Justice Committee on Sept. 17th, 2018

[The Chair, Liberal, Anthony Housefather]

You're running a little bit over, but it's okay.

[Murray Rankin, NDP, Victoria, BC]

This is an open-ended question. I'll ask it because Ms. Deshman invited us to.

You didn't have time to talk about the parallel procedures and administration of justice provisions. I'd like to hear your thoughts on that.

[Abby Deshman]

I really appreciate the intent of this. I understand that the intent is to create a procedure where administration of justice offences would be dealt with in a form where you wouldn't end up with a criminal charge or a criminal conviction. What really concerns me, though, is that we're introducing this procedure against the backdrop of a risk-averse system. We know that one of the main problems is that police are risk-averse in terms of their release decisions already. Bail courts are risk-averse in terms of the conditions they impose, the forms of release and the detention orders. Nothing in this procedure would push people who are already subject to arrest and criminalization into this alternate process. It's entirely within the discretion of police and Crown prosecutors when to trigger this process.

My real concern is that without something to push people down the criminalization ladder, this will be net-widening. We have police officers who release people with warnings now. They say, “You're out past curfew. This is minor stuff. Just go home. Don't do it again. I don't want to see you out past curfew.” Well, now they have another tool. They can say, “Okay: I don't want to see you again. I'm not going charge you, but I'm going to send you back to appear before a justice of the peace to have your bail reconsidered. Then we're going to ramp up your conditions.”

Without anything to tackle risk aversion, this will channel more people into the bail process and more formal adjudication rather than less. We really think the problem here is over-criminalization of relatively harmless behaviour. We need to tackle not the processes but actually the administration of justice charges themselves. Narrow the scope of those criminal offences to when there's a risk to another individual or there's a threat to another individual. Stop criminalizing people for routine behaviour, for conditions that should never have been imposed, or for behaviour that does not really put in jeopardy anybody else or the administration of justice.

[The Chair, Liberal, Anthony Housefather]

Excellent. Thank you very much.

We now go to Mr. Ehsassi.

[Ali Ehsassi, Liberal, Willowdale, ON]

Thank you, Mr. Chair.

Thank you to the witnesses for being here. This has been very helpful.

Perhaps I could start off my questioning where Mr. Rankin essentially left off. He said that the submission you made was quite “hard-hitting”. Now, there were certain things you took issue with. As you know, the purpose of this bill is to address the issue of lengthy court delays. Is there any aspect of this bill, in your opinion, that will assist in alleviating that problem?

[Paul Doroshenko]

That's interesting, because I don't think the provisions we're really equipped to speak about, such as extending the limitation period to prove a charge in a summary offence, will do it. I mean, that's sort of the cynical way of trying to get around Jordan. This is all basically an attempt to get around Jordan.

Right now you have a six-month limitation period. We see in British Columbia that it's not uncommon for five months and two weeks to go by before a police officer submits their police report in an impaired driving case. You have your client wondering, “Am I going to be charged? Is this thing ever going to go to court?” Now it's going to be 11 months and two weeks before the file gets submitted, because you're just extending it and giving them this extra opportunity. For what? Why are you doing it? It's because you're trying to pull a fast one on the court. You're trying to say that you're within this Jordan timeline, because the Jordan timeline starts at the charge approval stage, not at the time of the incident.

I'll tell you right now that the court will see through that in a fairly short period of time and come up with another date. I mean, the Jordan timeline is an arbitrary date. It's an arbitrary period that they picked. They picked it because they were sick and tired of seeing these delays. They basically thrust an arbitrary date on us, and they'll just thrust another arbitrary date on us that will start from the time of the incident. I mean, one year to wait to find out whether or not you're charged with an offence...? You have to put your school on hold or put your career on hold or what have you because you allegedly committed an offence. It's months and months and months after that before you get your chance to go to court.

Is this an attempt to actually, in a genuine way, deal with delay? No. It's not.

[Ali Ehsassi, Liberal, Willowdale, ON]

So nothing in this bill, in your opinion...?

[Paul Doroshenko]

I wouldn't say nothing in this bill. That's going beyond my scope of knowledge of the bill. I have to tell you that this is an omnibus bill, and you sit down and read the things that shock you. That's why we're here.

