Justice Committee on Sept. 18th, 2018

[Randy Boissonnault, Liberal, Edmonton Centre, AB]

That's how you would see it. That was the model you built.

[Solomon Friedman]

Yes. I don't think it's difficult.

[Randy Boissonnault, Liberal, Edmonton Centre, AB]

Okay.

I was intrigued by your idea of the jurors questionnaire. Paper or electronic, how much time would that add to the court process?

[Solomon Friedman]

That's a great question.

First of all, the Law Reform Commission, in 1980, found that some judges in Canada actually use a jury questionnaire. I've done a murder trial where the trial judge did use a jury questionnaire. Usually the way the jury selection process works, especially in a big case such as a murder case, is that you have hundreds of people. We had 700 people. Think of the Gerald Stanley case. You have a lot of people and they are sitting around. There is no reason they can't be filling out five or six pages, which, by the way, assists in efficiency because the judge takes a look at them and if he sees that some people have put a reason why they can't serve, he stands them aside. There's no need for that to even go to the lawyers for litigation or a challenge for cause.

[Randy Boissonnault, Liberal, Edmonton Centre, AB]

It was useful the time you saw it used.

[Solomon Friedman]

It was useful, but it should be standardized. There's no reason why it couldn't be mandated in regulation, as a form to the Criminal Code.

[Randy Boissonnault, Liberal, Edmonton Centre, AB]

Thank you both very much.

[The Chair, Liberal, Anthony Housefather]

Thank you.

This is exactly the type of panel of witnesses we hope to get, because we have two incredibly intelligent, articulate, dynamic people with opposite points of view.

Even though you generally agree, you have divergent points of view on the issue itself. It was great. Thank you so much.

I'd ask the next panel to please come forward.

[The Chair, Liberal, Anthony Housefather]

I will reconvene the meeting and present the next panel.

We are joined by Mr. John Muise, volunteer director of public safety at Abuse Hurts.

Mr. Muise, welcome back to the committee.

[John Muise, Volunteer Director of Public Safety, Abuse Hurts]

Thank you.

[The Chair, Liberal, Anthony Housefather]

We have Mr. Daniel Topp, barrister and solicitor.

Welcome to the committee.

[Daniel Topp, Barrister and Solicitor, As an Individual]

Thank you, and good evening.

[The Chair, Liberal, Anthony Housefather]

Good evening.

As well, from Legal Assistance of Windsor, we have Ms. Marion Overholt, a barrister and solicitor and the executive director of Community Legal Aid.

Welcome, Ms. Overholt.

[Marion Overholt, Barrister and Solicitor and Executive Director, Community Legal Aid, Legal Assistance of Windsor]

Thank you.

[The Chair, Liberal, Anthony Housefather]

The floor is yours. Please go ahead.

[Marion Overholt]

Thank you.

We appreciate the invitation to appear before you on this important piece of legislation. It is an honour to do so.

I am the executive director of two legal clinics affiliated with the University of Windsor law school and Legal Aid Ontario. Both Community Legal Aid and Legal Assistance of Windsor have provided legal services to the low-income residents of Windsor and Essex County for over 40 years. Community Legal Aid services include representation on summary conviction offences. Legal Assistance of Windsor services include representation on immigration and refugee matters.

We have reviewed the briefs submitted by the Association for Canadian Clinical Legal Education and the Student Legal Aid Services Societies, and we support and endorse their recommendations.

There are three issues we would like to address with the committee today. First is the ability of law students to continue to represent financially eligible clients on summary conviction offences.

Second is the impact of increasing the maximum sentences for summary conviction offences on refugee applicants and permanent residents.

Third is the impact of increasing the maximum sentences for summary conviction offences on our communities.

The first issue I'd like to address is that the current maximum sentence for a summary conviction offence is six months, and the proposed legislation would increase the maximum sentence to two years less a day. As a result, and by the provision of section 802.1, law students would no longer be able to represent clients charged with summary conviction offences. The impact would adversely affect clients in accessing legal representation and would prevent law students from gaining important experience and training in the criminal justice system.

Our law students work under the close supervision of staff lawyers. Every aspect of their work is reviewed and approved. Clients who are denied legal aid because there is no likelihood of a jail sentence are referred to our clinic for representation. The accused are often first-time offenders who have made a mistake that results in criminal justice engagement.

