PPSC Survey of Investigative Agencies in the Territories 2008: Report on Findings and Conclusions

1. Background and Purpose of the Survey

In 2008, the Public Prosecution Service of Canada (PPSC) conducted a national, in-house survey of the investigative agencies that initiate most of the cases that it prosecutes. It also committed to providing feedback to survey recipients once the analysis was complete. This report on survey findings and conclusions is intended to meet this commitment, and to serve as a springboard for further communication and exchange between the PPSC and investigative agencies in the territories.^{Footnote 1}

The PPSC was created in December 2006, when the Director of Public Prosecutions Act came into force. It replaces the former Federal Prosecution Service (FPS), which was part of the Department of Justice Canada. The Director of Public Prosecutions (DPP) is responsible for prosecuting offences under federal jurisdiction, and for providing prosecution-related legal advice to law enforcement agencies over the course of investigations that may lead to such prosecutions. In the territories, this means prosecuting Criminal Code offences as well as offences under the Controlled Drugs and Substances Act and other federal statutes.

In exercising its mandate in the territories, the PPSC works with the RCMP and the enforcement arms of federal departments and agencies such as Environment Canada, Fisheries and Oceans Canada, Health Canada and Indian and Northern Affairs Canada. It maintains offices in the Yukon (Whitehorse), the Northwest Territories (in both Yellowknife and Inuvik) and Nunavut (Iqaluit). Its headquarters are located in Ottawa.

The majority of PPSC employees are prosecutors. However, in the territories, the PPSC also employs Crown Witness Coordinators (CWCs). Their role includes explaining the criminal justice process to victims and witnesses, preparing them to testify in court and, where required, bridging the cultural gap between prosecutors who are generally from the South (i.e., from the provinces) and victims and witnesses from the North.

The PPSC also retains the services of private-sector legal agents to conduct prosecutions on behalf of the federal Crown. As a general rule, the PPSC uses legal agents where it does not have a regional office or where it is impracticable or otherwise not cost-effective to handle cases with staff counsel. Whereas Crown agents handle a significant proportion of cases in the South, they are rarely employed in the North. Rather, northern regional offices rely on “flying squad” counsel from the southern offices of the PPSC, albeit to varying degrees.

The 2008 PPSC survey of investigative agencies represents the organization’s first attempt to seek feedback on its services. Its purpose was three-fold:

• to seek feedback from the police and federal investigative agencies that initiate most of the cases that the PPSC prosecutes;
• to understand the factors that positively or negatively impact investigator perceptions of PPSC services; and
• to identify possible strategies to strengthen PPSC services and the working relationship between the PPSC and investigative agencies.

Separate surveys were undertaken for the provinces and territories given the distinct characteristics of prosecutions in northern environments. Most notably, the northern regional offices deliver most of their services within the context of circuit courts. However, the number and remoteness of the communities covered vary from territory to territory. For instance, the Yukon regional office covers 13communities by circuit court, in addition to Whitehorse. All the communities are within a two- to five-hour drive, with the exception of Old Crow which is only accessible by air. In the Northwest Territories, the regional office covers 19 circuit communities, in addition to the city of Yellowknife. All but two of the communities are fly-in. Geography poses the greatest challenges in Nunavut, where all 26 communities are only accessible by air, with the exception of the home base in Iqaluit.

In addition to the challenges posed by geography, the territories are characterised by the highest incidence of Criminal Code offences within Canadian jurisdictions. In addition, court dockets include above average rates of domestic violence and sexual assault, particularly in Nunavut, followed by the Northwest Territories and Yukon. Northerners also face a higher incidence of social, economic and health problems associated with factors such as the multigenerational impacts of residential schools, cultural and language loss, housing shortages and overcrowding, a lack of formal education and job training, high unemployment, and substance abuse.

2. Survey Questionnaire

The survey questionnaire^{Footnote 2} addressed the full range of PPSC services in the territories, including Criminal Code, drug, organized crime and regulatory prosecutions, as well as general legal advice, liaison and training. Using a five-point scale, respondents were asked to qualify various aspects of these services as poor, acceptable, good, very good or excellent. These aspects include, but are not limited to the following:

• PPSC prosecutors’ understanding of investigative agency responsibilities as they affect prosecutions;
• their guidance and assistance in the preparation of search warrants and in the collection of disclosure information;
• their notice to investigative agencies when charges are varied or withdrawn;
• their preparation for court;
• the consistency and timeliness of their advice;
• the quality of interactions with PPSC personnel;
• the quality of liaison; and
• the relevance and usefulness of training activities and materials.

Respondents were also invited to provide written comments on the strengths of specific PPSC services in each of these areas, and to suggest possible strategies for improving them. In closing, respondents were invited to list any other prosecution-related activities that they thought the PPSC should be involved in but currently is not, as well as to provide any other comments that they felt were relevant.

