Justice Committee on Sept. 19th, 2018

[Ron McKinnon, Liberal, Coquitlam—Port Coquitlam, BC]

Okay. You also indicated that these exit pretrials should be mandatory, with a written response by the judge. How much time would that involve for the judges?

[Sayeh Hassan]

I've had exit pretrials. I've explained that in my brief. What happens is that after the preliminary hearing, the judge orally—it doesn't necessarily have to be in writing—tells both the defence and the Crown the weaknesses and strengths of the case. Not every judge will do that, and not every Crown or every defence counsel will request that. The Crown and the defence would have to come together to request it in exit pretrial. It's done informally, but it's extremely helpful. I've certainly found it extremely helpful in more than one case, and thus I would think that if it were done in a routine way, then it would give both the defence and the Crown something to seriously consider in deciding whether they're going to move up or not. You've had a judge who's not the trial judge tell you where the weaknesses and the strengths of the case are.

[Ron McKinnon, Liberal, Coquitlam—Port Coquitlam, BC]

Thank you.

You have suggested also that judges presiding over preliminary hearings who do not now have the jurisdiction to weigh out the evidence should have that jurisdiction.

I was wondering what the consequences of that would be to the pretrial itself—whether that would lengthen it, whether it would streamline it, whether it would be more amenable to justice in general, and whether such a ruling by a pretrial judge would be applicable to the actual trial. If the pretrial judge says certain evidence is not admissible, would that be binding on the trial judge?

[Sayeh Hassan]

That's my suggestion, that if there's a concern by the government that the only purpose the preliminary hearing serves is the discovery purpose, then let's give the judges more jurisdiction to do more. I'll give you a practical example; I think I did already.

Let's talk about an evidence such as a statement that was taken while violating the accused's rights. If they had the ability to deal with that at the preliminary hearing, theoretically then the judge would say “Yes, the charter has been breached, and I'm throwing out the statement.” Then that would be it: there would be no more statement. Then the Crown would either have to proceed without the statement, or in cases where the only evidence had been obtained by the breaching of somebody's charter rights, the case would be over because the evidence is gone, and then it's not going to go up to the superior court and take more time when essentially the exact same thing will happen if you take the charter application up to the superior court.

[Ron McKinnon, Liberal, Coquitlam—Port Coquitlam, BC]

If it did go on to the superior court, could the prosecution not come back and say, “Listen, this was excluded by the preliminary trial, but we think it should be part of this trial. Can we reintroduce it?” Is this something that you would foresee happening?

[Sayeh Hassan]

It would depend on how the legislation would be worded, but what I am suggesting is that the preliminary judge would have this jurisdiction, and that would be final, and the Crown would not be able to now take this charter application and take it up to the superior court, because that would defeat the purpose of doing it during the preliminary in the first place.

[The Chair, Liberal, Anthony Housefather]

I'm going to let you know that it's probably time to move to Mr. Virani.

[Ron McKinnon, Liberal, Coquitlam—Port Coquitlam, BC]

Thank you.

[Arif Virani, Parkdale—High Park, Lib.]

Thank you, Mr. Chair.

Just quickly, first of all, welcome, Mr. Cowper. I'm a former Fasken's lawyer myself.

Ms. Hassan and Ms. Leamon, I'm going to ask you guys a couple of questions.

I take your points. We've heard a lot of sometimes competing views in the three days that we've had on this study so far, which feels like three months. However, your point about this being a constitutional democracy and that we want to ensure there's due process is, of course, understood.

You made the point that it's not a fast-food restaurant. It's also not an eight-course banquet, right? I think the right to be tried within reasonable time, as we all know in this room, is protected under the charter. That's what Jordan is trying to drive us towards. We're trying to find that balance.

[Sayeh Hassan]

Yes.

[Arif Virani]

I take your points about the preliminary inquiries.

I have two questions. You mentioned that preliminary inquiries serve an educative discovery-like aspect, particularly for unrepresented accused, etc., but what about the traumatic impacts that preliminary inquiries can have, particularly in sexual offence cases?

