Consultation Reports

INDEX
- Executive Summary
- Introduction and Background
- General Comments and Assessment of Summit Process
- Recommendations for the Justice System
- After the Summit
- Executive Summary of the Report of the Criminal Trial Lawyers Association of Edmonton
- Executive Summary of Justice for Youth Speaking to Issues in the System
- Executive Summary of Report of the Crown Prosecutors of Alberta
- Executive Summary of the Canadian Bar Assoc. Submission (Alberta Branch) Family Law Section (Southern)
- Executive Summary of the Report of Alberta Indigenous Lawyers

The Law Society of Alberta has the following recommendations for improvement of the justice system in Alberta:

1. An increase in government funding for the administration of justice.

2. Development of an educational initiative to increase the public's knowledge and awareness of the justice system, including the development of curricula in both the public and private school systems.

3. Official acceptance and implementation by government of the principles of restorative justice and alternative methods of sentencing.

4. Implementation by the government of the recommendations of previous task forces that have examined aspects of the justice system.

On January 30, 1998, the Honourable Jon Havelock, Q.C., Minister of Justice and Attorney General of Alberta, announced plans to convene a summit on justice in Calgary in early 1999. The legal community was identified as one of the sectors of the justice system that would be requested to participate in the summit process.

The Law Society of Alberta ("LSA") is the governing body of the legal profession in Alberta. In response to the Minister's request for participation, and working in conjunction with the Alberta Branch of the Canadian Bar Association ("CBA"), the LSA nominated representatives on behalf of the legal community to the steering and working committees of the summit. In addition, the LSA and the CBA formed their own working group, the Legal Profession Summit Committee. This committee was given responsibility for assessing the best means of canvassing the views of the profession with respect to the justice system; implementing that process in the most efficient way possible; and compiling the resultant information and ideas for the purposes of this report, all within the rather strict time constraints imposed by the Minister.

A general call for input from the profession was issued by means of a notice sent by telecopy to each law firm in Alberta. In addition, submissions were solicited through regular newsletters mailed to members of the LSA and the CBA, respectively. The CBA also sought feedback from its various sections representing numerous practice areas.

Response to these blanket appeals was minimal. However, a number of volunteers stepped forward to serve on the Legal Profession Summit Committee, including representatives of the following:

• Criminal Trial Lawyers Association of Edmonton
• Indigenous lawyers
• Crown prosecutors
• Alberta Civil Trial Lawyers Association
• academic lawyers
• lawyers working with young offenders
• family law practitioners

The committee met on several occasions throughout the spring, summer and fall of 1998 to discuss the consultation process, the substantive findings of that process and the form and content of this report.

Difficulties were encountered in formulating recommendations within the given timeframe that fairly represented the large and diverse legal profession in Alberta. Nonetheless, Part III of this report puts forth some general recommendations for the justice system. These recommendations must be considered in the context of our general comments regarding the summit in Part II.

The CBA has provided a separate submission that includes copies of some of its previous and ongoing projects relating to the justice system. This submission is attached as Appendix A.

Several of the subgroups of the profession identified on the preceding page have produced reports reflecting the results of their respective consultations. These reports are collectively attached as Appendix B. An executive summary of each report precedes it.

One of our recommendations relates to putting to use the work of previous task forces and initiatives that have studied the justice system. For ease of reference, the following reports are attached as Appendix C:

• Justice on Trial: Report of the Task Force on the Criminal Justice System and its Impact on the Indian and Metis People of Alberta (the Cawsey Inquiry), March 1991
• Children in Need of Protection - Children and Youth in Alberta (Bernd Walter), July 1993
• Price Waterhouse Report on salaries and working conditions of Crown prosecutors, 1997

A. The justice system and public opinion

The Alberta Justice Summit has been convened "to restore public confidence in the legal system". The Minister of Justice has stated that "the public's perception, attitude and understanding about the justice system is at a low point" .

A 1994 Canadian survey cited by the CBA in its report Task Force on Civil Justice System found "a fairly high level of confidence in the courts, judges and lawyers" and that "procedural and substantive fairness, against which the adequacy of any justice system ought to be measured, are regarded by many as reasonably and consistently achieved in our court system". It is evident, therefore, that public opinion is difficult to gauge precisely, leading to inconsistent or conflicting reports about public attitudes.

