not serve jail time. By not adhering to her probation conditions, Dana’s situation escalated into a term of imprisonment, followed by another period of probation for which she has additional conditions to follow.

Q. Do you think other options should be available to deal with AOJOs like Dana’s case, rather than charging her with a new offence? [Likert scale – Absolutely no to Absolutely yes]

Q. If yes, what other options do you think should be available? What factors should be considered?

Story 2 (Assault – Delays/Jordan)

Jeff goes to trial 20 months after an incident for which he is accused of aggravated assault. At trial, Jeff’s lawyer applies for the matter to be “stayed,” citing the Supreme Court’s decision that the accused’s Charter right requires that criminal trials must be completed in court within a reasonable timeframe.  The judge agrees, and the case is stayed, meaning that the charges do not proceed further.

Craig, the victim, suffered a broken nose and other minor physical injuries as a result of the incident. He missed three weeks of work for which he was not paid, adding financial strain to the emotional impact of the crime. Although he recovered quickly from his physical injuries, Craig waited more than a year and a half for the trial and continues to suffer from frequent insomnia as a result of the emotional impact. With the case now “tossed,” the issue has not been resolved for Craig, the incident still hangs over his head, and he feels no justice was done.  

The media picks up the details of the case and reports that the criminal justice system is “letting criminals go free.” The public is concerned and their confidence in its effectiveness drops.

Did you know? Less than 20% of all Criminal Code violations are violent.

In the Jordan decision, the Supreme Court signaled that court delays have become a major issue in Canada’s criminal justice system. The Court held that unreasonable delays are a violation of an accused's Charter right to be tried within a reasonable time and must result in a stay of the proceedings/charges, meaning that the charges do not proceed further.

There are many reasons for delays, such as:

In that same decision, the Supreme Court ruled that cases can be stayed if the delay is too long (18 months for offences tried in Provincial Court and 30 months for those tried in Superior Courts, or that have a preliminary inquiry). Otherwise, this goes against a person’s Charter right to a timely trial.

Q. Do you think other options should have been available in this case? [Likert scale – Absolutely no to Absolutely yes]

Q. If yes, what other options would you like to see available prevent a situation where charges are stayed due to an unreasonable delay? (Check all that apply)

Story 3 (Theft under $5,000)

Chris is a 21 year old man who is caught stealing $800 from his employer.

He is charged with theft, to which he pleads guilty. He knows what he did was wrong, and he apologized to his employer, but felt that he had few options because he is struggling to make ends meet as a single father. Chris also deals with depression, causing him to take frequent days off of work, for which he is not paid. He changes jobs frequently.

Chris now has a criminal record, making it more difficult for him to find work. His record may also prevent him from being able to volunteer at his child’s school.

Did you know? Theft under $5,000 is one of the most common offences, making up 25% of all Criminal Code violations.

When deciding on a sentence, judges take many factors into account.

Q. To what degree do you feel that the judge should consider Chris’s personal circumstances in deciding a sentence for Chris? [Likert scale – Absolutely no to Absolutely yes]

Q. Judges have several sentencing options at their disposal, including those listed below, or a combination thereof. In your view, what would be a fair and appropriate sentence for Chris? (Check all that apply)

Q. What do you feel is the most important consideration in deciding a sentence in Chris’ case?

Q. Should Chris have a criminal record for this offence? Why or why not?

Chris has pled guilty to his crime and apologized to his employer. His employer accepted Chris’ apology but will still not take him back as an employee, and Chris remains out of work due to his criminal record and his inability to get a “good reference” for a new job.

Meanwhile, Chris’s employer continues to be impacted by this crime – the owner of a small construction company, he is resentful of having been stolen from and now mistrusts all of his employees.

Could restorative justice be an option in this case?

Restorative justice (RJ) provides supportive and safe opportunities for voluntary participation of those who are affected by crime (victims, offenders, and/or the community) in cases where the offender has accepted responsibility for the offence and the victim has consented to participate.  The goal is to identify and address their needs in the aftermath of a crime, with a focus on addressing the harm caused and holding the offender responsible for their actions. RJ emphasizes repairing harm, healing in victims and meaningful accountability of offenders. There are many different RJ processes, including victim offender mediation.

For example, in this case Chris and his employer may be brought together to work with a professional facilitator and others affected by the crime. They could discuss why the crime was committed, the impact it has had on them, and a solution that they can both agree on.

Crime is often viewed as harm done to people and to relationships. While the formal criminal justice system is an effective way to hear and decide on the facts of a case, many argue that it does not provide the means to repair the harm done to people and relationships.

