Highlights of the Kaufman Report

Highlights and recommendations of the report by retired judge Fred Kaufman into Nova Scotia's Public Prosecution Service (PPS), released today, June 9, 1999:

"... while the Public Prosecutions Act stresses the independence of the DPP [director of public prosecutions] and of the service, it preserves the traditional powers of the attorney general. It does, however, seem to me that in the immediate post-Marshall era this fact was largely overlooked, with the result that
independence' took on a meaning beyond the intended scope."

"... it seems clear that even though the act provides for the
independence' of the director and the PPS, the attorney general, subject to certain safeguards, retains the ultimate responsibility for prosecutions. And this is as it should be, for the very essence of responsible government is that someone -- in this case the attorney general -- is answerable to the House."

"I believe that regular meetings between the attorney general and the DPP are essential. The attorney is entitled to know what's going on in the service. This is not a licence to meddle; it is, rather, a recognition of the fact that the attorney general is the minister responsible for public prosecutions and that it is the attorney general, not the DPP, who answers to the legislature."

"Officials are typically accountable to different people or bodies with respect to different aspects of their work. Thus, prosecutors are typically accountable to a superior for certain acts in the performance of their duties; but they will also be accountable to the court for their conduct, or to the law society, or even, in extreme cases, as the defendant in a civil action. Accountability, therefore, is always owed to someone for something, and is typically owed to different people for different things."

"... an official can enjoy a very high degree of independence, yet still be accountable. Indeed, there would be cause for serious concern if an official who enjoys great independence were not also fully accountable."

"... it is important to stress that the term independence,' as used by the commission -- and, in my view, as used in the legislation which followed -- was not intended to connote total, or absolute, independence. What the commission hoped to achieve was to prevent continuation of the type of interference which it found to exist at the time, that is to say interference by ministers, deputy ministers and, perhaps, others in government and even elsewhere. The act fulfils that purpose...."

"... it is difficult enough for judges and lawyers to understand the modern and more complex role of the Crown. For the public, it is an even more difficult task.... In fairness, I must, however, add that my inquiries indicate that the PPS has not always helped its own cause: public relations were not well done, communications were often mismanaged, and no clear policy existed until recently on what a Crown attorney could or should say to the press."

"While the PPS has not always enjoyed good press,' it would be unfair to blame it all on the media. Many reports whose tone is harsh and critical simply repeat what others have said, and high on the list are pronouncements by judges of all levels of court...."

"In 1999 public acts must be transparent. It is, therefore, more important than ever for the service to nurture its relations with the world around it."

"... I find it surprising that the police can apparently choose which Crowns they want to prosecute their cases. Furthermore, I would think that pre-charge advice should be given by prosecutors designated by the service and not by Crown attorneys hand-picked by the police."

"The principal conclusion I draw from these allegations is that a deep, and quite unnecessary, schism exists between management and the rest of the service. While managers must manage -- and this includes hiring, promoting, demoting and even, when necessary, firing -- this must be done in a manner that inspires confidence, and not distrust, as it does now."

"Improvement could begin by better supervision of per diem and contract Crown attorneys, many of whom are potential candidates for permanent employment. Second, meaningful performance appraisals are essential for those already in the service. Third, funds must be found for continuing education, and fourth, greater care must be taken in the promotion process to assess the ability of a potential candidate to fill the vacant post. As I said before, good lawyers don't always make good managers."

"Finally, if necessary, after remedial measures have been taken, some chronic underperformers may have to be dismissed from the service. This is a painful process, but good management may require such action which ultimately will benefit the service."

"Any examination of the PPS organizational structure must consider the range of central administrative services which are now being provided by agencies external to the service: finance and procurement, accommodations, human resource management and information technology. It is not surprising that this is so because the PPS, despite its independent character, is part of the executive branch of government. However, concern has been expressed that the dependence by the PPS on these external agencies creates a barrier to the achievement of true independence. I understand these concerns, and so did Ghiz-Archibald, but the PPS is simply too small to have a complete range of support services. In spite of this, progress in that direction has been made, and the addition of a communications officer to the PPS staff is a case in point."

