Bill C-75 (Historical)

An Act to amend the Criminal Code, the Youth Criminal Justice Act and other Acts and to make consequential amendments to other Acts

This enactment amends the Criminal Code to, among other things,
(a) modernize and clarify interim release provisions to simplify the forms of release that may be imposed on an accused, incorporate a principle of restraint and require that particular attention be given to the circumstances of Aboriginal accused and accused from vulnerable populations when making interim release decisions, and provide more onerous interim release requirements for offences involving violence against an intimate partner;
(b) provide for a judicial referral hearing to deal with administration of justice offences involving a failure to comply with conditions of release or failure to appear as required;
(c) abolish peremptory challenges of jurors, modify the process of challenging a juror for cause so that a judge makes the determination of whether a ground of challenge is true, and allow a judge to direct that a juror stand by for reasons of maintaining public confidence in the administration of justice;
(d) increase the maximum term of imprisonment for repeat offences involving intimate partner violence and provide that abuse of an intimate partner is an aggravating factor on sentencing;
(e) restrict the availability of a preliminary inquiry to offences punishable by imprisonment for a term of 14 years or more and strengthen the justice’s powers to limit the issues explored and witnesses to be heard at the inquiry;
(f) hybridize most indictable offences punishable by a maximum penalty of 10 years or less, increase the default maximum penalty to two years less a day of imprisonment for summary conviction offences and extend the limitation period for summary conviction offences to 12 months;
(g) remove the requirement for judicial endorsement for the execution of certain out-of-province warrants and authorizations, expand judicial case management powers, allow receiving routine police evidence in writing, consolidate provisions relating to the powers of the Attorney General and allow increased use of technology to facilitate remote attendance by any person in a proceeding;
(h) re-enact the victim surcharge regime and provide the court with the discretion to waive a victim surcharge if the court is satisfied that the victim surcharge would cause the offender undue hardship or would be disproportionate to the gravity of the offence or the degree of responsibility of the offender; and
(i) remove passages and repeal provisions that have been ruled unconstitutional by the Supreme Court of Canada, repeal section 159 of the Act and provide that no person shall be convicted of any historical offence of a sexual nature unless the act that constitutes the offence would constitute an offence under the Criminal Code if it were committed on the day on which the charge was laid.
The enactment also amends the Youth Criminal Justice Act in order to reduce delays within the youth criminal justice system and enhance the effectiveness of that system with respect to administration of justice offences. For those purposes, the enactment amends that Act to, among other things,
(a) set out principles intended to encourage the use of extrajudicial measures and judicial reviews as alternatives to the laying of charges for administration of justice offences;
(b) set out requirements for imposing conditions on a young person’s release order or as part of a sentence;
(c) limit the circumstances in which a custodial sentence may be imposed for an administration of justice offence;
(d) remove the requirement for the Attorney General to determine whether to seek an adult sentence in certain circumstances; and
(e) remove the power of a youth justice court to make an order to lift the ban on publication in the case of a young person who receives a youth sentence for a violent offence, as well as the requirement to determine whether to make such an order.
Finally, the enactment amends among other Acts An Act to amend the Criminal Code (exploitation and trafficking in persons) so that certain sections of that Act can come into force on different days and also makes consequential amendments to other Acts.

[Michael Cooper, Conservative, St. Albert—Edmonton, AB]

This will become part of Bill C-75 once Bill C-75 is—

[The Chair, Liberal, Anthony Housefather]

I have to say that I have to rule that question out of order. It has nothing to do with Bill C-75. I'm sorry; it doesn't.

This is a discussion about issues associated with Bill C-75. Mr. Rankin's question talked about an issue and brought it into Bill C-75. You may want to rephrase your question, but it has nothing to do with Bill C-75.

[Sarah Leamon]

I'm actually in favour of the provisions in Bill C-75 for bail. When it comes to reverse onus provisions for domestic allegations, which is what you're referring to, as a criminal defence lawyer, of course, I'm not in favour of reverse onus. It should be up to the Crown to show grounds for detention.

Yes, I think that it could.... I've never really put my mind to it to any great extent with respect to how it could affect women who are charged or marginalized people who are charged, but I do think it could have some significant impacts, adversarial impacts on the LGBTQ2 community, people who are not in heterosexual relationships. If we see that they have a reverse onus all of a sudden to show why they should get out, they may more frequently be detained. That could be very problematic.

Thank you.

[Sarah Leamon]

I would like to elaborate on that.

I actually do have significant concerns about how this is going to impact people accused of sexual offences in this country. My concerns about that are exacerbated by Bill C-51, which I came and spoke to the committee about—it seems like a very long time ago, but it may have been just a few months. In any event, that bill does significantly limit an accused person's abilities to fully make answer and defence, in my view at least, when they are accused of crimes of a sexual nature.

Crimes of a sexual nature are the most stigmatizing things, arguably, that one can be accused of. If Bill C-51 passes in its current form, alongside this amendment under Bill C-75 to preliminary inquiries, it means that the only people who will have the preliminary inquiry process available to them, those who are charged with a sexual offence, are ones who have done so in an aggravated fashion or have caused bodily harm. That's a big concern for me.

I can tell you that in my practice as a defence lawyer, the vast majority of times that I use a preliminary inquiry process is for crimes of a sexual nature, because it is so useful in terms of an investigative or discovery tool. As Mr. Cooper pointed out, 87% of them actually resolve after the preliminary inquiry process. It saves the complainant, in the vast majority of circumstances, from having to testify again and from being re-traumatized.

[Michael Cooper, Conservative, St. Albert—Edmonton, AB]

Thank you, Mr. Chair.

I'll pose my questions to Ms. Hassan or Ms. Leamon.

First of all, there is zero empirical evidence that limiting preliminary inquiries is going to save court time and address the backlog. It's nothing more than anecdotal at best. To the degree, however, that any efficiencies are going to be created, Bill C-75 still provides for preliminary inquiries—and thank goodness it does—for cases involving a maximum of a life sentence. It would seem to me that the preliminary inquiries that take the longest would involve some of those most serious offences, like murder.

Doesn't that reality just further illustrate that this is really going to do absolutely nothing to save court time? We know the statistics, which show that 86% of cases are resolved following preliminary inquiry.

