Evidence of meeting #105 for Justice and Human Rights in the 42nd Parliament, 1st Session. (The original version is on Parliament’s site, as are the minutes.) The winning word was crown.

A recording is available from Parliament.

On the agenda

MPs speaking

Also speaking

Philip J. Star  Criminal Defence Lawyer, Pink Star Barro, As an Individual
Michael Lacy  President, Criminal Lawyers' Association
David Field  President and Chief Executive Officer, Legal Aid Ontario
Marcus Pratt  Director, Policy and Strategic Research, Legal Aid Ontario
Apple Newton-Smith  Vice-President, Criminal Lawyers' Association
Jillian Rogin  Assistant Professor, Association for Canadian Clinical Legal Education
Kara Gillies  Canadian Alliance for Sex Work Law Reform
Brent Kettles  Counsel, Crown Law Office - Civil, Ministry of the Attorney General of Ontario, As an Individual
Kent Roach  Prichard and Wilson Chair in Law and Public Policy, University of Toronto, As an Individual
Steven Blaney  Bellechasse—Les Etchemins—Lévis, CPC
Arif Virani  Parkdale—High Park, Lib.
Solomon Friedman  Criminal Defence Lawyer, As an Individual
Vanessa MacDonnell  Associate Professor, Faculty of Law - Common Law Section, University of Ottawa, As an Individual
John Muise  Volunteer Director of Public Safety, Abuse Hurts
Daniel Topp  Barrister and Solicitor, As an Individual
Marion Overholt  Barrister and Solicitor and Executive Director, Community Legal Aid, Legal Assistance of Windsor

8:25 p.m.

Conservative

Michael Cooper Conservative St. Albert—Edmonton, AB

Thank you, Mr. Chair.

Thank you to the witnesses.

Mr. Muise, it's good to see you back. You touched on the issue of hybridization. You made submissions to record some of your concerns about hybridization. Would you elaborate?

As you noted, there are a number of offences, including participating in a terrorist organization, kidnapping a minor, and impaired driving causing bodily harm, that under Bill C-75 would be hybridized.

8:25 p.m.

Volunteer Director of Public Safety, Abuse Hurts

John Muise

Part of this bill is about creating efficiencies. One of the ways to create efficiencies, clearly, was this hybridization section. As you said, Mr. Cooper, there are a whole lot of very serious criminal offences. I focus on the most serious of the bunch, breach of an LTSO, but there are other serious ones in there.

I think this is not the way. I'm all for making the system more efficient, but there are other ways to speed up the justice system. I'm not going to editorialize; we all know what they are.

I'll focus on what is important. Public safety is important, and my three points were all about public safety. If we set up Crown attorneys and add another bunch of serious criminal offences to the basket of offences that they have to get off their plates, some Crown attorney at 700 Bay Street, if we're talking about Ontario, who is a manager inside the tower, will be pushing them hard. I know this for a fact. I know it from when I was in the system, and I know it from talking to people outside of the system. This is not the way to create an efficiency.

I get that this bill is going to pass in some way, shape or form. I'm trying to identify some parts of it that I think need to be reconsidered, and one that.... Please just don't do it. LTSOs are the worst sex offenders. I mean, there are dangerous offenders. It's the same basket of people who do bad things. They created a record that is just "evil", according to the Criminal Code.

This is not the way to create efficiencies, and it's not the way to enhance public safety.

8:30 p.m.

Conservative

Michael Cooper Conservative St. Albert—Edmonton, AB

Absolutely.

In terms of efficiencies, all it would do, it seems to me, is download cases onto already overstretched provincial courts, which take up 99.6% of criminal cases in Canada, according to Statistics Canada. Would you agree with that?

8:30 p.m.

Volunteer Director of Public Safety, Abuse Hurts

John Muise

There's no doubt that this hybridization would further download onto a system that's already strained to the limit. If you're talking about provincial courts, yes, I agree.

8:30 p.m.

