Evidence of meeting #106 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 conditions.
A recording is available from Parliament.
3:30 p.m.
Liberal
The Chair Liberal Anthony Housefather
I call the meeting to order. Good afternoon, everyone. It is a great pleasure to welcome you all here as the justice and human rights committee continues its study of Bill C-75.
Today we have an incredible group of witnesses. For our first panel, I am very pleased to welcome the Canadian Bar Association, represented by Tony Paisana, the L and LR coordinator.
Welcome. You'll have to tell me what L and LR stands for.
3:30 p.m.
Tony Paisana L & LR Coordinator, Canadian Bar Association
Law reform and.... I can't even remember.
3:30 p.m.
L & LR Coordinator, Canadian Bar Association
It's legislation and law reform coordinator.
3:30 p.m.
Liberal
The Chair Liberal Anthony Housefather
Fantastic.
Ms. Kathryn Pentz is the vice-chair.
We also have Mr. Michael Johnston, barrister-at-law.
Welcome.
3:30 p.m.
Michael Johnston Barrister-at-Law, As an Individual
Thank you so much.
Good afternoon, everyone.
3:30 p.m.
Liberal
The Chair Liberal Anthony Housefather
As you all know, each group will have approximately eight to 10 minutes, but I won't cut you off until you reach 11 minutes.
The Canadian Bar Association, you're up.
3:30 p.m.
L & LR Coordinator, Canadian Bar Association
Thank you for the invitation to present the Canadian Bar Association's views on Bill C-75. The CBA is the national association of 36,000 lawyers, students, notaries and academics. An important aspect of our mandate is seeking improvements in the law and the administration of justice. It's that aspect of our mandate that brings us to you today.
Our section's membership represents a balance of Crown and defence lawyers from all parts of the country. Personally, I predominantly practise in criminal defence in Vancouver. I have become particularly interested in issues affecting court delays after acting as counsel for Barrett Jordan at the Supreme Court of Canada. I am joined by Kathryn Pentz, a chief Crown attorney from Nova Scotia who also acts as vice-chair of the criminal justice section in our organization.
We have provided the committee with an executive summary of our comprehensive 40-page submission. It can be found by clicking on the hyperlink included in our executive summary. I commend this larger document to you. Its thorough analysis of the 300-plus pages in the bill could only be briefly summarized in the 10 pages of the executive summary. This larger document includes detailed references to source material, statistics and explanations for our 17 recommendations.
My opening statement will focus on two overall perspectives that have informed aspects of our position on Bill C-75. First, we say that evidence-based reforms are far preferable to hurried, or what some may even characterize as knee-jerk, criminal law policy. Second, omnibus bills like Bill C-75 hinder the ability of important bodies like this one to investigate and study each proposal. They also negatively impact the public's ability to understand and participate in this important debate.
Let me begin with evidence-based reforms. For any practitioner or experienced committee member, it becomes fairly clear fairly quickly, I would suggest, when a proposed amendment is evidence-based as opposed to hurried in response to a public outcry. As you will see from our submissions, we applaud the government for making meaningful reforms to several areas, including in particular the bail process and the administration of justice offences regime. These reforms are connected to empirical study, they are consistent with recent case law, and they are logical.
Other proposed reforms, however, such as nearly abolishing the preliminary inquiry and introducing police evidence by way of affidavit, are very different. They are different and largely indefensible because they are not evidence-based, they are inconsistent with case law, and they lack internal logic, in our respectful view. For example, watching the testimony of officials earlier this week, it struck me as rather remarkable that no meaningful data could be offered to justify the curtailing of preliminary inquiries. Similarly, no study or evidence could be cited to explain why or how the introduction of what has been suggested to be routine police evidence is causing delays currently. These sorts of reactions to Jordan, with respect, do not pass the smell test, and quite rightly have been criticized by various stakeholders who have come before you.
The second general point I will address concerns the omnibus nature of Bill C-75. As we did with the previous government, the CBA is critical of this government's use of omnibus legislation. The bill is quite large. In our brief we address no less than 14 different areas of the system affected by this bill. There are substantive and procedural changes to various topics, ranging from abolishing peremptory challenges—a subject that on its own is so important that you might expect a bill devoted to it alone—to simple changes related to technology in the courtroom. Some reforms are front and centre. Others are buried in the bill, such as the coming into force of a highly problematic rebuttable presumption in human trafficking cases.