[Geoffrey Cowper, Lawyer, Fasken Martineau DuMoulin LLP, As an Individual]

Thank you, Mr. Chair, and members of the committee.

Thank you for the opportunity to address Bill C-75. Let me say at the outset that I'm here as a private citizen. I represent no firm or organization. I might be what passes as an outsider in this debate, as may come clear in a moment.

The main reason that it was suggested I come here was that in 2012, I authored a reported called “A Criminal Justice System for the 21st Century”. In that report, I identified what I thought to be a culture of delay in our criminal justice system. That term and the report were referred to by the majority, and the minority, in the Jordan decision as one of the reasons that action is required to reduce delay in our systems.

I also served for the better part of a decade on the board of our legal services society, administrating the defence side of the criminal legal system, and I encountered in a managerial sense the issues of administration from that perspective. Otherwise, I'm not a criminal law practitioner. I have occasionally practised criminal law, but only at a high risk to my clients.

I have a couple of general comments and then I have some specific requirements.

First, I think the most useful thing I can do is to shine a bit of a light on the general enterprise. Delays have a hugely long history in our justice system and in almost every justice system that you can study. If you study this carefully, you see that delay is a chronic, recurring problem and that solutions, almost always, are short and temporary fixes that don't produce enduring benefits for the public good.

The first point I would make is to recognize that an enduring solution here will have to be organized around changes that are legislative in nature but that will have an impact on the culture of our system and systemic changes.

I think one of the problems in this debate is that we strive to avoid delay, which ought not to be our goal. Our goal should not be to avoid disaster. Our goal should be to deliver justice in a timely way that's responsive to the public interest and to the needs of the victim and the community generally. All too often we don't state or pursue those goals in any aspects of our system, and I think we need to achieve that cultural change.

The success of the changes you're considering really depends upon not only the wisdom of the changes you make but also in resourcing the execution of those changes. In history, the number of changes that have been passed legislatively that weren't supported by resources is legion.

Second is to gather data as to what's working and not working. One of the difficulties is that people make changes, and then no one sees what happens and gathers the information about the consequences and then responds appropriately. The latter two are difficult to do in any system, but they are the most important. I will come back to the implications of that for specific proposals.

With respect to the elimination or reduction of preliminary inquiries, for most of the people in this room, this debate started when you were in grade seven. The first time that I participated in a debate about whether preliminary inquiries had any modern utility was in the 1980s, and that dates me a little. However, there was a consensus amongst most of the first ministers of this country in the early 1990s that preliminary inquiries were no longer necessary and needed to be radically reduced.

In my respectful submission, the fact that they originated in their current form over a hundred years ago is not a reason to hold on to them. I think we have to let go of the preliminary inquiries and find better ways to address the goals that they originally sought to address.

If I can take one of my earlier remarks, the whole Stinchcombe reality has changed the context in which preliminary inquiries are conducted. I think we have to recognize that and tell the system it has to find better ways to achieve those goals.

With respect to routine police evidence—and I may well be the dissenter in all of this—if you wander around the provincial courts and you're not a criminal practitioner, there seems to be an enormous amount of time spent on nothing, on things that people ought not to spend time on. Taxpayers who do that will say, “I went on jury duty and wandered around the courthouse. What was happening there?” We need to take hold of this issue. I support the proposal to identify categories of evidence that don't require cross-examination as of right. Judges can be trusted to identify and respond to applications where cross-examination isn't necessary.

Most importantly, it's an opportunity to learn. If we do that, we may learn how to discriminate between areas of evidence that require a conventional approach and those that don't.

I would say two things about peremptory challenges. First, there is a waterbed effect that I'm concerned about with respect to peremptory challenges. It's not sleep, which is probably what you were hoping I was going to suggest you do. If we eliminate peremptory challenges, the challenges for cause become much more popular elsewhere. That has been done in other systems. We know that challenges for cause can increase astronomically, because it has happened in jurisdictions in the United States. Those can end up being much more conducive to delay and loss of efficiency, and I think that's a very legitimate concern.

Let me make a remark you may not have heard from others. It relates to what we know about the jury system in Canada. We have made it a criminal offence to study the jury system, because jurors are not allowed to disclose jury deliberations. There is an ocean of legitimate research in the United States looking into the effectiveness of jurors—how they conduct their work, and when they're good and when they're bad—because research is allowed. As a result of section 649 of the Criminal Code, that's not permitted in Canada.

There have been calls from time to time for its qualification, and I strongly suggest that anybody who cares about the jury system would support an amendment to qualify the prohibition to permit legitimate academic research into the Canadian jury system. That proposal has wandered around the policy halls and really should be taken up and dusted off as part of this debate, in my respectful submission.

I have a comment on administrative offences. I looked at this in some detail in British Columbia, and I would say the astronomical increase in administrative offences justifies doing something differently with them. What to do with them brings up a fair amount of debate, but I would hope that after due consideration, we would think differently about the terms of release and how we supervise them.

My final point is not a legislative one but an observation about a critical question of the success of any package of proposals. If the resources found for this are unequally parcelled out among judges, the Crown, and police officers, and we don't properly resource defence counsel through the legal aid plans in Canada, they will not succeed. I can guarantee that. Legal aid is still the poor sister in these debates and discussions, and in my respectful submission, it can be the source of collaborative and effective partnership in making our system more effective.

Thank you.

[Sarah Leamon]

Thank you.

Thank you to all the members of the committee for having me here again. It's always a pleasure and an honour to appear before you.

I'm going to be limiting my submissions this evening to the issue of preliminary inquiries. We know that Bill C-75 endeavours to make a number of wide, sweeping amendments to the Criminal Code, and most of those amendments are being made in an effort to hopefully modernize the justice system and to help curb delay and to conform with the presumptive ceilings as established by Jordan. I certainly applaud those efforts.

As the committee is also well aware, the purpose of preliminary inquiries is to evaluate and test the strength of the Crown's case, not to make any binding determinations with respect to guilt. They are currently available for all indictable offences.

Bill C-75 seeks to restrict the availability of these inquiries to offences committed by adults that are punishable by life imprisonment. It also seeks to strengthen the judge's powers with respect to limiting the range of issues that can be explored and the witnesses that can be called. It's important to note that the Criminal Code, under section 537, already allows a judge to have general powers to regulate the preliminary inquiry process, but of course this bill seeks to make those much stronger.