As a general proposition, the legal community has confidence in and supports the justice system. The fundamental integrity of that system, a lynchpin of democracy, is surely not subject to question. Indeed, the Canadian justice system is notable for incorporating most of the constitutional rights and freedoms recognized in the American system while avoiding its excesses and, at the same time, maintaining the decorum and reasonableness of the British system while rejecting its anachronisms. We in Alberta may enjoy the best that democracy has to offer, which many would view as the best to be found on a global basis.

On the other hand, there are undoubtedly frailties inherent in the administration of justice in Alberta, as there are in any large and complex administrative system. Based on its consultation process, the CBA Systems of Civil Justice Task Force identified three central issues affecting the civil justice system: the speed with which disputes are resolved in the courts; the affordability of dispute resolution; and lack of public understanding of the work of the courts and the system as a whole. Of these three issues, the first and third have obvious relevance to the criminal justice system as well.

The essential fairness and integrity of our system coupled with its operational imperfections create an interesting backdrop for the alleged dissatisfaction of the public with the justice system in Alberta. Clearly such dissatisfaction does not stem from fear of corruption, erosion of human rights or other general alarm about fundamentals of justice, a situation that would typically give rise to widespread demonstrations, political unrest and vigilante justice. The summary of the public consultations to July, 1998 supports this view. Rather, much of the disillusionment expressed by the public or, more accurately, by certain members of the public appears to flow from two sources:

a. individual cases and experiences that have not had the outcome desired by civil litigants or victims of crime; and

b. a lack of familiarity with legal institutions and processes, which leads to frustration in attempting to deal with them.

Dissatisfaction created by unhappy personal experiences with the system is unfortunately difficult to resolve. However, to the extent that disillusionment of litigants has been caused by delays and inefficiencies inherent in the administration of justice, these complaints have systemic implications and should be dealt with accordingly. The involvement of victims and community in the disposition of criminal matters is another recurring theme that is capable of implementation by the government. Similarly, a lack of familiarity with legal institutions and processes can and should be addressed. These concerns are the subject of some of the recommendations contained in Part III of this report.

B. Obligation of the profession to improve the system

Despite the legal community's general support of the justice system, lawyers have an ethical obligation to seek to improve the justice system and have traditionally been at the forefront of those levying constructive criticisms and pursuing reform. This is as it should be, since lawyers are uniquely qualified to evaluate the institutions of justice due to their legal training and constant opportunities to observe the system in operation.

In fact, the primary objective of the CBA on a national level is improvement of the law and the administration of justice. While its initiatives in this regard are well- described in the submission of the CBA attached as Appendix A, it is particularly noteworthy that the CBA in 1995 established a task force on civil justice that has been referred to earlier in this report. Many of its recommendations are germane to the Alberta Summit on Justice and should be given serious consideration. The CBA is also an active participant in monitoring and commenting on proposed legislation, both federal and provincial.

Law-reform initiatives, suggestions for change and response to proposed changes are also routinely put forward by other legal institutions such as the Alberta Law Reform Commission, the Faculties of Law at the Universities of Alberta and Calgary, and various associations of lawyers, including those that have contributed to this report.

The legal community, therefore, has taken seriously its commitment to the summit process in fulfillment of its collective ethical obligations with respect to improvement of the administration of justice. While we do not believe that the fundamentals of our system require any substantial revision, nor that such fundamental change is a realistic outcome or objective of the summit, there are clearly areas in which improvement is warranted.

C. Assessment of summit process

Consistent with its interest in and commitment to improving the justice system, the legal community welcomes the summit process as another means of evaluating the strengths and weaknesses of the system and providing a vehicle for debate. In particular, we value the public input for its provision of a fresh perspective. The perceptions, concerns and beliefs of those who are removed from the system to a greater or lesser extent are potentially educational for all sectors of the administration of justice.