Our clients are young mothers who have been charged with shoplifting—usually diapers and food from a grocery store—or they are the neighbours or family members whose breakdown in relationship has resulted in assaults or threats, which are often fuelled by mental health issues. Our students have the time to uncover the backstory that led to this behaviour. They can reach out to community agencies and professionals for appropriate support and intervention. A criminal offence does not occur in isolation, and addressing the intersectionality of poverty, housing, mental health and addiction issues allows our students the chance to develop professional and effective advocacy skills.

Last year, this committee's report on legal aid noted that students in legal clinics, when supervised by staff lawyers, provide appropriate and low-cost services to community members. This committee has recommended that the role of law school clinics be expanded to increase access to justice.

Without our participation, these clients will have to represent themselves, which will cause more delays in the criminal justice system, increase the probability of guilty pleas, and put more pressure and strain on Crown attorneys, judges and court staff. The results would exacerbate the problems you are trying to solve. Therefore, we request that the provisions of section 802.1 be amended to correspond with any amendments that you make to the definition of a summary conviction offence.

The second issue I would like to address is the impact of redefining summary conviction offences on permanent residents and refugees. The Immigration and Refugee Protection Act defines serious criminality as the conviction of an offence "for which the term of imprisonment of more than six months has been imposed". Under Bill C-75, all non-citizens of Canada would be at risk of a finding of inadmissibility, regardless of whether they are convicted of a summary or indictable offence. This appears to be another unintended consequence of Bill C-75.

We can certainly understand why Parliament would want to give Immigration the tools to consider the impact of granting residency where serious criminal acts have resulted in significant periods of incarceration. However, it has been our experience at Legal Assistance of Windsor that our clients sometimes brush up against the criminal justice system in their early years in Canada during periods of personal crisis and adjustment to Canadian society. Post-traumatic stress disorder is often a factor, and proper treatment of the condition removes the risk of repeat behaviour. The criminal justice system is capable of addressing those concerns without triggering the imposition of a loss of immigration status and residency. The proposed change also impacts the permanent residents' ability to appeal a loss of their status in Canada and any subsequent removal order. An amendment, therefore, is required to avoid these consequences.

The third issue we wish to address is the impact of increasing summary conviction sentences on the clients we serve. The increase in sentence would be a signal to the bench that it is the will of Parliament to increase sentences for summary conviction offences, and it would indicate that greater periods of incarceration are required. We all understand the importance of deterrence in sentencing. However, this change throws the balance between deterrence and rehabilitation out of sync.

Our communities are struggling with serious issues of homelessness and addiction. In Windsor, we have 4,700 people who are on the subsidized housing waiting list. If every person who is currently housed in subsidized housing moved out tomorrow, we would still have people on the list.

We have a mental health court and a drug treatment court that are able to help only a fraction of eligible clients/candidates because of a lack of resources. We have significant wait times for treatment centres, and often on discharge, the lack of secondary housing means that clients are forced to return to the same rooming houses and shelters where their addictions flourished. Therefore, they are placed at risk of recidivism. Longer jail sentences aren't going to address these problems. Indeed, we've seen the medical reports of clients who have been incarcerated, and the difficulty they have in receiving a consistent diagnosis and treatment only exacerbates their unemployability, and does not assist them in their return to being productive members of our community.

To conclude, our law students at the University of Windsor also have the opportunity to study at the University of Detroit Mercy, in Detroit, Michigan, and the stark contrast between the American and Canadian justice systems is poignant and provides an opportunity for us to learn from their mistakes. Longer incarceration periods for our marginalized populations are not productive, cost-effective or just.

We'd like to thank you for the opportunity to make this presentation this evening, and I would be pleased to answer any questions you have.

[The Chair, Liberal, Anthony Housefather]

Thank you very much.

Mr. Muise, go ahead.

[John Muise]

Thank you.

Good evening. My name is John Muise. I am the volunteer director of public safety at Abuse Hurts, formerly the Canadian Centre for Abuse Awareness. It's a charitable NGO dedicated to the eradication of child abuse. Abuse Hurts provides support for survivors and victims. It does not accept government funding.

My professional experience is relevant to the topic at hand, so I'll note it briefly. I was a police officer with the Toronto Police Service for 30 years. I retired in 2006. I was a detective sergeant. I spent six of those years seconded to the Ontario government's Office for Victims of Crime, where we tried to help crime victims and, as an arm's-length advisory agency, provide policy advice to members of cabinet at the time. In 2009, I was appointed to the Parole Board of Canada as a full-time board member in adjudicating numerous parole decisions.