3. Survey Respondents

The survey questionnaires were mailed to investigative agencies in the territories over the course of February 2008. The survey packages were addressed to officers in charge of RCMP detachments and specialized units, as well as to investigative agency managers and front line staff. The mailing list was based on the 2007 Canadian Police Information Centre National Directory, and input from each of the northern regional offices.

A total of 175 questionnaires^{Footnote 3} were mailed to the territories. Fifty-eight completed questionnaires were returned to the PPSC, for an overall response rate of 33%. This is considerably higher than the generally expected 15% response rate for mail out surveys, indicating a high level of interest in providing feedback to the PPSC among RCMP members and other federal investigators.

There was an unequal distribution of respondents across the territories. The Yukon accounts for approximately one half of all respondents, while the Northwest Territories and Nunavut account for roughly a third and a fifth of respondents respectively. Nine out of ten respondents were members of the RCMP. The remainder belonged to other federal investigative agencies, including Environment Canada, Fisheries and Oceans Canada, Health Canada and Indian and Northern Affairs Canada.

A third of all respondents reported a weekly level of communication with the PPSC. Approximately one fifth reported contact at an interval of either bi-weekly (n=11), monthly (n=11) or less than once a month (n=10). In comparison to the respondents from the provinces, levels of communication with the PPSC were reported as more frequent.

Criminal Code prosecutions and general legal advice^{Footnote 4} were the most frequently used services by survey respondents, with nine out of 10 reporting use of either service during the year preceding the survey. Two thirds of respondents indicated initiating a drug prosecution, while half indicated that they had participated in liaison activities. Less than one third of respondents indicated initiating a regulatory offence prosecution, and only one fifth of respondents reported that they had participated in training activities.

4. Quantitative Analysis of Respondent Rankings of PPSC Service Aspects

Given the small number of respondents for each territory, their rankings were aggregated into northern Canada. The analysis of these rankings, which focuses on descriptive statistics, indicates that certain aspects of PPSC Criminal Code, drug and regulatory prosecution services^{Footnote 5} tended to be positively rated, while others tended to be rated more negatively across prosecution fields.^{Footnote 6} Specifically:

• Respondents most often rated the quality of their interactions with PPSC prosecutors as either very good or excellent across all prosecution fields examined.
• Conversely, informing investigative agencies when charges are varied or withdrawn, preparation for court, as well as the timeliness of pre-charge advice and court prosecutions were most often rated as poor or acceptable.^{Footnote 7}
• Guidance and assistance in the preparation of search warrants was the least frequently used aspect of Criminal Code, drug and regulatory prosecutions. Where the service was used, it was most often negatively rated.

Respondents were split in their views on (general) legal advice overall, as well as its timeliness,^{Footnote 8} with almost equal numbers of respondents rating these service aspects as either positive or negative.^{Footnote 9} However, the consistency and usefulness of the advice were most often positively rated.

5. Qualitative Analysis of Respondent Comments on PPSC Services

Respondent comments varied in length, from a single word to a few paragraphs. All comments were transcribed onto a chart and analysed to identify the range of themes that were raised, the similarities and differences in their manifestations, as well as the resulting impact on respondent perceptions of PPSC services and suggested strategies for improving them.

Comments revealed a remarkable level of consistency in the considerations that influence respondent perceptions of the PPSC, be it positively by their presence, or negatively by their absence. Further, this holds true across prosecution fields/services, investigative agencies and locations throughout the territories. These factors include the following:

• the perceived quality and consistency of the legal knowledge and advice of the prosecutors that the respondents had dealt with;
• the nature and extent of communication, liaison and training; and
• the PPSC’s case management process, most notably the perceived forcefulness of its prosecution approach.

It is important to note that the purpose of the qualitative analysis was not to account for the frequency of various comments, or to assess the extent to which the respondents’ interpretation or portrayal of events are “true” or “accurate”. In any case, the data generated by the survey would not allow us to make this assessment. Rather, it is to understand the array of factors that explain the perceptions that the comments describe. Hence, frequent comments or perceptions do not necessarily have any more inherent value, in terms of generating knowledge or understanding, than infrequent or even unique ones.

As will be shown, respondent comments can be influenced by a range of factors, including their knowledge and understanding of northern justice issues, their beliefs and attitudes concerning the offences being enforced and the type of legal response that is called for, their understanding of the prosecutor’s role in the criminal justice system, their work-related experiences with PPSC staff prosecutors, and the extent to which these experiences meet their needs and expectations. Hence, comments reveal more than one example of differing perceptions of the same services, based on these variations. This is to be expected, given the complex dynamics of any working relationship, and the range of individual, organizational and legal factors at play.