The other problem we've identified with omnibus legislation is that it does not allow for incremental implementation and change, something that might be very useful in trying to reform court delays without unduly eroding protections afforded to the accused.
There are indeed great reforms in this bill, which, if correlated with ongoing efforts to resolve delay, may well alleviate the pressure on the system without having to cast aside important tools that have proven their worth over time and that, if cast aside, will only lead to further and new charter challenges and pretrial applications—in other words, more delay. There are smart, focused reforms available to address delay that do not require the wholesale removal of procedural protections.
We offer two such suggestions here in our submissions on Bill C-75 related to elections in murder cases and electronic appearances for non-contentious hearings.
We are happy to address other proposals the CBA has offered, most recently on the Senate study on delay, and we have brought with us our brochure or pamphlet of the top 10 ways to reduce delay that was offered to that committee. These included proposals related to reforming sentencing law, suggestions regarding whether Crown approval standards should be implemented nationwide and other practical solutions that can address the problem at hand.
With that general introduction, I now turn to my colleague to address some more specific concerns that we have identified with respect to Bill C-75.
3:35 p.m.
Kathryn Pentz Vice-Chair, Canadian Bar Association
Thank you.
As my colleague mentioned, we've made 17 detailed recommendations. Some are suggestions to slightly improve existing proposals and others reflect our more serious concerns. I'd like to focus my comments on two areas: the curtailment of preliminaries as well as the admission of what is called “routine police evidence”.
The restriction on preliminaries is said to be justified as a means to achieve court efficiencies, yet research has shown that at most 2% of all court appearances are used for preliminary inquiries. From the perspective of front-line practitioners—both Crowns like myself and defence counsel—we do not see a system overburdened with preliminary inquiries.
Further, the proposed amendment arbitrarily limits preliminary inquiries to those charged with offences carrying a maximum of life imprisonment. We say this is arbitrary because some offences that carry maximum penalty of life, like robbery, for example, are extremely broad and can encompass conduct far less serious than other offences precluded by this criteria, like aggravated assault, some firearms offences and offences related to organized crime. These offences can be far more serious than those that happen to carry a maximum of life imprisonment, particularly those that carry mandatory minimum penalties.
There are those who argue that in the era of full disclosure, preliminary inquiries are unnecessary. But the reality is that even with full disclosure, the viability of a Crown's case is not always readily apparent. What a witness says in a statement to the police or in a meeting with the Crown is not necessarily what that witness will say on the stand. The other reality is that accused often believe that witnesses will not testify, particularly if that witness is a close associate. There's no possibility of any discussion of resolution until the witness takes the stand.
To illustrate the value of preliminary inquiries, I have two examples. Recently in my jurisdiction, a preliminary inquiry was held in a sexual assault case. The victim was the only witness and her evidence was very strong. Defence counsel have now opened discussions for a guilty plea. The preliminary took about an hour and a half and now has a potential of resolving the case, saving a trial in Supreme Court, which would have taken in excess of a week.
In another case, again of sexual assault, the case rested on DNA evidence because the complainant could not identify her assailant. At preliminary inquiry, the defence cross-examination of the forensic evidence exposed some irregularities in the report. The problems did not preclude the admissibility of the report at the preliminary, but could well have been fatal if the Crown had only discovered it at trial. As it was, the Crown was able to correct the deficiencies and was successful in obtaining a conviction.
The preliminary inquiry is an important tool that makes an invaluable contribution to the effective and efficient operation of the criminal justice system. For example, it provides an opportunity to explore pretrial motions like section 276 applications and O'Connor applications that otherwise would be litigated mid-trial, running the risk of delays.
A second major concern we have is that Bill C-75 proposes to allow for routine police evidence to be introduced by way of affidavit or solemn declaration. If an accused wishes to cross-examine the police officer, then an application must be made.
We see this section as fraught with difficulties. The definition of “routine police evidence” is so broad that it would potentially allow the Crown to call virtually any aspect of an officer's testimony by affidavit. If the accused wished to cross-examine, as undoubtedly they would, they would have to give notice of intent. In the absence of an agreement, the court would then be called upon to adjudicate. In this process as well, the defence would necessarily have to expose aspects of its strategy in order to justify calling the witness.
