Justice Committee on Sept. 17th, 2018

[Murray Rankin, NDP, Victoria, BC]

I think it was very powerful. You quoted the Minister of Justice's very words to that effect, and yet here we are.

I appreciate your testimony.

Mr. Mercer, what you said about section 802.1, about the inability of paralegals and legal students to represent people, I believe was not intended by this bill, but it nevertheless has a dramatic impact, as you say. I can remember when I was a law student at the University of Toronto how many people we were proudly able to assist, but now we can't anymore, thanks to this bill. It can't be what the government intended. Surely we can find a way to fix it.

I agree with you that it can't be left to the law society. That's just wrong in terms of an independent bar, so we have to do our job to fix what I think was an oversight in this bill. I can assure you that in the province of British Columbia—we'll be hearing testimony later—the exact same issues come up and have been brought to my attention as well, so thank you for speaking to that point today.

[Malcolm Mercer]

Thank you.

[The Chair, Liberal, Anthony Housefather]

Thank you very much.

Mr. Virani is next.

[Arif Virani]

How much time do I have, Mr. Chair?

[The Chair, Liberal, Anthony Housefather]

You have six minutes.

[Arif Virani]

Six minutes is perfect. Thank you.

Thank you and welcome to everyone. I apologize that I missed some of the oral testimony, but I've read many of the briefs.

I want to welcome a constituent. Mr. Mercer, thank you for being here and for your submissions.

Mr. Rudin, we heard some testimony earlier today about peremptories. Your brief says getting rid of peremptories gets a thumbs up in terms of what this bill is proposing. Every lawyer in the country knows the CCLA. It told us to get rid of peremptories—thumbs down.

Can you explain to us why it's important to the indigenous community you serve to remove peremptories?

[Jonathan Rudin]

We know that indigenous people are under-represented on juries. They don't appear on juries for lots of reasons, but one reason is that when they show up for a trial they would like to be involved in, they're kicked out because they're indigenous. We know that not just because of the recent Gerald Stanley trial, but we know that from the 1980s, the trial of the individuals who were charged with killing Helen Betty Osborne. The Aboriginal Justice Inquiry of Manitoba specifically recommended the elimination of peremptory challenges in 1991 for that reason. You can't get people to want to participate in a court process if they feel they're going to be kicked off the jury whenever they may have an interest because someone is alleged to have done violence against an indigenous person.

[Arif Virani]

Would your support of the removal of peremptories extrapolate to other racialized communities, particularly the black Canadian community, which is equally overrepresented?

[Jonathan Rudin]

If you've ever watched people use peremptories.... I've seen them used to kick every black person off a jury. The Crown will say no to a black person. What you can never do is kick white people off a jury. You can't do that because there are too many of them, but you can kick off everybody else, so the idea that peremptories somehow lead to diverse juries is not true.

[Arif Virani]

Could I ask you a question that may be zooming out a bit on the issue? Do you have any creative ideas about the diversification of the jury pool?

[Jonathan Rudin]

Kent Roach is going to be talking about this a lot. The jury pool issue is often provincial, so it's the rules in each province that often lead to this problem.

In Ontario the problem was that to be on the jury, you have to be on the municipal assessment rolls. First nations people aren't on municipal assessment rolls, so an alternate system had to be created, and it didn't work. That is an issue that each province has to look at, but I think—and Kent will talk about this tomorrow—there are things that judges can do, that we can do, to try to ensure we do have representative juries and force jury panels to be more representative.

[Arif Virani]

I apologize if you covered this in your testimony, but we heard a lot earlier this afternoon about police officers and routine evidence going in via affidavit as opposed to cross-examining the officer in a criminal proceeding. Do you have a perspective on that from the indigenous clients you serve or other racialized communities?

[Jonathan Rudin]

We certainly share those concerns about routine evidence. If you can cross-examine officers, lots of information comes out that you won't necessarily be able to get at in the routine evidence process: Why did you choose to stop this person? Why did you search this person, etc.?

[Arif Virani]

Okay.

[The Chair, Liberal, Anthony Housefather]

You have another minute and a half, if you want it.

[Arif Virani]

Thank you.

In this last minute and a half, I'll confess that it's a bit intellectually challenging, but on the reverse onus and what we're trying to do in terms of addressing intimate partner violence head-on, it's a big commitment of our government. It's a big commitment in what we're trying to do in this legislation. As Mr. Rankin pointed out, what you're saying is that there will be this big unintended consequence. I hear you. I hear what you've just said, and I've read your brief.

You've talked about the concept of dual charging. My understanding of the bill, however, is that the reverse onus would kick in if there was an earlier conviction. There's a subtle difference between being charged versus actually being convicted, but in this world of mandatory charging, would you say that the women who are charged are therefore also gathering a conviction, which is leading to their bail potentially being denied on the back end, on a second go-round?

[Jonathan Rudin]

That's exactly right. In the last panel, you heard from Ms. Deshman. For many indigenous women, just getting bail is a challenge.

Think about it. You have a prior record for something else. You're charged with an offence. You're charged with assault, along with your partner. You're not going to get bail. What do you do? Well, you plead guilty, because you want to get out of jail, but now you have a domestic violence charge against you. If you want to allege violence against your partner the next time, if there is a next time, he can say, “Oh, she did it too.” You now have a reverse onus facing you. You're never going to get out of that cycle.

The difficulty with reverse onuses is that in many ways they're lazy. I mean, do the work: If there's a concern for public safety, then make that point. Reverse onuses make it too easy to keep people in jail, and again, they're often the wrong people. This is the whole history of all the attempts—very well-meaning attempts—to deal with domestic violence. They've led to more and more indigenous women being caught up in the justice system. We have to stop and actually think about what the real impacts of this will be on the ground. From our perspective, those will be quite damaging to indigenous women.

[Arif Virani]

Thank you.

[The Chair, Liberal, Anthony Housefather]

Thank you very much.

Given the time—we're past 7:30—I want to thank the members of the panel for coming before us today. Again, it was incredibly helpful.

Colleagues, thank you for your patience today. We will resume this study in our next meeting tomorrow at 3:30.

The meeting is adjourned.