"... a deputy DPP, with a clearly defined mandate, can serve a useful function. I therefore favour the designation of a deputy DPP with special responsibility, as ATi suggests, for policy and planning. The same person, since there can be only one deputy, would also fill in for the DPP when, by reason of absence or otherwise, the director cannot act."

"I agree with ATi's conclusion (at p. 128) that PPS does not engage in meaningful planning beyond that required for budgetary reporting' and that [t]he organizational structure does not recognize planning as an important function.' The proposed position of deputy director, policy and planning, emphasizes the importance of planning, and hopefully progress will quickly be made in that direction."

"The complaint is frequently heard that workloads are too heavy and that the overtime required is excessive. Yet management lacks information to substantiate these views.... I accept that the keeping of time sheets or dockets' is an additional burden for busy practitioners. But much depends on the amount of detail required, and I agree with ATi's observation that in the case of the service, unlike a private sector law firm where detailed records are required to support the time billed to clients, less detailed notes would be sufficient."

"... while a public body need not concern itself with hours billed and profits made, it should, nevertheless, aim for high quality service delivered in a cost-efficient manner."

"... the director be authorized to exceed the budget by a specified amount, say five per cent, but only for extraordinary prosecutions (which should be defined) and that any such over-expenditure must be reviewed within a specified time frame.' The question then is who should conduct the review.... In my view, greater independence could be achieved by designating a highly respected person -- a retired chief justice, for instance -- to examine the DPP's decision to exceed the PPS budget in extraordinary cases."

"The use of paralegals is a relatively recent phenomenon, but private law firms now make extensive use of well-trained non-lawyer legal assistants who can relieve lawyers of many time-consuming tasks ... guidelines could be drafted to define what paralegals should and should not do. The time has come to try the idea."

"The PPS business plan provides that complaints are to be dealt with within six months from the time they are lodged, but sometimes the process takes longer.... I agree that changes are needed, and the first thing that must be done is to reduce the six-month window now in force. While the investigation of exceptional cases may take that long, routine complaints can and must be dealt with far more quickly. Furthermore, it is vital that the complainant is informed of steps that are taken, and all inquiries must be answered promptly."

"Properly done, performance appraisals are useful tools.... As the ATi report points out (at p. 238), [t]he evidence is clear that performance evaluation is not taking place in a form that is credible with employees and management. The current system is seen to be very superficial and does not lead to suggested improvements for the coming year....' This must be urgently addressed by management."

"... of all the models considered, collective bargaining appears to be the best solution. It has the advantage of being an accepted way of solving management-employee relations; it seems to work well in four Canadian provinces; it is easier to apply than any other formulas suggested, and it would finally and fairly resolve the festering issue of Crown attorney compensation."

"But there is no quick fix,' and the rebuilding of the PPS will have to be done brick by brick. I am satisfied that this is possible, and I firmly believe that the new DPP will find willing collaborators in the prosecutorial staff."

"I am hopeful that existing problems can and will be overcome. As I already said, with time, goodwill and effort, the PPS can overcome its present problems and become a showcase for the legal profession, providing not only good and efficient service to the public, but also attractive career opportunities for young and competent lawyers."

• ---------------------------------------------------------------RECOMMENDATIONS

Part 1

• I recommend that the Public Prosecutions Act be amended to require that where the attorney general, after consultation with the director of public prosecutions, exercises the statutory functions with respect to prosecutions set out in paragraph 6(e) of the Public Prosecutions Act, notice of this fact shall be published as soon as practicable in the Royal Gazette.

• I recommend that the act be amended to require that not less than once a month meetings be held between the attorney general and the director of public prosecutions to discuss policy matters, as well as existing and contemplated major prosecutions.

Part 2

• I recommend that a significant public information campaign be undertaken to educate the citizens of Nova Scotia about the role played by the Public Prosecution Service in the administration of criminal justice.

