Justice Committee on Sept. 18th, 2018

[The Chair, Liberal, Anthony Housefather]

We're going to call this meeting of the Standing Committee on Justice and Human Rights to order as we continue our study of Bill C-75, an act to amend the Criminal Code, the Youth Criminal Justice Act and other acts and to make consequential amendments to other acts.

Today, we are joined by the Criminal Lawyers' Association, represented by Mr. Michael Lacy, president, and Mrs. Apple Newton-Smith, vice-president.

Legal Aid Ontario is represented by David Field, president and chief executive officer, and Mr. Marcus Pratt, director of policy and strategic research.

Welcome. It's a pleasure to have you all here.

On the telephone, we have Mr. Philip J. Star, who is a criminal defence attorney at Pink Star Barro. Mr. Star, welcome to the committee.

[Philip J. Star, Criminal Defence Lawyer, Pink Star Barro, As an Individual]

Thank you very much.

[The Chair, Liberal, Anthony Housefather]

As agreed, we are going to turn to you first, Mr. Star. You have eight to 10 minutes, so please go ahead.

We will then have the other groups, and then take questions.

[Philip J. Star]

Thank you very much.

This is my first time having the pleasure of appearing before this committee. I have to give some comments on or insight into at least some of the legislated changes contemplated by Bill C-75.

As a general prelude, I operate a general practice, but most of my work is as a criminal defence lawyer, mainly in small towns in rural Nova Scotia. One would surmise that even though the Criminal Code and the other related statutes that we all deal with are national and apply or should apply uniformly throughout the country, there clearly are differences in the manner in which the criminal laws are adjudicated upon. I am certain that other criminal defence lawyers here will echo my comments, not only from province to province, but even in different regions in each province.

The reason I referred to this is that part of the bill allows for the exercise of more discretion by Crowns as to the operation of preliminary inquiries, hybridizing more or most of the offences in the Criminal Code, and certain other things. My point today is not to mount an attack on Crown attorneys just because I'm a criminal defence lawyer. Rather, I propose to offer some general comments and some concepts that may have gone by the wayside. I'm certain a lot of this is going to be redundant or repetitive to what my colleagues will say here.

We've all read a lot of literature not only about Bill C-75, but also about many other suggested bills and amendments to the code, and this could be parliamentarians, legal scholars, newspaper reporters, Crown attorneys, defence lawyers, or members of the public. All this is under what I'll refer to as the rubric of making Canadians feel safer—I've seen the words “public safety” and “national security”.

Obviously we all want that, but I think it's important that we not lose sight of some of the most important concepts of criminal law that we at least used to take for granted, and I hope we still do: namely, the presumption of innocence and the concept of proof beyond a reasonable doubt. I know I'm speaking of a given here, or what's supposed to be a given, but I sometimes wonder, with the utmost respect, with respect to some of the amendments or proposed amendments, whether the pendulum is swinging way too far the other way.

People can never really truly appreciate the safeguards and high standards of our system until they or a loved one is facing a criminal charge. I find it amazing when I am representing a police officer now, or a Crown, or a judge, or a family member of one of those persons, how people start carrying the torch for these safeguards if a family member or a friend is in the unfortunate position of facing a serious criminal charge.

At the risk, once again, of being redundant or repetitive, I'm going to speak briefly about some of the preliminary inquiry amendments and some of the purported reasons or justifications for the reduction or elimination of preliminary inquiries that I respectfully submit are just simply not borne out by the statistics. I won't refer to the statistics specifically. We talk about the number of matters that go to preliminary inquiries and so on. We talk about saving victims or not revictimizing victims by having them testify more than once. We talk about trial efficiency and efficacy, and the 2016 decision of the Supreme Court in Jordan. In actuality, I submit that Jordan was to a large extent a reaffirmation of what courts have been telling us or trying to tell us for a long time.

Paragraph 11(b) of the charter was enacted in excess of 36 years ago, in April 1982. It was not meant to be mere window dressing, so the actors or participants—i.e., the Crown, the defence, the police and the judges—have been told to get their act together.

The preliminary inquiry serves a unique and instrumental purpose in the system, not just for the defence but—it's important and I'm going to emphasize this—for the Crown. It allows both the Crown and the defence to test witnesses as to their actual observations and recollection of events that happened in the past. It permits both the Crown and the defence to identify often crucial issues that may not otherwise be noticed in the disclosure: i.e., the RCMP reports, statements and so on provided by the parties.

