Justice Committee on Sept. 17th, 2018

[Arif Virani, Parkdale—High Park, Lib.]

Thank you, Chair.

[The Chair, Liberal, Anthony Housefather]

I now want to check with members of the committee. Who has follow-up questions?

I have four people who have follow-up questions. I'm going to go in this order: Mr. Cooper, Mr. Fraser, Mr. Rankin, and Mr. Virani.

Mr. Cooper, go ahead.

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

I have a few questions, so I'll pack them into one.

[The Chair, Liberal, Anthony Housefather]

Try to do that.

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

I'll try.

I asked whether the department has any statistics with respect to limiting preliminary inquiries and reducing backlog. The answer, Ms. Corriveau, was that there were no statistics. Perhaps you could provide an estimate. Is there some analysis that has been done with respect to the anticipated amount of time that this would save, or is there really nothing in the way of evidence in that regard?

There is another area I want to ask a question on that's totally separate. It's with respect to how judicial referral hearings would work. Would they occur only when the prosecutor asks for one? Could you perhaps explain how that might arise? As I understand it, judicial referral hearings are aimed at reducing the number of administration of justice offences. Do you have any numbers or statistics in terms of the amount of court time that is taken to deal with administration of justice offences?

[Paulette Corriveau]

I'll take your first question.

To clarify for the committee, what I was suggesting earlier was not that we don't have any statistics on preliminary inquiries at all, but that the Canadian Centre for Justice Statistics does not track time—the hours that a preliminary inquiry or in fact any of the criminal procedures throughout the process would take.

There are a few statistics available to us. As I mentioned earlier, there are two issues of Juristat, one dated February 2018 and one dated June 2017, containing summaries of statistics based on different years.

For example, the February 2018 summary was an analysis of 2015-16 data relying on charges in provincial court and allowing for some information from superior court. Unfortunately, the Canadian Centre for Justice Statistics does not receive data from all superior courts, so there are limitations there. The committee might have interest in bringing in a member from Statistics Canada.

We also have JustFacts, a Department of Justice publication done by our research and statistics division. Again, it does not relate to the time in court that any process, such as the preliminary inquiry, takes, but it does refer to the number of cases, the number of charges, as well as how many preliminary inquiries have taken place in a given year.

[Carole Morency]

I'm happy to provide those to the committee, JustFacts and the two issues of Juristat.

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

I had a second question.

[Shannon Davis-Ermuth]

I can answer the second question.

There are two parts to that. The first is the operational aspect and how it would work. The amendments in the bill would operate so that when police officers come into contact with an accused who they believe has breached a condition in a bail order, they would have the option of laying a charge or issuing an appearance notice.

On the appearance notice, in the amended forms, there would be a box they could tick that would state that the accused is being referred to appear for a judicial referral hearing. It would have the same stuff it would normally have about what their alleged conduct has been and why they're going before the court. The police officer could refer them. Then they would appear in a court for this purpose. The Crown attorney would make the application before the court.

No new charges and information would have been laid, but they would be before the court, and the court would look at the situation and the conditions of release. If they had more than one set of conditions, they could all be pulled back and consolidated so they would be easier to follow. If the conditions were impossible to comply with, they could look at the situation and see what would be reasonable in the circumstance.

One thing that's important to remember with this is that there is an eligibility criterion for what type of administration of justice offences this could apply to. The criterion is that the alleged breach cannot have caused any harm to a victim, so it wouldn't be administration of justice type of offences that could implicate public safety, such as breaching a non-communication order with an alleged victim or something like that.

The other way it could happen is that a Crown attorney could see a file where police have laid a charge and the Crown attorney might have more knowledge about the case or the offender overall. If they felt that it would be more appropriate to proceed this way, they could also refer it to the court.

Does that answer your questions in terms of the procedural aspect of how it would work?

[The Chair, Liberal, Anthony Housefather]

Thank you very much, and the second part of your answer....

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

Yes, the second part of the second question....

[Shannon Davis-Ermuth]

In terms of statistics, over the years the number of individuals charged with administration of justice offences has been increasing, despite a consistent decrease in the volume and severity of crime in Canada. Statistics Canada reported that in 2014 the number of persons charged with an administration of justice offence had increased by 8% since 2004.

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

My question was specific to court time. I realize—

[Shannon Davis-Ermuth]

Sorry. In terms of court time, 40% of cases in adult criminal courts include at least one administration of justice offence.

The other thing is that, although I don't have the exact statistics on this aspect, indigenous people and individuals from vulnerable populations that are overrepresented in the justice system tend to have more administration of justice offences. They tend to be released on more conditions and are more likely to breach. It is believed that this is part of what perpetuates the revolving door of the justice system for some of these individuals. This is one of the measures in the bill that are intended to reduce overrepresentation in the criminal justice system.

[The Chair, Liberal, Anthony Housefather]

Thank you very much.

Mr. Fraser, go ahead.

[Colin Fraser, Liberal, West Nova, NS]

Thanks very much.

I want to ask you about routine police evidence being admitted into court by way of affidavit without an automatic right to cross-examination. As I am a person who used to practise criminal law as a defence lawyer, that seems troubling to me, to be honest with you. I'd like to understand the rationale behind that provision, and also what “routine” means. How would we know what that means? When I practised, we would often come up with agreements about evidence that would go in without cross-examination or any need to have it tested in court, because it was generally considered between the parties to be uncontroversial.