While the concept of the justice summit is therefore a worthy one, the process itself, like any human endeavour, is not without flaws. There is a general belief among the members of the LSA and the CBA that have participated in the production of this report that its thoroughness and completeness may have been compromised by shortcomings in the summit process. It is respectfully submitted that the following aspects of that process might have been improved:

1. The timeline was too short. The legal profession in Alberta is large, comprising approximately 6,200 active members, and diverse. There was insufficient time to properly canvass the profession nor to hold meetings of our members to receive and consider ideas. Consultation over the summer months was particularly difficult due to previously scheduled vacations. As a result, our report may not adequately cover all issues of concern to our members.

2. There were insufficient resources provided in support of the process. The key groups requested to drive the process should have been afforded financial support, particularly in view of the scope and significance of the project. In our view, the lack of resources severely compromised the process. Again, the comprehensiveness of our report has suffered as a consequence.

3. The process might have been undertaken on a multiphase basis. For example, an idea-generation phase might have been pursued first, followed by reflection on impact on all parts of the justice system and, finally, the development of broad agreement on proposed changes to the system. The pursuit of all aspects of the process along the same timeline has jeopardized both the value of the various submissions, prepared without mutual reference and inter-group consultation, and the ultimate value of the summit conferences to take place in early 1999.

4. The public consultation process might have been refined to narrow the parameters of the debate, which may have warranted a second round of consultations. Because there were no initial restrictions placed on submissions and presentations to the committee, the public's reponses have evidently been widely varied. Moreover, the public hearings have often been a sounding-board for personal grievances. While there may be considerable social value in providing a forum to those who are normally without a public voice, it is unlikely that such individual experiences can be bundled into common conclusions that would assist in achieving the summit's objectives.

Ultimately, the lack of focus for the public consultations and the number of issues generated as a result meant that serious and in-depth consideration of any one of those issues was a practical impossibility.

5. There have been no undertakings by the government as to the implementation of recommendations or the government's intentions in this regard. Is the summit truly intended to be an engine for change? If so, it is suggested that the federal Minister of Justice should have been involved in the process and that post-summit deadlines should have been established for consensus-building on possible changes to the system and implementation of those changes.

As noted above, the size and diversity of the legal population as well as the short timeline, inadequate resources and other limitations of the summit process have created difficulties in identifying discrete justice-system issues of concern to lawyers and developing a wide consensus on those issues. Nonetheless, the LSA and the CBA are prepared to offer the following general recommendations on behalf of the legal community in the belief that they would find a broad base of support among the members of our profession:

1. An increase in government funding for the administration of justice. Many of the perceived weaknesses of our system could be resolved by the injection of funds. Numerous participants in the public consultation process have expressed a need for additional funding to hire additional Crown prosecutors, to reduce court backlogs, to support programs currently staffed by volunteers, and to bolster crime-prevention efforts, including the elimination of conditions giving rise to crime.

Similarly, one of the main issues identified in the 1994 survey referred to earlier in this report is delay in bringing a case to conclusion. The legal community shares the public concern relating to inability to move a case forward expeditiously. Insufficient personnel and overcrowded court calendars have led to extended waiting periods in civil court and consequential frustration and disillusionment on the part of litigants. In criminal court, there have been significant delays in granting bail, in exonerating innocent persons, and in accommodating witnesses waiting to testify. Occasionally a meritorious case has had to be dismissed due to the insufficiency of resources. The pervasiveness of delay in our justice system clearly warrants a systemic solution rather than a piecemeal approach.

A fully-funded justice system would not only move more efficiently in advancing the goals of justice but would garner the support and confidence of the citizens it serves. It is critically important that more resources be allocated to the following areas, among others:

• the hiring of judges, prosecutors and court clerks
• maintenance and improvement of courtroom facilities
• crime-prevention initiatives
• development of social programs that address the homelessness, poverty and substance abuse of children and young people
• alternative sentencing programs (discussed below at point 3)

2. Development of an educational initiative to increase the public's knowledge and awareness of the justice system, including development of curricula in both the public and private school systems. Dissatisfaction with the administration of justice often stems from misunderstanding and lack of familiarity with institutions and procedures. The public consultations held in Alberta have confirmed the public's desire for more education and information regarding the justice system. With understanding would come increased confidence in and esteem for a system that is fundamentally among the best in the world.