Such a process would expend more court resources than simply calling the officer, and will have the exact opposite effect of what Bill C-75 hopes to achieve. It would add more delay.
There are also some practical problems with this proposal, which we highlight on page 13 of our full submission. Who will draft the affidavit? Will it be the already overburdened Crowns and police officers? How will the trier of fact weigh affidavit evidence that conflicts with viva voce testimony? How will juries be instructed to deal with affidavit evidence?
To conclude, the CBA recognizes the need to streamline aspects of the criminal justice system in response to Jordan. We believe that such reforms must be evidence-based and must be presented in a way that allows for meaningful debate by this committee, practitioners and the public. We offer slight improvements on existing proposals and oppose other proposals altogether.
With respect to some non-delay-related amendments in the bill, such as the jury selection process, we encourage further study.
Thank you for the opportunity to present. We will be happy to respond to any questions.
3:40 p.m.
Barrister-at-Law, As an Individual
My name is Michael Johnston. I am a citizen and a barrister-at-law and, as often as my clients' cases and causes permit, I am a jury lawyer.
Before speaking about Bill C-75 and jury selection, I did want to take a moment to thank you for extending to me this incredible democratic opportunity. Not every country gives its citizens a voice in the legislative process. Not every political system is prepared to hear evidence that may call into question the wisdom of a proposed course of legislative action. Providing citizens with a voice and providing citizens an opportunity to be meaningfully involved in acts of government bespeaks a vibrant democracy.
In spirit, Bill C-75 seeks to give citizens more of a voice. Bill C-75 seeks to put more citizens in the jury box, to have more citizens involved. Insofar as that spirit is in Bill C-75, it's to be acknowledged and celebrated. However, it takes more than good intentions to make good legislation. I think we all know that there's a saying about where good intentions alone might sometimes take you.
Bill C-75's measures with respect to jury selection seem a bit perfunctory. They require, in my respectful submission, greater deliberation and calibration to achieve the stated objective, and most importantly, in some cases outright elimination, because if you're going to do something, you must have evidence that there's a problem and have evidence that this is going to achieve the solution.
Trial by jury needs to be better understood in terms of how the provinces and the federal government interplay to achieve a representative jury role. There needs to be a better understanding of how challenge for cause informs and works with peremptory challenges.
Ultimately, trial by jury isn't something that just happened overnight. In many ways, trial by jury started before the Norman Conquest, with trial by compurgation. Over the last thousand years, trial procedure has slowly evolved through trial and error. The provisions that have persisted over time, I would suggest to you, aren't there just as historical vestiges, but stand the testament of time.
Bill C-75 with respect to jury selection comes along 48 days after the government's very public declaration of disagreement with a verdict. Forty-eight days to study provisions and otherwise come up with solutions, from my most respectful perspective, simply isn't enough time.
As a result, in my respectful submission, much of what Bill C-75 proposes in terms of jury selection is a legislative rush to judgment, and while the bill lacks a rational connection between its noble objectives and its actual measures, there nevertheless are some things that can be advanced here today, in my most humble opinion.
We know that there is unfortunately a great problem and a tragic problem of overrepresentation of aboriginal people in our criminal justice system. Correspondingly, there is under-representation in the jury boxes. What is the correlation there? It is criminal records. Criminal records are used to exclude tax-paying citizens, citizens who have a right to vote in federal and provincial elections. Criminal records that don't disqualify them from those civic responsibilities and duties do disqualify them from sitting on a jury. Up to 3.8 million Canadians have a criminal record. Criminal records are used both by the provinces and by the federal government to exclude up to 10% of the population.
Now, if Bill C-75 wants to rid itself of discrimination in the jury selection process, this is the lowest-hanging legislative fruit. Get rid of criminal records as a vector for excluding citizens, and if you want to exclude citizens because you think they're biased, produce the evidence. We have provisions already in place to deal with that under paragraph 638(1)(b) of the challenge for cause provisions.
That being said, Bill C-75 is noble in its spirit. It already contemplates modifying paragraph 638(1)(c) to narrow the exception. It wants people who have gone to jail but who have served only one year of jail to be eligible for jury duty, thus changing it, obviously, from the one year that it currently is to two years.
