Justice Committee on Sept. 18th, 2018

[Randy Boissonnault, Liberal, Edmonton Centre, AB]

Okay.

We heard yesterday from Mr. Rudin that the reverse onus provision doesn't target but disadvantages indigenous women who get caught up in a charge from a male counterpart who says, “She started it”. There's an original charge that then leads to a conviction and, the next time, an even longer sentence. In your world, does this affect non-indigenous people as well in terms of the reverse onus provision?

[Kara Gillies]

Again, I can't say that we have any hard statistics on that; however, anecdotally, yes.

I would also say that as a coalition of 28 organizations across the country whose focus is primarily on sex work-related matters, we haven't yet carved out the opportunity to robustly discuss intimate partner violence and the impact of the bill thereon.

That said, as a community of folks who are criminalized—and the people around us are highly criminalized—we are very suspicious of and very reluctant to get on board with reverse onus provisions. Certainly, with the old “living on the avails” provision, and now with the material benefits provision, we see that reverse onus undermines the relationships at play. There certainly are charter implications.

While we certainly acknowledge that intimate partner violence is a serious widespread concern, we're not at the point of having a position on whether or not reverse onus or harsher sentences would actually have a meaningful impact.

[Randy Boissonnault, Liberal, Edmonton Centre, AB]

Your answer leads me to my next question. You've put your finger on it. It's a highly criminalized community, and there's a crossover between the LGBTQ2 community and the indigenous population who are employed in and making their decision to be in the sex work trade. Do the administration of justice provisions in Bill C-75 help speed up the wheels of justice, in your alliance's analysis?

[Kara Gillies]

We haven't done an analysis of that.

What I can say is that we're in favour of the general principle of restraint in regard to bail. For a concrete example, at this point in time, it's not uncommon for people who are charged with sex work offences to get bail conditions that restrict them from going into the areas where they were working and where they were charged, but sometimes that's where they live as well, or where they access health care and social services.

Beyond that, again, as a huge coalition across Canada, we haven't been able to get into the nitty-gritty of such a large bill.

[Randy Boissonnault, Liberal, Edmonton Centre, AB]

Thank you very much.

Mr. Chair, I was very quiet during Mr. Cooper's testimony. I would appreciate it if we would have that kind of respect during questions of the witnesses. It's systematic and it's not appropriate.

Ms. Rogin, what do you think about administration of justice offences?

[Prof. Jillian Rogin]

That's a broad question—

[Randy Boissonnault, Liberal, Edmonton Centre, AB]

In Bill C-75, do you like where we're going?

[Prof. Jillian Rogin]

I have a number of thoughts on administration of justice charges.

We commend Parliament's efforts to try to come up with a solution to what really can only be called a bail “crisis” in Canada. However, it's our position that there is a broadening of police discretion here that already exists without the option of a referral hearing.

My colleagues have written about—and I think are here making submissions about—the risk-averse culture that pervades the bail process. This allows a police officer to defer the decision to release or to lay a charge to somebody else, and that feeds into what the heart of the problem is. The police have always had the discretion to not lay a charge and they should use that discretion—and in many cases, they do.

The concern here is that very same concern we have with existing police discretion, which is, who benefits most from the use of that discretion and who is hurt by it the most? That fundamentally doesn't change with Bill C-75 and the use of the referral hearing.

[Randy Boissonnault, Liberal, Edmonton Centre, AB]

Thank you.

Thank you, Mr. Chair.

[The Chair, Liberal, Anthony Housefather]

Thank you.

Ladies, we are very lucky, because we brought that in just one minute before the bells are supposed to ring. I want to thank both of you for sharing your testimony with our committee. You were very helpful in terms of speaking to the points raised. Thank you so much.

We'll recess this meeting until after the vote. I'll ask everyone to come back as quickly as possible after we vote. We have three more panels.

