Justice Committee on Sept. 19th, 2018

[Kendall Yamagishi, External Relations Committee Member, Society of United Professionals]

Thank you very much for the opportunity to speak to you today on behalf of our union, the Society of United Professionals, which represents more than 350 legal aid lawyers in Ontario.

Garrett and I are both duty counsel criminal defence lawyers. Today we hope to bring you our perspective as lawyers who work every day on the front lines for vulnerable and low-income accused persons.

We have decided to focus our submissions on police and judicial releases, as well as offences against the administration of justice. I'll begin by talking about the over-imposition of release conditions and how we believe that Bill C-75 could actually exacerbate this problem.

Section 11(e) of the charter guarantees the right to reasonable bail, and the Supreme Court of Canada has said that a key component of this right includes the conditions of release. Jurisprudence has established that there must be a nexus between the allegations and the conditions and that conditions should not be punitive, since everyone on bail is presumed innocent. We must keep in mind that individuals who are presumed innocent are often on these conditions for many months, if not years, while they wait for trial.

I'd like to recount a story that Garrett told me about one of his clients. This young man was released by the police and put on a curfew despite the fact that he didn't have a record and the allegations actually took place during the day. He was subsequently arrested for breaching the curfew condition and brought to court. With the assistance of duty counsel advocating on his behalf and the oversight of a trained justice, this arguably unconstitutional condition of a curfew was removed, but not until after he was forced to spend an extra night in jail and face a new charge for breaching his bail. Clients will agree to almost anything to get out of custody. In moments of desperation, I've literally had clients say to me, “Miss, I will do anything you ask me to; just please, I need to get out.”

Unfortunately, the relationship between the police and our communities is often one of a gross power imbalance. Our clients are people with brain injuries, addictions issues, mental health issues, and developmental disabilities, which means they bump into the law more than others do.

Within the law of bail, jurisprudence has developed that constrains the ability of the court to impose unreasonable and inappropriate conditions, but this bill, as it reads now, moves away from those standards. It allows police to impose conditions that could not be lawfully imposed by a judge or justice of the peace according to current jurisprudence. What’s worse is that police can impose these conditions without the same scrutiny that the courts are subjected to. There’s no lawyer standing beside you when an officer is typing up the undertaking they are going to hand to you to sign.

Police can already release a person on an undertaking, and they should be doing more of this. The proposed changes in Bill C-75 don't give police expanded release powers that they don't already have. They already have this power. Bill C-75, however, expands the power to impose additional conditions.

Our concerns about the over-imposition of conditions also extend to elements of Bill C-75 that deal with bail in the courtroom. As I mentioned previously, Supreme Court of Canada case law makes it clear that terms of release may “only be imposed to the extent that they are necessary to address concerns related to the statutory criteria for detention and to ensure that the accused is released.”

As Bill C-75 reads now, it appears the courts may no longer be limited by this principle when the accused person is facing a reverse onus situation. In our line of work, reverse onus is not a rare occurrence. It occurs, for example, when my client, who was out on bail for stealing a case of beer, is charged again with entering the same liquor store, thereby breaching his bail conditions. Bill C-75 states that when an accused is released on a reverse onus bail, “the new release order may include any additional conditions described in subsections (4) to (4.2) that the justice considers desirable.” This makes what the justice considers desirable the new legal standard. This, of course, is a far cry from the current standard in the jurisprudence, which is “only to be imposed to the extent they are necessary”.

While the amendment may not have intended to deviate from the standard of necessity, the language must be written in a way that does not invite an overly broad application of conditions. We've outlined some of our proposed amendments in our written submissions.

When it comes to reverse onus on domestic charges, we join the Barbra Schlifer Commemorative Clinic. In their submissions, staff expressed their concerns about the consequences this might have on female accused. I should note that Barbra Schlifer Commemorative Clinic is a clinic that provides services to women who themselves are survivors of domestic violence.

Domestic violence is about power and control. It therefore becomes dangerous to craft legislation around assumptions about who has power and control without accounting for who can leverage the power of the state.

We need to consider the over-prosecution of women whose voices are often forgotten: racialized women, indigenous women, those who are not in heterosexual relationships. As duty counsel, we frequently see women who are charged with domestic assault. Many of them are themselves survivors of domestic abuse.