Furthermore, as pointed out in the CBA Task Force Report on Systems of Civil Justice, the operation of the system must be understandable to the public if it is to be accountable to the public. In addition, a genuinely accessible system cannot be achieved unless it is made comprehensible and transparent to potential users. An educational initiative would therefore improve not only the perception of the administration of justice but the system itself.

Historically, very few courses on the legal system have been offered in Alberta schools, and then on an optional basis only. As part of the implementation of the CBA's recommendations for civil justice, discussions have been held between volunteer CBA representatives and Canada's education ministers, who have been enthusiastic supporters of augmenting school curricula in this area. It is recommended that the provincial government take a leadership role in ensuring that appropriate curriculum rewrites are carried through in Alberta in a comprehensive and timely fashion.

We suggest that the basic structure and operation of the justice system, civil and criminal, and principles of dispute resolution be taught in our schools on a mandatory and continual basis commencing in elementary school. Discussion throughout junior high and high school should evolve to include citizenship matters, the Charter of Rights and Freedoms and similar issues of the kind addressed in American civics classes.

There should also be some form of user orientation for those who become involved in the justice system, whether as plaintiffs or defendants, victims or witnesses. Orientation techniques could include the distribution of written materials and instruction in a seminar format.

Public education might also include periodic public seminars on various aspects of the justice system.

All such educational measures should receive appropriate funding from the government to ensure their implementation. As a result of such measures, members of the public would be in a position to advance criticisms of the justice system from an informed and constructive viewpoint as well as to appreciate the reasons for some of the apparently puzzling principles and procedures of our civil and criminal systems.

3. Official acceptance and implementation by government of the principles of restorative justice and alternative methods of sentencing. The public's willingness and, indeed, eagerness to accept alternatives to standard court procedure have evidently been expressed during the public consultations held throughout the province as part of the summit process. There is also widespread agreement among justice system professionals, including lawyers and police officers, that such alternatives are becoming vitally important for both society and the justice system.

By making an offender personally accountable for a crime and involving those directly affected by the offence in sentencing and disposition, "community conferencing" and similar initiatives successfully deal with criminal offences while easing demands on traditional court procedures. Community benefits include the reduction or avoidance of court time and legal costs and lessening of the likelihood that an offender will re-offend. Moreover, the public gains a sense of control through its direct involvement in the disposition of a matter that, by its nature, threatens the peace and security of a community.

Diversion of an incident to a restorative-justice process should be an option at any stage of a proceeding, pre- or post-charge, and should be endorsed and utilized by the Department of Justice and Crown prosecutors' office with concomitant funding. At the same time, it is important to vest in the community a sense of ownership with respect to the process so that the principles of restorative justice can be fully realized.

A comprehensive discussion of restorative justice and associated programs is contained in the report of the Criminal Trial Lawyers Association of Edmonton attached to this submission as part of Appendix B.

4. Implementation by the government of the recommendations of previous task forces that have examined aspects of the justice system. Extensive work has already been done in analyzing the operation of the justice system and making recommendations for progress and improvement. Much of that work has been accomplished at the government's request, yet very little of it has borne fruit in terms of meaningful changes to the system.

Some of the recent reports that must be revisited by the government, and that are attached to this submission as Appendix C, are:

• Justice on Trial: Report of the Task Force on the Criminal Justice System and its Impact on the Indian and Metis People of Alberta (the Cawsey Inquiry), March 1991
• Children in Need of Protection - Children and Youth in Alberta (Bernd Walter), July 1993
• Price Waterhouse Report on salaries and working conditions of Crown prosecutors, 1997

Other reports that merit review and consideration by the government in a current context are Administration of Justice in the Provincial Courts of Alberta (the Kirby Report), 1975; the Irving Committee Report (a report to the CBA, Alberta Branch on the administration of the Attorney General's department), 1984; and Task Force on Civil Justice System, the CBA report referred to elsewhere in this submission and forming part of Appendix A.

The failure of the government to embrace and implement past reform initiatives has led to an increasing cynicism and sense of futility, both within and outside the justice system, about the realistic prospects for change. Unfortunately, subsequent initiatives, including the summit process, have been tainted as a consequence. They are viewed with suspicion as mere political exercises with little chance of tangible results.

