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.
Liberal
Iqra Khalid Liberal Mississauga—Erin Mills, ON
Thank you, Chair.
Thank you to the witnesses for coming in today and for your very detailed briefs.
I'd like to ask the Canadian Bar Association a question. You talk in your brief about video conferencing and technology and the amendments to that. The idea behind Bill C-75, in my opinion, is to reduce delays in the court system.
You're recommending two amendments to those provisions. Can you explain your rationale behind that?
L & LR Coordinator, Canadian Bar Association
Yes. These can be found at page 18 and forward in our brief. We have recommended two changes. One is about the provision that has been put in to suggest that reasons should be offered by the judge to decide not to use technology. We think this is unhelpful because it provides a confusing paradox with the other provision in the bill, which suggests that the presumption should always be in-person attendance.
What does that look like practically? You have an application for someone to appear by teleconference and then there's a suggestion that this might not be appropriate and that we should stick with the presumption of in-person testimony, yet the judge is now required to give reasons to justify that, although that's the presumption. It's a bit confusing and conflicting, so we suggest that you remove that provision, as it appears at various parts requiring reasons to not allow for video conferencing or teleconferencing.
The second suggestion is that these various proposals about video and tech should be limited, generally speaking, to non-contentious hearings. We do not want to unduly erode the right to face one's accuser and to have in-person hearings. This is meant to be a fix for remote communities and communities that would benefit from this sort of thing, where there is no other alternative.
September 19th, 2018 / 4:10 p.m.
Liberal
Iqra Khalid Liberal Mississauga—Erin Mills, ON
Mr. Johnston, do you have any comments on the use of technology and video conferencing, as you have experience in running trials by jury and trials in general?
Barrister-at-Law, As an Individual
I do, but I'm generally opposed to the use of technology where people want to have trials and have witnesses attend by teleconference or telelink. I'm often in opposition to such a method, because for me a criminal trial is a slow and deliberative process where I believe it's important for jurors, for example, to have a real feeling and appreciation for what a witness is testifying to. I respectfully feel that the ability to assess the witness is just better in person, in the flesh, viva voce, as opposed to by video link.
Perhaps I'm a relic of a bygone era, but it's just my personal preference for witnesses to be there in person.
Liberal
Iqra Khalid Liberal Mississauga—Erin Mills, ON
That's interesting. Thank you.
I want to touch on CBA's note on intimate partner violence. We've heard evidence before that instead of promoting or really protecting women who are being abused, the reverse onus provision would take them a step back, because they will not be reporting crimes as much.
What is your take on that? I know you've really detailed it out, but could you please speak to that?
L & LR Coordinator, Canadian Bar Association
With respect to bail, we oppose the reverse onus predominantly for two reasons, but we don't disagree with the evidence you've heard, and there was testimony from earlier witnesses about the fact that this may encourage under-reporting, which is a troubling feature that we obviously take issue with.
Our primary consideration in opposing that amendment is that it's redundant, because the other amendment that Bill C-75 brings in is a mandatory consideration by the justice of whether or not that person has a record for this sort of thing already, and whether or not the allegation involves intimate partner violence. What that practically means is that the judge will be forced to turn his or her mind to those issues already, without the need for a reverse onus to highlight the particular importance of intimate partner violence.
We also say it's constitutionally vulnerable, because the cases that have upheld reverse onus provisions in bail have focused on different contexts, like drug trafficking, which encourages the accused—if they are legitimate drug traffickers—to violate the terms of their bail because it's very lucrative and sophisticated and hard to get out of immediately. That's not to say there aren't other considerations in the domestic violence context, but it's not an even fit in terms of trying to rely on those cases to justify this reverse onus.
Liberal
Iqra Khalid Liberal Mississauga—Erin Mills, ON
Thank you.
Under-reporting is really a big issue in the context of gender-based violence, and it's something that's really difficult to tackle. Do you have any proposals within this framework that would encourage more support for women in our justice system?
L & LR Coordinator, Canadian Bar Association
From my personal perspective, money allocated to victim support services is never wasted. As much as we become a bit desensitized to acting in criminal courts and cross-examining and seeing these tragic stories, we can't lose sight of the fact that victims are often going through this process for the first time. They need that support, and the easier it is for them to get that support, the more people over time will be encouraged to come forward.
We are obviously worried about the presumption of innocence and measures that infringe upon that, but there's lots of room for improvement outside the courtroom that won't require those sorts of compromises. That's where the focus should be, and the criminal court should not be the answer to all of society's ills, in my respectful view.
Liberal
The Chair Liberal Anthony Housefather
However, because we have the Canadian Bar Association and it's not yet 4:30 p.m., we have a chance to do some very short snapper questions for the next 10 minutes. Who on the committee has a short question they'd like to ask?
I see Mr. Nicholson and Mr. Cooper.
Anybody on that side? Mr. Fraser and Mr. McKinnon.
They need to be very short questions. If you have more than one, do them all at once so they can be answered. No longer than two minutes per question, back and forth.
Mr. Nicholson.