How would this actually reduce delays if that stuff is already happening, and how would we know what the scope of “routine” is?

[Matthew Taylor]

I'll start, and maybe Mr. Beardall will finish.

In terms of why this is coming forward, or the context, this was another one of the many issues that were discussed in the context of FPT ministers responsible for justice at all levels, officials up to ministerial. It was viewed as another tool that could be used as part of all these other tools to address delays in the system.

You raised the point about admissions and that this happens as a matter of fact already in some cases, and certainly that's true. You're right that the idea of routine police evidence and what that means seems a bit nebulous. Could this include everything police officers do? I would draw the committee's attention to the factors that are articulated in the legislation as a way of guiding decision-making in terms of what kinds of evidence might be subject to an affidavit and admitted by all parties. In the legislation, we talk about things like “making observations”. That could include, for example, police officers swearing an affidavit as to what they observed at the crime scene when they arrived—i.e., “I arrived. There were other police cars. There were three police officers present.” It would be things of that nature. Another example is “handling evidence”. This is the chain of evidence that has come up in discussion already. Another enumerated point in the legislation is “other routine activities”, which might be something like the steps a police officer took to secure the crime scene.

So it will be context-specific. The factors that allow the judge to allow the evidence in by way of affidavit will determine the types of evidence that can be accepted. If it's central to an issue at trial, it will not likely be allowed through the affidavit of the police officer. If it's more peripheral and it's a voir dire, rather than going to the essential elements of the offence, then it may be admitted. The scheme itself provides the framework to help guide the decision-making. Ultimately, it will be a matter of practice in the system to see how the regime is applied.

[Colin Fraser, Liberal, West Nova, NS]

Is there a concern that determining what is routine and what is not will actually take more time than allowing a defence counsel to cross-examine on that evidence in the first place?

[Don Beardall, General Counsel, Drug, National Security and Northern Prosecutions Branch, Office of the Director of Public Prosecutions]

The answer to that is essentially no.

You are quite correct when you say that the definition in the bill of what constitutes “routine evidence” is potentially very broad, but it is still qualified by the use of the term “routine”. As my colleague Mr. Taylor has pointed out, there are factors set out in the legislation for the judge to consider, which include a consideration of how central the evidence is to the prosecution case or, for that matter, the defence case.

You are also right, Mr. Fraser, when you say that oftentimes things such as continuity of the handling of evidence or routine observations made by police officers are the subject of admissions. However, the reality is that very often those admissions do not come until very late in the process. Often, on the day of trial, I will be told by defence counsel, “I will admit continuity of evidence.” Well, that's great, and I can send three police officers home, but they're already earning double time for having shown up in court.

This permits a mechanism for these issues to be dealt with at an earlier stage.

Here is the reality of the situation. It's always going to be up to the judge to decide whether or not the affidavit evidence will get admitted. No sane Crown is going to attempt to use these provisions for evidence that we feel will be in any way contentious from the perspective of the defence. Also, of course, we have to give notice to the defence of our intention to tender such evidence. If they object to it, they have to give me notice back.

If, in fact, I give that notice to the defence and it turns out that the defence does object—they have some articulable reason why they want the police officer to attend in court for cross-examination—I'm not going to try to litigate that. I'll just withdraw my notice. I think that this would pretty much be the reaction of any Crown, the sole exception being that if we think the defence is objecting to the admission of the evidence in bad faith, just to try to game the system, we might try to take him to the woodshed by bringing the matter before a judge. That would be the rare exception.

[The Chair, Liberal, Anthony Housefather]

Thank you very much.

Mr. Rankin, go ahead.

[Murray Rankin, NDP, Victoria, BC]

My question is for Mr. Taylor, based on our last exchange.

Two summers ago, two young men from Kitchener pleaded guilty to human trafficking and profiting from the sale of sexual services. They were selling young girls, ages 14 and 17, in hotel rooms in Windsor and London, Ontario. They're now appealing; it was announced last week that they're appealing their mandatory four-year sentence.

Professor Kent Roach, when asked about Bill C-75, said that all we needed to do was add a provision saying that judges can depart from mandatory minimums. He is quoted as saying, “It should be up to a judge whether a sentence of four years would be appropriate or not, but because the government has left mandatory minimums there [in Bill C-75], they're being challenged province by province, court by court.”

Why didn't you do anything about this?

[Carole Morency]

I will take that question.

That question was put to the minister when she appeared in June. It's a matter of policy. She spoke to the issue and said that the government is looking for an approach that would be able to stand the test of time for a broader response than just MMPs.

In the meantime, as the member notes, it's true that the Supreme Court has pronounced on some of these. Those cases are now providing guidance across the country in terms of how cases are proceeding, even in the context of prosecutions through the federal prosecution service of Canada.

[Murray Rankin, NDP, Victoria, BC]

Well, we have a charter challenge and we have the waste of time, and these two young men continue to be outside of jail for these horrendous crimes because you didn't want to fix it until you comprehensively got it together. Is that what I hear?

[Carole Morency]

I think I've answered the question, and I have nothing further to add.

[The Chair, Liberal, Anthony Housefather]

Mr. Virani, go ahead.