Justice Committee on Sept. 19th, 2018

[Prof. Nicole Myers]

I think I'm mostly specifically referring to Antic and the reiteration of the ladder approach, recognizing the starting place is the presumption of innocence, as well as releasing unconditionally, reminding us that conditions are not to be imposed to punish somebody or to modify their behaviour and keeping in mind this is all happening when these are allegations. They have not been proven.

[Ali Ehsassi, Liberal, Willowdale, ON]

Great. Thank you.

Ms. Bromwich, thank you also for your testimony.

You were talking about especially vulnerable groups. This is an issue that came up a few days ago. Could you describe and define for us what those vulnerable groups are?

[Dr. Rebecca Bromwich]

One reason, as I said, that I like the proposal is that within the legislative proposal, vulnerability is mentioned without necessarily enumerating it specifically. There is, as has been indicated before this committee, a disproportionate overrepresentation of indigenous people at all phases in our criminal justice system as well as in our correctional system. There's a disproportionate overrepresentation of marginalized, racialized individuals. I've also heard some statistics about a disproportionate overrepresentation of LGBT individuals.

That said, there is also a disproportionate overrepresentation of poor people in the system and people with mental health problems. In terms of vulnerability, I think it's so helpful and useful to look at those things intersectionally and to look at it not as a check box and whether you fit this box, but what's the story? If the inquiry into vulnerability can be a bit more nuanced, I think that can be helpful.

[Ali Ehsassi, Liberal, Willowdale, ON]

Absolutely.

I'm not sure whether this should be permitted, but you were saying that although this legislation is a step in the right direction, you would very much be in favour of some broader changes. I know you only have two or three minutes, but if you could tell us what those broader changes would be, what would you say?

[Dr. Rebecca Bromwich]

The extent to which administration of justice offences have been used and continue to be used in the youth courts, in particular against girls, is problematic. We need an overhaul, a serious look at those provisions, and the reinstitution of the Law Commission—I like to say that whenever I can—so there can be a systematic study of the way the criminal justice system is operating, the way the law is operating, and it should be done not on this incremental basis, but by looking at the Criminal Code as a whole.

That would be my recommendation.

[Ali Ehsassi, Liberal, Willowdale, ON]

That's it for my questions.

[The Chair, Liberal, Anthony Housefather]

Okay. Mr. Rankin is next.

[Murray Rankin, NDP, Victoria, BC]

Thanks to all of you. This has been fabulous.

I want to start with Professor Myers and Ms. Yamagishi. I think you said things that overlap.

Ms. Yamagishi pointed out properly that release on an undertaking is available right now. Professor Myers said you should start with the premise of release. That's supposed to be already what we do. R. v. Antic only tells us and codifies, as you say, the status quo. The courts have made it clear, and now we put it in the legislation and pretend we've done something. You said we should structure the discretion of the judges and police and so forth, but how do we do that? Do you have suggestions as to how we can do that? It seems to me it's already supposed to be that way. The witnesses who you all agreed with, Professors Doob and Webster and Sprott, all said that we need, in their words, transformative changes, and yet we tinker. Why would we do that? It seems as though all we're doing is futile law reform, based on that testimony.

I'm asking both of you that question. How do we fix it?

[Prof. Nicole Myers]

Please go ahead first.

[Kendall Yamagishi]

Sure, I can take it.

In our written submissions, we outline a proposed amendment to the police releases section on undertakings. I think that one frustration that defence lawyers see is that we can legislate all we want, but without larger cultural shifts, larger systemic changes and attitudinal shifts amongst police officers, we're still seeing that, frankly, what is coming out of the jurisprudence is not necessarily consistent with what's being legislated.

What I do think is that the legislation can set a tone so that if I have a client who is on what I think is an unreasonable undertaking, and I have the law there that says this is an unlawful release, I can make an application to challenge those decisions. The courts will then come out with a decision that can then be published in the media. There can be attention brought to show that the police are not following what the law is asking them to do.

Although I think that there are multiple factors we need to be working on, both legislative and cultural and societal, changes in legislation can set a tone that defence lawyers can use to push things forward.

[Prof. Nicole Myers]

I completely agree. I'd take up that particular point. It sends a clear message that this is how things are supposed to be done. Yes, in some ways this is involving codification of what's been established in case law, but I do think that having it written in law and having something to hold on to has some power to set intention as well as tone.