It's been a long day for all of you, and time is short, so I'll get right to the point. I want to address three areas of serious concern that Abuse Hurts believes are likely to potentially diminish public safety. I won't be talking about peremptory challenges.

First, I will address the proposal to hybridize a large number of indictable offences, thereby allowing for a Crown summary election option. There are a large number of serious crimes set for hybridization, including certain serious driving offences, terrorism-related crimes, and a criminal organization offence. I note that the government just appointed a new member of cabinet to address organized crime, and that's a good thing. However, for Abuse Hurts, the very last one on this long list jumps off the page, and that is the breach of a long-term supervision order. Most of you know what an LTSO is, but I would like to explain how an offender gets one of these orders.

He—and it is most often a “he”—must receive a sentence of two years or more, and there must be a substantial risk of reoffending. The court can make this determination if the offender has been convicted of one of a number of very serious sexual offences and has displayed a pattern of repetitive behaviour that shows a likelihood of causing death or injury to a person, or a likelihood of inflicting severe psychological damage, or by conduct that shows "a likelihood of causing injury, pain or other evil". The word “evil” is not my word; that's the word that's contained in the Criminal Code.

Many of these offenders are also identified by the court as having met the standard to be declared dangerous offenders; however, if the court determines there is a reasonable possibility of managing risk in the community, the offender must be sentenced as an LTSO.

An LTSO is a post-sentence supervision order for up to 10 years, replete with multiple conditions, federal parole officer supervision, and more often than not, particularly in the early years of an order, a residency condition. All of these conditions are imposed by the Parole Board of Canada.

Clearly, the legal bar to receive this designation is high, and with good reason. These are very serious sex offences, and serious offenders who pose an ongoing risk to innocence even while out on these LTSO orders, so when these kinds of offenders appear before a court for an LTSO breach—usually an early warning of a return to their serious offence cycle—they must be dealt with appropriately. In the view of Abuse Hurts, that should be by way of indictment.

These are the kinds of offenders for whom incapacitation through further incarceration safeguards innocents in the community. We all know that Crown attorneys work hard and constantly manage significant workloads. It is not appropriate or fair, for that matter, to allow this offence to be included in the basket of offences where a decision to proceed summarily might be taken because the Crown is under intense pressure from on high to reduce the number of trials in the Superior Court.

Abuse Hurts proposes to the committee to reconsider some of the serious offences on the list I noted earlier and consider removing them. Please, if you see fit, remove breach of LTSO from the list of offences to be hybridized.

Second, I'd like to speak to the judicial referral amendments. If you work in the criminal justice system, one thing is apparent. It's a well-known axiom that a small number of offenders commit a disproportionately large number of crimes, and many of these offenders routinely violate release conditions, fail to appear in court, and reoffend while out on one or more conditional releases or while at large on a warrant.

I think of the young man who, for all intents and purposes, executed a St. Albert police officer not that long ago in Alberta. He was this kind of offender.

These are the offenders who offend the sensibility of many Canadians, drawing criticism about the “revolving door” nature of our justice system. These circumstances can and sometimes do bring the administration of justice into disrepute, yet Bill C-75 proposes an alternative mechanism to deal with many of these offenders that I believe is less public safety-oriented. Anybody involved in the criminal justice system knows that there is very little coordinated information both within and outside jurisdictions to track criminals. Even critical documents, such as criminal records and CPIC entries, are routinely, and sometimes woefully, not up to date.

What's going to happen with these judicial referrals? At best, they might end up written out in court-stored information. How would that help anyone identify the real risk associated with a given offender?

As a former member of the Parole Board of Canada, I can confirm how difficult it is to get even the most basic police record information that is missing from an offender's file. Even if you are able to obtain this information, will the court view it in the same way as a criminal record? Obviously, it won't. As well, a possible unintended consequence of this extensive and detailed new judicial referral plan is that it might use up more court time.

In my opinion, these amendments will varnish the truth about offender behaviour, with important information no longer entered on the official record. How would this reinforce the public's faith in the administration of justice? How does it help quality decision-making? How is it good for public safety?

Abuse Hurts is aware that the federal government consulted a number of people and organizations about this proposal. We know there was significant support among a number of participants in the criminal justice system for an alternative to the charges of fail to comply and fail to appear.

Abuse Hurts proposes creating a mechanism to ensure that judicial referral entries appear on the right side of the criminal record, allowing for use when future decisions to release, refer or detain are being made by police, courts and parole boards.

There's policy that goes along with legislation, so if this committee is interested in looking at that, that might be the route to travel, coupled with regulations.

