Justice committee  Each one of these goes case by case, and what my friend is talking about is a rarity, in my experience. It's not something that happens a lot. Sexual assault trials, for the most part, are one-witness trials with maybe some collateral witnesses, and then they move forward. As for third party records, in my experience, when there's been an issue and there hasn't been a preliminary inquiry, it's simply as we have put it before, that it becomes part of the pretrial process whereby we ferret through what we need at that point, and if the complainant needs to testify, and almost never does, with regard to third party records, then we can put her or him on the stand, but I don't routinely see that being an issue.

Justice committee  That's a tough question because in the U.S. the jury system is taken as a whole, so you kind of move through it. Right now, we're inserting things in piecemeal and, in our view, it won't work. The issue that we're having is that we're getting closer to that with this whole notion that challenge-for-cause hearings start to become those in the sense that the questions are put to the juror, and then we argue about the juror and then the judge makes a decision.

Justice committee  I can't really comment on that, because it still doesn't make sense in our system, from my point of view. It just doesn't.

Justice committee  Not as much as that, but my friend is correct in some aspects. Look, we have agreed statements of fact all the time. It's not an issue as far as the section goes. If we need to call a police officer, we will. Sometimes they have to wait around. That's what happens. In a lot of the routine police evidence, if two officers can speak to the same thing, we call one of them.

Justice committee  It is in some aspects, because when the Crown applies and puts forward the affidavit and the defence says they want to cross-examine, the judge ultimately makes the decision, but in reality and on the ground, it's not going to happen that way. We're either going to make an agreement between ourselves that it can go in or I'm just going to call the police officer.

Justice committee  On hybridization of offences, there are two basic things we can say about that. Obviously 12 months for the summary offence is fine by us, I guess. The increase from six months to two years is not problematic because Crowns in a sense have to make a decision about whether or not somebody is going to get more than six months or less than six months when we're looking at a summary offence.

Justice committee  Good evening, everybody. Listen, I know it's going to spread around that I may have a flight. I'm not worried about that. The important thing here is that we get this right, so don't hold back on the questions. I'm Rick Woodburn, the president of the Canadian Association of Crown Counsel.

Justice committee  This is rapid: failing to put the record before the court.

Justice committee  It wouldn't matter if it was required or not. Somebody forgot to put the record before the court.

Justice committee  As I already pointed out, with regard to each one of these new sections, which is what they are, really, when you put “shall” in there, we're being mandated to do something that we've never before had to do. While we “may”—

Justice committee  —put the information before the court, and we “may” put in the criminal record...in the past, we didn't have to prove it. Now we have to prove it. That takes us into a different ball game altogether, and that's important.

Justice committee  No, I can't. I couldn't sit here and suggest another alternative word for that.

Justice committee  No, the most problematic part is “shall”. The word “prove” is already in the code. The most problematic part is when you take “shall” and put it with “prove”.

Justice committee  Absolutely. When you raise the standard of proof on all of these sections, which is really what you're asking to do with “shall” prove this, it sets bail hearings on a higher standard, not a lower standard. It makes it harder, not easier, for us to get bail. When you remove the crown's discretion to decide how to conduct ourselves in court, that's also a problem.

Justice committee  That's kind of a quagmire of questions.