Second, do you have anything to offer with respect to some of the evidence we've heard about reverse onuses on bail, and how those might impact on women, particularly indigenous women?

[Sayeh Hassan]

With respect to your first question about.... First, I just want to comment on what you said about it not being a fast-food restaurant and also not a banquet. We have to take into consideration that Jordan actually takes into account the preliminary hearing; when the Supreme Court gave us the 30 months, that's the limit. It takes into account the preliminary hearing, so if you take out the preliminary hearing, I have a feeling that then the ceiling is going to come down, so it's not going to start immediately at the 30 months.

With respect to the effect on the complainants, again, it's a balancing act, but I think we need to keep in mind the fact that when a person is accused, those are just allegations, and they're innocent until proven guilty. The complainant is not a victim, in my opinion, until that person has been proved guilty in court.

It's a balancing act, and I suppose that's the job of the government to decide what is more important, but in my respectful submission, I think it's extremely important that when an individual is being charged with an offence those are just allegations. We don't know if this person is guilty; otherwise, obviously, we wouldn't need the court system.

We have to balance those rights.

[Sarah Leamon]

I would like to elaborate on that.

I actually do have significant concerns about how this is going to impact people accused of sexual offences in this country. My concerns about that are exacerbated by Bill C-51, which I came and spoke to the committee about—it seems like a very long time ago, but it may have been just a few months. In any event, that bill does significantly limit an accused person's abilities to fully make answer and defence, in my view at least, when they are accused of crimes of a sexual nature.

Crimes of a sexual nature are the most stigmatizing things, arguably, that one can be accused of. If Bill C-51 passes in its current form, alongside this amendment under Bill C-75 to preliminary inquiries, it means that the only people who will have the preliminary inquiry process available to them, those who are charged with a sexual offence, are ones who have done so in an aggravated fashion or have caused bodily harm. That's a big concern for me.

I can tell you that in my practice as a defence lawyer, the vast majority of times that I use a preliminary inquiry process is for crimes of a sexual nature, because it is so useful in terms of an investigative or discovery tool. As Mr. Cooper pointed out, 87% of them actually resolve after the preliminary inquiry process. It saves the complainant, in the vast majority of circumstances, from having to testify again and from being re-traumatized.

[Arif Virani]

Do you have any thoughts, quickly, on the reverse onus that we heard about on bail?

[Sarah Leamon]

I'm actually in favour of the provisions in Bill C-75 for bail. When it comes to reverse onus provisions for domestic allegations, which is what you're referring to, as a criminal defence lawyer, of course, I'm not in favour of reverse onus. It should be up to the Crown to show grounds for detention.

Yes, I think that it could.... I've never really put my mind to it to any great extent with respect to how it could affect women who are charged or marginalized people who are charged, but I do think it could have some significant impacts, adversarial impacts on the LGBTQ2 community, people who are not in heterosexual relationships. If we see that they have a reverse onus all of a sudden to show why they should get out, they may more frequently be detained. That could be very problematic.

Thank you.

[Arif Virani]

Thank you.

[The Chair, Liberal, Anthony Housefather]

Thank you so much.

Mr. Rankin is next.

[Murray Rankin, NDP, Victoria, BC]

Thank you, everyone.

I don't want to be accused of discriminating against Toronto, so I want to speak to Mr. Gover. It's nice to see you, Mr. Gover.

I understand very clearly that you and The Advocates' Society favour peremptory challenges. You've suggested that if we're going to change it, we need to do further studies and consultation. In the alternative argument, you said we should take a look at the Batson v. Kentucky procedure that the United States has implemented, which allows for addressing discrimination and so on. What would that look like? Would that look like more challenges for cause?

Mr. Cowper has said that if we were to do that, there would be this waterbed effect, that we might end up with more delay as we do more challenges for cause. Could you elaborate on how that would look? We've had some witnesses say we should give the courts the discretion to look at the representivity—if that is such a word—on the jury and decide whether that's fair. That's what we've heard others suggest. How exactly would you line up?