I personally have had dealings with a female accused person whose abusive partner charged her as a means of psychological control. In shifting the onus onto the accused to justify why she should not be detained by the state, we're only exacerbating the power imbalance that she faces. While the reverse onus provision only applies when the accused has been previously convicted of an offence related to intimate partner violence, in our experience, unfortunately, self-represented false guilty pleas are common. There are many women who have convictions for domestic assaults from relationships in which they were not those in a position of power.

Courts are already required to consider an accused person's criminal record, including past convictions for domestic assaults and the surrounding circumstances, when making a determination about bail, namely through the consideration of the secondary ground of detention. However, expanding the reverse onus provision is overly broad and inconsistent with the presumption of innocence. The burden should always lie on the state to deny a person's liberty. Rather than expanding the reversal of onus on the accused, we advocate for further reduction of the reverse onus provision.

The reverse onus provisions have particularly punitive effects on our clients, who often, due to disabilities and other vulnerabilities, incur frequent charges for minor offences and for drug possession for the purpose of trafficking for reasons that we have expanded on in our written submission.

I'll turn it over now to my colleague.

[Garrett Zehr, External Relations Committee Member, Society of United Professionals]

Thanks, Kendall.

For the final part of our submissions, we'd like to address the proposed regime to deal with the offences of the administration of justice, particularly when there's no harm involved in those offences.

Now, as I believe this committee has heard, these types of offences do play a considerable role in clogging up the courts. I know this committee heard earlier this week from Jonathan Rudin of Aboriginal Legal Services, who specifically talked about the grossly disproportionate impact that these kinds of charges have on indigenous persons. I've seen this from my own experience. I would also add that I have seen how these kinds of charges can also have a disproportionate impact on other vulnerable communities as well, particularly those which are over-surveilled by the police.

As Bill C-75 currently reads, it's left to the police officer's discretion as to whether a criminal charge is laid for an offence against the administration of justice or if the alleged breach will be referred to a judicial referral hearing. Unfortunately, in our experience, and again what we see on a day-to-day basis, is that oftentimes police officers aren't showing a lot of restraint when it comes to laying charges. Obviously this isn't always the case, but this is something that we see.

I want to give one example of what I think highlights our concerns about charges related to the administration of justice offences when there is no harm involved.

Fairly recently, there was an individual in our bail courts who was arrested for breaching a curfew condition a few weeks prior to that. Now, this was despite the fact that the substantive charge that he was out on bail for had already been withdrawn, and when he was arrested he was no longer even on those bail conditions. He was held in custody overnight as a result and brought to court the next day, and ultimately missed a day's work because of this.

I'd like to read to you Justice Iacobucci's comments, a really profound quote in R. v. Hall, which says:

Liberty lost is never regained and can never be fully compensated for; therefore, where the potential exists for the loss of freedom for even a day, we, as a free and democratic society, must place the highest emphasis on ensuring that our system of justice minimizes the chances of an unwarranted denial of liberty.

In conclusion, we submit that administration of justice offences that don't cause harm shouldn't be prosecuted at all. The police should use their discretion in these circumstances to either take no action or, as is proposed in the legislation, to issue an appearance notice for that individual to appear at a judicial referral hearing.

I'd be happy to answer any questions.

[The Chair, Liberal, Anthony Housefather]

Thank you very much.

Ms. Heyens.

[Stephanie Heyens, Senior Criminal Litigator, York Region, Legal Aid Ontario, As an Individual]

Thank you for inviting me.

I'm here to present my concerns with clause 278 of Bill C-75. You might recall that clause 278 of the bill seeks to add a new section to the Criminal Code of Canada, which would be section 657.01. It would allow for the admission as evidence at any criminal proceeding, including trials, of what is defined within that proposed section as “routine police evidence”. That would be done via an officer's sworn statement. The section therefore seeks to replace the direct in-court testimony of a police officer with an affidavit or a solemn declaration.

Legal Aid and I do not support the enactment of this amendment. It defines “routine police evidence” far too broadly. As a consequence, it will abrogate on many fundamental rights of due process that are protected under sections 7 and 11 of the Charter of Rights and Freedoms. We believe it will create more delay in criminal cases coming to trial, not less.