It allows both the Crown and the defence to see not only what somebody says in a written statement, but how they say it: the nuances, the body motions and the inflection of the voices. To use a blatant example, if someone is asked if they consented to sexual relations, a transcript might show them saying, “No”, when it's either “No!” or “Um...no.” On paper, they look the same. These are but small examples of just how much benefit can be provided not only to the defence or the accused but also to the Crown.

In my experience, preliminary inquiries result not only in a committal to trial, but often in a weeding out of cases that should not be proceeded with, either by having the Crown withdraw the charges or, certainly more so, by having a resolution of charges after both the Crown and the defence have had an opportunity to have a true view—one might say, a dry run—as to what the case consists of. They're incredibly helpful, not only to the accused, but to the Crown and ultimately to our system, by cutting down on delays and costs, at least in my experience, not just in rural Nova Scotia, but in a lot of other areas. I'm in Halifax virtually every week, and I find the same up there.

I'm just coincidentally involved in two very serious cases, one of which, last week, was dangerous driving causing death. A day-long preliminary inquiry probably saved us a trial of a week and a half because the case was resolved. I realize you can't look at one case and use that as the cornerstone, but I think it's important to highlight that, because I'm certain all of us could speak from similar examples in our experience.

A lot of this has already been addressed by Parliament by reducing the time in preliminary inquiries by enacting section 540 and related sections of the code. The Jordan timelines, I note, allow for another year for indictable offences.

There are other things here, but at the end, what I have left is certainly the most crucial aspect of what I propose to comment on today. I prefaced my remarks earlier by referring to the hallmarks, the cornerstones, if you will, of our criminal justice system: the presumption of innocence and the concept of proof beyond a reasonable doubt.

In my view, removing a procedural safeguard such as preliminary inquiries will almost certainly lead, at least indirectly if not directly, to more wrongful convictions. Canada, in my respectful view, has a criminal justice system that, although not perfect, is likely among the best, if not the best, on this planet.

Having said that, we have skeletons in our closets, the Donald Marshall Juniors of Nova Scotia and the Guy Paul Morins, to name but two people who have gone into infamy because of serving lengthy periods of incarceration for crimes they did not commit. That time cannot be given back to them. This is irreparable.

The system was not good previously. I look at the rape shield laws, where there was an open season on alleged victims before, and the pendulum swings. I think it's important to remember that the pendulum should not swing too far the other way. We should not allow legislation to be passed that could have the direct effect of leading to more, perhaps many more, Donald Marshall Juniors.

There's a mention of the need for robust initiatives, transparency and a culture shift by all, but we should not and cannot erode, undermine or sacrifice these benchmarks of our criminal justice system at the altar of public safety and\or national security.

Thank you very much.

[The Chair, Liberal, Anthony Housefather]

Thank you very much, Mr. Star, and thank you for delivering your testimony in a more difficult way than is normally the case. It's hard to see your audience and still speak, but you did it very effectively. Thank you.

We'll now move to the Criminal Lawyers' Association. I'll turn it over to you, Mr. Lacy.

[Michael Lacy, President, Criminal Lawyers' Association]

Thank you, Mr. Chair and honourable members. We're glad to be here and to be invited to speak to the work of this very important committee.

Really, we appear today on behalf of the 1,400 members who are part of our organization, which includes criminal defence lawyers and also academics in Ontario and otherwise. We hope to persuade you to consider making recommendations to amend the bill as it currently exists and to also consider suggesting that aspects of the bill not be passed at all.

By way of introduction, we have been critical of the bill, but there are many aspects of the bill that we think are laudable and heading in the right direction, aspects that you've heard about from other witnesses, such as amending the proposed bail provisions; the concept of judicial referral hearings; giving the discretion to judges not to impose the victim fine surcharge; increased case management powers; and, finally, bringing criminal justice into the century that we practice in by taking advantage of video conferencing. Obviously, these are all positive things that will assist in the orderly, timely administration of criminal justice throughout Canada, but there are aspects of the bill that we find particularly troubling.

We have outlined those submissions in the paper we've provided you in advance. Many other people will speak to many of the things we've outlined, but today, in the brief time we have, the 10 minutes before we are asked specific questions, we would like to talk about the proposed jury selection amendments.

