Justice Committee on Sept. 17th, 2018

[Pascal Lévesque]

Mr. Le Grand Alary may want to add some comments on this, but personally I would say that if the basic facts and principles regarding aggravating and extenuating factors are the same, the sentences will remain the same. Regarding sentences, obviously the superior court judge has greater powers than the provincial court judge. That said, if the prosecutor is convinced that the provincial court judge has jurisdiction to impose sufficient sanctions, and uses his discretionary power to have the case handled through summary conviction, I don't think this will change sentences very much. However, the process leading up to sentencing will be different.

[Colin Fraser, Liberal, West Nova, NS]

Thank you.

Do you have an opinion on the problem one of the changes might cause, or on the repercussions for students and articling clerks, as well as paralegals, who will no longer be able to represent clients indicted by summary proceedings?

Is there something we can do to deal with that problem?

[Paul-Matthieu Grondin]

That is a very good question.

Since the matter of students, paralegals and representation concerns other provinces mostly, in particular Ontario, the Barreau du Québec chose not to comment on that.

Perhaps Mr. Le Grand Alary would like to add something.

[Nicolas Le Grand Alary]

I'd simply like to say that we were apprised of this problem as we followed the evolution of the bill. However, this does not affect Quebec, given the nature of the legal profession and the way we are organized. That is why we did not study this aspect of the matter.

[Paul-Matthieu Grondin]

Paralegals do not have licences in Quebec; that does not exist.

[Colin Fraser, Liberal, West Nova, NS]

Thank you very much.

[The Chair, Liberal, Anthony Housefather]

Thank you.

Would any other colleagues like to ask a question?

Let's start with Mr. Deltell.

[Gérard Deltell, Conservative, Louis-Saint-Laurent, QC]

Thank you very much, Mr. Chair.

Gentlemen from the Barreau du Québec, welcome to your House of Commons. It's a pleasure to meet you. This is very interesting. I'm quite pleased to be replacing the member for Parry Sound—Muskoka. It will be my pleasure to replace him anytime. This is really interesting.

There are two points I'd like to raise with you: minimum sentences are one, but first of all I'd like to touch on Canadian diversity.

It goes without saying that we are in favour of the principle of Canadian diversity, but the issue remains as to how that should be applied. What do you suggest? Do we apply the statistics on Canadian diversity throughout Canada, or by district?

According to Statistics Canada, a little more than 20% of Canadians were born outside of Canada, but in Toronto that percentage is over 50%.

Should we reflect the local, provincial or national reality?

[Paul-Matthieu Grondin]

That is a very good question, Mr. Deltell.

In our brief, we suggested that this be left to the discretion of the presiding judge. He or she is in the best position to be knowledgeable about Canadian reality, certainly, but also the local reality. It is up to the presiding judge to make that decision. We have no suggestions to make as to the guideline itself. If we had gotten into that, we would have been heading into troubled waters, honestly.

If there is no representative diversity, or if parties act in bad faith by using the peremptory challenge to exclude a given category of Canadians, we would like one or the other party to be able to request that the judge provide guidelines so that there may be greater diversity on the jury.

[Nicolas Le Grand Alary]

I'd like to add that that rule has to have a certain flexibility. For instance, we could decide to reflect the diversity of the district or the local community, but the trial could be held elsewhere than in the location of the offence or in the accused's hometown. Consequently, there has to be some leeway.

The objective is to reflect diversity in circumstances where there is clearly a lack of good faith or where there is a lack of diversity in a given location. The purpose is to allow the judge to solve the problem by holding a hearing and appointing one or two jury members from diverse communities, rather than proceeding simply according to tables and statistics. This would be a better solution to the problem.

[Gérard Deltell, Conservative, Louis-Saint-Laurent, QC]

In your opinion, should this decision be based on the identity of the accused?

[Paul-Matthieu Grondin]

That is probably what we are trying to avoid, in a sense. We are trying to avoid a situation where a diversity issue gives one or the other party an advantage or disadvantage. You must remember that jury members, whatever their origins, can certainly act in good faith.

These are difficult issues, Mr. Deltell, and we understand that. That is why we want the decision to be made by the presiding judge.

[Gérard Deltell, Conservative, Louis-Saint-Laurent, QC]

I understand your caution very well. As you said, these are troubled waters; we know what you are referring to.

You are giving the judges the freedom to act, but do they not already have that freedom? So, what does this change?