Third, Abuse Hurts would like to address proposed section 493.1. I'll just refer to it as the principle of restraint section in the new bill. The proposed section reads as follows:

In making a decision under this Part, a peace officer, justice or judge shall give primary consideration to the release of the accused at the earliest...opportunity and on the least onerous conditions that are appropriate in the circumstances, including conditions that are reasonably practicable for the accused to comply with, while taking into account the grounds referred to in subsection 498(1.1) or 515(10), as the case may be.

It's important to know what's in those two sections.

Subsection 498(1.1) instructs police officers about what to consider when releasing, either on the street or from the police station by an officer in charge. Considerations include establishing identity; securing evidence; preventing continuation or repetition of the offence or commission of another offence; ensuring the safety and security of a victim or witness; and considering whether the accused is likely to attend court.

Section 515 sets out the grounds a court must take into consideration when determining whether to release or detain. Grounds include, again, ensuring attendance in court; whether detention is necessary for the protection or safety of the public, including any victim or witness; and whether there is substantial likelihood that an accused will commit an offence or interfere with the administration of justice. An accused can be detained if it is necessary to maintain confidence in the administration of justice based on the apparent strength of the case; the gravity of the offence; circumstances surrounding the offence, including whether a firearm was used; and where the accused is liable on conviction for a potentially lengthy prison sentence.

It's pretty clear what all of those points speak to: public safety and the need for a properly and carefully administered justice system so as to ensure it doesn't fall into disrepute and lose the confidence of Canadians.

I believe that this new proposed principle of restraint in section 493.1 as written is going to trump well-established and, for the most part, long-standing safeguards. This section gives the principle of restraint primary consideration. The dictionary defines “primary” as “of first rank, of importance or value, of chief importance.”

I accept that this section was written with the best of intentions, but with the greatest of respect, I believe it overreaches. Abuse Hurts is particularly concerned about the risk it poses to public safety. Courts are already required to employ the principle of restraint in their release decision-making. The charter, criminal law and case law all tell them to do so. I believe it is wrong to give the principle of restraint primacy.

Abuse Hurts proposes including that principle of restraint section in your bill as written, but removing one word, the word “primary”.

Thank you for this opportunity. I look forward to answering any questions you might have. It's the first time I've appeared before a committee when I didn't have a brief prepared, and I apologize for that. There were circumstances beyond my control, but I've provided my speaking notes electronically to the clerk.

Thank you, sir.

[The Chair, Liberal, Anthony Housefather]

Thank you very much.

Mr. Topp, go ahead.

[Daniel Topp]

Thank you.

Good evening. I'm also honoured to be here. I know the hour is late and, brevity being the soul of wit, I will get straight to the point.

I'm here to speak primarily on the issue of law students, dealing with section 802.1 in the code. I'm on the board for Community Legal Aid in Windsor, Ontario, as well as the amicus curiae in the 672 Court in Windsor, Ontario. That's the mental health court. We've had that court for about eight or nine years now. I act primarily as duty counsel in that court, so I deal with a lot of mentally ill accused, as well as, more importantly, a lot of people who do not qualify for legal aid.

I'm sure you've heard that, at one point, legal aid had a period of time when certificates were given to people with mental health issues. Unfortunately, due to financial constraints, that has really gone by the wayside. That's why the students are present in our court system and are able to assist people charged with relatively minor offences. Most of the people who come into the mental health court and do not qualify for legal aid are first-time offenders who have no real history in the criminal justice system. It's the perfect opportunity for students to work on these matters.

The recommendation that's available in CLA's memo deals with the amendment to section 802.1 by adding wording essentially dealing with the agents and the articling students being allowed to appear even with the change in the amount of time for the offences being dealt with. I'm not here to speak on the issue of maximum potential penalties for summary offences. Whatever you do with that, you still have to deal with the issue of the law students being there.

I'm asking you to allow the articling and law students to continue in this area of law, because they're under the direct supervision of a lawyer. This is different from a paralegal. Legal Aid's approach is to ask you either to enumerate a number of sections of the code that they should be allowed to act on, or to exclude them.

However, having been a criminal lawyer now for 17 years, I know that these nice tiny little boxes into which things fit just don't exist in criminal law. Every case has its difficulties, even if it's something as small as a theft under a certain amount or an assault in a bar fight or something like that. There could be issues in that case that a student might have a problem with, but because the student has an articling principal and all the clinics have staff lawyers who review all the files, they will have the ability to look at the individual case and give the student some direction on what to do.