Again, we want to acknowledge at the outset that the government's acknowledgement of the potential problems in the jury selection process and the goal to bring more fairness and transparency to the process are laudable. Eliminating discrimination in the jury selection process and ensuring that jurors are truly representative of the community where the crimes are alleged to have occurred is a goal that we wholeheartedly support.

The goal of addressing systemic racism or discriminatory practices within the jury selection is similarly shared by our members, but unfortunately, as we look at the means that have been chosen, they fall far short of what's required and, if adopted, will not actually assist in addressing the problems.

We view ourselves as significant stakeholders in the administration of criminal justice. We believe that, like all significant stakeholders, we have a responsibility to ensure that community members who become jurors decide the case fairly, objectively and without prejudice, bias or favour for either party, whether it's the accused or the Crown prosecuting the case.

The race, gender, nationality, socio-economic status or other descriptor of either the accused person or the victim of crime has no role to play in terms of what the result in a criminal case should be. Discrimination or improper stereotyping has no place in the courtroom or in jury deliberations, or in the way in which juries are chosen.

The way in which jurors are chosen not only has to be substantively fair, but it has to appear to be fair. The appearance of fairness with respect to the jury selection process is very important. This includes having a diverse pool from which the jury can be chosen.

Recent high-profile cases have raised questions about whether the current procedure, including the use of peremptory challenges, meets that standard, particularly in relation to the appearance of fairness. We don't need to name the cases that get named all the time with respect to this issue, but let's just be clear. No one was entitled to have a biased juror. No one was entitled to have a biased jury in favour of the accused or in favour of the Crown.

That is no doubt the impetus for this really significant change. When the minister came and spoke to you most recently, she described this as a significant, substantive change to the law, and we agree. The difficulty is that in terms of eliminating the peremptory challenges without some of the other proposed ways that academics and practitioners are telling you to consider, changing the jury selection process will not help the system. It will not lead to diversity and in fact will leave us without the opportunity to protect our clients, who are most often racialized, indigenous or other marginalized people. These are the bulk of the people who come into conflict with the criminal justice system.

The unfortunate reality is that although racialized and indigenous persons are overrepresented in the criminal justice system as accused persons, their communities are unrepresented in the jury pool from which the jurors are chosen to decide a case. In communities with large indigenous populations, there are often very few indigenous people who ultimately come before the court as part of the jury pool from which 12 men and women from the community are chosen to decide a case. Even in large urban centres like Toronto, the pool of eligible jurors does not reflect the diverse Toronto urban community.

There are many reasons for this, some of which can be dealt with through legislative action that is missing in the proposed bill.

First, although this is not within the purview of Parliament, the way in which people are summoned for jury duty—which is left to the provincial governments and has been done by relying on property tax assessment rolls or on other areas—leads to a situation in which a case does not actually draw the representative, diverse community wanted in the jury pool. Historically, this leads to the exclusion of people like renters, boarders, and low-income people—people who might be considered to be on the margins of society but who nonetheless reflect our communities. It also leads to the exclusion of indigenous jurors. You have many submissions before you from groups that speak to this issue, not simply from the Criminal Lawyers' Association. One of the problems is that the pool from which juries are chosen is not diverse.

Second, which this committee knows particularly well, is the failure on the part of provincial governments to compensate jurors properly for their time in court. It was the subject of a report that this committee released in May. One of the recommendations you made is important with respect to this issue.

Just imagine how this plays out in practice. People get excused from the jury pool on the basis of financial hardship. Anyone living day to day in Toronto, Ottawa, Saskatoon or in more rural communities who cannot afford to take time off work to serve on a jury pool is going to be excused, and so should they be. You don't expect people to go into financial ruin to serve on the jury pool. What does that leave you with? It leaves you with some unionized people whose unions are smart enough to negotiate compensation. It leaves you with a lot of retirees. It leaves you with very wealthy people. You're not drawing a representative sample in terms of the eligible people who can in fact serve on a jury.

When it comes to dealing with the issue of peremptory challenges, the collective experience of our members is that when an accused person is a different race or colour or looks different from most of us in this room, who are white, it's important that potential jurors be asked questions to determine whether there are racial stereotypes or biases that will affect the way they will adjudicate the evidence vis-à-vis our clients. This is normally done through a challenge for cause process. You have all the background information on this. Jurors are basically asked one or two questions so that someone can decide—some other two people who are chosen from the jury pool—whether they display bias such that they should be removed from the jury.