Finally, we also believe that the section is unnecessary because the common law and the Criminal Code already have procedures to excuse police officer testimony in appropriate situations.

In our contention, “routine police evidence” is defined far too broadly. The phrase evokes images of uncontroversial activities such as serving subpoenas on witnesses or Canada Evidence Act notices on accused persons, but instead, the proposed section includes a definition that has included things like “observations”, “identifying or arresting” accused persons and the “gathering” of physical evidence. These activities may be everyday routine for police officers, but for an accused these activities of course go to the core of the case against them, and these police observations and the evidence gathered by police are often the only evidence of guilt.

Even more problematic is the fact that the legislation allows for this definition of routine police evidence to remain open, and therefore courts will be able to add additional police officer conduct to an already overly broad list. Because this definition is so broad, clause 278 will breach many fundamental due process rights. Some may argue that the practical effect of filing a sworn statement of a police officer is to provide evidence identical to what they would provide in court in direct testimony, but that's just not true. A sworn statement can be drafted over many days while memories falter and change.

Moreover, direct testimony in open court allows a trier of facts to assess the credibility and reliability of the allegations partially by observing the witness's demeanour and body language while testifying. The Court of Appeal for Ontario has just revisited this issue of observing demeanour evidence. Denying that tool to judges and juries could very well lead to an increasing number of appeals being filed, and maybe even to wrongful convictions.

This result is bad enough, but when I picture how a trial will proceed upon the filing of a police officer's solemn declaration, I see consequences that pierce the very heart of due process and fundamental rights for accused persons. The first practical effect of this proposed section is that the sworn statement of the police officer will be admitted for the truth of its contents. Consequently, the trial judge must begin her analysis of the Crown's case presuming that the contents of the sworn declaration are true. Absent any obvious internal inconsistencies, a judge would have to begin with this basis that there's no reason to question the allegations.

Where the contents of that affidavit, that sworn statement, contain evidence of guilt, the defendant must defend herself against this unchallenged sworn document. This reverses the burden of proof from the Crown to the defendant. No longer is the accused innocent before guilty, but guilty and now having to prove their innocence. Reversing the onus at a criminal trial is not a minor infringement of an accused's rights. It's a core principle of our criminal justice system that if a person is alleged to have committed a criminal act that could put them in jail, it's the Crown's onus to prove it.

Also, because a defence lawyer cannot cross-examine a piece of paper, meeting this burden becomes unfair. Questioning witnesses in cross-examination often erodes their credibility or reliability sufficiently to raise a reasonable doubt, therefore creating an acquittal. Cross-examination is the first and best tool for contesting an allegation, and it exposes something approaching an objective truth. It's the manifestation of our fundamental right to confront one's accuser. It's why we refer to the common law as “adversarial”. Limiting cross-examination for any purpose must be acknowledged as a fundamental shift that favours the Crown while prejudicing the accused. I think that at its core this is what clause 278 in the bill seeks to do. It seeks to abrogate that fundamental right to cross-examine.

Because clause 278 replaces the testimony of police officers with a sworn declaration that's presumed to be true, the only way for the accused to defend herself will be to call her own witnesses, and often the only witness other than the officer is the accused herself. This, therefore, means that she loses her right to silence. She's forced onto the stand. The right to silence, of course, is another fundamental right of our due process, and no person should ever be forced to respond to a bald assertion unless it's withstood challenge by cross examination or unless the accused chooses to.

Finally, where the defence seeks to contest the Crown motion to have a police officer's evidence admitted at trial via sworn declaration, the defence will have to disclose defence evidence. That evidence must be included in the application materials filed with the judge and with the Crown. In this way, the proposed legislation runs contrary to the golden thread of criminal law that says that the defence has no obligation to disclose its evidence unless and until the Crown has posed its case.

Moreover, it's not hard to imagine—and this isn't meant to impute any bad faith—that once the prosecution is alerted to potential weaknesses in their police officer's testimony, they are going to move to shore up those weaknesses. That's going to lead to further investigation, which triggers more disclosure obligations on the Crown and, therefore, further delay in coming to trial.