The guiding rationale behind this appears to be squarely in line with attempts to curb delay. Now, we know that when a person does decide to go ahead with a preliminary inquiry, the matter will take significantly longer to conclude and is likely to use more judicial resources. That is supported by statistics from Statistics Canada, as well as The Canadian Bar Association, and I've provided footnotes for those statistics in my brief, which has been provided to members of the committee in advance. It's also available online.

While it is true that it does take longer, the same studies have also revealed that very few people actually ever elect to undergo this process. The vast majority of people who are charged with criminal offices do not engage in a preliminary inquiry, and depending on the statistics that we're looking at, the frequency of these inquiries is between about 2.8% and 5% of all criminal matters, which is minute. There are also statistics to support that the prevalence of these inquiries is rapidly and steadily declining over the years. There are all kinds of explanations or theories about why that is, but more likely than not it's because of heightened disclosure requirements following the Stinchcombe decision.

That doesn't mean that preliminary inquiries are irrelevant. It doesn't mean that they should be done away with in the interests of curbing delay either. In fact, because they're so rarely used, the delay that we're seeing in our criminal justice system cannot be attributed, in my view, to preliminary inquiries; doing away with them will create perhaps some decrease in delay, but it could be negligible at best.

There's evidence to also suggest that doing away with preliminary inquiries can or may actually contribute to delay, because preliminary inquiries are very helpful at streamlining criminal proceedings, and when they are used, they're helpful to defence counsel, to Crown counsel, and to an accused person.

Preliminary inquiries are useful are the discovery of witnesses, both civilian witnesses and police witnesses, and that's extremely useful for defence counsel and for an accused person who doesn't have the benefit of interacting with these witnesses prior to trial and doing pretrial interviews.

They're also useful in uncovering potential charter issues that can be argued at trial. They're useful in eliminating weak charges and in fostering resolution discussions that are more meaningful. They're also extremely useful at ensuring that trial issues are focused and witnesses that perhaps don't need to be called aren't called at trial. For the Crown, a preliminary inquiry may reveal insurmountable weaknesses or challenges in their case that may ultimately lead them to either withdraw the charge or stay the charge or to engage again in more meaningful resolution discussions. For defence, it can reveal the gravity of the evidence against the accused person and it may elicit an early guilty plea, which can be taken as a mitigating circumstance in sentencing, which of course is to the benefit of your client.

They're also a very useful tool for people who are unrepresented. As my friend Ms. Hassan has mentioned, not all people can afford the benefit of a lawyer. The preliminary inquiry allows a person who's unrepresented to interact with the criminal justice system in a meaningful way without having any jeopardy with respect to their liberty. It allows them to familiarize themselves with evidentiary rules and procedures and it allows them to appreciate the evidence in the case against them and make an informed decision about what they should do—proceed to trial or perhaps enter a plea.

In my view, limiting preliminary inquiries in the way that has been suggested in Bill C-75 will have a disproportionate impact on these people who are more marginalized and who cannot afford the benefit of a lawyer.

We know that the allegation of a criminal offence is one of the most stigmatizing things that anybody can face. It can significantly limit them in terms of creating new barriers and also compounding already existing barriers. For that reason, accused people do have the right to defend themselves, and it's a charter-protected right to do so under the full ambit of the law.

Procedural protections like these are extremely important; in fact, they're essential. The decision in 2016 in R. v. Catellier was just one recent judgment that recognizes the importance of procedural fairness and the preliminary inquiry process. In that case, it was described as a procedural protection for an accused person.

As a criminal defence lawyer, I do, at the end of the day, have significant concerns about limiting such a valuable exploratory tool that has been made available to people who are accused of criminal activity in this country. I have particular concerns about doing so without the evidentiary basis for it.

Delay in the criminal justice system is, of course, in nobody's best interest. It's not in the interest of the community or the complainant. It's not in the interest of witnesses, and it's not in the interest of the accused person either. They do want to have a final resolution to the matter. If they're detained, they want to ensure they're spending the least time possible in pretrial custody. In order to curb delay and to better deal with this issue of delay and efficiency, I would respectfully suggest that instead of limiting inquiries in this manner, we should adopt a more practical, multi-faceted and nuanced approach to dealing with these issues, such as better practice management.

I've made a list of those suggestions on page 7 of my brief. Some of those, off the top of my head, would be ensuring that counsel is giving more appropriate estimates for trial time and ensuring adequate judicial resources, particularly in remote and growing communities, and so on. I think that these kinds of concrete approaches will ensure that we are combatting that issue of delay while also allowing accused people to have this right to a preliminary inquiry and to have the ability to defend themselves in a proper and adequate manner.

I thank you all for listening to my submission on this. I do look forward to your questions.

[Sayeh Hassan]

Thank you for the opportunity to address the committee on proposed Bill C-75, and in particular on the preliminary hearing. This is the first time I have appeared before the committee, and it's a pleasure to be here.

I have practised as a criminal defence lawyer with Walter Fox & Associates for over a decade. I chose the field of criminal defence in part because of my background, being born in Iran and having lived under an oppressive regime.

I'm focusing my submission on the preliminary hearing, and I'm very happy to do so because I believe the preliminary hearing provides an essential procedural protection for all accused, but in particular for those who are marginalized, for the accused who can't afford a lawyer, for the accused who may have mental or addiction issues, and also for those who are overrepresented in our criminal justice system, including indigenous people.

I want to briefly touch on the statistics that we do have. We know that between 2015 and 2016, only 3% of the total number of charges that were before the court had preliminary hearings, and we also know that in the same years, of the charges that had preliminary hearings, only 7% went over the presumptive ceiling.

There are also statistics that indicate cases that have preliminary hearings are much more likely to get results in the Ontario courts rather than being taken to the Superior Court for a trial, and as someone who spends quite a lot of time in both the Ontario Court of Justice and the Superior Court of Justice, I can attest to the fact that the resources in the Superior Court of Justice are extremely limited and that anything that the government does to ensure that cases do not unnecessarily go up to the Superior Court I think would be extremely beneficial.