As a consequence of the lack of diversity in the jury pool, peremptory challenges are used each and every day by responsible criminal defence lawyers in this country to try to get deeper into the jury pool in the face of having lack of diversity on the jury. When you're looking out at a room of 200 people and your client is a young black man from the city of Toronto, and you see five, six or 10 people who, by the time those with financial hardship are weeded out, are actually eligible to sit on the jury, you're trying to find someone diverse on that jury.

As I said, we're not interested in bias or partiality. What we're looking for is to have someone in the room who is representative of the actual community. That's the way our members are using peremptory challenges. It's the only tool we have in our tool kit to get deeper into the jury pool to try to improve the diversity of the jury. Sometimes people can get through a challenge for cause—for reasons that are difficult to explain—even if they do display signs of bias. I know the new legislation will give a judge the power to control the challenge for cause, but again, peremptory challenges allow a lawyer to try to shape the jury in such a way that actually encourages diversity.

There are three things this committee should consider:

First, it should consider providing a more robust statutory challenge for cause, based on evidence. This means taking an evidence-based approach to determining how the jury is chosen and asking modest questions of the jurors to determine whether or not they display potential bias.

Second, it should consider inviting submissions from the parties. Professor Roach, whose submission you have before you, speaks to this issue as well, and I know you're going to hear from other academics on this issue. There seems to be a myth being perpetuated that the practitioners are at odds with the academics on the issue of jury diversity or on the issue of peremptory challenges. We all want the same result. It's how you get there, at the end of the day.

Third, it should consider forcing the provincial government to create mechanisms to have representative jury pools. Because of the division of powers, the only way to do that is with the proposed amendment that we suggested for subsection 629(4), which would be a new provision that would allow for a challenge for cause based on the lack of representation in terms of the jury pool that's been assembled.

If the provincial governments won't act, then this government needs to act. It needs to create a challenge for cause process and provide compensation for those jurors. Your recommendations were welcome before, and they will be welcome again, but let's go further. Let's suggest transfer payments to the provinces so they can compensate people, or do whatever is needed. With all these very smart people running our collective governments, perhaps we can compensate people so that the poor, the marginalized and the racialized are not excluded.

We have a lot to say about the legislation otherwise, but I do appreciate this opportunity to speak to you directly about the jury issue.

Thank you very much.

[The Chair, Liberal, Anthony Housefather]

Thank you very much.

We'll move to Legal Aid Ontario now.

[David Field, President and Chief Executive Officer, Legal Aid Ontario]

Thank you for the opportunity to appear before this committee again. Legal Aid Ontario, LAO, is Canada's largest legal aid plan, and a significant funder and provider of services in every level of criminal court in Ontario. We have a pressing interest in the federal government's criminal justice reform initiatives.

LAO's submissions on Bill C-75 reflect our position and views, both as a funder focused on making the most cost-effective use of public funds, and as an access to justice organization dedicated to addressing the legal needs of our low-income and frequently highly vulnerable clients.

LAO has a particular interest in the bill's amendments aimed at addressing bail and remand issues. LAO would like to see a section added to Bill C-75 that ensures that the bail process outlined in the R. v. Tunney decision becomes the baseline procedure for bail. The bifurcated process requires the justice to consider the appropriate release after submissions by the defence counsel and the Crown before moving on to the suitability of a surety. This simple change of procedure makes the bail process faster and fairer, and the Criminal Code needs to be amended to reflect the Tunney decision and recognize that without direct procedural reform in bail court the new amendments will fall short of making the necessary changes to fix the bail process.

LAO supports many of the expanded police powers in Bill C-75, as they aim to address police concerns that may be preventing them from exercising their authority to release. LAO agrees with Justice Gary Trotter and others, who have made the point that expanding the powers of the police to impose conditions must be approached with caution so that the very reforms aimed at alleviating pressure in the justice system do not have the unintended consequences of adding even more people into the system.