Conservative

Michael Cooper Conservative St. Albert—Edmonton, AB

Perhaps you could respond to the statement of the Minister of Justice. When I posed questions to her about the basis for hybridizing some of these very serious currently indictable offences, she said that it had nothing to do with sentencing, even though we're taking a 10-year maximum and reducing it to a maximum of two years less a day.

How would you respond to the minister?

8:30 p.m.

Volunteer Director of Public Safety, Abuse Hurts

John Muise

Two years less a day, if you proceed summarily, for certain.... This would influence how Crown attorneys make their decisions. Crown attorneys are already under significant pressure to move things.

I call it the sausage factory. Have you ever been in a butcher shop? They're driven down this little funnel, and they're pushed down in the funnel with a hunk of metal. That's our current criminal justice system. It's a sausage factory, good people working hard to do the best they can in a very difficult and poorly resourced system.

That will be the end result. It'll get more efficient, all right. Cases will be dealt away in ways they shouldn't be, in my estimation. I've seen that already, and things haven't gotten any better.

8:30 p.m.

Conservative

Michael Cooper Conservative St. Albert—Edmonton, AB

Thank you.

8:30 p.m.

Liberal

The Chair Liberal Anthony Housefather

You have a minute left.

8:30 p.m.

Conservative

Michael Cooper Conservative St. Albert—Edmonton, AB

Thank you, Mr. Muise, for both submissions.

Mr. Topp, in terms of section 802.1, you suggested an amendment that would allow for law students and articling students, who are under the supervision of a lawyer, to continue to act, assuming we maintain the two years less a day for a summary conviction, in terms of maximums.

How do we deal with paralegals, and what is your comment on the suggestion made by a witness earlier to simply replace six months with two years less a day, under section 802.1?

8:30 p.m.

Barrister and Solicitor, As an Individual

Daniel Topp

That is one option. My amendment deals specifically with the law students, because either the law students have an articling principle or they have someone at the clinic who is a licensed lawyer to look at each individual file. I think that even if you change it to two years less a day, at least there's someone there to oversee the problems that could happen in a case. Admittedly, some of these cases with the two years less a day may be too serious for students. There's that extra level of watching, and that's why I go back to the example of the doctor and the resident looking at the charts and saying, "Maybe this isn't for you."

I can't speak to how that would deal with paralegals, because paralegals don't have that framework with someone to watch over them. That's why I'm asking for the amendment, just with regard to the students.

8:30 p.m.

Liberal

The Chair Liberal Anthony Housefather

Thank you very much.

Mr. Boissonnault, go ahead.

8:30 p.m.

Liberal

Randy Boissonnault Liberal Edmonton Centre, AB

Thank you, Mr. Chair.

Ms. Overholt, did you take a look at the administration of justice provisions in the amendments? How would that speed things up for the people you're working with at Legal Assistance of Windsor?

8:35 p.m.

Barrister and Solicitor and Executive Director, Community Legal Aid, Legal Assistance of Windsor

Marion Overholt

No, I haven't. I'm not able to address those points.

September 18th, 2018 / 8:35 p.m.

Liberal

Randy Boissonnault Liberal Edmonton Centre, AB

Okay, thank you very much.

Mr. Topp, we as members of the committee don't draft the legislation. We inherit what comes to us in the House and then we review it. I'm going to hope that this provision that seems to be cutting out the law students and the paralegals is an oversight, so we'll be recommending that to people in the justice community.

I was interested in your comments about preliminary hearings. We travelled to many parts of the country talking to people in the sex trade and police officers about what happens during preliminary hearings from their perspective. When they are about to charge a person who's been in a criminal gang trafficking people, they have to come to not one, not two, but sometimes three hearings. It revictimizes the person every time, and by the fourth time that person isn't showing up. It's simply not going to take that case to trial. Way too many cases simply don't go to trial because of the overburden of preliminary hearings. Then you get into Jordan issues.