These are the statistics we do have, but there are also information and statistics that we don't have. To the best of my knowledge, there are no statistical studies that show that eliminating the preliminary hearing for certain offences would lead to speedier trials, thus protecting the accused's right to be tried within a reasonable time. We don't have these statistics, and if the government is seeking to eliminate a very important procedural protection, my recommendation for the government and for this committee would be that the government should at least invest the time and the resources on those empirical studies to ensure that the desired result is going to be achieved if we get rid of those procedural protections.

I would also recommend that the results of those studies be shared with the public.

I want to focus the rest of my submission on the impact of the elimination of the preliminary hearing on the marginalized groups. I think that's very important and I know that's a concern for the Honourable Minister of Justice. The charter statement for Bill C-75 clearly says that the bill seeks to address the overrepresentation of particular groups within the justice system, including indigenous persons and those with mental illness issues and addictions, and I would add another group: the group that doesn't have the economic resources to hire and retain lawyers.

Let's talk about how eliminating the preliminary hearing would negatively affect these individuals.

One of the areas, I believe, would be the use of private investigators. Eliminating the preliminary hearing would lead to a wider use of private investigators by the defence, and I'll give you an example. There are cases where we as the defence need to find out something about the background of a complainant or a witness. That type of information is not the kind of information that would be disclosed by the Crown. We would explore that during the preliminary hearing, but if we don't have a preliminary hearing, defence would hire private investigators to obtain that information.

That puts at a disadvantage individuals who in the first place are not able to hire a lawyer and who can't hire an investigator. If they don't have a preliminary hearing, they're seriously disadvantaged compared to individuals who do have the resources to hire lawyers and private investigators.

Another issue, of course, is the disclosure issue, and yes, the Crown has an obligation to disclose material—very true—but there's a real distinction between disclosure and organized disclosure. When I first start practising, we used to get huge stacks of paper disclosure, and everything was just stapled together. I would have to pull everything apart, review everything, and then see what goes where and what's important, what's peripheral and what's missing.

In recent years, things have changed, and now we've moved away from paper and toward disc disclosure. We obtain discs, and then we have to use a computer to upload the disc, print the disclosure, and then go through that entire process of reviewing the disclosure.

That's all well and good for me. I am a trained lawyer. That's what I do. It's a different story, however, for those accused who can't afford to hire lawyers. These are people with no legal education and often no formal education. Some of them suffer from addiction issues or mental health issues that may impact their ability to function properly, but they're expected to go through this disclosure and figure out what's what, and what case they're facing.

The benefit that the preliminary hearing provides for these individuals is that the Crown will organize the evidence against an accused at the preliminary hearing. The witnesses will testify in a sort of logical and organized manner, and the accused who doesn't have a lawyer is able to see for himself or herself what case he or she is facing.

Another advantage is that the preliminary hearing provides the accused with the opportunity to sit in a real courtroom and see how things function as well as the opportunity to be able to cross-examine witnesses, so that the first time this person goes to court, it is not at the Superior Court, where they're facing trial and their freedom is at risk. Not having this opportunity, I would submit to you, would put unrepresented individuals and marginalized groups at a very great disadvantage.

I know that there is some criticism of preliminary hearings, and one of the criticisms is that preliminary hearings function as sort of discovery hearings and that not much happens during these hearings. I don't agree with that, and I've set out what my ideas are about the preliminary hearing in my brief. My recommendation is that if the government is concerned about that issue, there could be more legislation to sort of bolster the preliminary hearing. You could broaden the jurisdiction of preliminary hearing judges, for example, to allow them to order the Crown to provide disclosure. Currently, they're not able to do that.

We can broaden the jurisdiction of the preliminary hearing judges to allow them to hear charter applications. That becomes very important when the only evidence there is against an accused has been obtained as a result of a charter violation, so if we can eliminate that evidence at the preliminary stage, then it doesn't go to trial, where we would get the same result eventually.

The last thing I would recommend would be the exit pretrials. Right now they are done sort of informally, but I find it extremely useful when a preliminary hearing judge sort of sets out the strengths and the weaknesses of the case so that both the Crown and the defence are able to make an informed decision on whether they want to move on to trial or not.

Finally, I want to leave you with one thought. Efficiency in the justice system is important, but it's not the most important thing. You never hear about delays and inefficiencies under dictatorship regimes. People are arrested, tried in five-minute trials behind closed doors, imprisoned, and executed very efficiently in a very speedy manner.

We live in Canada, however, in a constitutional democracy, and I think that both we as citizens and also our elected government need to ensure that an accused has a fair trial and a fair fighting chance within the criminal justice system when defending themselves against a state with infinite resources.

Thank you.

[Brian Gover, President, The Advocates' Society]

Thank you very much, Mr. Chair.

My name is Brian Gover, and I'm the president of The Advocates' Society. As you've just heard, Mr. Dave Mollica joins me. He is our director of policy and practice.

Thank you for the opportunity to make oral submissions to your committee on Bill C-75. The Advocates' Society has also provided written submissions to complement today's oral presentation.

The Advocates' Society was established in 1963 as a non-profit association for litigators. We have approximately 6,000 members across Canada who make submissions to governments and other entities on matters that affect access to justice, the administration of justice, and the practice of law by advocates. This is part of our mandate.

The membership of our society includes Crown prosecutors and members of the criminal defence bar, so the submissions I make this evening reflect the diverse and considered views of our membership.

The Advocates' Society applauds the government for its willingness to implement reforms with a view to enhancing efficiency within our criminal justice system. The system is, as the Minister of Justice stated in her remarks to the House of Commons on May 24, "under significant strain". This strain is felt by all those who are part of the justice system, including judges, lawyers, litigants, witnesses, and particularly indigenous people and marginalized Canadians living with mental illnesses and addiction who are overrepresented in the criminal justice system, both as victims and as accused persons.

However, The Advocates' Society has concerns about certain mechanisms that Bill C-75 proposes to use to implement these reforms, as they could result in a compromise of the rights of victims and accused persons. In our written submissions, we have highlighted the areas where The Advocates' Society urges the committee to further scrutinize the provisions in Bill C-75. Today I will focus my presentation on two key areas. One is the elimination of peremptory jury challenges and the other is the acceptance of routine police evidence in writing.