A particular concern about expansion of police discretionary powers is the potential for disproportionate and discriminatory impact on particular groups. For these reasons, LAO recommends modest amendments to proposed subsection 501(3) of the bill, consistent with the principles of restraint and the goal that conditions can be reasonably complied with so the police are not given the authority to impose the following two types of conditions, which we believe are overly broad, unnecessary and likely to increase rather than decrease the number of remand detentions: conditions aimed at preventing the future commission of unnamed future offences, and curfews attached to residential conditions of release, in particular the requirement that a person present themselves at the entrance of their residence on request, which is a condition that is used sparingly even by justices, and when used is too often breached for innocuous reasons, resulting in further charges and detention orders.

Bill C-75 as drafted restricts the availability of preliminary inquiries to offences punishable by life imprisonment, which we've heard concerns about already. On its face, this would appear to be a cost-saving and delay-reducing reform, as it eliminates a step in the process. However, LAO's own experience and research conducted by prominent criminologists indicate that this is a more complicated issue that should be approached cautiously.

LAO is not convinced that this proposed amendment will reduce court system delays or costs. In fact, it may produce the opposite effect. There appears to be no evidence suggesting that preliminary inquiries are a major cause of delay in the system. At the same time, there is evidence that preliminary inquiries serve as a screening function that enables more matters to be resolved without the necessity of a trial.

LAO's own data suggests that preliminary inquiries play an effective role in screening out charges and reducing the number of cases that proceed to trial. We looked at internal data related to cases funded through our big case management program between 2004 and 2014. Over this 10-year period, preliminary inquiries were held in 491 cases of 1,034 LAO-funded cases that did not involve life sentences; 75% of those cases did not result in setting a trial, providing a clear suggestion of the value of preliminary inquiries in reducing cost and delay. We believe that there is a strong case to be made for rethinking this proposed amendment.

Therefore, LAO recommends removing the restriction on the availability of preliminary inquires to offences punishable by life. At the very least, we believe there needs to be a process for requesting access to a preliminary inquiry on a case-by-case basis.

Another potential way to reduce some of the negative impacts of removing the preliminary inquiry screening function may be to broaden the scope of discovery to encompass some of the screening aspects of this process. LAO also strongly recommends further study on the issue.

LAO has significant concerns with increasing the maximum sentence for all summary conviction offences to two years less a day. This would open the door to harsher sentences for lesser offences. It would broaden the serious immigration consequences of a criminal conviction by rendering non-citizens potentially inadmissible to Canada or subject to deportation on the basis of a minor conviction.

It would also preclude law students and paralegals from assisting persons charged with minor offences. For LAO, and other legal aid plans, this proposed amendment would restrict our ability to meet our mandate by providing cost-effective access to justice for many low-income people who cannot afford a lawyer. Students and paralegals help legal aid plans to assist people who are facing summary charges that are serious enough to give them a criminal record and mar future employment or other life prospects, but are not likely to result in jail time.

Where the liberty test is not met, a person will be ineligible for a legal aid certificate in Ontario. As the committee knows, there are also stringent financial thresholds for certificate eligibility. Based on research, including our own independent analysis of eligibility and coverage, we know that those caught in this access to justice gap are statistically more likely to be women, members of a racialized community and indigenous persons.

The overrepresentation of indigenous and racialized persons in the justice system is a matter of record, and is of concern to both LAO and the federal government. Given their limited resources and restrictive coverage guidelines, LAO and other legal aid plans rely on services provided by students and paralegals to help fill the serious access to justice gap.

It is simply a fact that if the doors are closed to us by Bill C-75, more low-income and disadvantaged people will be representing themselves, thus contributing to, rather than alleviating, justice system delay. It is also likely that more will inappropriately be guilty, and may also be exposed to harsher sentences, thus growing the population of persons enmeshed in the criminal justice system as a result of a minor charge.

LAO recommends that subsection 802(1) be amended to ensure that law students and paralegals continue to be able to provide legal services to persons charged with minor criminal offences. This may be accomplished by either identifying specific exceptions, making it clear that these are offences to which agents like law students and paralegals may continue to provide services, or identifying serious offences where agents may not provide services, leaving it open for agents to represent individuals for the remainder of summary offences.

In closing, I would again like to thank the committee for the opportunity to provide our input. I would also like to mention that Stephanie Heyens, a senior litigator at Legal Aid Ontario, is presenting to the committee on the bill's amendments to the police affidavit evidence. LAO fully supports her brief.

Thank you very much.

[The Chair, Liberal, Anthony Housefather]

Thank you very much.

I will now move to questions.

Mr. Cooper, go ahead.