5.1 Perceived Quality and Consistency of PPSC Prosecutors’ Legal Knowledge and Advice

Respondents viewed PPSC prosecutors’ knowledge of the Criminal Code, regulatory statutes, legal precedents and Charter issues, as well as their understanding of the legal rules and procedures governing drug, organized crime and regulatory prosecutions as a solid basis for providing sound legal advice and practical assistance to investigators. Specifically:

• Respondents repeatedly stated that case-specific legal advice can support investigators in determining appropriate charges, identifying evidence to support those charges, preparing for and testifying in court, and avoiding errors that can negatively impact on case outcomes.
• Their comments show that the benefits of case-specific legal advice can be cumulative, and enhance investigators’ overall understanding of the legal issues that they must take into consideration over the course of their work. Such advice is particularly important in the territories given the challenges that may arise in providing or accessing formal training opportunities in or from remote communities.
• The dedication of a prosecutor to specific court circuits or investigative agencies is positively perceived in that it is thought to contribute to a better understanding of the communities served and more consistent advice. However, it was acknowledged that this could be more difficult in the territories, given recruitment and retention issues.

Comments also show that respondent perceptions of PPSC services can be influenced by the nature of the legal advice provided. For instance, an RCMP member’s positive assessment of the advice that he had received stemmed from its perceived usefulness in terms of “improving the conviction rate”. Another RCMP member, whose assessment of PPSC services was generally negative, was critical of the fact that the legal advice provided did not necessarily support the initiation of a prosecution.

5.2 Communication, Liaison and Training

While PPSC prosecutors’ legal knowledge and advice are central to positive perceptions of PPSC services, comments also show that such knowledge and advice are not sufficient. Ongoing communication and liaison are viewed as equally important, not only in terms of promoting optimal investigative practices, but also in terms of setting the foundation for effective working relationships between investigators and prosecutors. Of course, maintaining communication between investigators and prosecutors can pose particular challenges in the territories, where face to face contact is often limited to court circuit dates. Nonetheless:

• Respondent comments highlight the importance of PPSC prosecutors’ accessibility, their timely response to questions, their feedback to investigators on the legal implications of their actions and, perhaps most importantly, their willingness to keep them apprised of prosecutorial decisions and underlying rationales.
• Respondents who did not enjoy such communication, particularly on case-specific matters such as the reasons for staying or withdrawing charges and potential plea agreements, called for more communication and consultation on the part of PPSC prosecutors.
• Liaison activities at both the front line and management levels are seen as an opportunity to enhance investigative practices, to address any problem between prosecutors and investigators, to promote relationship building and, ultimately, to improve service delivery.

Only 11 respondents reported that they had received formal training over the year preceding the survey. However, respondent accounts suggest that informal training often occurs over the course of their interactions with PPSC prosecutors attending circuit courts. As noted by an RCMP member, the need for training in any form is particularly acute given currently high retirement rates in the force, and the presence of junior RCMP members in many northern detachments.

5.3 Case Management

PPSC prosecutors must consider two issues when deciding to proceed with a case or not: whether the evidence is sufficient to justify the initiation or continuation of proceedings and, if it is, whether the public interest requires a prosecution to be pursued. Their role is not to win a conviction at any cost but to put before the court all available, relevant and admissible evidence necessary to enable the court to determine the guilt or innocence of the accused.

In commenting on how PPSC prosecutions could be improved, a number of RCMP respondents from the three territories alluded to the prosecution approach taken in their cases, as well as post-charge review processes. Most notably:

• While some RCMP respondents felt that the prosecution approach taken in the Criminal Code and drug cases that they had initiated was sufficiently forceful, a greater number argued that prosecutors should proceed with more charges, enter into fewer plea arrangements, and fight for harsher sentences.
• Respondents also underscored the importance of post-charge review processes, including a timely file review in order to identify and address any additional investigative needs; a timely review of witness lists in order to avoid calling on police members whose testimony is not actually required, causing unnecessary overtime costs; andtimely pre-trial interviews with investigators in order to maximize the value of their testimony, particularly when they are junior in service.

6. Possible Strategies to Improve PPSC Prosecution Services

There was a high level of consistency, both within and across all three territories, in the strategies that respondents proposed to strengthen PPSC services. As well, most of their suggestions mirror those of participants in Northern Justice Consultations that were carried out in the Yukon, Northwest Territories and Nunavut in the spring of 2006.^{Footnote 10} The strategies include increased human and financial resources for the PPSC – the most frequent suggestion by far; increased communication, liaison and training; and improvements to the case management process.