[The Chair, Liberal, Anthony Housefather]

We are reconvening this session of the Standing Committee on Justice and Human Rights. It is a great pleasure to welcome our two witnesses from Toronto, who are testifying by video conference. We're joined by Mr. Brent Kettles, who is counsel from the Crown law office-civil, Ministry of the Attorney General of Ontario. We also have Mr. Kent Roach, Prichard-Wilson chair in law and public policy at the University of Toronto.

Welcome.

Thank you so much for your patience in terms of that vote; it happens all the time. We really appreciate your staying around. Each of you has up to 10 minutes to speak and then we're going to ask you a round of questions.

Mr. Kettles, you're up first.

[Brent Kettles, Counsel, Crown Law Office - Civil, Ministry of the Attorney General of Ontario, As an Individual]

Thank you, Chair, and thank you for the opportunity to make a submission on Bill C-75.

I am Crown counsel at Ontario's Ministry of the Attorney General, but it's important that I make clear I'm appearing in my personal capacity, and that my views don't represent the Government of Ontario or Ontario's attorney general.

The focus of my submission is on section 271, which is the proposal to eliminate peremptory challenges from the Criminal Code. I'm supportive of the amendment. My view is basically summed up in three points. I will try not to make them very long.

First, peremptory challenges undermine both the representativeness and impartiality of Canadian criminal juries. Second, peremptory challenges undermine the public confidence in the administration of justice, and third, peremptory challenges can invite mischief associated with jury vetting in some cases.

My first point is that the requirements of having representative and impartial juries are crucial elements to ensure both the fair trial rights of an accused person as well as ensuring that the conscience of the community is represented in adjudicating on acceptable conduct. When I say representativeness, of course, I don't mean there has to be a statistically perfect cross-section, or that every possible group and demographic subgroup in society has to be represented on a jury.

However, juries are really only representative if they are randomly selected from a reasonably representative segment of the population. Similarly, impartiality is achieved both by excluding people who are not indifferent as to the outcome in a criminal case, but it's reinforced by what sometimes is referred to in the case law as the diffused impartiality that happens when you have a representative and diverse range of viewpoints on a criminal jury.

It's my view that peremptory challenges undermine both of these goals. They certainly don't further either one.

When we're looking at representativeness, when you have peremptory challenges, you're getting further and further away from the ideal of random selection, and instead of having random selection, what you actually do is introduce an element of selection bias, where you're replacing the random selection with assumptions about behaviour that are based primarily on stereotypical assumptions, and no real information about how perspective jurors might behave.

When you're looking at impartiality in the context of peremptory challenges, instead of excluding people on a good faith or rational basis that they are not impartial about the outcome, what ends up happening is that both Crown and defence counsel are invited to attempt to secure a strategic advantage in the litigation to which they are not really entitled.

No one is entitled to a favourable jury, only one that's impartial. It would be my view that if there is a realistic prospect, and a rational reason why a juror might be incapable of being impartial, then the remedy for that lies in having a challenge for cause that's established on evidence and ruled on by a trier of fact.

Moving to my second point, having peremptory challenges cannot help but lower the public confidence in the administration of justice when members of the public and perspective jurors watch perspective jurors excluded on the basis of no reason, on the basis of no evidence, and without any information.

When those exclusions are based basically on the gut feeling of who is likely to be sympathetic to one side or the other, then that doesn't give the public or perspective jurors a feeling that jury selection is happening in a way that is fair and impartial, and also represents the community. Of course, it can't help but create an assumption that the juror who has been challenged, again usually on the basis of no evidence and for no reasons given, is in some way incapable or incompetent to have been selected or to be impartial in the case.

My third and final point is simply that the existence of the challenge for cause mechanism invites a mischief in the form of jury vetting. Jury vetting is the process of finding out information about prospective jurors for the purpose of finding or divining their attitudes, beliefs and preferences with a view, potentially, to exercising a peremptory challenge to exclude them. The case law is full of cases where this has been done, both on permissible and more impermissible bases.

