Evidence of meeting #104 for Justice and Human Rights in the 42nd Parliament, 1st Session. (The original version is on Parliament’s site, as are the minutes.) The winning word was bail.
A video is available from Parliament.
Conservative
Michael Cooper Conservative St. Albert—Edmonton, AB
Turning to another matter, I don't think any of the witnesses touched on it, but I would be interested in your thoughts on the elimination of peremptory challenges and whether or not you foresee any unintended consequences as a result of eliminating them altogether.
Barrister and Solicitor, Acumen Law Corporation
I do. I don't deal with jury trials in my practice, but I did pay a lot of attention to the controversial trials last spring. I've also paid some attention to the peremptory challenge process in the United States and what takes place there in relation to peremptory challenges. I think we would be doing a very big disservice in our justice system to eliminate peremptory challenges and to simply pick the juries from who shows up, remembering that when you're in small communities or communities with large indigenous populations in particular, the likelihood of people responding to their jury summons, the likelihood of people showing up for that, and then getting seated on the jury is very different than it would be if you were in a major urban centre where the notices are going out to a more diverse group of people.
There are different challenges that keep indigenous people from responding to those summonses and showing up to sit on juries. Eliminating the ability of defence counsel or Crown counsel, as appropriate, to ensure that juries are more representative, through careful use of peremptory challenges, is hugely problematic for creating diverse juries because of those additional societal roadblocks that keep people from showing up. We could look to some examples in the United States where judges have the power to question counsel about their use of peremptory challenges if it appears that they are trying to racially stack a jury, or trying to stack a jury in some economic way, or whatever the case may be. It may be more appropriate to give more power to judges to look at the motives behind peremptory challenges if it appears that something is being done in bad faith rather than eliminating that ability all together.
Conservative
Michael Cooper Conservative St. Albert—Edmonton, AB
Okay.
Just to follow up on that, there are some who say instead of addressing the issue of diversity, that by eliminating them all together, the opposite may occur. I know Michael Spratt, for example, is taking that position.
Would you agree?
Barrister and Solicitor, Acumen Law Corporation
I do agree. I have a lot of respect for Mr. Spratt.
It does have the effect of eliminating diversity, because you can't use your challenges to create a more diverse, integrated jury and to create a jury that better represents society when you have a selection from people who are showing up only as a result of their socio-economic circumstances.
Director, Criminal Justice Program, Canadian Civil Liberties Association
In our view, this points to broader problems. The fact that peremptory challenges are one tool that we're holding out to try to create equal juries isn't itself a problem.
For us, this doesn't mean that this particular reform needs to be walked back. It actually means that we need to do more in this bill. There are other legislative tools that we can put in place. Professor Kent Roach, I thought, had a fantastic brief, which he submitted to this committee, about further reforms that need to be made to actually address the underlying problem. If all we do is eliminate peremptory challenges, we are neither addressing nor solving the problem.
Liberal
Iqra Khalid Liberal Mississauga—Erin Mills, ON
Thank you, Chair.
Thank you, witnesses, for your testimony today.
I want to talk specifically about delays in the justice system and bail reform, which has been a conversation for a very long time in the courts and among people like you.
Paragraph 11(e) of the Canadian Charter of Rights and Freedoms guarantees accused persons the right to not be denied reasonable bail without just cause. It is a protected right, but according to Stats Canada, there's been a notable—35%—increase in the number of accused persons detained on remand in the last 10 years. Over this period, the remand population has consistently exceeded the sentenced population in provincial and territorial prisons.
Can you explain why we are experiencing such a delay?
Ms. Deshman, I think you touched on it in saying that Bill C-75 does not go far enough. I think you do have some proposed amendments with respect to how we can really tackle the bail issue and unclog the system, which I think is the objective of the reform that's in the bill.
Could you speak to that?
Director, Criminal Justice Program, Canadian Civil Liberties Association
If you look at the studies about what is actually happening in bail court—and we ourselves did a study where we observed bail courts across the country—you see that there is practice happening on the ground that is not in line with the law. We've now had several Supreme Court pronouncements very clearly setting out what the law of bail is. We have had a ladder principle entrenched in statute for decades, yet our bail courts continue to require sureties out of hand in Ontario or, in Alberta, to require cash bail, not in compliance with the statute. Most bail proceedings proceed on consent. They are quick affairs. They do not generally have accused that are represented by private counsel. Most accused will say just about anything to be released from bail that day.