With respect to the elimination of peremptory jury challenges, The Advocates' Society is concerned that Bill C-75's proposal to eliminate the peremptory challenge is not the product of careful study or extensive consultation. The Advocates' Society recommends further study and stakeholder input on other possibilities for reform before any measures are taken.

The peremptory challenge provides a mechanism to both the defence and the prosecution to help ensure an impartial and representative jury. It also gives the accused person a certain measure of control over the selection of the triers of fact who will determine his or her fate in a criminal proceeding. The criminal defence bar overwhelmingly believes that the peremptory challenge is a vital tool in protecting the fair trial rights of an accused person, particularly where that person is indigenous or a person of colour. The defence can exercise peremptory challenges to attempt to secure a jury that is more representative of the Canadian population.

The stated rationale in the minister's charter statement for eliminating peremptory challenges is that either the Crown or the defence can use them in a discriminatory way. The possibility that peremptory challenges may be abused should not be used as a rationale for their elimination. Given that peremptory challenges do serve a useful social function, the focus ought to be on reform rather than abolition.

If the concern is with the discriminatory use of the peremptory challenge, then it is the discriminatory use that ought to be eliminated, not the peremptory challenge itself. The few courts in Canada to have considered these issues have held that the Crown's discriminatory use of peremptory challenges violates subsection 11(d) and section 15 of the Canadian Charter of Rights and Freedoms and deprives the accused of the right to a representative jury.

In the United States, when counsel believe that their adversary has used a peremptory challenge for a discriminatory purpose, they can mount what is termed a Batson challenge—based on a 1986 decision of the Supreme Court of the United States in Batson v. Kentucky—and ask that the judge demand a racially neutral reason for having exercised the peremptory challenge. If the judge finds that the objecting party has made a first impression or prima facie case, the burden then shifts to the party exercising the peremptory challenge to justify its use.

The mere existence of the Batson process has been shown to have a chilling effect on discriminatory conduct in the United States in jury selection. The Advocates' Society recommends further study and consultation with stakeholders on the use and utility of the peremptory challenge. Alternatively, our society recommends adopting a Batson-type procedure in Canada instead of abolishing the peremptory challenge.

The second area is with respect to proposed amendments to the provisions of the Criminal Code dealing with what is termed “routine police evidence” in writing. The Advocates' Society has concerns that these provisions will not enhance efficiency, will infringe on the rights of the accused, and may be constitutionally vulnerable. The Advocates' Society recommends that these proposed provisions be removed in their entirety from Bill C-75.

The breadth of the definition of “routine police evidence” is such that the vast majority of evidence that is provided by police officers in criminal trials would be admissible in writing. This would effectively rob accused persons of their opportunity to test the credibility and reliability of Crown witnesses through cross-examination, which has been uniformly heralded as a central aspect of our Canadian criminal justice system and a constitutionally protected entitlement for those who stand accused of criminal offences.

Cross-examination allows defence counsel to examine potential frailties or inconsistencies in police evidence and determine whether disclosure has been fully made. Uncovering issues with regard to Crown evidence can assist in reducing wrongful convictions. Large-scale restrictions on the accused's right to cross-examine the Crown's witnesses will not necessarily make for a criminal justice system that is more efficient while still fair. We know of no empirical data to support such a claim. It must remain the responsibility of the trial judge in enforcing the rules of criminal procedure and evidence to manage trials such that cross-examination that is abusive, redundant or irrelevant does not take up court time.

In combination with the proposal to eliminate preliminary inquiries in all but the most serious cases, admitting Crown evidence in this fashion would pose a potentially insurmountable hurdle to making full answer and defence. In addition, putting the onus on the accused person to justify their request for the Crown's evidence to be presented orally would likely require the accused to reveal aspects of their defence to the Crown. This may interfere with the accused's constitutionally enshrined right to remain silent in the face of a criminal allegation. The Advocates' Society recommends that clause 278 and other proposed sections dealing with routine police evidence be removed in their entirety from Bill C-75.

Thank you, Mr. Chair and members of the committee, for giving The Advocates' Society the opportunity to make submissions this evening. We would be pleased to answer any questions your committee members may have.

[Stephanie Heyens, Senior Criminal Litigator, York Region, Legal Aid Ontario, As an Individual]

Thank you for inviting me.

I'm here to present my concerns with clause 278 of Bill C-75. You might recall that clause 278 of the bill seeks to add a new section to the Criminal Code of Canada, which would be section 657.01. It would allow for the admission as evidence at any criminal proceeding, including trials, of what is defined within that proposed section as “routine police evidence”. That would be done via an officer's sworn statement. The section therefore seeks to replace the direct in-court testimony of a police officer with an affidavit or a solemn declaration.

Legal Aid and I do not support the enactment of this amendment. It defines “routine police evidence” far too broadly. As a consequence, it will abrogate on many fundamental rights of due process that are protected under sections 7 and 11 of the Charter of Rights and Freedoms. We believe it will create more delay in criminal cases coming to trial, not less.

Finally, we also believe that the section is unnecessary because the common law and the Criminal Code already have procedures to excuse police officer testimony in appropriate situations.

In our contention, “routine police evidence” is defined far too broadly. The phrase evokes images of uncontroversial activities such as serving subpoenas on witnesses or Canada Evidence Act notices on accused persons, but instead, the proposed section includes a definition that has included things like “observations”, “identifying or arresting” accused persons and the “gathering” of physical evidence. These activities may be everyday routine for police officers, but for an accused these activities of course go to the core of the case against them, and these police observations and the evidence gathered by police are often the only evidence of guilt.

Even more problematic is the fact that the legislation allows for this definition of routine police evidence to remain open, and therefore courts will be able to add additional police officer conduct to an already overly broad list. Because this definition is so broad, clause 278 will breach many fundamental due process rights. Some may argue that the practical effect of filing a sworn statement of a police officer is to provide evidence identical to what they would provide in court in direct testimony, but that's just not true. A sworn statement can be drafted over many days while memories falter and change.

Moreover, direct testimony in open court allows a trier of facts to assess the credibility and reliability of the allegations partially by observing the witness's demeanour and body language while testifying. The Court of Appeal for Ontario has just revisited this issue of observing demeanour evidence. Denying that tool to judges and juries could very well lead to an increasing number of appeals being filed, and maybe even to wrongful convictions.

