Justice Committee on Sept. 19th, 2018

[Murray Rankin, NDP, Victoria, BC]

That's what one of our witnesses referred to as the elephant in the room in this particular reform effort: they want to save time, but they didn't even talk about mandatory minimums in the bill.

Finally, on page 7, there are 10 little points that you suggested as alternative approaches to trial management. I know you won't have time to go through them, but I just want to commend them to this committee for its consideration. They're very practical things that could make a gigantic difference if you're serious about delay. I'll just leave it at that. Thank you for organizing them so succinctly.

[Sarah Leamon]

Thank you.

I will say just very quickly that I made those recommendations based on my experience in the courtroom as a criminal defence lawyer. These things would have a great impact on reducing delay.

[The Chair, Liberal, Anthony Housefather]

Thank you very much.

Mr. Fraser is next.

[Colin Fraser, Liberal, West Nova, NS]

Thank you very much to you all for being here today. I thought your presentations were very interesting. I'm glad that briefs were submitted as well.

Ms. Leamon, I'd like to start with you.

You mentioned that preliminary inquiries in a case would actually make it take longer. Obviously, a preliminary inquiry date would have to be selected, and then you would go to trial after that. That does stretch out, so I get your point on that.

You also say they're not used all that often, so they don't really contribute significantly overall to the delay problem we have. Do the statistics you're analyzing for that include instances where a preliminary inquiry was set down and actually waived, or is that preliminary inquiries that are actually proceeded with?

[Sarah Leamon]

My understanding is they're preliminary inquiries that are proceeded with. However, I would have to refer to the primary resource material in order to give any certainty on that point.

[Colin Fraser, Liberal, West Nova, NS]

Okay.

Oftentimes, a preliminary inquiry will be set. The defence obviously is putting together its case in the meantime, and when the preliminary inquiry date comes, which can oftentimes be a year down the road, or many months at least, at that point in time, a decision is made to maybe re-elect, or perhaps discussions have taken place with the Crown. Sometimes preliminary inquiries are chosen as the avenue, and then during that period of time different decisions are made. If a preliminary inquiry in that case wasn't proceeded with, it wouldn't be one of those cases where it's not often used, but would actually have lengthened the period of time for that matter to be resolved.

Do you see what I'm saying?

[Sarah Leamon]

Yes.

Of course, it's something we can't control. The instruction of our client sometimes changes over time because of different life circumstances and so on. Somebody who may have wanted to proceed with the preliminary inquiry or trial at the outset may change their mind six months or a year down the road and may say actually that they do just want to enter a plea or something like that.

I will tell you that when preliminary inquiries are set, they are set after we've already had an opportunity to speak with the Crown and to negotiate with the Crown, and those negotiations have failed. Out of the preliminary inquiries that I currently have coming up in the future, I think that at least two out of the three of them, the majority of them, were requested by the Crown. It's not always the defence that's asking for these things. Often it is the Crown as well, and it's something that is beneficial to both parties.

[Colin Fraser, Liberal, West Nova, NS]

Obviously, Mr. Cowper, after Stinchcombe the main reason for preliminary inquiries perhaps was not as obvious as it had been as far as the discovery process goes.

I know, Ms. Hassan, you commented that it's useful for discovery purposes.

Mr. Cowper, you said there are other ways outside of an official courtroom setting where things could actually be done. Do you see discovery as a possible thing that could be done outside of a preliminary inquiry setting? Are there other avenues that would happen if preliminary inquiries weren't used as often as they are now?

[Geoffrey Cowper]

I think the opposite of some of my colleagues here. I actually think it would be dangerous to add authority and decision-making roles to judges sitting on preliminary inquiries. Right now they pass and say it goes to trial in the other court. The test is simply whether or not there's sufficient evidence under the proper test to have a trial.

If you then carve off some of the trial issues for the first thing, you really are creating two trials, one of which is going to happen in the first time and one will happen in the second time. I think that's a dangerous reform that should be very cautiously considered.