Rob Nicholson Niagara Falls, CPC
Ms. Pentz, you were talking about preliminary inquiries, and you gave the example of a case where it was a sexual assault and the preliminary inquiry actually speeded up its resolution.
I have spoken with people who have gone through this process. Sometimes these victims of sexual assault and abuse find that having to go through the preliminary inquiry and then the trial makes them feel that they themselves are, in a sense, put on trial twice. This increases their suffering.
Have those people approached you as to how difficult it is?
Vice-Chair, Canadian Bar Association
There is certainly that concern, and there are certainly those cases where the victim has come forward and said that they found testifying twice had been stressful for them. In some cases some witnesses find it's almost a rehearsal for the trial and they find it useful.
When a witness is testifying I think it's important for the Crown and for the court to make sure that witness is not abused during their testimony, that the questioning is not abusive, and that they stick to the relevant points. If that is done, then certainly it can make it an easier process for the victim, but there's no denying that testifying on sexual matters is traumatic. The more you do it, certainly, the more difficult it is. There is that concern, but from our perspective it's a “throwing the baby out with the bathwater” type of thing. There are pros. Yes, we can't deny there are those people who come forward—
Niagara Falls, CPC
Just one subquestion, with respect to getting rid of the peremptory challenges, you think this will hurt, ultimately, indigenous and racialized people. Is that your stand?
L & LR Coordinator, Canadian Bar Association
It is. It is our view that racialized accused can use the peremptory challenge to create a more representative jury. We appreciate the position that has been taken on the other side of things, but I do want to mention one thing. This debate, quite rightly, has focused on the overrepresentation of indigenous people in the system and under-representation on juries. However, peremptory challenges have a far more practical application in some cases.
The one anecdote I can think of is the example I had in a recent jury selection, where I had an accused who was facing a charge where the defence was going to be reasonable alternative inference, a fairly complicated instruction for a jury, where you have to explain circumstantial evidence and the difference between speculation and inference. I was concerned that jury members who were not that proficient in English would not be able to understand the instruction that well, and that it may harm the truth-seeking function. Even though I had a racialized accused, I was using the peremptory challenge to pick off some people who showed that they did not have a very strong grasp of the English language, even though they were of the same race as my client, because I expected that they would not be able to understand the instruction to the extent that I would hope they would. These sorts of considerations are sometimes being lost in the analysis.
Liberal
The Chair Liberal Anthony Housefather
Got it.
We'll have Mr. Fraser, Mr. Cooper, an then Mr. McKinnon.
Liberal
Colin Fraser Liberal West Nova, NS
Thanks very much.
Just to the CBA again, I note that in your brief you support the reclassification of offences provisions, but you note as well what appears to be an almost unintended consequence that we've heard in regard to law students and articling clerks appearing in court for summary offence matters, which they're allowed to do right now so long as they have maximum penalties of six months. You make the suggestion that this could be remedied by just amending the section to reflect the new maximum of two years less a day. Do you have any concern with law students and articling clerks taking on cases that have maximum penalties now of two years less one day?
If you do, how do we grapple with that or make a change that perhaps doesn't have that unintended consequence of having, perhaps, inexperienced counsel handling cases that could see somebody going to jail for two years?
L & LR Coordinator, Canadian Bar Association
I appreciate the concern that you've identified. That being said, almost every summary conviction offence will now have two years less a day, so that number is somewhat misleading in that sense. We've offered a second recommendation in respect to sentencing. I think this is one thing that provincial law societies should be looking at, as opposed to the Criminal Code. This is a thing that can be regulated in terms of what provincial law societies permit articling students to do, what sorts of offences they should be permitted to work on, separate and apart from restrictions in the Criminal Code. I think it might be something that's not necessarily a problem, but I take the point.
I also take the point from a previous witness about the maximum sentence, that if it's used too often there may be collateral consequences. It's something else that we agree with. It should be considered if this is to be passed.
Liberal
L & LR Coordinator, Canadian Bar Association
Inflationary sentences, immigration consequences, and U.S. border....
Conservative
Michael Cooper Conservative St. Albert—Edmonton, AB
Thank you.
To the CBA, on page 8 of your brief you note that the reclassification of offences could result in further delays in provincial courts. Could you just elaborate on that point?
L & LR Coordinator, Canadian Bar Association
Summary conviction offences can only take place in provincial court. Of course, 99% of all criminal cases already take place in provincial court. With the elimination of preliminary inquiries, you can expect more judge-alone trials in provincial court. There's a stacking of problems that may create an overburdened provincial court system. I appreciate that appointments are not in the jurisdiction of this body but we have identified that as a concern, and all the more reason not to tinker with preliminary inquiries, frankly.
Liberal
The Chair Liberal Anthony Housefather
Thank you very much.
Mr. McKinnon, you have the last question.
Liberal
Ron McKinnon Liberal Coquitlam—Port Coquitlam, BC
I was going to ask Mr. Fraser's question, but I have a related question to hybridization offences.
This bill classifies more than 115 offences as hybrid offences. Do you think that's an appropriate list? Do you think it should be increased or reduced? What do you think in terms of the process of hybridizing these offences?