It is submitted that the government of Alberta must take action on the basis of the summit and other justice-system initiatives, not only to achieve progress in a substantive sense but to establish credibility and bona fides with members of the public and players in the justice system. Meaningful changes to the system will require the commitment of significant government resources, financial and otherwise.

As noted above, a drawback of the summit process has been an absence of commitment by the government to propose and implement changes to the justice system as a result of the summit and with the broad endorsement of major sectors. However, the LSA and the CBA are prepared to be available on a stand-by basis for consideration of and response to proposals put forward by the government after the summit is completed. In particular, the LSA would wish to be consulted respecting any draft legislation with a view to obtaining the input of its members and providing feedback.

Further information regarding this submission or any of the subgroup reports attached as Appendix B can be obtained through the LSA.

Finally, it is hoped that the government will pursue the recommendations contained in this submission and in previous task-force reports, including those referred to in Part III above. The LSA would be pleased to participate in further development of any such recommendations to the point of implementation.

The CTLA report consists of four papers which are summarized below.

1. Restorative Justice in Alberta: The Edmonton Youth Court Experience

Restorative justice seeks to restore the health of the community as a whole after the commission of an offence. It is implemented through techniques such as community conferencing, whereby an offender and the victim of the offence meet face-to-face in the presence of their respective supporters and a facilitator. The parties seek consensus as to what must be done by the offender to repair the harm caused by the offence. The final product is an agreement between offender and victim.

Community conferencing came to Edmonton two and a half years ago as an alternative to standard criminal court procedure for young offenders, largely through the efforts of the Edmonton Police Service although it is run by the community. While the success rate of this type of alternative sentencing is high (about 95%) on a world-wide basis, it has not yet been given official sanction by the provincial Department of Justice. The result is that an incident can be diverted to community conferencing before a charge has been laid but not after, according to the position taken by the Crown prosecutors' office. It is submitted that Alberta Justice must develop an official policy on community conferencing and give philosophical and financial support to restorative justice and its associated programs to enable full use of this alternative means of sentencing at any stage of a criminal proceeding.

The paper attaches an excerpt from the Young Offenders Act (1997) of Australia which codifies all aspects of community conferencing.

2. Transformation of the Office of the Minister of Justice

In Alberta, the Minister of Justice also holds the title of Alberta Attorney General and Alberta Solicitor General. The traditional role of each of these offices is described and the potential for conflict in the merged office is noted. For example, the Minister of Justice plays a primarily neutral role and should ensure that legislation is in accordance with the Charter whereas the Attorney General, as the superintendent of prosecutions, may want legislation that assists in law enforcement and prosecution. Moreover, the Solicitor General administers the police such that, in a merged office, there is no longer administrative separation of the police and prosecution.

The 1984 Irving Committee of the Canadian Bar Association recommended that Alberta establish an office of a Director of Public Prosecutions. Nova Scotia did so in 1990 as a result of the Royal Commission on the Donald Marshall Jr. prosecution.

It is recommended that an independent office be established in this province to ensure fair and equal treatment in the prosecution of offences.

3. The Edmonton Victim Offender Mediation Program: An Example of Restorative Justice

The Edmonton Victim Offender Mediation Program (EVOMP) was established in February of 1995 as a technique to implement restorative justice and as an alternative to standard criminal court procedure. It has been extremely beneficial for the community in reducing court time and legal costs as well as lessening the chance that the offender will re-offend.

However, it has not been fully utilized due to the policy of the Edmonton Crown prosecutors' office which permits resort to EVOMP after a charge has been laid only in cases of low-level theft, possession of stolen property, mischief, or common assault where the victim is not a spouse.

The full benefit and impact of EVOMP will be realized only if it is used more often and persons such as those dealing with conflict, members of the criminal justice system and victims are educated and informed about EVOMP's availability.

4. Response to Perceived Criticisms of the Justice System

This paper considers allegations that the courts are too slow; guilty people "get off"; innocent people get convicted; criminals get early parole; victims are ignored; sentences are too lenient; youth crime is out of control; lawsuits are too expensive; and the courts are frustrating "the public will".

Each complaint is seen to be motivated by a lack of understanding about the justice system and the roles of its various players or to be a result of underfunding by the government with consequential inadequate resources.

The Alberta legal system as it relates to the needs and interests of children is in crisis.