[Brian Gover]

It would be done on a juror-by-juror basis, with the exercise of the peremptory challenge, and it would be where the objecting party, either the Crown or the defence, feels that the jury is no longer being representative, that discriminatory use underlies the exercise of the peremptory challenge. That's where the exercise would be engaged.

I don't see it taking very much time in jury selection, Mr. Rankin. This is the kind of thing, in my experience, that would take a trial judge something like five to 10 minutes at the outside to decide in making a determination about whether there has been prima facie or first impression of discriminatory use.

Overall, I think this is going to be time-efficient because of the alternative raised by Mr. Cowper.

[Murray Rankin, NDP, Victoria, BC]

I'd just like to say—

Please go ahead, Mr. Cowper.

[Geoffrey Cowper]

It might be helpful to know—I did speak to American colleagues on this—that the Batson procedure actually rarely produces lengthy additions to process. The challenges for cause process in the United States can produce weeks and weeks of delay. I spoke to one fellow who said they had to have questionnaires distributed to 1,200 people—one jury—last year in Seattle. Therefore, in terms of risks, challenges for cause are a greater risk for adding time and delay than is the Batson procedure.

[Murray Rankin, NDP, Victoria, BC]

I just want to say for the record, Mr. Cowper, that I really appreciate the work you did on the criminal justice system for the 21st century, and all your service to the profession and your leadership on legal aid. Thank you for that.

I also want to give you some hope that this committee has in fact made studies and recommended that section 649 of the Criminal Code be amended. You'll be interested in why. It is to allow for jurors to seek counselling in that rare circumstance where they're traumatized by their duty. If we did that, I think your point would be that it would open the door to allow for more academic studies of jurors under some conditions. Thank you for helping us connect a couple of dots.

I want to say to you, if I may, Ms. Hassan, how powerful I thought your point was about the brutal efficiency of certain regimes versus our constitutional charter rights—our common-law rights. You gave us, as we sit here hour after hour doing this, a sense of the importance of what we're doing. Thanks for that reminder.

Thank you also for doing something I haven't heard other witnesses do, which is to talk about the importance of preliminary inquiries for what you characterized as marginalized groups, such as those with mental health problems and addictions, and also the poor. You made a very powerful point about unrepresented individuals getting boxes of documents or an electronic version thereof and being asked to deal with that.

You also made a point about people who need often to get private investigators, and asked how a poor person could do that with legal aid in the state it is in. Those were very important points, and I want to thank you for making them.

Also, though, in paragraphs 31 and 32 of your recommendations, you had some specific points about how we could broaden the jurisdiction of judges on preliminary inquiries. You spoke to our colleague about that. You talked about disclosure being fixed up a bit more, giving a judge broader discretion on preliminary inquiries, and this intriguing notion of letting the courts grapple with charter issues so as to avoid a subsequent trial where everything gets to be done again, and this time the evidence we saw that couldn't be admissible suddenly causes the case to disappear. Clearly it's going to save a lot of time if we do that.

Would it simply be a question of amending the preliminary inquiry sections to do those two things? Do you have any thoughts about how we might act on your ideas?

[Sayeh Hassan]

Well, I thought I would leave it to the government, but my suggestion is just to amend the bill to give the judge more jurisdiction to do the things I've recommended: to be able to order the Crown, to give disclosure, and to do the charter motions and exit pretrials. I will leave the wording of it to you guys, though.

[Murray Rankin, NDP, Victoria, BC]

Thank you. That's fine.

Just for a moment, I would like to thank Ms. Leamon. It's nice to see you again. Thank you for coming.

I wanted to ask you another question that you didn't address: would you agree that addressing mandatory minimum sentences would significantly reduce court delay? Would it make a difference, perhaps more than the preliminaries? Do you have a thought on that?

[Sarah Leamon]

Absolutely, yes, it would, in my view. I know that the vast majority of my clients who are facing mandatory minimums are more likely to want to proceed to trial than to enter an early plea, because it deters them from doing so. Yes, getting rid of mandatory minimums or significantly reducing the number of mandatory minimums would have quite a tangible effect on delay.