Highlights of the Kaufman Report

Public Prosecution Review

June 9, 1999 11:43 PM

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.

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