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.