I. Evolution of the Youth Justice System

The youth justice system in Canada has evolved from a common-law regime through the Juvenile Delinquents Act, 1908 (the "JDA") and the federal Young Offenders Act, 1984 (the "FYOA"). The FYOA addressed two of the main criticisms of the JDA: that it was "welfare-oriented" and did not adequately emphasize protection of society nor encourage young offenders to take responsibility, and that young offenders were not given the right of due process of law.

The FYOA was a significant improvement over the JDA. However, today we must investigate predictors of youth crime; establish resources to intervene early; and invest in rehabilitative resources for those already in the system.

II. An Examination of and Response to Issues Raised in Community Consultations

In reference to the 13 consultations involving approximately 109 participants that had been held at that time throughout Alberta as part of the summit process, it is noted that the public receives its information about the youth justice system primarily from media sources. However, research shows that the media reports of crime exclude information that the public could use to assess the "fairness" of a sentence or disposition. It is therefore impossible to assess the accuracy of the knowledge base of the public. Alberta Justice must promote a better understanding of the youth justice system so that any policy resolutions that come from the justice summit are based on reasoned analysis and not emotion.

As for issues that have been raised in the consultations:

1. Lowering the minimum age [at which the FYOA becomes applicable] -- While a full discussion of this issue is considered to be beyond the purview of the paper, it is suggested that a lowering of the minimum age is likely not warranted based upon available statistics and academic opinion. However, Alberta Justice must develop reliable data about juvenile crime and the adequacy of current service delivery systems and bring it to the public before policy decisions can be made. Changes to the system will only be meaningful if the system is supported by sufficient resources.

2. Early intervention -- The need to develop early intervention strategies is strongly supported by professionals in this area. However, recent conferences show that cutbacks in funding for educational, social and health-care programs have seriously affected the care of children in Alberta, particularly minorities and the poor and disabled. The province must focus its attention on the needs of children through resource development.

3. Focus of dispositions -- Communities want more sensitivity to victims and greater emphasis on repaying society. However, the FYOA makes it clear that society is best protected by the rehabilitation of young offenders, which requires resources. The public should also be made aware of the many provisions of the FYOA that specifically contemplate bringing victims into the process and making direct reparation to victims.

4. Are we too soft on young offenders? -- It is difficult to come to grips with this issue since statistics on youth crime are confusing and contradictory. For example, if statistics show an increasing youth-crime rate, it may be because of greater reporting and less tolerance.

Moreover, incarceration is expensive; Canada already has one of the highest incarceration rates in the western world; and young offenders serve more of their sentences by law than adult offenders. Whether incarceration is a deterrent in the first place is hotly debated. We need better data on recidivism rates and rehabilitation. Finally, restorative justice must be debated. Studies have consistently shown that when victims of crime are directly involved in the process of justice, the overwhelming recommendation is against incarceration.

With respect to transfers to adult court, the process is highly complex and largely at the discretion of the Attorney General and his agents. However, the public needs to be made aware of the process to form an objective opinion about the outcomes.

Certain other provincial and municipal policies negatively impact young offenders, including the "zero tolerance" policies of urban high schools and the practices of local judiciary and agents of the Attorney General which result in the longer detainment of young persons.

III. Conclusion

The most glaring deficiency of our youth justice system is the lack of resources for young persons at high risk. There are insufficient support services and residential facilities for children who are homeless or otherwise in jeopardy. For the justice summit to be credible, Alberta Justice must take ownership of the systems issues raised in this paper and other submissions.

The role of Alberta's Crown prosecutors has changed significantly, and has in many ways become more difficult, over the past ten years.

The Crown prosecutors make recommendations in the following six areas:

1. Public education

There is abundant misinformation on the part of the public, which is influenced by American television programs, about the role and qualifications of the prosecutor. A public education program should be undertaken, including the provision of an information brochure to witnesses and victims.

Also, certain prosecutors should be designated and trained as media liaison to provide a more balanced and accurate view to the public of the criminal justice system and particular events occurring within it. The Alberta Department of Justice should create appropriate exceptions to its policy restraining Crown prosecutors from speaking publicly.