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

Thank you, Mr. Chair.

Thank you to the witnesses for their helpful testimony.

Mr. Star, you made reference to the limitation on preliminary inquiries and stated that, with limiting the scope of preliminary inquiries, there is a risk that individuals who are charged may end up being wrongfully convicted. Would you similarly agree that limiting preliminary inquiries may, in fact, make it more difficult to successfully prosecute guilty individuals? In other words, it's more difficult to achieve justice all around.

I say that because when our committee was in Edmonton, we heard from a Crown prosecutor who prosecuted one of the few successfully prosecuted human trafficking cases in Canada. She told the committee that without a preliminary inquiry, it would have been very doubtful that she would have achieved a conviction in an egregious case involving gross violations of workers, because witnesses were disappearing, etc. However, she was able to get them in and use that evidence, ultimately, in securing a conviction.

[Philip J. Star]

It's a good point. I do concur with that.

I've indicated that I've been involved with a fair number of cases in which the preliminary inquiries help the Crown much more than myself by pointing out weaknesses that they're able to rectify. It has often arisen, both very recently and a number of years ago, that witnesses, as you say, are either not available or deceased. We actually had two tragic cases here in the last 18 months or so in which the alleged victim had committed suicide. One person had been subjected to a preliminary inquiry by testifying; the other one had not. The case of the one who had not testified went by the wayside. For the one who had testified, the Crown successfully applied to the court to have his testimony—it was a male alleged victim—successfully admitted before the Supreme Court judge and jury.

I agree that it can help prosecute guilty persons. We are all hopeful that the safeguards are there, not just for the accused persons but for the system. I agree with you that having this enhances the system from both sides.

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

Thank you for that.

I take the point of the witnesses, the general concern about limiting preliminary inquiries. The government has set two streams, one involving cases where the maximum sentence is life, which would be eligible for a preliminary inquiry, and the other involving the rest of the cases, which would not. Do you see any logic in that? It certainly seems like the government is impliedly concurring that there is value to preliminary inquiries, from the fact that they're maintaining at least some. Why is there this separation between cases with life sentences and everything else?

[Philip J. Star]

That's a very good question. I can't answer that. All I can say is that we all know that most of the offences in the code do not have a maximum life sentence, so we're very much limited. One can certainly impliedly reach the conclusion you just did. Further than that, I cannot say. I agree wholeheartedly with your suggestion there. I can't understand why the next step down from life imprisonment is 14 years. Why that particular benchmark was used, I cannot say.

[Marcus Pratt, Director, Policy and Strategic Research, Legal Aid Ontario]

I think the question suggests further study. There does seem to be an element of arbitrariness, albeit a bright line, between when a prelim will be available and when it won't. There are a lot of offences that might require a prelim where it will be lost. Arguably, there are some cases for which a prelim might not be as valuable. I think further study on when a prelim is effective, in all aspects and in terms of learning about the Crown's case and screening out weak cases, would be useful. We can draw that line as to when a prelim is required and when it isn't.

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

How much time do I have, Chair?

[The Chair, Liberal, Anthony Housefather]

You have another minute and 20 seconds.

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

The whole reason for this bill is the Jordan decision. Do you see limiting preliminary inquiries as having any impact on Jordan, to the degree that the Supreme Court factored it in as a procedural step in setting the 30-month timeline?

[Marcus Pratt]

I think the data shows that it will have very little impact, if any. There are very few cases in the Ontario Court of Justice that involve prelims, relatively speaking. While it sounds like we're going to cut out 87% of preliminary inquiries, which sounds impressive, the reality is that there are very few cases and little court time taken up with preliminary inquiries. Preliminary inquiries are relatively short, on the whole. I think Professor Webster noted that they were on average one or two days. They are not what we stereotypically think of as two or three weeks. They're short in duration and don't take up a lot of court time. In my view, eliminating them will have no impact on reaching the Jordan timelines.

[Apple Newton-Smith, Vice-President, Criminal Lawyers' Association]

For the Criminal Lawyers' Association, we are urging that this amendment not be adopted. If you look at our submissions, and as you see in the statistics, 86% of cases that have preliminary inquiries are resolved following that preliminary inquiry. I think that's a very important statistic to bear in mind. Preliminary inquiries don't just provide a gatekeeper function, although that is how they are traditionally described, to weed out cases that ought not to proceed to trial because there isn't evidence. They also provide a case management function. Those cases that do continue on to trial are managed much better because the preliminary inquiry circumscribes the issues much better. Therefore, witnesses don't necessarily need to be called again at the trial. The case management function of the preliminary inquiry is a very important thing to bear in mind when talking about taking away the preliminary inquiry.