Parliament wants people with criminal records to be involved. It wants to give these people a voice, but remember what I said about this interplay between the provinces and the federal government. Unfortunately, Parliament's intention to have people with a criminal record who have served one year in an institution, for example, is going to be frustrated by the fact that almost every province excludes people with a criminal record, for much lower reasons.
In Ontario, if you've been convicted of an offence that was prosecutable by indictment, that leads to automatic exclusion. Those are easy areas for the government to come into and create a basis whereby it says that across the country you can only be excluded for this reason.
Justice Iacobucci, in his report, actually appreciated the interplay between the two levels of government. He made a recommendation that I submit you can adopt and take one small step further. I'm suggesting that section 626 of the Criminal Code say that nobody in Canada—or no citizen—is subject to exclusion from jury duty merely because of a criminal record, or simply say that the criminal record exclusion should parallel that of the federal government. They did that with respect to provinces that were excluding spouses of doctors or other people who were otherwise ineligible.
I appreciate that I am almost at the end of my time. I have two other areas that I want to briefly address. Most importantly, I want to speak about challenge for cause in section 640 of the Criminal Code. This is a small provision that has otherwise been tucked away in this omnibus provision, and perhaps not many people have even spoken about it, but this is a criminal law provision that has existed almost in its exact form since 1892. Jurors who are either unsworn or sworn have been entrusted to decide if a challenge for cause is true.
This is also important in terms of giving citizens a voice and encouraging citizen involvement. Jurors pick themselves. When they ultimately determine that a juror can sit on a jury, the jury that ends up sitting is a reflection of the choices of the litigants and the jurors themselves. This piece of legislation proposes to have judges completely overhaul that situation and be the sole people to make that determination. There's no evidence that there was ever a problem with this challenge for cause procedure. There's no evidence that this is going to actually provide any form of meaningful solution or that it will even expedite matters at all.
In my most respectful submission, there is no good reason to interfere with the challenge for cause procedures. They fulfill a very important role in terms of ensuring for a defendant—for whom the right to trial by jury exists—that the body is an independent, impartial and representative one. I would most respectfully submit that this idea to change the challenge for cause procedures is totally unsubstantiated and without merit. It should be eliminated unless there's some reason offered in terms of continuing on with section 640 being modified.
Finally, l want to say something about peremptory challenges. As a jury lawyer, I'm somebody who is often in a situation where I'm facing unrepresentative jury pools or jury panels. There are many situations. Most recently, I ran a four-week judge and jury trial where my client was an Ethiopian Muslim, and his co-accused was a Muslim. There were not many blacks or Muslims on Ottawa's jury panel, I assure you. We had to exercise, almost to the full extent of our abilities, the challenge for cause and the peremptory challenges in order to get the 12th juror, who was the only visibly racialized juror.
I say that because peremptory challenges are important to protect the rights of the accused. Often what seems to be lost in all of this conversation is that trial by jury is a benefit that exists for the accused person. There are two reports that have been cited by the ministry of the Attorney General, when this legislation was tabled, seeking to justify this legislation. As a lawyer, however, I always like to look at the actual source. I commend to you to look at the Manitoba inquiry report, which is being cited as the basis for this removal.
In 1991, it was suggested that these peremptory challenges should be eradicated because of the discrimination that they allowed. At the time, however, it also made an additional recommendation. The additional recommendation was to change the way in which juries are selected so that there could be some greater questioning of potential jurors. You can't just nitpick, and I respectfully ask this committee to consider that.
If you are going to go so far as eliminating peremptory challenges, I would say that Justice Iacobucci, when he studied this in 2013, came to a non-partisan, determined and decided conclusion that it was good to keep them but to provide some oversight by way of something akin to an American-style Batson challenge.
I'm sure I've exceeded my time at this point, but I'm happy to answer any and all questions with respect to jury selection or anything else.
I thank you kindly.
3:50 p.m.
Liberal
The Chair Liberal Anthony Housefather
Thank you very much, Mr. Johnston.
We're going to move to questions.
Mr. MacKenzie.
September 19th, 2018 / 3:50 p.m.
Conservative
Dave MacKenzie Conservative Oxford, ON
Thank you, Mr. Chair.
Thank you to the panel for being here today. I found all of your opening remarks remarkable because they hit the nail on the head for most of what we've been hearing during the last few days.
