Justice Committee on Sept. 18th, 2018

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

Would giving extensive discretion to counsel on either side to pick and choose which jurors are being selected perpetuate an unfairness and lead to people selecting a jury based on which way it would lean, for a favourable outcome for whichever counsel?

[Michael Lacy]

No. The proposal would be to allow some limited questions, and then allow submissions to the trial judge as to why a particular person's questions display a bias or not. With the new proposal, you're going to be doing that for challenge for cause, but challenge for cause is currently practically limited to race-based challenges or publicity challenges. It doesn't allow you to deal with other potential biases that may be affecting the ability of the jury to decide a case fairly and objectively, which is what all the stakeholders want and what the community wants.

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

Thank you.

Do I have more time?

[The Chair, Liberal, Anthony Housefather]

You have five more seconds.

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

Goodness. I wanted to talk a bit about the reverse onus in bail. We heard yesterday about intimate partner violence and the notion that having the reverse onus for previous offenders would stop women from coming forward with the charges anyway. It would be a big step back on pushing the needle forward on gender-based violence and bringing these people to justice.

Do you have any feedback on that?

[Marcus Pratt]

We don't have a specific position on that issue. Certainly, while we commend the government for its work in the area of bail, there are still some areas that need work, one of them being the increasing use of reverse onus provisions. That seems to work against the principle of restraint that animates much of the bail amendments. The issue around intimate domestic violence is difficult. To be frank, we haven't turned our minds specifically to that issue, though we are concerned about the increase in reverse onus provisions.

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

Thank you.

[The Chair, Liberal, Anthony Housefather]

Thank you, Ms. Khalid.

Mr. Rankin, go ahead.

[Murray Rankin, NDP, Victoria, BC]

Thanks to all the witnesses for being here. I have very little time, so I would like to start, please, with the Criminal Lawyers' Association.

You really focused in on the jury representation issue but didn't do justice to the excellent points you made elsewhere in your brief. There are three points I want to get on the record and see if you want to elaborate on any of them.

The first involves preliminary inquiry reform. You are against what's in this bill.

Second, your position on increasing the maximum sentences to two years less a day for all summary convictions—clause 319—is that you're against those changes.

Third, on the routine police evidence, clause 278, you point out that, in your judgment, this clause is unnecessary.

I want to make sure that's on the record.

[Michael Lacy]

I'm going to let my colleague speak to the first and third matter. It is on the record that this is our position, but I will allow my colleague to expand on it a bit.

[Apple Newton-Smith]

I'll start with the routine police evidence, because we've talked a bit about preliminary inquiries. We are against the admission of what is called routine police evidence by way of affidavit. We strongly urge this committee not to adopt that amendment.

We understand and acknowledge that there are certain areas of evidence that do not necessarily always require the calling of witnesses. Issues relating to continuity, or the issues that are captured in proposed paragraph 657.01(7)(b), "analysing, preserving or otherwise handling evidence", relate to a category of evidence for which you rarely require witnesses.

As far as the amendments are aimed at trying to streamline and be mindful of time constraints and efficiencies, we don't take issue with that. What we take issue with is the question of what is being called routine police evidence, which covers so much. In our respectful submission, it has no place in the Criminal Code.

Quite simply, it would put an onus on the accused to demonstrate why the Crown has to prove its case. That's really a reversal of the burden of proof, so I think it's important for us to put this on the record.

[Murray Rankin, NDP, Victoria, BC]

On the preliminary inquiry point, you also take issue with what we've heard the government say. The justice lawyers say we can get rid of preliminary inquiries because the world has changed in terms of Crown disclosure obligations, from Stinchcombe and on. Therefore, we really don't need preliminary inquiries; they're archaic.

What's your response? In your brief, you speak about Stinchcombe maybe not being a sufficient reason for this. I'd like to hear you speak further.

[Apple Newton-Smith]

Absolutely. It is our position that Stinchcombe doesn't end that. The discovery function of the preliminary inquiry doesn't end with what's contained in the police brief of disclosure, which is usually just witness statements.

The preliminary inquiry is a forum where counsel can explore, for example, potential charter issues or motions that may be raised at trial. You can use the preliminary inquiry for that. You won't be able to answer those questions just by looking at the disclosure. It requires some exploration of witnesses, particularly police witnesses, if you're talking about charter motions. Through the process of the preliminary inquiry, counsel may realize that maybe they don't need to bring that charter motion at trial.

[Murray Rankin, NDP, Victoria, BC]

It actually can be time-saving.

[Apple Newton-Smith]

Exactly.

[Murray Rankin, NDP, Victoria, BC]

I think the same point was made by Mr. Star in the anecdote he gave about a day-long preliminary inquiry that saved lots of time down the road. Your reference to Professor Webster's material I think is also helpful in that regard.