[Michael Lacy]

I'll add to the member's question. The criminal process is about enhancing the truth-seeking function. That's part of what the criminal trial is about. The way in which the government has said it is going to abolish preliminary inquiries, for all but those cases where life imprisonment is at play, acknowledges implicitly that there is a value served by the preliminary inquiry in terms of the truth-seeking function. If you're going to approach this issue from a principled perspective, our association has suggested that if you're going to make substantive, significant changes, then at the very least you should propose an amendment that would allow either the prosecutor, the Crown, or the defence to apply to the court for leave to require a preliminary inquiry—for the very reason that the honourable member has raised the question—since in some cases where life is not engaged, the truth-seeking function of the criminal process will benefit from one or the other, or both, of the parties having the opportunity to have a preliminary inquiry, in a focused way, that is managed through the case management powers of the court.

[The Chair, Liberal, Anthony Housefather]

Thank you very much.

Ms. Khalid, go ahead.

[Iqra Khalid, Liberal, Mississauga—Erin Mills, ON]

Thank you, Chair.

Thank you to the witnesses for their testimony today.

Mr. Lacy, you spoke at length about the proposed jury selection process, and about getting rid of peremptory challenges in Bill C-75. Yesterday we heard from an indigenous organization that spoke in favour of getting rid of the peremptory challenges, but you outlined that it would not have the impact that we want it to have here in terms of diversifying the jury selection.

I'm not sure if you had the chance to go over what their arguments and reasoning were.

[Michael Lacy]

I did. We're talking about Jonathan Rudin's submissions to this committee, in which he fully endorses the recommendations of Professor Roach. This is about how each organization may choose different ways to express the point, but if you reflect on our submissions and reflect on Professor Roach's submissions, all of which were adopted by Aboriginal Legal Services, you'll see that we are all talking about the same thing—that a stand-alone elimination of peremptory challenges combined with the one other change, which is allowing a judge to determine the challenge for cause, will not result in actual diversification of the jurors who are chosen to decide a case.

In that respect, there is actually no conflict among the positions taken by our organization, by Aboriginal Legal Services and by Professor Roach.

[Iqra Khalid, Liberal, Mississauga—Erin Mills, ON]

Thank you.

As a recommendation in terms of amending the bill, you also mentioned taking an evidence-based approach to jury selection, with regard to asking questions or bringing in testimony, etc. Can you talk about that a little more? Also, can you talk about whether or not that would delay the whole process? That is something that is already a concern in our justice system.

[Michael Lacy]

It is very much an anecdotal exercise when you ask us to reflect on what happens. As it stands now, this is what you know about potential jurors absent a challenge for cause: you know their name, in most cases; you know the city where they reside and perhaps their municipal address; and in some cases you know their occupation. That is it. You know nothing else about the person.

The way it is now, by its very nature the peremptory challenge forces you to rely on stereotypes about people, whether they are socio-economic stereotypes or gender stereotypes, based on a particular case. In this regard, we agree with Professor Roach that there is a way in which you can have limited questioning of the jurors in a challenge process that allows you to find out a little more about this person who is going to be sworn in as a judge to decide whether or not someone has committed a criminal offence.

In the United States, as Professor Roach and other academics have pointed out, the system has gone a bit awry. It has led to lengthy proceedings and jury-vetting procedures, but it need not do that. One of my colleagues, who does a lot of work with respect to aboriginal communities, was telling me about an inquest he was recently involved in, in the province of Saskatchewan. The coroner was able to allow limited questioning of the jurors and was allowed to draw a jury—a differently constituted jury, obviously, for that purpose—that included representative people from the indigenous community and also from the rest of the community. He was reflecting on the experience and, knowing that I was coming here today, he said that when you allow a little bit of inquiry and you control it through judicial management—in that case, the coroner was managing it—you get a much better appreciation for the particular biases, whether they're known biases or implicit biases, that might be affecting not the willingness of the person to decide the case fairly, but their ability to do so.

We do support an evidence-based approach in that regard.