[Kyla Lee]

I would have to say that I think some of the hybridization is actually a good thing that will decrease delays, particularly when it comes to my practice area of impaired driving causing bodily harm offences. It's more likely to lead to resolutions, I think, in circumstances where there are offences that were once straight indictable offences and are now hybrid, because it increases the availability of different types of sentences.

It's always frustrating to me, in having an impaired driving causing bodily harm case where somebody broke a wrist versus the woman who has been in a coma for four months, to know that the range of sentences is not very good. Hybridization makes it more likely that I can negotiate something out and avoid trial on a matter that would otherwise take several days or weeks of court time.

[Ali Ehsassi, Liberal, Willowdale, ON]

Just out of curiosity, given that this is not a hypothetical thing in terms of either the Cody decision or the Jordan decision, are there any suggestions you would have in terms of reducing delays that have not been contained here?

[Paul Doroshenko]

We don't have a delay problem in B.C. One of the reasons why we don't have it is that charge approval is done by Crown prosecutors. I've done cases in Ontario and Alberta where charge approval has been done by police officers, and there were cases that shouldn't have had charge approval. If those cases had gone before a lawyer and a Crown prosecutor's office in B.C., they would have looked at them and turfed them. They wouldn't have proceeded with them, or they would have proceeded with some different charges.

It's a fundamental problem in provinces where they don't do that and where police officers are doing charge approval. Police officers have one view of things: the guy is guilty. Prosecutors look at it and ask themselves what the state of the law is, what they can prove, and what is admissible and what's not, and they make a determination.

It's much smarter to have prosecutors using the standard we have in B.C., which is that there's a substantive likelihood of successful prosecution. They're not going to approve a charge otherwise. You're wasting tons of court time running trials and things where there's no significant likelihood of success. As well, it's wrong to put an accused through that. Not only is it about the likelihood of success, but how fair is that to our fellow Canadians that we're going to put them on trial when there's no likelihood of succeeding?

[Ali Ehsassi, Liberal, Willowdale, ON]

Thank you.

If we could touch on and return to another issue, it's about the peremptory challenges.

Ms. Deshman, we heard from Ms. Lee about that. As you know, there are various options. One option that has been suggested is that the judge be provided the power to steer the committee. Do you think that would be acceptable?

[Abby Deshman]

I'll just say that this is not my area of expertise, and unfortunately I haven't studied it enough to have a position on it at this time.

[Ali Ehsassi, Liberal, Willowdale, ON]

Okay.

The other issue you touched on, which I hadn't heard of before but was quite shocked and dismayed by, is that you were talking about people who go through pretrial detention that has on occasion has been longer than what they could conceivably have been sentenced to. How commonplace is this?

[Abby Deshman]

We don't actually have data on how common it is. Most people faced with that situation will just plead guilty.

What we do know, and what we regularly hear from duty counsel, is that they will not participate in guilty pleas where they don't think the facts support that plea. That is very common. You can ask duty counsel how often they have to step back from assisting a person who wants to plead guilty because they don't think the facts support a guilty plea. That happens frequently. We know this pressure is operating in our justice system. We know that people are just pleading out.

There are instances where people will insist on their right to a fair trial. They say, “No, I did not do it, and I will sit here and wait for my trial even though it will mean more time behind bars than I am likely to be sentenced to.” But that's extraordinary. It should not occur.

[Ali Ehsassi, Liberal, Willowdale, ON]

Thank you very much.

[The Chair, Liberal, Anthony Housefather]

Colleagues, we have about eight minutes left with this panel. Does anybody have any short questions?

We'll have Mr. Fraser, Mr. Rankin, and then Mr. McKinnon.

[Colin Fraser, Liberal, West Nova, NS]

Thank you very much for being here. I appreciate your testimony.

Mr. Doroshenko, on the last point in my friend's questioning regarding the limitation period, you said that you see increasing the limitation period from six months to one year for summary conviction offences as a way around Jordan and that it doesn't help at all in the delay. I'd like to put it to you, though, that oftentimes in the criminal justice system we see that the Crown is out of time to proceed by summary conviction and therefore has to proceed by indictment. The more proper venue is most likely a summary conviction procedure; however, they don't have that option because of the limitation period.