Really, what we're dealing with here is a practice that has departed quite considerably from the law, so when I see a legal reform that entrenches the law and makes it more clear, I'm concerned that it doesn't address that culture and that practice. If you read Professor Webster's suggestions about what actually needs to happen to change the law of bail, which draw on her experience in youth criminal justice and were incredibly successful in reforming the youth criminal justice system, you see that it was a wholesale reset of the entire culture, which required a new legislative slate and actually going out and saying, no, things are different now.
I do think that some of the amendments we've proposed could make real differences on the ground, because they would be real, substantive changes, but when I talk to duty counsel about whether Antic has made a difference on the ground, for example, they say no. They say that the justices of the peace say this was already the law and they're already applying the law. They agree that this is the law and they don't need to change, and things continue on as they have. Just reinforcing what the law is, I think, is unfortunately not going to be enough. We really need to send stronger signals and some more practical tools to address the power imbalances that happen in bail court.
Liberal
Iqra Khalid Liberal Mississauga—Erin Mills, ON
Thank you.
Ms. Lee, you also touched on charter section 11(e) in your brief. I haven't had a very detailed look at it yet. Could you please explain what your argument is? I think you're speaking specifically of the reverse onus piece. My concern is that if we're scared of making this into legislation and saying, yes, there is a reverse onus for repeat offenders, for abusers, for intimate partners who are charged with or convicted of abuse, then what measures can we take? If this is an infringement, do you not think there is just cause to infringe upon it if there is a prior conviction?
Barrister and Solicitor, Acumen Law Corporation
I don't think so, because you have to take into consideration the nature of the underlying allegation and the prior conviction, and how serious the previous conviction was in relation to the second incident—whether it's an escalation of behaviour, what role the complainant had in it.... It's an unfortunate thing, but a lot of the cases that we see involving domestic violence are cases where both parties have some role to play in it. That's not saying that anybody is at fault for it, but often it's fuelled by alcohol and by some type of a relationship-based disagreement that leads to this.
If you treat all people as though they're—to speak colloquially—the serial wife-beater and treat all people like that dangerous person who probably should be held in custody because of their propensity towards that type of violence, that is what undermines the section 11 protection that is aimed at reasonable bail.
I think one thing that we do in British Columbia that is really helpful is that we deal with these administration of justice offences and breaches through a provincial practice directive that they be set for trial within 60 days. That helps to clear a lot of the backlog because they're heard very quickly, and then, if people are acquitted of them or if the charges are later dropped, bail reviews can take place. We're not having as many people sitting in custody awaiting their substantive charges because there have been these allegations of breaches. I think that setting some clearer timelines for the speed with which these types of offences must proceed might help to assist with some of your concerns that you've expressed about the number of people in custody.
NDP
Murray Rankin NDP Victoria, BC
Thank you for being here, everyone.
Because the issue of peremptory challenges came up, I'd like to start by telling you what the Criminal Lawyers' Association has recommended in order to find more representative juries. They simply suggest that we add to section 629 of the Criminal Code the following:
The accused or the prosecutor may also challenge the panel on the basis that it is not representative of the community from which it was drawn.
What was your reaction to that? Would that do the trick?
Director, Criminal Justice Program, Canadian Civil Liberties Association
I think it would be an enormous help. That suggestion is echoed in slightly different words in Professor Roach's submissions as well.
Barrister and Solicitor, Acumen Law Corporation
We're looking for a simple solution here. The simple solution that is offered in this bill is just to eliminate it. I think we can be a little bit more creative than that. The solution that's proposed makes sense, so why not?
NDP
Murray Rankin NDP Victoria, BC
I have a lot of questions, so I want to make sure I have the opportunity to ask you some of them.
First of all, Ms. Deshman, for the Civil Liberties Association, I just want to be clear about your perspective on preliminary inquiries. You said, “On the one hand..., but on the other hand”, as I understood it. You said it's different in Ontario, where it appears that process is used more than in other provinces. Maybe I misunderstood. That's what we were told by a justice department official earlier today.