This begins to explain why the proposed section will require more time for criminal cases to get to trial, not less. The section creates an additional motion for the Crown and defence to litigate, and to admit this foreign statement of a police officer at trial, the party seeking its admission, generally the Crown, must file and argue that motion. This motion will have to be argued before the trial can even be scheduled, because if you don't know how many witnesses are testifying, you don't know how much time to set aside for the trial.

For unrepresented accused, the proposed section will result in even more trial delay. In any case involving an unrepresented accused, the trial judge bears the responsibility of ensuring that the accused understands the effect of admitting documentary evidence. The section will require that judges grant adjournments to unrepresented accused so they can find counsel; consult with counsel; decide how admitting this document, this sworn affidavit; will impact their particular case, and then how to proceed. Wrongful convictions are likely to result, and certainly the number of appeals is likely to rise too.

Finally, proposed section 657.01 is unnecessary. The common law and the Criminal Code both contain trial procedure that allows police officers to be excused from testifying in appropriate circumstances. Before or even during a trial, defence makes admissions of fact that would otherwise have been proven via witness testimony. Defence and Crown also can sometimes agree to admit certain facts as true in an agreed statement of facts, which is drafted and filed at trial, and these types of admissions aren't limited to routine police evidence. It can include any evidence that both parties agree is uncontroversial.

In addition, part XVIII.1 of the Criminal Code consists entirely of case management legislation, which can be invoked by pretrial judges to streamline trials and to manage the scheduling process when there are complicated or very contentious proceedings.

In conclusion, clause 278 of Bill C-75 will harm the criminal process more than it helps. Its application will carve away at fundamental due process rights as guaranteed by the Charter of Rights and Freedoms while causing further delay when law already exists that allows for the waiver of uncontroversial police evidence.

Legal Aid and I therefore recommend that clause 278 be entirely excised from Bill C-75.

Thank you.

[The Chair, Liberal, Anthony Housefather]

Thank you very much.

I thank all of our witnesses. We are now going to go to questions, and we're going to start with Mr. MacKenzie.

[Dave MacKenzie, Conservative, Oxford, ON]

Thank you, Chair, and thank you to the panel for being here tonight.

Ms. Heyens, I take it you're fairly passionate about that whole issue. I also appreciate that you spent more than a little time in the courtroom in pretrial discussions with Crown attorneys.

Would I be right in that assumption?

[Stephanie Heyens]

Yes. I have 20 years, unfortunately, of experience litigating criminal matters.

[Dave MacKenzie, Conservative, Oxford, ON]

I credit you with that and I admire you for it.

The bill was brought forward to try to eliminate delays in the justice system. I think you've made it very obvious that the section is more likely to cause delays than to eliminate them. Would I be right there?

[Stephanie Heyens]

That's definitely my contention, yes.

[Dave MacKenzie, Conservative, Oxford, ON]

Would I also be right in assuming from what you tell us that pretrial discussions between the Crowns and the defence frequently—and I think you have said this—would alleviate not only those issues but many others that become agreed facts heading into a trial, and thus reduce time in trial?

[Stephanie Heyens]

Every day we do that. Every day that's part of our process, to go into pretrial discussions with the Crown or with a judge present. Part of the purpose is, of course, to figure out how long the trial will take, and that always involves admissions on both sides.

[Dave MacKenzie, Conservative, Oxford, ON]

Sure.

From that perspective, I have a bit of history in that field with what happened there, and I appreciate that.

It would seem to me that this might have been some sort of misguided attempt to help the system, but in fact, as you have explained, it's one that will hinder the speeding up of the process.

Have you considered or looked at the issues with respect to eliminating preliminary hearings?

[Stephanie Heyens]

No. I would rely on the Legal Aid Ontario submissions. I understand Mr. Field and Mr. Pratt testified yesterday. I was invited to talk about this specific matter.

[Dave MacKenzie, Conservative, Oxford, ON]

Thank you.

In regard to all the issues on bail, Ashley Smith is a horrific case, one that should never have been in the criminal justice system. She needed help, but not from the criminal justice system. The mental health system probably failed her at a very early age, but she ended up in the justice system, which did not help her and was of no benefit to her.