Mr. Johnston, you mentioned one issue, one trial that turned out to be controversial perhaps because of the jury pool. We also recognize that it was not a long time ago. To make the massive changes that we're trying to make, you're right that it does take a whole lot more research and looking into fixing the problem rather than addressing it in a quick manner.
I think that's where your comments are coming from. Would I be right in that? You believe it needs to be changed, but we need to spend some time to do it.
3:50 p.m.
Barrister-at-Law, As an Individual
We absolutely need to calibrate the system at all times. A system such as our trial-by-jury system requires modernization. It requires analysis to ensure that it's achieving what it's supposed to achieve. But of course we need a better understanding of it. It has been since 1980 when the Law Reform Commission made a comprehensive study of this.
We need a non-partisan understanding of trial-by-jury because, while trial-by-jury exists in our democracy, it isn't informed by democratic decisions. It's not subject to, let say, public opinion. In fact, it's supposed to guard against the exact opposite. Therefore, I very much agree with you. We need a non-partisan understanding of the system before we start pulling planks away.
3:50 p.m.
Conservative
Dave MacKenzie Conservative Oxford, ON
Sometimes common sense seems to be lacking and it's more important that we do things in a hurry in this place. I think you're absolutely right. We need to take our time and do it right as opposed to making wholesale changes in a hurry.
3:50 p.m.
Conservative
Dave MacKenzie Conservative Oxford, ON
As to the other area that I'm interested in, Ms. Pentz, I think you made mention of the preliminary inquiries.
I spent a little time in law enforcement and preliminary hearings are not common. They're very few. I don't think we've had anybody give us any statistics on it, but I would suggest that far more often a preliminary inquiry results in a trial not taking place. There's an adjudication by the Crown and the defence that takes place before it gets to the court and it's frequently resolved in the manner in which you've indicated. One side or the other will say, “We needn't go to trial.”
Would that be your experience, or am I alone in that?
3:50 p.m.
Vice-Chair, Canadian Bar Association
No, that certainly has been our experience.
As I mentioned, the statistic that we could find said it was less than 2% of court time. I gave an example of a case where the witness was very strong and the case is now in resolution, but there have certainly been cases where the Crown has put a key witness on the stand and that witness has just been so vague and equivocal that it's quite apparent we have no realistic prospect of conviction. Just by looking at the statement we've received from the police, or even meeting with the witness, that's not always evident. Putting the witness on the stand and finding out what they're going to say can be key to resolving matters, whether it's withdrawing a charge or having a guilty plea.
3:55 p.m.
Conservative
Dave MacKenzie Conservative Oxford, ON
Sometimes it's the reverse. You'll end up with a very strong witness where they may not have appeared to be so strong on paper.
3:55 p.m.
L & LR Coordinator, Canadian Bar Association
If I can just add one thing to that discussion, on page 14 of our main submission, we do cite a study that was conducted of legal aid cases in Manitoba. It showed about a 75% clearance rate after a preliminary inquiry.
3:55 p.m.
Conservative
Dave MacKenzie Conservative Oxford, ON
Again, just on the ground, I would have said that would be accurate.
My other area is the one about police evidence by affidavit. From my background, I don't honestly see the need to put that into legislation. I've been gone from it for 20 years, but in the past, the Crowns and the defence would sit at pretrial discussions about what both sides wanted to see, so the elimination of police witnesses by that process, where the evidence may or may not be included in this, would be accepted at trial. It may be something very minute, but by putting this in, I think—correct me if I'm wrong—we're putting something in legislation that could very well end up derailing a court hearing and taking far more time than trying to eliminate it by this process.
Would your experience be that Crowns and defence will sit and make those decisions?
3:55 p.m.
Vice-Chair, Canadian Bar Association
Yes, sir, exactly, and that saves a great deal of time. As we mentioned in our report, that evidence is now admitted often and regularly by way of admissions. For instance, if it's an officer who had minimal contact with an accused in terms of a statement, the defence will concede you don't have to call that witness, or if it's an officer who peripherally touched or handled an exhibit, you don't need to call that witness. Those admissions are made every day.
In this procedure that's being recommended, defence would then have to make the application. As we say, that's just another step in the proceeding that's going to clog the system.
3:55 p.m.
Conservative