I think in your experience maybe they worked well, but what we're hearing on the other side is that it simply doesn't work for a lot of people. Would you have any comments on that kind of heaviness of the preliminary hearings?

8:35 p.m.

Barrister and Solicitor, As an Individual

Daniel Topp

They are heavy, but with what's in the newly proposed legislation, with the control of the preliminary hearing justice, it seems they have the power to get to the real meat and potatoes of the issue. Preliminary hearings historically may have been trial part one, if I can put it that way. As you said, it may cause somebody not to want to come back. I can't speak to that method of acting as criminal defence counsel because that's not the way I do things.

You're asking specifically about sexual assaults—

8:35 p.m.

Liberal

Randy Boissonnault Liberal Edmonton Centre, AB

No, it could be human trafficking. We see victims being revictimized because of multiple preliminary hearings.

8:35 p.m.

Barrister and Solicitor, As an Individual

Daniel Topp

Right, I understand that. I harken back to one example, which happened within the last year, when my client didn't understand the issue of drunkenness and the person not being able to consent. We had a preliminary hearing, and I said he needed to hear her evidence on this point of law, because he said it was consensual, essentially. As many times as I tried to explain it to him, he didn't get it. Once he heard that, the preliminary hearing was over after about an hour. I don't have a recollection exactly, but it wasn't long. Then we met in my office; the matter was resolved and it was done. That's an example where they work differently.

Again, you're dealing with different lawyers, different personalities. I agree with you that it could be a problem. With the judge having control over essentially getting right to the point, if I were to say to the judge that I was having the preliminary hearing for these reasons—because obviously he's not the final decision-maker at this point—it would be an effective use of time. It may be that as part of the trial management or the preliminary hearing management there's a pretrial where that is undertaken. Obviously that's not going to be codified. It would turn into a practice based on the directions of the judges.

8:35 p.m.

Liberal

Randy Boissonnault Liberal Edmonton Centre, AB

I appreciate that. Thank you.

Mr. Muise, I see from the website that Abuse Hurts helps to counsel people who have been victims of human trafficking.

8:35 p.m.

Volunteer Director of Public Safety, Abuse Hurts

8:35 p.m.

Liberal

Randy Boissonnault Liberal Edmonton Centre, AB

With regard to the amendments in Bill C-75, many provisions deal with people who faced human trafficking. Did your organization have any comments on those provisions?

8:35 p.m.

Volunteer Director of Public Safety, Abuse Hurts

8:35 p.m.

Liberal

Randy Boissonnault Liberal Edmonton Centre, AB

Thank you very much.

Thank you, Mr. Chair.

8:35 p.m.

Liberal

The Chair Liberal Anthony Housefather

Thank you, Mr. Boissonnault.

Mr. Rankin, go ahead.

8:35 p.m.

NDP

Murray Rankin NDP Victoria, BC

Thank you very much.

Thank you to all of you.

I would like to start with you, Ms. Overholt, if I could. You had a couple of recommendations, starting with section 802.1. I think you summarized by saying that, number one, you would amend it to correspond with any amendments to the summary conviction offences. You will know that Ms. Jillian Rogin testified here earlier. She noted that by increasing the scope of hybrid offences, combined with raising the maximum penalty for summary conviction offences, the Crown attorneys would be electing a lot more summary conviction charges for things that are currently indictable, more serious offences.

Although I totally understand the concerns about under-represented people not having any kind of legal help, does it concern you at all that we might be visiting rather inexperienced people on now often much more serious offences?

8:40 p.m.

Barrister and Solicitor and Executive Director, Community Legal Aid, Legal Assistance of Windsor

Marion Overholt

We can look at the experience in Ontario. If there's an indication that the Crown attorney is seeking a jail term, when that information becomes known there's an opportunity to apply to Legal Aid Ontario for a certificate. The client could then obtain representation from a practising lawyer. That would be the protection there, that if a more serious matter was now proceeding by summary conviction and there was an indication of a jail term being sought, then there would be that opportunity to seek a certificate from Legal Aid Ontario.