2. Resourcing

Funding for the criminal justice system forms a disproportionately small part of the Alberta government's budget. While some improvement to prosecutors' salaries resulted from a 1997 Price Waterhouse report on the subject, the recommendations contained in the report have yet to be fully implemented. There should be an annual review of salaries and workloads by an independent analyst. Prosecutors' salaries should be commensurate with those of the average Albertan. The Chief Crown Prosecutors of Edmonton and Calgary, the Director of Special Prosecutions and the Director of Appeals should be paid commensurately with provincial court judges.

Furthermore, support staff for Crown prosecutors is inadequate, particularly in light of the new disclosure rules that significantly increase the amount of paper that must be generated. Adequate support is vital to the proper administration of justice and the ability to use resources efficiently.

3. Policing

The police in Alberta require a proper support network, including continuing legal education, to enable them to respond adequately to the changes and complexities of criminal law.

Greater resources are particularly required in the areas of commercial crime and forensic laboratory services.

4. Collateral attacks

Crown prosecutors are much more likely in recent years to be reported to the Law Society of Alberta or the Attorney General or to be sued personally. It is recommended that jurisdiction and procedures be clarified to cut down the levels of review of the exercise of prosecutorial discretion , to prevent prosecutors from being sued or enable them to adequately defend themselves and to permit them to take legal action in response to false allegations of misconduct.

One means of addressing these issues would be to create a Crown Attorneys Act, which could also deal with manpower and remuneration review programs.

5. Victims' services

The creation and funding of victims' services units has been a positive development over the past decade. However, prosecutors require more resources to allow them to meet their obligations under the recent Victims' Rights Act with respect to providing information continuously to victims. Also, individuals dealing with witnesses through the victims' services units must be properly trained.

There should be a screening process established for translators used in the criminal justice process, together with appropriate training which might take the form of a certification program.

6. Productivity

Crown prosecutors have concerns about the length of time between arraignment and trial. The passage of time causes witnesses' memories to deteriorate and can significantly affect the quest for truth. The solution is to fully staff the criminal justice system, which requires the appointment of provincial court judges, court clerks and stenographers, Crown prosecutors, Crown support staff and court security officers. Prosecutors do not support the concept of lessening the time to trial by overbooking courtrooms to an excessive degree.

Other recommendations are to reduce the number of preliminary inquiries and to keep less serious crimes out of the courtroom through alternative-sanction initiatives.

FOR USE BY THE JUSTICE SUMMIT CONVENED BY THE GOVERNMENT OF ALBERTA

While most family law cases in Alberta are resolved by agreement, and the family law section supports alternative dispute resolution, efforts should be made to streamline the family law system. Litigants often criticize the process as costly, lengthy and ineffective to reduce conflict.

The recommendations of the report are as follows:

Creating Opportunities for Dispute Resolution and Settlement

• continued funding of the Family Law Mediation Program in Edmonton and Calgary
• continued mandatory attendance of litigants or potential litigants at the Parenting After Separation Course and the use of resources to fund the course
• changes to the Legal Aid tariff for civil matters to provide more coverage for negotiation by counsel and attendance at settlement meetings
• the continued use of judicial dispute resolution provided that judges are suitably trained and available in sufficient numbers to meet demand
• the use of a "Family Law Bench" comprising justices who are interested in the area of family law and who receive ongoing training in mediation, alternative dispute resolution and family law issues
• the use of pre-trial conferences by judges as an opportunity to encourage appropriate settlement discussions, provided that
  - such judges be members of the Family Law Bench or have an interest and knowledge in family law matters
  - the litigants participate in the pre-trial conference where possible
  - lawyers be encouraged to book pre-trial conferences earlier in the process and schedule more than one
  - judges have the ability to schedule a judicial dispute resolution appointment where necessary, with the parties' consent, and to book a specific trial date so the matter will proceed expeditiously if settlement attempts are unsuccessful

Recommendations to Streamline the Family Law System

• a review and consolidation of family law legislation in Alberta to eliminate inconsistencies between federal and provincial statutes
• adoption by Alberta of the federal child support guidelines
• formulation by the province of legislation to define the rights and responsibilities between common-law spouses
• the non-mandatory use of a case management system or early intervention meetings between counsel and the court and the parties to ensure that a case moves expeditiously
• cost awards to sanction non-compliance with rules intended to move family law matters efficiently to trial
• formal evaluation of the provincial court family law process by a government committee or the Alberta Law Reform Institute to assess the extent of duplication between the Provincial Court and the Court of Queen's Bench and recommend ways of avoiding duplication and delay. More resources should be made available to the Provincial Court of Alberta.

