Early Resolution Initiative of the Criminal Justice Transformation Group

The Criminal Justice Transformation Group provided this February 7 memo to all criminal law practitioners in Nova Scotia.

Over the past three years, the Criminal Justice Transformation Group (CJTG) has been working to improve the efficiency of Nova Scotia’s criminal justice system. This Group consists of a team of high-level decision-makers from all the organizations that make up the criminal justice system in Nova Scotia. It includes the Judiciary, the provincial and federal Prosecution Services, the provincial and federal Departments of Justice, police, Nova Scotia Legal Aid, the Nova Scotia Criminal Lawyers’ Association, and the Nova Scotia Barristers’ Society.

The Supreme Court of Canada’s decision in R. v Jordan in July 2016 dealing with delay in bringing cases to trial has transformed the criminal justice system. It establishes time ceilings for criminal trials to respect an accused person’s constitutional right to a trial within a reasonable time, and society’s desire that criminal matters be dealt with as expeditiously as possible. Since the Jordan decision, the CJTG has been focusing its efforts on criminal court efficiencies to reduce delay.

Triaging of criminal matters is a way of prioritizing cases so that they may be dealt with more efficiently. One aspect of a triaging approach is the early resolution of cases. A Halifax Region Early Resolution Working Group, chaired by Chief Judge Pamela Williams of the Provincial and Family Courts, has met on several occasions over the last six months. Representatives from Nova Scotia Legal Aid and the PPS have recently agreed on an approach to be piloted in the Crown Attorneys’ offices in Halifax and Dartmouth, where all Crown Attorneys are being asked to prepare early resolution positions so that these can be communicated to Defence counsel and shared with accused persons.

Will Mathers of the Dartmouth Crown Attorneys’ Office has developed an Initial Sentencing Position "ISP" form. The initial draft was distributed to other Crowns for input. A final draft was agreed upon and the form has been printed and distributed to every Crown Attorney in the Halifax region. Additional copies are available in the Halifax and Dartmouth Crown Offices. Chief Judge Williams has agreed that "ISP" forms will be available in each Provincial courtroom in Halifax and Dartmouth. A sample of this form is attached.

The form is intended to be used for relatively straightforward matters that are identified as potentially amenable to early resolution. Examples of such cases would include breach of court order offences, minor property offences, first offence breathalyzer or refusal matters, and low level assaults.

The form could potentially be used in mid-range cases, such as break-and-enters involving businesses or dwellings, and more serious assaults, including those inflicting bodily harm. The form is not intended for use in matters such as sexual assault, sexual offences against children, significant property loss, or where significant violence has been used.

The form is drafted in such a manner that it can be completed quickly. It focuses Crown Attorneys on possible types of resolution (e.g. fine, probation, conditional sentence, jail) and reminds them of potential ancillary orders (e.g. forfeiture, restitution, firearms prohibition). Any offer that is made is time sensitive and will not be offered later in the proceedings.

The form is in duplicate. One copy is to be given to Defence counsel and the other is to be kept in the provincial Public Prosecution Service’s file. The PPS will be developing a means by which to track the success of this initiative.

If you have questions or require further information on this pilot initiative, please contact:

Paul Carver QC
Chief Crown Attorney (Halifax Region),
Nova Scotia Public Prosecution Service
Suite 1325, Maritime Centre, 1505 Barrington Street
paul.carver@novascotia.ca

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Media coverage:

Nova Scotia Court Delays: It's an idea that's worked in the medical world but can triage find success in the courtroom?
(Interview with Martin Herschorn, Director, Public Prosecution Service of Nova Scotia)
CBC News Ottawa | Feb 21, 2017

N.S. prosecutors encouraged to offer plea bargains for minor crimes as cases pile up: A new pilot program is an effort to cut down on a backlog of criminal cases tying up courtrooms
CBC News | Feb 18, 2017 | By Shaina Luck

Nova Scotia to offer early plea bargains in bid to speed up justice system
The Canadian Press | Feb. 17, 2017 | By Adina Bresge

Nova Scotia to offer plea bargains on minor cases to make way for criminal trials
Globe and Mail | February 15, 2017 | By Sean Fine