This result is bad enough, but when I picture how a trial will proceed upon the filing of a police officer's solemn declaration, I see consequences that pierce the very heart of due process and fundamental rights for accused persons. The first practical effect of this proposed section is that the sworn statement of the police officer will be admitted for the truth of its contents. Consequently, the trial judge must begin her analysis of the Crown's case presuming that the contents of the sworn declaration are true. Absent any obvious internal inconsistencies, a judge would have to begin with this basis that there's no reason to question the allegations.

Where the contents of that affidavit, that sworn statement, contain evidence of guilt, the defendant must defend herself against this unchallenged sworn document. This reverses the burden of proof from the Crown to the defendant. No longer is the accused innocent before guilty, but guilty and now having to prove their innocence. Reversing the onus at a criminal trial is not a minor infringement of an accused's rights. It's a core principle of our criminal justice system that if a person is alleged to have committed a criminal act that could put them in jail, it's the Crown's onus to prove it.

Also, because a defence lawyer cannot cross-examine a piece of paper, meeting this burden becomes unfair. Questioning witnesses in cross-examination often erodes their credibility or reliability sufficiently to raise a reasonable doubt, therefore creating an acquittal. Cross-examination is the first and best tool for contesting an allegation, and it exposes something approaching an objective truth. It's the manifestation of our fundamental right to confront one's accuser. It's why we refer to the common law as “adversarial”. Limiting cross-examination for any purpose must be acknowledged as a fundamental shift that favours the Crown while prejudicing the accused. I think that at its core this is what clause 278 in the bill seeks to do. It seeks to abrogate that fundamental right to cross-examine.

Because clause 278 replaces the testimony of police officers with a sworn declaration that's presumed to be true, the only way for the accused to defend herself will be to call her own witnesses, and often the only witness other than the officer is the accused herself. This, therefore, means that she loses her right to silence. She's forced onto the stand. The right to silence, of course, is another fundamental right of our due process, and no person should ever be forced to respond to a bald assertion unless it's withstood challenge by cross examination or unless the accused chooses to.

Finally, where the defence seeks to contest the Crown motion to have a police officer's evidence admitted at trial via sworn declaration, the defence will have to disclose defence evidence. That evidence must be included in the application materials filed with the judge and with the Crown. In this way, the proposed legislation runs contrary to the golden thread of criminal law that says that the defence has no obligation to disclose its evidence unless and until the Crown has posed its case.

Moreover, it's not hard to imagine—and this isn't meant to impute any bad faith—that once the prosecution is alerted to potential weaknesses in their police officer's testimony, they are going to move to shore up those weaknesses. That's going to lead to further investigation, which triggers more disclosure obligations on the Crown and, therefore, further delay in coming to trial.

This begins to explain why the proposed section will require more time for criminal cases to get to trial, not less. The section creates an additional motion for the Crown and defence to litigate, and to admit this foreign statement of a police officer at trial, the party seeking its admission, generally the Crown, must file and argue that motion. This motion will have to be argued before the trial can even be scheduled, because if you don't know how many witnesses are testifying, you don't know how much time to set aside for the trial.

For unrepresented accused, the proposed section will result in even more trial delay. In any case involving an unrepresented accused, the trial judge bears the responsibility of ensuring that the accused understands the effect of admitting documentary evidence. The section will require that judges grant adjournments to unrepresented accused so they can find counsel; consult with counsel; decide how admitting this document, this sworn affidavit; will impact their particular case, and then how to proceed. Wrongful convictions are likely to result, and certainly the number of appeals is likely to rise too.

Finally, proposed section 657.01 is unnecessary. The common law and the Criminal Code both contain trial procedure that allows police officers to be excused from testifying in appropriate circumstances. Before or even during a trial, defence makes admissions of fact that would otherwise have been proven via witness testimony. Defence and Crown also can sometimes agree to admit certain facts as true in an agreed statement of facts, which is drafted and filed at trial, and these types of admissions aren't limited to routine police evidence. It can include any evidence that both parties agree is uncontroversial.

In addition, part XVIII.1 of the Criminal Code consists entirely of case management legislation, which can be invoked by pretrial judges to streamline trials and to manage the scheduling process when there are complicated or very contentious proceedings.

In conclusion, clause 278 of Bill C-75 will harm the criminal process more than it helps. Its application will carve away at fundamental due process rights as guaranteed by the Charter of Rights and Freedoms while causing further delay when law already exists that allows for the waiver of uncontroversial police evidence.

Legal Aid and I therefore recommend that clause 278 be entirely excised from Bill C-75.

Thank you.

[Garrett Zehr, External Relations Committee Member, Society of United Professionals]

Thanks, Kendall.

For the final part of our submissions, we'd like to address the proposed regime to deal with the offences of the administration of justice, particularly when there's no harm involved in those offences.

Now, as I believe this committee has heard, these types of offences do play a considerable role in clogging up the courts. I know this committee heard earlier this week from Jonathan Rudin of Aboriginal Legal Services, who specifically talked about the grossly disproportionate impact that these kinds of charges have on indigenous persons. I've seen this from my own experience. I would also add that I have seen how these kinds of charges can also have a disproportionate impact on other vulnerable communities as well, particularly those which are over-surveilled by the police.

As Bill C-75 currently reads, it's left to the police officer's discretion as to whether a criminal charge is laid for an offence against the administration of justice or if the alleged breach will be referred to a judicial referral hearing. Unfortunately, in our experience, and again what we see on a day-to-day basis, is that oftentimes police officers aren't showing a lot of restraint when it comes to laying charges. Obviously this isn't always the case, but this is something that we see.

I want to give one example of what I think highlights our concerns about charges related to the administration of justice offences when there is no harm involved.

Fairly recently, there was an individual in our bail courts who was arrested for breaching a curfew condition a few weeks prior to that. Now, this was despite the fact that the substantive charge that he was out on bail for had already been withdrawn, and when he was arrested he was no longer even on those bail conditions. He was held in custody overnight as a result and brought to court the next day, and ultimately missed a day's work because of this.

I'd like to read to you Justice Iacobucci's comments, a really profound quote in R. v. Hall, which says:

Liberty lost is never regained and can never be fully compensated for; therefore, where the potential exists for the loss of freedom for even a day, we, as a free and democratic society, must place the highest emphasis on ensuring that our system of justice minimizes the chances of an unwarranted denial of liberty.