Rural vs. Urban Differences

• greater access by rural litigants to family law justices
• frequent rotation by the same justices through a given rural centre

I. Indigenous Lawyers

There are presently about 25 Indigenous lawyers in active practice in Alberta. They know and understand the justice issues that are of concern to the Aboriginal community. The development of the Indigenous bar has been fostered to a large extent by Aboriginal Law Programs such as that begun in Saskatoon in 1972 and at the University of Alberta law school in 1991.

Indigenous lawyers have observed that there continues to be friction between the criminal justice system and the Aboriginal community. There is a mutual lack of understanding between the Aboriginal community and the criminal justice system. Aboriginal participants in the system are often confused by the adversarial nature of the process, the court proceedings and the jargon used by lawyers and judges. In family law, the removal of Aboriginal children from their families and communities is an undesirable resolution of Aboriginal family problems and often leads to future criminal justice problems. The justice system fails to reflect Aboriginal values and sensibilities.

The most pressing aboriginal law issue for the Alberta justice summit, in the view of most Indigenous lawyers and Aboriginal people, is implementation of the 1991 Justice on Trial recommendations that flowed from the Cawsey Inquiry.

II. The Justice on Trial Report on the Impact of the Criminal Justice System on Aboriginal People

The task force chaired by Justice Robert Allan Cawsey was empowered by the Attorney General and the Solicitor General of Alberta in conjunction with the Solicitor General of Canada as a result of criticisms of the Canadian criminal justice system's treatment of Aboriginal people and several high-profile miscarriages of justice involving Aboriginal persons. The mandate and inquiries of the task force were wide-ranging and comprehensive, which led many Aboriginal people to believe that both levels of government were genuinely committed to improving the treatment of Aboriginal people by the criminal justice system.

The main findings of the Cawsey Inquiry were as follows:

1. The criminal justice system was failing Aboriginal people in Alberta through, among other things, systemic discrimination;

2. Aboriginal people must be involved in all levels of decision-making in the criminal justice system;

3. The focus must shift away from incarceration and toward prevention, especially in respect of Aboriginal youth and in view of the burgeoning population of Aboriginal people in Alberta;

4. The Aboriginal people's approach to justice involves restorative justice as opposed to the retributive focus of non-Aboriginal justice. The success of Native youth justice committees demonstrates the value of the restorative justice approach in dealing with Aboriginal offenders;

5. Urban Aboriginal justice issues require attention;

6. Aboriginal justice systems should be negotiated between the Indian and Metis people and the governments of Canada and Alberta to achieve greater involvement by Aboriginal people in justice matters and to avoid unilateral assumption by Aboriginal people of justice, for which there is a constitutional basis.

While the criminal justice system experienced some positive innovations while the Cawsey Inquiry was underway, the Justice on Trial report in 1991 was met with silence by the governments of Alberta and Canada and the pace of Aboriginal justice initiatives began to slow.

The lack of government response may be because Aboriginal justice is not a government priority; governments are unwilling to provide adequate resources; fiscal reductions in the criminal justice system have compromised the system's capacity to respond to Aboriginal justice initiatives; and the follow-up mechanism recommended by the Cawsey Inquiry (the establishment of an Aboriginal Justice Commission to monitor implementation) was never instituted.

III. Recommendations

Indigenous lawyers recommend that the governments of Alberta and Canada implement the Justice on Trial recommendations and, in particular, that:

1. Government formally acknowledge the Justice on Trial report and recognize, as principles of the criminal justice system, substantive involvement of Aboriginal people and restorative justice for Aboriginal persons before the system;

2. Government commit to adequate resourcing of Aboriginal justice measures;

3. Government approve and commit to supporting significant new Aboriginal justice endeavours in both rural and urban areas;

4. The Alberta government establish an Aboriginal Justice Commission with a ten-year mandate to monitor implementation of the Justice on Trial report.