The second point is—and this a culture point—it used to all be about preliminary inquiries. It's now hardly about preliminary inquiries at all. They are dying, frankly, a natural death. What we really need to do is focus on how to achieve the goals that preliminary inquiries used to be the only tool for, through the other tools that are available. In my view those have to surround themselves around the relationship between the Crown and the defence primarily, not the judges and decisions made by trial judges ahead of the trial instead of at the trial. We have to dispose of this rigid, theory-bound approach to criminal process. That includes disclosure and preliminary decisions, which in my view have to be made by the trial judge and not by other judicial officers.

[Colin Fraser, Liberal, West Nova, NS]

Thank you very much for that.

If I could turn to The Advocates' Society for a moment, I want to touch on one point that you raised in your presentation regarding routine police evidence. Generally speaking, I know you have great reservations about that part of the bill.

Do you think that this part of the bill in admitting routine police evidence by affidavit without an automatic right to cross-examination overall would help with delay or hinder delay in our court system?

[Brian Gover]

If we were strictly speaking of efficiency and not concerned with making full answer and defence, the answer clearly is it would reduce delay, but our point is that there's a broader concern here, and that is making full answer and defence.

In cases such as this, for the reasons that I articulated earlier, there's just too much risk that constitutional rights will be violated. Section 7 of the charter guarantees fundamental justice. In my experience, it's the rare case where defence counsel goes through by rote and challenges continuity of exhibits and so on as a matter of course. It's the rare case because there are so many other means by which we can create the culture that Mr. Cowper's been talking about.

I don't see admitting routine police evidence ultimately as being the answer here. Admitting it in that fashion I think is going to be problematic. It's inevitably going to lead to constitutional challenges and greater uncertainty, and we need to guard against that as we administer the criminal justice system.

[Colin Fraser, Liberal, West Nova, NS]

Great. Thank you.

Those are my questions.

[The Chair, Liberal, Anthony Housefather]

Thank you very much.

It's been a long day and a long three days. That was the end of the round of questions.

I had a request from Mr. Doherty to ask a short question. This will be the last question.

You may have one short question, Mr. Doherty.

[Todd Doherty, Cariboo—Prince George, CPC]

Great.

I just want to say thank you to the committee members and thank you to the guests. I have not sat through hours and hours of testimony. This is only—

[Arif Virani]

You just showed up for the food.

[Todd Doherty]

Frankly, I just had vegetables and water.

I just want to say thank you to our witnesses because it is very eye-opening, and I do appreciate the testimony.

I do want to ask one question of Ms. Leamon. We have heard time and time again about the judicial vacancies and the challenges that we have. I've sat here for an hour now, and I have not heard that brought up once. However, we continually hear in the media, of course, about cases being thrown out.

You mentioned in your brief that a better way to reduce court delays would be the prompt filling of judicial vacancies. As you know, it's been a serious problem with the current administration. Despite public pressure, despite serious criminals walking free, there are still over 30 judicial vacancies out there.

Can you tell us some of your personal experiences with regard to a lack of available judges?

[Sarah Leamon]

Yes, I can tell you—

[The Chair, Liberal, Anthony Housefather]

I have to say that I have to rule that question out of order. It has nothing to do with Bill C-75. I'm sorry; it doesn't.

This is a discussion about issues associated with Bill C-75. Mr. Rankin's question talked about an issue and brought it into Bill C-75. You may want to rephrase your question, but it has nothing to do with Bill C-75.

[Michael Cooper, Conservative, St. Albert—Edmonton, AB]

This will become part of Bill C-75 once Bill C-75 is—

[The Chair, Liberal, Anthony Housefather]

This bill would not be a bill that would add something to do with judicial vacancies.

[Colin Fraser, Liberal, West Nova, NS]

It was a courtesy question.

[The Chair, Liberal, Anthony Housefather]

Really, I have to say—

[Todd Doherty]

Mr. Chairman, with all due respect—

[The Chair, Liberal, Anthony Housefather]

Mr. Doherty, this was the end of a round of questions. There were no more questions. I allowed you a courtesy question and I appreciate, because I usually do, that we will always try to accommodate guests. This was not a question that deals with the bill. It was a question to attempt to make a political point.

[Todd Doherty]

It's not.