6.1 Increased Human and Financial Resources for the PPSC

Survey respondents repeatedly called for more human and financial resources for the PPSC. They felt that increasing the number of prosecutors in all of the three territories would help alleviate current pressures on staff stemming from heavy workloads, long hours, regular trips to small and remote communities, and high rates of violent offences. Like their RCMP counterparts in the Northern Justice Consultations, they hoped that this would make it possible for prosecutors to travel to their communities further in advance of court dates, and allow more time to meet with investigators to discuss the legal issues that may impact on case outcomes, prepare for court appearances and meet with victims and witnesses.

Participants in the northern consultations hoped that increased resources would also allow regional offices to more routinely send two prosecutors on court circuits, and to more consistently assign prosecutors to a specific group of communities. They agreed that this would enable prosecutors to clear more of the docket lists on each circuit, as well as enable them to acquire a greater understanding of the communities they are striving to serve.

PPSC prosecutors and managers who participated in the Northern Justice Consultations agreed that staffing in the northern offices continues to be the major challenge they face, and the major priority for enhancing prosecution-related services.

6.2 Increased Communication, Liaison and Training

Given the importance of ongoing communication, liaison and training in terms of promoting optimal investigative practices and setting the foundation for effective working relationships between investigators and prosecutors, survey respondents called for more.

Due to the PPSC’s responsibility for the prosecution of Criminal Code offences in the territories, many participants in the northern consultations also called on PPSC prosecutors to become more involved in community outreach activities. Hence, they supported the requirement for PPSC prosecutors to meet with members of Community Justice Committees where they exist, both prior to and after court.

However, some PPSC prosecutors who participated in the northern consultations raised questions about whether more direct involvement of prosecutors in the communities could undermine their need to maintain an independent role in the justice system. Although they acknowledged the need for prosecutors to be more engaged in the communities, they emphasized that it must be balanced with recognition of their independence from political and other “interference”.

6.3 Improvements to the Case Management Process

Respondents repeatedly emphasized that early Crown screening of files would enable PPSC prosecutors to identify shortcomings in investigations / weaknesses or problems with a case. In addition, RCMP participants in the Northern Justice Consultations emphasized that early Crown screening would be beneficial to victims, in that it would encourage a decision as to whether or not to proceed sooner than is currently the case. They also noted that it would be beneficial to the courts, to the extent that it can often lead to an early resolution to the matter, saving valuable time and scarce resources.

PPSC prosecutors who participated in the Northern Justice Consultations were quick to recognize the value of early Crown screening of all files, particularly those involving serious allegations of violence and sexual abuse. However, they also noted that due to workload pressures, this process often occurs close to the trial date.

7. Conclusions

Although all criminal justice personnel – police, prosecutors, defence counsel and judges – face particular challenges in all of the three territories, the issues raised by members of the RCMP and other federal investigative agencies in this survey were very similar to those raised by their counterparts in the provinces.

While the survey results in both the provinces and territories suggest a number of areas in which to focus our efforts – PPSC prosecutors’ knowledge and legal advice; communication, liaison and training; and various aspects of the case management process – they do not provide concrete measures of organizational performance in each of these areas, or the factors that can affect performance levels. As a result, there is a need to further document PPSC activities and results, to implement additional strategies to improve organizational performance where required, and to enhance mechanisms to monitor improvements (or to explain a lack thereof). Possible next steps include, but are not limited to, the following:

• Support the development of a new chapter on guidelines for prosecutions in the North in the Federal Prosecution Service Deskbook, which sets out prosecutorial policies and practices to be followed by PPSC personnel, as suggested in the context of the Northern Justice Consultations.
• Continue to focus efforts on the recruitment and retention of federal prosecutors (an organizational priority for 2008-2009 and for 2009-2010) in order to maintain service levels across service delivery locations. The challenge of attracting qualified personnel is enhanced in the North given the workload and distance from home communities. As noted in the Northern Justice Consultation Report, particular efforts are necessary to encourage prosecutors to build their careers in the North, and to recruit additional Aboriginal prosecution personnel is key.
• Develop possible strategies to better communicate and clarify the mandate of the PPSC, as well as the roles, responsibilities and legal constraints of PPSC prosecutors.
• Consider the concerns raised by some respondents in developing service standards to be followed by PPSC prosecutors, and and develop performance measures to monitor implementation.
• Continue to monitor the social trends and government initiatives that are likely to have an impact on workloads and service needs (e.g., retirement levels in the PPSC, RCMP and other investigative agencies due to demographic trends, legislative changes or changes in enforcement priorities).

Annex 1: Respondent Rankings of PPSC Services

Chart 1: Perceptions of Criminal Code Prosecutions (N=51)

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Chart 2: Perceptions of Drug Prosecutions (N=39)

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Chart 3: Perceptions of Regulatory Prosecutions (N=17)

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Chart 4: Perceptions of General Legal Advice (N=51)

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Chart 5: Perceptions of Liaison Activities (N=30)

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