Wouldn't you agree that extending the limitation period to one year offers the Crown more opportunity to proceed in the more correct procedure by summary conviction, rather than having to go by indictment just because of the limitation period, and that by proceeding summarily they actually do save court time?

[Paul Doroshenko]

In 19 years of doing this, I've had one occasion where the Crown was beyond their six months and they approved a charge by indictment. By agreement, we decided to proceed summarily. We decided to forgo the limitation period because we knew we could do it by agreement. That was the only occasion. I do 50 to 100 impaired driving cases a year, so we're talking hundreds and hundreds of cases. How often do they miss the timeline? Almost never. When I had to hand in a paper in university, I was usually writing that paper the night before and that's what we see with police officers, on occasion. It's not every officer. A lot of them will get it in right away.

However, if you extend that time period, all you're going to do is extend it for a longer period of time, and I'll tell you right now the evidence does not get better with more time passing. If you stretch it out to a year, you're just going to have a worse case for the Crown, and you're handing more ammunition to us as defence lawyers because we're just going to put it to those witnesses when we get to 24 months down the road for the trial. Memory fades and you don't remember as well.

You're giving some advantage to defence lawyers. You're doing a great disservice to the people who are accused. All you're doing is putting something off that you're supposed to do correctly in the first place, which is to get your case together and approve a charge, if that's appropriate.

[The Chair, Liberal, Anthony Housefather]

Thank you.

Mr. Rankin.

[Murray Rankin, NDP, Victoria, BC]

Thanks.

Ms. Deshman—and I'd also invite others to chime in—you talked about the impact of increasing the maximum offence from six months to two years less a day. You talked about so-called collateral impacts. I was curious about a couple that you mentioned that frankly I hadn't been aware of: the increased legal jeopardy under IRPA and also the inability to go to the United States, the possibility of their now being inadmissible. I'd like you to speak a bit more about that.

Also, we've been told that section 802.1, with the maximum penalty going up, will mean a lot of law students and paralegals will not be able to represent the accused. In my province of British Columbia, the latest provincial court annual report said that 21% of all criminal accused had no lawyer. They were self-represented. Isn't this another concern?

[Abby Deshman]

Yes, absolutely, and it should have been the third bullet in my list, but I was rushing through. The immigration consequences have not received an enormous amount of attention, but I think they are quite serious. Under the Immigration and Refugee Protection Act, if you are convicted of an offence and your sentence is over six months, that's considered serious criminality. That was lowered by a previous government and it has enormous impacts. You can have your permanent residency stripped and you can be deported much more easily.

Increasing the maximum penalty upon sentence doesn't mean that people will get sentences of over six months, but it enormously increases the jeopardy for everybody who is subject to a summary conviction offence. Given the number of unrepresented accused, given the number of people who plead out to time served and maybe with credit for pretrial detention that adds up to over six months, there are already many cases where represented accused don't realize the full implications on the immigration side of things. There are appellate courts that have said, because of that six-month limit, you couldn't deport this person, but there were multiple charges and the sentencing judge didn't fully appreciate the immigration consequences. That six-month limit has a real impact. We are taking away a protection for people that has very serious consequences. I don't think that's been fully explored.

I'm not an expert on the U.S. admissibility but you do have a brief from an immigration lawyer on this, and the crime of moral turpitude has an exemption in U.S. law. You're generally not admissible if you've committed certain crimes in Canada, but one of the exemptions under U.S. law is if the maximum penalty was not greater than six months.

That is a chunk of our Criminal Code offences, and we are now eliminating for ourselves that exemption under U.S. law and we are drastically expanding the category of people who are presumptively inadmissible to the United States. That is not easy to change. I think we could address the other two through amending IRPA as well as the Criminal Code. I've suggested if you want to go ahead, make those amendments to those other statutes, but even if you do that, don't bring this section, these changes, into force until you've negotiated something with the U.S. government to mitigate these consequences.

[The Chair, Liberal, Anthony Housefather]

Thank you.

Did you want to continue with that?

[Murray Rankin, NDP, Victoria, BC]

I just wanted to ask if you might add anything else?

[Paul Doroshenko]

There is lots we might add, but I think we're out of time. We have a flight to catch. Thank you very much.