I think that what is being proposed—reiterating needs around restraint and reiterating that it should be reasonable to get people to comply and that we should consider vulnerable groups—is not harmful. However, I see it simply as a start.

[Murray Rankin, NDP, Victoria, BC]

You said that in your years of studying it, it's gotten worse and worse every year. We have Antic. It's basically been cut and pasted into the law. You think it sets a tone. I get that, but it surely doesn't do very much.

Mr. Zehr, you talked rather provocatively in your summary at the end. I want to give you a chance to elaborate. You said that we should not prosecute administration of justice offences at all. Tell us a bit more about that.

[Garrett Zehr]

Well, the qualifier is what is referenced, the specific administration of justice offences that don't cause harm. I of course want to focus on them.

[Murray Rankin, NDP, Victoria, BC]

I understand.

[Garrett Zehr]

Obviously there will be administration of justice charges going forward, and the legislation, obviously, is not going to change that. What I'm suggesting is that when there is no harm caused by these offences, the proposed regime in the legislation should adequately take into consideration what is needed to determine whether or not that person should be released with the same conditions they were on, perhaps have further conditions added, or be ultimately detained.

Philosophically, it comes down to a question. If there is no harm being caused, why is it that someone should face criminal charges as a result? We need to remember that the people who are on these conditions, specifically bail, are presumed innocent. They're on a condition to have a curfew. Me, I'm not.

Say, ultimately, as in the case that I mentioned, that substantive charge is ultimately withdrawn. It really seems unfair that the person should be punished for a curfew they were on while still being presumed innocent.

[Murray Rankin, NDP, Victoria, BC]

I understand. Thank you.

I just want to say to you, Ms. Heyens, that of all the witnesses who have spoken to us about the section involving routine police evidence—and I think a vast number, if not everyone we've had, has said the same thing, that this is misguided, to put it mildly—I thought your presentation was the most effective. It certainly got my attention. I commend you for that.

You made a couple of points. One that I hadn't heard before and that I'd like you to expand on is that somehow this could force a person to take the stand, that somehow this would violate his or her constitutional right to silence.

I also want to mention, because I only have a short amount of time, that it seems to me that the agreed statement of facts does the trick in virtually all cases anyway, so why do we need this? I'd like you to comment on that.

Last, we heard yesterday from a presenter from the Canadian Bar Association.

[A voice]

Was it yesterday?

[Murray Rankin, NDP, Victoria, BC]

Yes, I think it was yesterday. I can't remember.

[The Chair, Liberal, Anthony Housefather]

It was Ms. Pentz.

[Murray Rankin, NDP, Victoria, BC]

Ms. Pentz asked how we can deal with the sworn statement and the viva voce evidence, how a judge can weigh viva voce evidence versus a sworn statement. She pointed out how difficult that undertaking would be.

Those are my questions.

[Stephanie Heyens]

Oh, boy.

First, thank you. I'm gratified.

I think it's quite obvious, and that's the trouble. I think all of this is obvious.

The right to silence is something that's protected in Canada still under section 7. There is no requirement, as we know from certain recent cases, for an accused to take the stand. The reason for that, of course, is that a good cross-examination often undermines the allegation sufficiently that there is no need for the person to do so. It's like if somebody accuses you of something ridiculous. Why should you have to respond to it unless there is some veracity that's being contested?

If a piece of paper—a sworn piece of paper, but still, a piece of paper—is put forward, and the judge is forced.... This is what bothers me. It's admitted “for the truth of its contents”. There are certain things put into evidence at a trial that aren't for the truth of their contents. It may just be for the narrative, as often happens, for people to understand the sequence of events or something, but when a piece of paper goes in for the truth of its contents, that means the judge is forced to look at the piece of paper and look at the allegations. Unless there is something obviously contradictory inside, they have to begin their analysis of guilt or innocence from “this is true”.

That may be okay for “I served him a notice” or something, but when it's “I saw him do this illegal act”, then how else do you defend yourself? You can't cross-examine a paper.

[Murray Rankin, NDP, Victoria, BC]

Therefore you have to come forward. You have to give your evidence. Although there is a constitutional right to remain silent—

[Stephanie Heyens]

Yes.

[Murray Rankin, NDP, Victoria, BC]

—the only way you can defend yourself is to come forward.

[Stephanie Heyens]

Yes.