• I recommend that newsworthy events involving the Public Prosecution Service be publicized by the service.

• I recommend that a system be put in place which would assure that prosecutorial decisions affecting victims, the police and the witnesses be communicated to these parties as quickly as this can reasonably be done.

• I recommend that a PPS-police liaison committee be struck to deal with problems and complaints arising from PPS-police relations. This committee should be composed of the DPP, or the DPP's delegate, the chief of the Halifax Regional Police, or the chief's delegate, the assistant commissioner of the RCMP, or the assistant commissioner's delegate, and a representative of the Nova Scotia Police Chiefs Association, with power to co-opt additional members. The committee should meet at regular intervals and minutes of these meetings should be circulated among the senior personnel of all participating parties.

• I recommend that steps be taken to preclude "Crown shopping" by the police.

• I recommend that the appointment and promotion process be revised to make it open, accessible and visibly fair.

• I recommend that the agendas for forthcoming meetings of the management committee be published in advance and distributed to all Crown attorneys.

• I further recommend that minutes of every meeting of the management committee be distributed to all Crown attorneys as soon as practicable after the meetings.

• I recommend that Crown attorneys from different divisions be invited on a rotating basis to attend meetings of the management committee as observers.

• I recommend that, where appropriate, there be a reduction of the number of per diem Crown attorneys, and that funds so saved be utilized to engage additional permanent staff.

• I recommend that provisions be made to compensate per diem Crown Attorneys for time spent on preparation.

• I recommend that, wherever possible, Crown attorneys be relieved of the task of arranging their own replacements, and that this function be taken over by a designated person on the support staff.

• I recommend that the performance of per diem Crown attorneys be monitored to ensure that quality of service is maintained.

• I recommend that the terms of engagement of contract Crown attorneys be re-examined so that existing inequalities may be removed where possible.

• I recommend that a feasibility study be made of extending certain benefits, such as sick days, to contract Crown attorneys.

• I recommend that meaningful performance appraisals of all staff be made once a year.

• I recommend that members of the PPS who may wish to apply for management positions be required to attend appropriate educational seminars.

• I recommend that incumbent managers be urged to pursue appropriate courses to keep them current in management theory and practice.

• I recommend that additional funds be allocated to enable more Crown attorneys to attend continuing legal education events.

• I recommend that mentor programs, case conferences and in-house seminars be instituted.

• I recommend that management make every effort to increase the frequency and regularity of the Crown Attorneys' Newsletter, and that contributions to this letter be sought from Crown attorneys at all levels.

• I recommend that "juniors" be more frequently assigned to observe and assist senior counsel.

Part 3

• I recommend that the director of public prosecutions be authorized to exceed the budget by five per cent, but only for extraordinary prosecutions, and that any such over-expenditure be reviewed by a designated person within a specified time frame.

• I recommend that consideration be given to the employment of paralegals to assist the professional staff.

• I recommend that the complaints procedure be revised; that it be made more responsive to the parties, and that the allowable time for dealing with complaints be considerably shortened.

• I recommend that the legislative exclusion of government lawyers under the Civil Service Collective Bargaining Act be repealed and that the act be amended to establish a staff lawyers bargaining unit.

• I recommend that within one year from this date (May 31, 1999), the director of public prosecutions report on the implementation of recommendations contained in this report which are accepted.

• ---------------------------------------------------------------COST BREAKDOWN -- as of June 4, 1999*

Fred Kaufman $138,212.40

ATi Corporate Consulting 96,331.42

Prof. Phillip Stenning 12,000.00

Office Rental 11,733.68

Office Staff 10,254.77

Sundry (other) 24,201.51

TOTAL $292,733.78

• These amounts do not represent the final cost of the review, nor do they include expenditures for the independent review of the Westray prosecution being conducted by Duncan Beveridge and Patrick Duncan.

arc June 09,1999 11:14 a.m.