In conclusion, we submit that administration of justice offences that don't cause harm shouldn't be prosecuted at all. The police should use their discretion in these circumstances to either take no action or, as is proposed in the legislation, to issue an appearance notice for that individual to appear at a judicial referral hearing.

I'd be happy to answer any questions.

[Kendall Yamagishi, External Relations Committee Member, Society of United Professionals]

Thank you very much for the opportunity to speak to you today on behalf of our union, the Society of United Professionals, which represents more than 350 legal aid lawyers in Ontario.

Garrett and I are both duty counsel criminal defence lawyers. Today we hope to bring you our perspective as lawyers who work every day on the front lines for vulnerable and low-income accused persons.

We have decided to focus our submissions on police and judicial releases, as well as offences against the administration of justice. I'll begin by talking about the over-imposition of release conditions and how we believe that Bill C-75 could actually exacerbate this problem.

Section 11(e) of the charter guarantees the right to reasonable bail, and the Supreme Court of Canada has said that a key component of this right includes the conditions of release. Jurisprudence has established that there must be a nexus between the allegations and the conditions and that conditions should not be punitive, since everyone on bail is presumed innocent. We must keep in mind that individuals who are presumed innocent are often on these conditions for many months, if not years, while they wait for trial.

I'd like to recount a story that Garrett told me about one of his clients. This young man was released by the police and put on a curfew despite the fact that he didn't have a record and the allegations actually took place during the day. He was subsequently arrested for breaching the curfew condition and brought to court. With the assistance of duty counsel advocating on his behalf and the oversight of a trained justice, this arguably unconstitutional condition of a curfew was removed, but not until after he was forced to spend an extra night in jail and face a new charge for breaching his bail. Clients will agree to almost anything to get out of custody. In moments of desperation, I've literally had clients say to me, “Miss, I will do anything you ask me to; just please, I need to get out.”

Unfortunately, the relationship between the police and our communities is often one of a gross power imbalance. Our clients are people with brain injuries, addictions issues, mental health issues, and developmental disabilities, which means they bump into the law more than others do.

Within the law of bail, jurisprudence has developed that constrains the ability of the court to impose unreasonable and inappropriate conditions, but this bill, as it reads now, moves away from those standards. It allows police to impose conditions that could not be lawfully imposed by a judge or justice of the peace according to current jurisprudence. What’s worse is that police can impose these conditions without the same scrutiny that the courts are subjected to. There’s no lawyer standing beside you when an officer is typing up the undertaking they are going to hand to you to sign.

Police can already release a person on an undertaking, and they should be doing more of this. The proposed changes in Bill C-75 don't give police expanded release powers that they don't already have. They already have this power. Bill C-75, however, expands the power to impose additional conditions.

Our concerns about the over-imposition of conditions also extend to elements of Bill C-75 that deal with bail in the courtroom. As I mentioned previously, Supreme Court of Canada case law makes it clear that terms of release may “only be imposed to the extent that they are necessary to address concerns related to the statutory criteria for detention and to ensure that the accused is released.”

As Bill C-75 reads now, it appears the courts may no longer be limited by this principle when the accused person is facing a reverse onus situation. In our line of work, reverse onus is not a rare occurrence. It occurs, for example, when my client, who was out on bail for stealing a case of beer, is charged again with entering the same liquor store, thereby breaching his bail conditions. Bill C-75 states that when an accused is released on a reverse onus bail, “the new release order may include any additional conditions described in subsections (4) to (4.2) that the justice considers desirable.” This makes what the justice considers desirable the new legal standard. This, of course, is a far cry from the current standard in the jurisprudence, which is “only to be imposed to the extent they are necessary”.

While the amendment may not have intended to deviate from the standard of necessity, the language must be written in a way that does not invite an overly broad application of conditions. We've outlined some of our proposed amendments in our written submissions.

When it comes to reverse onus on domestic charges, we join the Barbra Schlifer Commemorative Clinic. In their submissions, staff expressed their concerns about the consequences this might have on female accused. I should note that Barbra Schlifer Commemorative Clinic is a clinic that provides services to women who themselves are survivors of domestic violence.

Domestic violence is about power and control. It therefore becomes dangerous to craft legislation around assumptions about who has power and control without accounting for who can leverage the power of the state.

We need to consider the over-prosecution of women whose voices are often forgotten: racialized women, indigenous women, those who are not in heterosexual relationships. As duty counsel, we frequently see women who are charged with domestic assault. Many of them are themselves survivors of domestic abuse.

I personally have had dealings with a female accused person whose abusive partner charged her as a means of psychological control. In shifting the onus onto the accused to justify why she should not be detained by the state, we're only exacerbating the power imbalance that she faces. While the reverse onus provision only applies when the accused has been previously convicted of an offence related to intimate partner violence, in our experience, unfortunately, self-represented false guilty pleas are common. There are many women who have convictions for domestic assaults from relationships in which they were not those in a position of power.

Courts are already required to consider an accused person's criminal record, including past convictions for domestic assaults and the surrounding circumstances, when making a determination about bail, namely through the consideration of the secondary ground of detention. However, expanding the reverse onus provision is overly broad and inconsistent with the presumption of innocence. The burden should always lie on the state to deny a person's liberty. Rather than expanding the reversal of onus on the accused, we advocate for further reduction of the reverse onus provision.

The reverse onus provisions have particularly punitive effects on our clients, who often, due to disabilities and other vulnerabilities, incur frequent charges for minor offences and for drug possession for the purpose of trafficking for reasons that we have expanded on in our written submission.

I'll turn it over now to my colleague.

[Iqra Khalid, Liberal, Mississauga—Erin Mills, ON]

Thank you, Chair.

Thank you to the witnesses. I don't have a lot of legal experience, but I'm finding this study to be very fascinating.

We've heard again and again over the past three years I've been on this committee that our bail system needs reform. As it's outlined right now in Bill C-75, do you think it will address at least some of the challenges faced by our bail system? Will it reduce delays? Will it unclog the system in any way?

Mr. Doob.

