Thank you, Mr. Chair, and members of the committee.
Thank you for the opportunity to address Bill C-75. Let me say at the outset that I'm here as a private citizen. I represent no firm or organization. I might be what passes as an outsider in this debate, as may come clear in a moment.
The main reason that it was suggested I come here was that in 2012, I authored a reported called “A Criminal Justice System for the 21st Century”. In that report, I identified what I thought to be a culture of delay in our criminal justice system. That term and the report were referred to by the majority, and the minority, in the Jordan decision as one of the reasons that action is required to reduce delay in our systems.
I also served for the better part of a decade on the board of our legal services society, administrating the defence side of the criminal legal system, and I encountered in a managerial sense the issues of administration from that perspective. Otherwise, I'm not a criminal law practitioner. I have occasionally practised criminal law, but only at a high risk to my clients.
I have a couple of general comments and then I have some specific requirements.
First, I think the most useful thing I can do is to shine a bit of a light on the general enterprise. Delays have a hugely long history in our justice system and in almost every justice system that you can study. If you study this carefully, you see that delay is a chronic, recurring problem and that solutions, almost always, are short and temporary fixes that don't produce enduring benefits for the public good.
The first point I would make is to recognize that an enduring solution here will have to be organized around changes that are legislative in nature but that will have an impact on the culture of our system and systemic changes.
I think one of the problems in this debate is that we strive to avoid delay, which ought not to be our goal. Our goal should not be to avoid disaster. Our goal should be to deliver justice in a timely way that's responsive to the public interest and to the needs of the victim and the community generally. All too often we don't state or pursue those goals in any aspects of our system, and I think we need to achieve that cultural change.
The success of the changes you're considering really depends upon not only the wisdom of the changes you make but also in resourcing the execution of those changes. In history, the number of changes that have been passed legislatively that weren't supported by resources is legion.
Second is to gather data as to what's working and not working. One of the difficulties is that people make changes, and then no one sees what happens and gathers the information about the consequences and then responds appropriately. The latter two are difficult to do in any system, but they are the most important. I will come back to the implications of that for specific proposals.
With respect to the elimination or reduction of preliminary inquiries, for most of the people in this room, this debate started when you were in grade seven. The first time that I participated in a debate about whether preliminary inquiries had any modern utility was in the 1980s, and that dates me a little. However, there was a consensus amongst most of the first ministers of this country in the early 1990s that preliminary inquiries were no longer necessary and needed to be radically reduced.
In my respectful submission, the fact that they originated in their current form over a hundred years ago is not a reason to hold on to them. I think we have to let go of the preliminary inquiries and find better ways to address the goals that they originally sought to address.
If I can take one of my earlier remarks, the whole Stinchcombe reality has changed the context in which preliminary inquiries are conducted. I think we have to recognize that and tell the system it has to find better ways to achieve those goals.
With respect to routine police evidence—and I may well be the dissenter in all of this—if you wander around the provincial courts and you're not a criminal practitioner, there seems to be an enormous amount of time spent on nothing, on things that people ought not to spend time on. Taxpayers who do that will say, “I went on jury duty and wandered around the courthouse. What was happening there?” We need to take hold of this issue. I support the proposal to identify categories of evidence that don't require cross-examination as of right. Judges can be trusted to identify and respond to applications where cross-examination isn't necessary.
Most importantly, it's an opportunity to learn. If we do that, we may learn how to discriminate between areas of evidence that require a conventional approach and those that don't.
I would say two things about peremptory challenges. First, there is a waterbed effect that I'm concerned about with respect to peremptory challenges. It's not sleep, which is probably what you were hoping I was going to suggest you do. If we eliminate peremptory challenges, the challenges for cause become much more popular elsewhere. That has been done in other systems. We know that challenges for cause can increase astronomically, because it has happened in jurisdictions in the United States. Those can end up being much more conducive to delay and loss of efficiency, and I think that's a very legitimate concern.
Let me make a remark you may not have heard from others. It relates to what we know about the jury system in Canada. We have made it a criminal offence to study the jury system, because jurors are not allowed to disclose jury deliberations. There is an ocean of legitimate research in the United States looking into the effectiveness of jurors—how they conduct their work, and when they're good and when they're bad—because research is allowed. As a result of section 649 of the Criminal Code, that's not permitted in Canada.
There have been calls from time to time for its qualification, and I strongly suggest that anybody who cares about the jury system would support an amendment to qualify the prohibition to permit legitimate academic research into the Canadian jury system. That proposal has wandered around the policy halls and really should be taken up and dusted off as part of this debate, in my respectful submission.
I have a comment on administrative offences. I looked at this in some detail in British Columbia, and I would say the astronomical increase in administrative offences justifies doing something differently with them. What to do with them brings up a fair amount of debate, but I would hope that after due consideration, we would think differently about the terms of release and how we supervise them.
My final point is not a legislative one but an observation about a critical question of the success of any package of proposals. If the resources found for this are unequally parcelled out among judges, the Crown, and police officers, and we don't properly resource defence counsel through the legal aid plans in Canada, they will not succeed. I can guarantee that. Legal aid is still the poor sister in these debates and discussions, and in my respectful submission, it can be the source of collaborative and effective partnership in making our system more effective.
Thank you.