Q. To what extent do you feel that an alternative process to the trial and conviction process should be used in trying to resolve this matter if both Chris and his employer agreed to it?   [Likert scale – Absolutely no to Absolutely yes]

Q. Are there any circumstances where you would not be in favour of pursuing solutions outside of the mainstream Criminal Justice System (e.g., only for certain types of offences)?

Story 4 (Vulnerable persons)

Denis just broke up with his girlfriend and decided to take his mind off things with a night of drinking. Walking home from the bar, Denis is overly intoxicated. He walks through the bus station with a marker and draws graffiti on the bus shelter? The act is caught on a surveillance camera, and Denis is arrested and charged with mischief.

Denis has a lengthy criminal record, mostly minor offences and breaches.

Because of his lengthy record, and lack of support to make bail, Denis is kept in custody until his trial. Denis has mental health issues that started in his childhood. He also drinks heavily and uses drugs. He is Inuk, and his mother is a survivor of residential schools and also struggles with alcohol addiction. Denis was born into poverty, never finished high school, and has never been able to hold a steady job. When his mom lets him, Denis stays on the couch of her one bedroom apartment, where his younger sister also lives.  Often, Denis “couch-surfs” at friend’s houses. He’s slept on the street when he had no other options and has been robbed several times.

Denis is eventually sentenced to one month in jail.

Addressing root causes

In each of the previous stories, there are many things that are unknown about the person committing an offence. The underlying conditions can contribute to a person’s decision to commit a crime, such as a lack of resources and support in families and communities.

The criminal justice system is at times the default system for dealing with broader societal problems.  For example, in 2014/2015, the majority of federal offenders admitted to federal custody had moderate or high needs related to substance abuse (62%), and employment (55%).  A lack of coordination and integration between the Criminal Justice System and other social systems limits the ability to address the underlying reasons for criminality and reduces the possibility of dealing with less serious criminals elsewhere.

Addressing the root causes of crime could be explored. For example:

Q. With the aim of preventing individuals from engaging in criminal behaviour in the first place, how important do you think it is to address the root causes of crime?

[Likert scale – Not important to Very important]

Q. What types of supports or services do you think would have the biggest impact on addressing the root causes of crime in Denis’ case?

Q. Would a problem-solving approach, one that attempts to deal with the root causes of offending, result in better outcomes for Denis? For the community in which Denis lives? Explain your answer.

Story 5 (Victim’s experience)

Please now consider the following story of a victim’s journey through the criminal justice system. This can be very challenging, especially in cases like sexual assault.

Sarah is sexually assaulted by an acquaintance. After going to the police, an investigation is completed and charges are laid against the person she alleges assaulted her.

She is required to testify in a preliminary inquiry, which has determined that there is enough evidence to bring this case to trial.

As she gets ready for the trial, Sarah now feels like she doesn’t want to go through with it. Sarah has already testified once during the preliminary inquiry, and is worried that she will be forced to re-live the trauma again, having to reveal intimate personal details through the cross-examination. Ever since the sexual assault, Sarah has had difficulty getting through a normal day – she experiences insomnia, she has trouble staying focused at work, and suffers from anxiety. When she thinks about the attack, she feels angry at times, but also confused, and frustrated with having to re-live the trauma through the trial process.

Did you know? The vast majority of sexual assault victims are females. Most sexual assault incidents are not reported to the police. In 2014, only 5% of incidents in Canada were reported to police. One in six victims reported experiencing three or more longer-term emotional problems after their assault, like post-traumatic stress disorder.

The system could help ensure that all victims are supported, while at the same time respecting the rule of law and right to a fair trial for the accused.

Under the Canadian Victims Bill of Rights, victims have the right to:

Q. In what other ways do you think victims like Sarah could be better supported by the justice system?

Revisiting the Criminal Justice System

Cases like this highlight the wide range of challenges across the criminal justice system, involving many different parties and processes.

Before completing this Choicebook, please consider the following questions.

Q. After thinking through the issues facing the criminal justice system, to what degree do you think changes to the system in Canada are needed? [Likert scale – No changes needed at all– small change – moderate change – significant change – need for complete transformation]

Q. If you could re-design our justice system from scratch, what changes would you make?

About you

Please answer the following questions, as they will help us understand your perspective even more.

Your feedback

Please also share your views on this Choicebook.

Do you disagree or agree with the following statements?

Q: The information in this Choicebook helped me learn more about the issues facing Canada’s criminal justice system. [Likert – Strongly disagree to Strongly agree]

Q: Some of the information about the criminal justice system surprised me. [Likert – Strongly disagree to Strongly agree]

Q: I am now thinking differently about the criminal justice system. [Likert – Strongly disagree to Strongly agree]

Thank you

Thank you for your time and efforts in completing this Choicebook.

Your input will be very important for us to consider as we think about the possibilities for improving the criminal justice system in the future.