[Murray Rankin, NDP, Victoria, BC]

This is a really eminent panel. I'm really grateful to all of you for being here. I'm well aware particularly, Dr. Doob, of your eminent career in criminology.

You started, Professor Doob, talking about your experience with the youth justice legislation, and moving it from aspirational to operational. You then said that you agree with the goals of Bill C-75, but you're not sure that it's actually going to change the behaviour. You said that we have to change the behaviour if we're going to make any difference, and then you said in some cases the bill simply restates what the case law is, for example Antic.

How do we do that in a meaningful way? You gave one example of how we could do that when you said that we could require reasons to be given if we're going to use more sureties, more conditions, or more onerous conditions. Isn't it, however, likely that will just amount to a judge checking a form or there will be some standard rote language, like what we have with jury charges and so forth? You check a box, you feel good, but nothing really changes.

I'm just giving you an example of one of your suggestions, and I'd love you to elaborate.

[Dr. Jane Sprott, Professor, Ryerson University, As an Individual]

Thank you.

I've been asked here to comment on Bill C-75 and the amendments related to bail and administration of justice offences, or failing to comply. Much of my research over the past decade has been around the Youth Criminal Justice Act and issues around bail and bail release conditions.

With respect to the amendments focused on the YCJA and bail within Bill C-75, the focus appears to be both on conditions placed on youths and on responses when a youth fails to comply with such conditions. Similar to my colleagues here, I think both issues desperately need to be addressed, and I applaud any efforts to try to address these problems.

The research tends to find that there are numerous broad-ranging conditions placed on youths, and many times those conditions appear to be crafted with broad social welfare aims that go far beyond the purpose of release conditions. Girls may be especially likely to be subject to such conditions.

The use of these broad welfare or treatment-based conditions is problematic for a variety of reasons, one of which is that the accused is legally innocent at this stage and very little is known about him or her, so however well intended these broad therapeutically focused conditions are, they're unlikely to achieve their desired goals and can actually do more harm in a variety of ways, one of which is setting the youth up for failing to comply. Not surprisingly, the more conditions placed on a youth and the longer the youth is subject to them, the more likely failing to comply charges will occur.

The thrust of the amendments within the YCJA is in the right direction. Bill C-75 aims to prohibit the imposition of bail conditions as a substitute for mental health or other social welfare measures. Bill C-75 also attempts to remind justices that bail conditions can be imposed only if it's necessary to ensure court attendance or for public safety, or if the condition is reasonable having regard for the circumstances of offending behaviour, or if the young person will reasonably be able to comply with such a condition. Bill C-75 also attempts to address responses to failing to comply with conditions, such that various alternatives to charging have been presented within proposed section 4.1.

This is all in the right direction, but again, similar to what both Professors Webster and Doob have said, I fear this may not achieve much change in practice. Learning from the successes of the YCJA, we see that for change to occur, as Professor Doob has mentioned, there needs to be education and training around the changes, and the changes need to be operational or directive, rather than somewhat vague aspirational goals. For local on-the-ground practices to change, people need to know about the changes and understand the intent of them.

Part of the reason why the YCJA has been so successful in selectively using court and custody was undoubtedly due in part to the fact that it was an entirely new piece of legislation. A new act signalled new practices. In effect, it forced a new mindset. In addition, there was considerable education with considerable training for those administering the law years before the act came into force. This was likely indispensable not only in ensuring broad buy-in for the act. It also likely helped ensure operational support from those on the ground administering the law. The same needs to be done here, or nothing is likely to change.

Moreover, although it's all in the right direction, the amendments are still somewhat vague, with little directive guidance. Again, learning from the success of the YCJA, the greatest successes have been linked to the sections that have the clearest operational directives, rather than aspirational goals. Assuming, for example, that police and Crowns already believe they're engaging in best practices and pursuing charges for failing to comply only when necessary, it's not clear if the proposed alternatives to charging within proposed section 4.1 will be enough to change those current practices, especially if there's little by way of education or training about the changes and the intent of them.

Similar issues arise with respect to the imposition of conditions. It's not clear if the proposed amendments related to the imposition of release conditions will lead to greater restraint. There's actually very little guidance or direction.

In this case the entry point for much of what has been happening with respect to release conditions is through the Criminal Code and the ability to add on any other reasonable conditions as the justice considers desirable. It's not entirely clear how the proposed YCJA amendment—with yet another statement that conditions be reasonable, having regard for offending behaviour—will reduce the number or range of conditions placed on young people. If there is a desire to restrain the imposition of conditions placed on youths, then Bill C-75 should probably directly address that.

Moreover, I share the same concerns as my colleagues with respect to the expanded police discretion. It's a question mark if they use it, but if they do, it may well lead to an increase in the use of conditions, the very thing that at another level there's an attempt to restrain.

I suppose my points are then threefold. First, if there's any hope of changing release conditions there has to be education and training. Do not think that if you pass law everything will necessarily change to fall in line with what Parliament intends. Second, if the desire is for restraint in the number and range of conditions placed on youths, then that should be directly addressed, rather than additional aspirations to be reasonable. If expanded police powers to impose conditions are provided for, they may actually be used. Building in more procedures around responding to “failing to comply” offences seems to me to be focusing a little more on the symptom of the problem rather than the problem itself, and that's the use of conditions.

Finally, as Professor Doob has mentioned, the limits put on bail conditions are much more specific for youths than that for adults. If putting on broad-ranging sometimes intrusive therapeutically based conditions is seen as inappropriate with respect to youths, I question why that's not also the same for adults. If it's important for justices to consider whether a youth can actually comply with a condition that's going to be imposed, why is that not also relevant for adults?

Similar issues exist in the adult system, but the problems are profoundly more difficult since the Criminal Code legislation is far less directive than the YCJA and, indeed, more ambivalent and at times, as Professor Doob has pointed out, contradictory with respect to bail.

There are very valid arguments that, again, following the YCJA example, it may be time to completely rewrite adult bail laws. That may necessitate the change in mindset and practice more so than the continued tinkering with amendments. Perhaps it's time to rethink what we want to accomplish with the use of conditions and engage with the evidence to date on the impact and collateral consequences of these conditions, but more generally you might want to learn from the success of the YCJA, which suggests if you really want to see change you need to be directive and you need to educate those administering the law about the change.