My overall point is that the peremptory challenge creates an incentive for both the Crown and for defence counsel to try to find out information about jurors' backgrounds. Many prospective jurors would be alarmed if they knew what Crown or defence counsel were trying to find, and it can, in some cases, be a violation of their privacy.

Just to sum it up, it's my view that the existence of the peremptory challenge mechanism invites abuse by creating a perverse incentive.

That's my submission. Thank you.

[The Chair, Liberal, Anthony Housefather]

Thank you very much. It's much appreciated.

Mr. Roach, the floor is yours.

[Professor Kent Roach, Prichard and Wilson Chair in Law and Public Policy, University of Toronto, As an Individual]

Thank you very much, Mr. Chair. Thank you to the committee.

I start from the proposition that in 1999, the Supreme Court told us there was a crisis in our justice system when 12% of prisoners were indigenous. The most recent statistics, which are reflected in my brief, suggest that 28% to 30% of custody admissions are indigenous people: 50% of youth and 42% of women. Not only is this overrepresentation, but the murder rate of indigenous people is six times that of other homicide victims. The most serious crimes, those crimes that are most likely to be tried by juries, disproportionately involve indigenous people as accused and victims.

I've been commenting on and writing a book on the Gerald Stanley case as well as the Peter Khill case. Juries are here to stay. They are a symbol of the community that we are, and they are a symbol of the community we want to be. In this vein, I agree with Mr. Kettles that we should abolish peremptory challenges, which were used to exclude five visibly indigenous jurors in Gerald Stanley's case, but we need to do more. We need to do much more.

To that end, I will propose five amendments for the committee to consider. The first is to amend section 629 of the Criminal Code, which is essentially unchanged since 1892, to allow the prosecutor or the Crown to challenge the composition of the panel of prospective jurors, not only on the grounds of partiality, fraud or wilful misconduct, but also, I would propose, on the grounds of significant under-representation of aboriginal people or other disadvantaged groups that are overrepresented in the criminal justice system.

You've heard from the Criminal Lawyers' Association. They also propose a somewhat similar amendment to section 629. Although we don't agree on peremptory challenges, we agree on this issue. This would essentially set a higher standard in the Criminal Code than the Supreme Court had in the 2015 case of Kokopenace. It's well within Parliament's prerogative to set higher standards than the minimum standards that the Supreme Court sets. I would suggest that the Stanley case especially shows us the significant under-representation of indigenous people on our Canadian juries when they are so overrepresented among both accused and victims.

The language there picks up on other parts of Bill C-75, which makes specific reference to indigenous people and other disadvantaged groups that are overrepresented in the criminal justice system. This is not about a perfectly proportionate jury or jury panel that represents all, every personal characteristic, but it's about the people most affected by the criminal justice system.

Second, I would amend the disqualification of jurors, which in Bill C-75 would move from only forever permanently disqualifying those sentenced to two years' imprisonment. Right now it's one year. To me, I think that, for an otherwise qualified juror, it should not matter whether they had been sentenced to any time of imprisonment. Michael Johnston has also submitted a brief to you, and I'm in agreement with it in that respect.

This is in responding to concerns that some defence lawyers have raised about the abolition of peremptory challenges, that they will make our juries less diverse. I take those concerns seriously. I think one way to address that is to allow permanent residents of Canada to serve as jurors. You don't have to be a Canadian citizen to be a lawyer. I think a permanent resident of Canada shows enough attachment. Our jury system is designed so that judges educate jurors about the law.

As Justice Iacobucci discussed, I would also amend section 638 to allow otherwise qualified volunteer jurors from indigenous communities.

Moving on, the third amendment would be to give judges some more guidance and signals from Parliament about the need to screen jurors for racist bias. I propose, in my amendment number three, to amend section 638(b) in a way that is frequently done in the Criminal Code to encourage judges to pay special regard to the dangers of discriminatory stereotypes that may apply to aboriginal accused, witnesses and complainants, and those from other groups that are vulnerable to discrimination and to the difficulties of determining whether a prospective juror would act on discriminatory stereotypes.