[Nicolas Le Grand Alary]

Mr. Lévesque, correct me if I'm wrong, but the accused may already make such a request of the judge if the prosecutor is using the peremptory challenge to exclude a certain community or category of Canadians, as Mr. Grondin mentioned. We are basically proposing that that mechanism be extended to both parties, depending on circumstances. This gives more leeway than if we only considered the situation and origins of the accused, or those of the victim, or other such circumstances.

[Gérard Deltell, Conservative, Louis-Saint-Laurent, QC]

I understand from what you have said that you are giving judges all of the necessary freedom to steer the choice of jury members while respecting Canadian diversity.

[Paul-Matthieu Grondin]

Normally, judges are reserved on these matters. Lawyers use the peremptory challenge. This issue would not come up all the time, but, when needed, we could ask the judge to use his discretion.

[Gérard Deltell, Conservative, Louis-Saint-Laurent, QC]

Suppose an accused is a member of a particular racial group and that among the 12 jury members, none are from that particular community, or all of them are from that community. Who would have precedence?

[Paul-Matthieu Grondin]

That is a good question, Mr. Deltell.

On this, and I will say it openly, you'll have to allow me to punt the ball. These are indeed questions that are difficult to answer. That is why we are asking that one of the parties be allowed to ask the judge to take that diversity into account and make the decision. It's very difficult for us to use a typical case and we avoided doing so deliberately.

[Pascal Lévesque]

Before we get to that point, there is a jury selection process. According to our suggestion, if after the sixth or seventh jury member is chosen, people realize that they are going to have a jury that will not be representative of the community or another component of the file, one or the other party should be able to let the judge know that the constitution of the jury is heading in a certain direction, and ask him to guide the jury selection with regard to the two, three or four last candidates, for instance, to ensure that there is someone who will represent that part of the community.

A jury member doesn't just...

[The Chair, Liberal, Anthony Housefather]

I apologize but I must now give the floor to Mr. Rankin.

[Murray Rankin, NDP, Victoria, BC]

I have a brief question.

Once again, I'd like to discuss the removal of the preliminary inquiry.

On page 6 of your brief, you came to the following conclusion:

There is no evidence, apart from anecdotal events, to conclude that preliminary inquiries create undue delays in the justice system or the need to change the current rules surrounding them.

May I conclude that the Barreau du Québec is opposed to the proposed changes in this regard in the bill, and does not support the elimination of the preliminary inquiry? If that is the case, could you elaborate?

[Paul-Matthieu Grondin]

The short answer is yes. That is what we say in the brief. That being said, we propose a solution. It's all well and good to highlight what we feel needs to be changed, but we also have to propose a solution. That is what we explained earlier.

At this time, there are several pilot projects ongoing in Quebec where if an accused agrees to a trial, examinations are held prior to the trial to test the evidence and the credibility, among other things. We suggest that change and we will soon have statistical data on that.

Only 3% of eligible files were the subject of a preliminary inquiry. Of the cases that caused delays beyond the thresholds established in the Jordan case, only 7% included a preliminary inquiry. We don't want to say that the issue is larger than it is in reality, all the more so since the preliminary inquiries allow delays to be reduced in cases where a guilty plea is filed afterwards or charges are withdrawn. Preliminary inquiries exist for a reason. However, we also do not know to what extent they improve the system. So we need to be careful.

[Nicolas Le Grand Alary]

Historically, the preliminary inquiry was held to allow for the disclosure of evidence, but now, given the rules surrounding the disclosure of evidence handed down by the Supreme Court of Canada, it is no longer important in that regard. However, the preliminary inquiry is important in another way, as mentioned by the president of the Bar, and that is to encourage guilty pleas.

The preliminary inquiry had its raison d'être, and that historical reason may not exist any longer, but there are other reasons to keep it.

[Murray Rankin, NDP, Victoria, BC]

Okay, thank you.

[The Chair, Liberal, Anthony Housefather]

Thank you very much, Mr. Rankin.

I have a question to follow up on Mr. Deltell's question on peremptory challenges.

The Department of Justice representatives told us that this could be used in a discriminatory manner, and that the peremptory challenge had been eliminated in the United Kingdom, for instance. Be that as it may, I am sure that today potential jurors could still be excluded for valid reasons.

What are the reasons why a potential jury member could be excluded, aside from valid causes? What means could a defence lawyer or a prosecutor use if there were no specific grounds to exclude a potential juror? Why is it important to keep that?