Is it the position of the CCLA that the preliminary inquiries ought to remain or not?
Director, Criminal Justice Program, Canadian Civil Liberties Association
I do think they ought to remain. If I were convinced that there was a significant benefit to eliminating them for efficiency, I think it would be a harder question. In part it's that they are used so differently across the country. I do not see the evidence that eliminating them would help the justice system in a meaningful way.
NDP
Murray Rankin NDP Victoria, BC
I'd like to now talk to the brief, the very provocative and very hard-hitting brief that the Acumen Law Corporation provided.
You start by talking about bail hearings, summary conviction proceedings, and limits on cross-examination, which you say are overly broad and severely limit the rights of an accused, and you say that the “proposed amendments will disproportionately affect marginalized groups and people of colour, while also discouraging reporting of domestic violence cases”. You say that these amendments “are unlikely to withstand scrutiny from the Courts and are unlikely to be saved by s. 1”. It's a pretty hard-hitting indictment of this legislation.
I'd like to specifically, then, drill down on the “reverse onus in bail hearings” provision. You say that in the American experience, the barriers to reporting, which involve distrust of law enforcement and poverty, lead you to conclude that these provisions will be regressive and will actually make women less safe. I'd like you to elaborate on that.
Barrister and Solicitor, Acumen Law Corporation
One of the studies that I cited there came from the U.S. National Resource Center on Domestic Violence, the Women of Colour Network, which looked at the issue of incarcerating people accused of domestic violence and found that it did lead to under-reporting. That's because in lots of those situations—to oversimplify the issue significantly for the sake of brevity—you have a power imbalance in the relationship, such that the person who is accused of being the aggressor is also the person who's the breadwinner for the family, the person who has the job. You have the so-called abused spouse either at home, maintaining the home and dealing with child care obligations, or having severe limitations placed on their freedom by the abusive spouse.
In order to look after the family, and especially given people's intense desire to protect their children, they're more likely to put themselves in situations of harm or danger in order to maintain the financial resources they need for their children so that they aren't homeless, so that they can feed their children, so that they can make sure their children have shoes for school. Without naming anyone specifically, I can think of some very powerful women I know who have been in that very position, who have let themselves be victims of domestic violence, silently for years, for fear of losing that.
NDP
Murray Rankin NDP Victoria, BC
I'm very intrigued by the other part of your brief, which was the routine police evidence provision. You define it. You say it's overly broad. After the four factors, you conclude, “This encapsulates the whole of a police investigation.” You then make a plea, I think quite eloquently, for the role of cross-examination. You alluded to, in your remarks just now, the roadside prohibition cases in our province of British Columbia, where I think you made some very strong conclusions.
What's the bottom line? Can the police evidence provision be amended, or in your opinion should it simply be removed completely?
Barrister and Solicitor, Acumen Law Corporation
I think it should be removed completely. We already have the scheme, in British Columbia, in which police officers provide an affidavit with respect to a 90-day driving prohibition when the person is being charged with impaired driving, or for over 0.08 or refusal cases. We get that affidavit. We look at that affidavit. Then months later we end up going to court, and we have that affidavit from one process that we're then going to use in court during the trial of the substantive charges.
It's very common for us to find that the police officer has given evidence that is misleading to the tribunal, is outright wrong, or sometimes is what we would consider, personally, perjury. The police officer understands their obligations. They feel framed in with what they have to say, or they have a supervisor, or what have you. It is exceedingly.... It happens to us all the time that we get evidence that's been provided in an affidavit form in one venue, and then we have it in the criminal case. We can see that this is what's happened, so we think it should be turfed. It just doesn't—
NDP
Murray Rankin NDP Victoria, BC
In your brief you actually gave examples, which I thought were great, of where there has been “misinformation”, to be polite, in search warrants and other things. You gave an example from Justice McEwan in Kenyon v. British Columbia, where he says, “The fact is, however, that if you create a document-only regime with no opportunity to cross examine, you create a regime where [tailoring a story] may be possible.” He goes on to say that the limitation makes it “impossible, on a principled basis, to determine...what happened. Whatever the presumed efficiency of this form of hearing is, its drawbacks are intrinsic as well.”
I assume that what you're saying is that this very analysis would apply to the routine police evidence provision.
NDP