I was counsel in the Williams case in 1998 that allowed the one blunt question. I'm a lot older now. Williams was decided in 1998. We know a lot more about racist bias, subconscious bias, implicit bias, but judges have been extremely conservative because of their concerns about efficiency and the privacy of jurors. I think Parliament needs to encourage the judiciary to allow more searching challenges for cause.

The fourth amendment I would propose is to amend section 633 where Bill C-75 will add to the judicial power to stand aside jurors, the ability to stand aside a juror to maintain confidence in the administration of justice. I agree with the Criminal Lawyers' Association that this is too vague as it is currently written, and I propose language with special regard to the fair representation of aboriginal people and other groups overrepresented in the justice system. Again, this would allow judges, as opposed to defence lawyers or Crowns using peremptory challenges, to try to ensure the representativeness of a jury in a more accountable way so we don't have a repeat of something like the Gerald Stanley case where, regardless of what you think of the verdict, the fact that five visibly indigenous people were excluded undermined public confidence for a significant number of the Canadian public.

Then finally I'm very happy that the government has recognized the growing problem of false guilty plea wrongful convictions, and is amending section 606, which applies before a guilty plea is taken, to require the judge to find a factual basis. I think this is a very warranted amendment to the Criminal Code. I praise the government for doing that, but I also think that subsection 606(1.2), which essentially says this is all optional for judges, must be repealed to make meaningful the factual basis requirement as well as the voluntary and knowing requirements for guilty pleas.

Thank you very much for your time and attention, and I look forward to your questions.

[The Chair, Liberal, Anthony Housefather]

Thank you very much for your presentation.

We're going to go to questions with Mr. Cooper.

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

Thank you, Mr. Chair.

I'll be splitting my time with Mr. MacKenzie.

Mr. Blaney, do you want to ask questions as well?

[Steven Blaney, Bellechasse—Les Etchemins—Lévis, CPC]

Yes.

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

In that case, I'll yield to Mr. MacKenzie.

[Dave MacKenzie, Conservative, Oxford, ON]

Thank you.

Mr. Roach, you've done a great deal of study on the whole issue, not only on this particular case, but we're looking at the process of the Jordan decision as one of the major things. What do you see in this legislation that by eliminating preliminary hearings will speed up the justice system, or do you believe it will?

[Prof. Kent Roach]

Frankly, Mr. MacKenzie, I haven't been able to devote adequate time to study that issue, and that's why I have focused on the jury and the guilty plea issue. I do think it's complex because the Jordan guidelines make allowances for preliminary hearings, but I don't feel I'm in a position to opine strongly on that. I'm sorry if I can't be of any more assistance.

[Dave MacKenzie, Conservative, Oxford, ON]

That's fair.

Aside from the table here, I did speak to one of the other witnesses. I'm curious to know how we dealt with civil juries. I understand the difference here, but we don't seem to have the complaints about civil juries that we have about criminal ones.

Is there something we can learn from that?

[Prof. Kent Roach]

Cases such as Stanley or Khill are very emotive issues, so I think that explains it. But we can learn...because in Ontario, following Justice Iacobucci's report, we have used volunteers from indigenous communities to sit on coroners' juries. In Saskatchewan, there is an ability to structure a coroner's jury so that it represents relevant groups. It seems to me we should think about using that in the criminal justice system.

I'm not saying we should put people who are partial on the jury. Jury selection, as you know, is a very complex system. But I do think we can learn something from experiments from coroners' juries.

[Dave MacKenzie, Conservative, Oxford, ON]

Mr. Kettles, have you thought about the process of eliminating preliminary hearings?

[Brent Kettles]

I haven't. It's not my normal area of practice, and I agree with Mr. Roach that it's a complex one where you're, in one sense, sort of trading off the existence of the preliminary hearing against any streamlining effect it might have. I'm not aware of any research or literature that would definitively suggest one way or the other that it would save time.

[Dave MacKenzie, Conservative, Oxford, ON]

Thank you.

Mr. Blaney.