How do we fix the system that we currently have? You've all addressed that there are problems, but how would you go about changing the bail system to fix it? I don't know what else to ask you, other than, if it's broken, how do we fix it?

[Dr. Rebecca Bromwich]

If I might, with respect to Ashley Smith, it's my own findings of my Ph.D. research that she had no mental health diagnoses before entering corrections custody and specifically before spending long years in solitary confinement. I really take exception, and my own conclusion is in fact, with respect, that this analysis is incorrect. The mental health system was not the preliminary piece of what went wrong.

In terms of going to your question with respect to how to fix the bail system, I have indicated my support for the submissions made by Professor Sprott and Professor Doob. What would fix this would be an overhaul, and if we look in the large scale, an educational program to ensure that practices and the culture of how law is carried out is shifted as well, as happened when the Youth Criminal Justice Act came into effect in 2003. There was a $20-million budget for educating and training people. I had completed my master's degree at that time and had some level of involvement with that.

A systematic overhaul of the bail system, coupled with education and support for a shift in culture and practice, would fix some of these problems.

The provisions in this piece of proposed legislation go some distance towards those fixes, so I wouldn't want to say, “Don't do this; we should do something big later.” I would say, “Do this small thing now, and let's go big later.”

[Dave MacKenzie, Conservative, Oxford, ON]

Thank you.

[Prof. Nicole Myers]

If you had asked me a couple of years ago, I'd have said I didn't think we had to start all over again. I really did believe that the law was fine, that it was just that everyone was messing up how it was being applied, except I've been studying this since 2005 and it keeps getting worse every year. I'm no longer convinced that tinkering is going to result in the widespread change we're looking for, though I have to agree with Rebecca that this is a start. It's something. It's putting the presumption of innocence as the starting place. It's starting with the idea that you're going to be released unconditionally. That is where we begin, and then we work our way forward, having to make sure that we're articulating a clear connection between the kinds of supervision someone might need or the conditions that might be required.

We need to limit the conditions that are imposed overall, and a lot of this is about a cultural change. There's this risk aversion. There's a reluctance. Simply, sometimes codifying some of the case law might be helpful for trying to structure this and trying to guide people a bit. I am apprehensive, though, that without large-scale educational efforts, this is not going to do enough to get everybody on board and to shift the orientation to what has really become an ingrained and accepted practice.

[Dave MacKenzie, Conservative, Oxford, ON]

Whom do we educate?

[Prof. Nicole Myers]

Whom do we educate? We educate everybody, Crowns especially.

The Crowns are major drivers of the bail process. If most people are released on a consent release, it really is a great deal of control that the Crown has. The Crown decides what those conditions of release are going to be, because as has been explained, an accused person will agree to almost anything to get out. It doesn't matter how patently absurd the conditions are. They might know they're going to breach the moment they walk out that door, but they will agree to anything. Remand is that bad.

It's about getting the Crowns to shift their orientation, because defence counsels are left scrambling in trying to meet the needs of the Crown because they want a consent release. A contested show cause hearing opens up risk and uncertainty and may ultimately result in detention or an even more restrictive or onerous release.

[The Chair, Liberal, Anthony Housefather]

Thank you.

Mr. Ehsassi is next.

[Ali Ehsassi, Liberal, Willowdale, ON]

First of all, I'd like to thank all the witnesses. All of your testimonies were incredibly helpful to me.

I have a number of different questions. The first question is for Ms. Myers.

You were noting that some of the conditions that we are seeing are hugely problematic because they have very little to do with the charges. Could you provide us with some examples just to better familiarize us with—

[Prof. Nicole Myers]

Absolutely.

[Ali Ehsassi, Liberal, Willowdale, ON]

—the problem and the challenge?

[Prof. Nicole Myers]

For example, it not uncommon to hear a curfew condition being placed on someone when the offence happened at noon, or to being told, “You shoplifted from one Shoppers Drug Mart. You're now not to enter any Shoppers Drug Mart in the entire province”, or that you can't enter the greater Toronto area. They can become somewhat expansive compared to what was being articulated in the allegations that are before the court.

[Ali Ehsassi, Liberal, Willowdale, ON]

Okay. Thank you.

Then you said that we could look at all the case law and try to codify that. What are some of the big seminal cases that we know?