It's much like doctors and residency, because our students are in law school. Before doctors go into residency, they have medical training. Our students have legal training. That's why I'm asking you to consider that. I'm sure there's a big issue with the paralegals. I'm not here to speak for or against the paralegals, but I think there should be some kind of exemption for the students. They're in a different class because of the training they've had: Either they're in law school or they're articling.

With the direction of an articling principal or one of the staff lawyers, there is someone there to see the problems in each individual case and to sound the alarm. If you do it in the way Legal Aid is asking, with the enumerated sections or the excluded sections, there's still potential for danger. That's why I'm asking you to deal with that amendment by adding those words to it.

Under a program approved by the lieutenant governor in council of the province.... I don't want to put too much on the table here, but I think we could cross that out. This is a federal statute, the Criminal Code, and I think that with direction, if you intend to allow the students to do that, it should be across the board instead of having each province do that. More importantly, if you leave it to the province to do this, there's going to be a gap for the people who are most vulnerable in the system, marginalized people as well as mentally ill people. As I said, dealing with the 672 issues, I have a real passion for the mentally ill accused.

I'm a lawyer who donates some of his time as amicus, but there's not a lot of me, if I can put it that way. The students fill a big part of the problem of dealing with the people who otherwise would be alone in the system.

Furthermore, getting rid of the students would cause further delay, because self-represented accused will cause delay in the system. There's empirical data that points to this.

I've dealt with people who have come to me in the 672 Court who weren't even notified by duty counsel that it existed. Once they came to me, essentially, I found out they had been trying to plead guilty for four or five months. They had been sent to a mandatory pretrial because the Crown position is that if you're going to have a self-represented trial, you have to have a pretrial in front of a judge. This causes delay and burdens the system.

There's always this caveat that there's a direction, that there's a lawyer present to watch the students. Allowing this would facilitate the marginalized people to still have representation in the system.

On preliminary hearings, I want to tell you that, being a lawyer for 17 years, I've read the material. A very small percentage of court time is used for preliminary hearings. As a criminal defence lawyer exclusively, I find them to be very valuable.

I'm not sure if anyone has said it before, but I would like to tell you that sometimes, even though I know things are not going to go well for my clients at trial in superior court, we have a preliminary hearing so they can see the evidence. They can see the Crown's case against them.

What happens in these cases is that a lot of times these matters resolve. We have preliminary hearings to test the evidence, and it doesn't take up much court time. Take the example of a sexual assault case. A preliminary hearing will last perhaps two hours. If it's a strong case, I sit down with my client after that, and then we alleviate a week-long superior court trial.

Also, sometimes the Crown doesn't really know what they have, and when I ask them to test the evidence after the preliminary hearing they see the frailties. The lawyers see it. It's the other players who don't, and they are the ones who need to see it at times. What happens at that point is that, again, there is resolution.

I would ask you to consider keeping preliminary hearings.

Finally, I would like to speak briefly about victim fine surcharges. Kudos to the committee for dealing with this issue. Again, being amicus and dealing with a lot of mentally ill accused, it's almost comical at times when I have somebody homeless or mentally ill in court. Guess what: They don't come to court. They get charged with failure to appear. They are not a danger to the public, and with the Antic decision and the new bail system, they keep getting released. Then you have them back in court with seven or eight separate pieces of information—breaches for not going to probation, not being at the residence where they are supposed to be, and failure to appear. Say, there are seven or eight charges. They plead to five. It's victim fine surcharge upon victim fine surcharge.

My clients, in some senses, become the victim of the victim fine surcharge. In that example, it is going to be $500 or $600. They don't have the money. They will never have the money, so I don't see the point of piling it on. I'm very happy to see the committee has wrapped its mind around that. I'm obviously in support of adopting your recommendation dealing with the victim fine surcharges.

Thank you, unless you have any questions.

[The Chair, Liberal, Anthony Housefather]

We will have some questions for everyone.

I just need you to know that this is the draft law. It's before the committee. The committee has made no recommendations yet on victim fine surcharges or anything else.

[Daniel Topp]

It's there.

[The Chair, Liberal, Anthony Housefather]

It is in the law that we're considering. Yes, exactly. I just want to correct the record on that point.

[Daniel Topp]

I'm sorry. I just meant to say that I'm supporting what's in the draft.

[The Chair, Liberal, Anthony Housefather]

You supported that position in the bill. Absolutely, I understand completely.

Mr. Cooper, go ahead.