In the interest of time, I want to go back to your issues on the jury selection process. You have an elegantly simple suggestion in terms of giving the judge the opportunity, by adding subsection 629(4) to simply allow either party to challenge the jury panel on the ground of unrepresentativeness, as found by successive studies and judicial inquiries.

You said two things. You said this would allow the prosecutor or the accused to make that motion and the judge to have that overriding discretion, but then you also said that you wanted to make the statutory challenges for cause provision more robust. Exactly how could you do that? Would you amend the challenge for cause sections? If so, how would you do that to make sure it wasn't abused?

[Michael Lacy]

You would have to legislatively amend the provisions, because the common law now creates a very limited regime, as I've talked about. You would have to amend the Criminal Code to allow a judge to engage in a challenge for cause process to question potential jurors about issues related to bias.

To some extent, judges do this through some initial screening in their opening remarks, talking about whether they know anyone associated with the case, that kind of thing. We certainly do it when we have high-publicity cases, when we want to make sure no one has formed an opinion about the case. There are, however, certain types of cases where people have strong opinions about whether or not people are likely guilty or probably guilty, likely innocent or probably innocent, and these situations would not now be caught by the normal challenge for cause provisions.

I'm not trying to invite more work and study. Sometimes I think, frankly, we spend too much time studying and looking at these things. Action is certainly required, but sometimes a simple solution to a complicated problem, like just eliminating the peremptory challenges, doesn't actually solve the complicated problem.

[Murray Rankin, NDP, Victoria, BC]

You have no specific suggestions as to how we would amend the sections of the challenge for cause provisions, even though you just remarked that we need to do so if we were to get rid of the peremptory challenge.

[Michael Lacy]

I would look for guidance in the suggestions of Professor Roach, where he details it in his brief, and we certainly would adopt that as well.

[Murray Rankin, NDP, Victoria, BC]

Okay, good.

Thank you.

[The Chair, Liberal, Anthony Housefather]

Thank you.

We're going to go to Mr. Fraser.

[Colin Fraser, Liberal, West Nova, NS]

Thank you very much, Mr. Chair, and my thanks to everybody for being here today.

I want to start with the Criminal Lawyers' Association. Mr. Lacy, I read your brief and I didn't see anything in there about the hybridization of offences. Please forgive me if you have already mentioned that.

Can you tell the committee about the Criminal Lawyers' Association's position on the hybridization of offences, whether you see that as something that will assist in addressing delays by giving the Crown more flexibility to choose the best procedure, perhaps in a more simplified way? In your answer, could you also discuss whether you see this impacting the range of sentences available when proceeding by summary conviction rather than by an indictable offence?

[Michael Lacy]

Somewhat ironically, when you hybridize the offences and eliminate the preliminary inquiry, you have exactly the same procedure for both cases, except as it relates to the jury aspect of the case. It would only be in those cases where a sentence of five years or more is available.

We think Crowns in our province and across the country are asked to exercise their discretion in hybridization as a concept. We support the idea of giving the Crown the option of proceeding summarily versus by indictment in a broader range of offences, because there are collateral consequences in terms of the ability to obtain what's now called a record suspension, for example, which is affected by whether they proceed by summary conviction or by indictment.

You heard from a witness yesterday from the CCLA who suggested the need for consequential amendments to the immigration statutes as well, which I think is a very important point that this committee needs to consider seriously.

Our greater concern, though, is the increase on the maximum penalty for summary conviction offences—increasing that to two years less a day. There are other witnesses who are going to speak to that. The Law Society of Ontario has raised concerns about that, as has Legal Aid. We do believe that's going to be an access to justice issue and that it would be a mistake to allow paralegals or law students to represent people facing charges of two years less a day. Right now we have a dual system of super summary offences, 18 months versus six months, and we think that system works.

[Colin Fraser, Liberal, West Nova, NS]

Thank you very much for that answer.

Mr. Star, perhaps I could turn to you. Thanks for joining us today.

I'll just pick up on the point that Mr. Lacy made. We've heard at the committee that the result of changing the maximum sentences for some of these new summary conviction offences, or hybrids that could be chosen to go summary, is that the six months maximum won't allow law students, agents, or paralegals to appear in court. Can you speak to your experience in the importance of the court having articling students and law students appearing in court on behalf of people?

[Philip J. Star]

Just speaking from my own experience, it's a significant access to justice issue, at least in my area. In southwest Nova Scotia but throughout most of Nova Scotia, not just rural towns but in the city, we see so many self-reps nowadays. I think if that was permitted without the amendment to allow the law students or articling students to appear, it would create many more problems, or it would enhance or increase the problems we're dealing with here with respect to access to justice. It's a buzzword here in Nova Scotia. It's a buzzword across Canada. We've all heard the former Chief Justice McLachlin speaking about access to justice. I don't think we want to do anything to deter that.

I know one of the big concerns, of course, is the experience and the lack of experience of law students and articling clerks, but they're monitored by both the law society and their principals, and I fully support their being able to appear in limited circumstances.