Justice Committee on Sept. 19th, 2018

[Sayeh Hassan, Criminal Defence Lawyer, Walter Fox & Associates, As an Individual]

Thank you.

[The Chair, Liberal, Anthony Housefather]

Next, we have Mr. Geoffrey Cowper, who is from my old firm, Fasken Martineau DuMoulin. Welcome.

From The Advocates' Society in Toronto, we have Mr. Brian Gover, who is the president, and Mr. Dave Mollica, who is the director of policy and practice. Welcome.

We're going to start with the Advocates' Society. Mr. Gover, the floor is yours.

[Brian Gover, President, The Advocates' Society]

Thank you very much, Mr. Chair.

My name is Brian Gover, and I'm the president of The Advocates' Society. As you've just heard, Mr. Dave Mollica joins me. He is our director of policy and practice.

Thank you for the opportunity to make oral submissions to your committee on Bill C-75. The Advocates' Society has also provided written submissions to complement today's oral presentation.

The Advocates' Society was established in 1963 as a non-profit association for litigators. We have approximately 6,000 members across Canada who make submissions to governments and other entities on matters that affect access to justice, the administration of justice, and the practice of law by advocates. This is part of our mandate.

The membership of our society includes Crown prosecutors and members of the criminal defence bar, so the submissions I make this evening reflect the diverse and considered views of our membership.

The Advocates' Society applauds the government for its willingness to implement reforms with a view to enhancing efficiency within our criminal justice system. The system is, as the Minister of Justice stated in her remarks to the House of Commons on May 24, "under significant strain". This strain is felt by all those who are part of the justice system, including judges, lawyers, litigants, witnesses, and particularly indigenous people and marginalized Canadians living with mental illnesses and addiction who are overrepresented in the criminal justice system, both as victims and as accused persons.

However, The Advocates' Society has concerns about certain mechanisms that Bill C-75 proposes to use to implement these reforms, as they could result in a compromise of the rights of victims and accused persons. In our written submissions, we have highlighted the areas where The Advocates' Society urges the committee to further scrutinize the provisions in Bill C-75. Today I will focus my presentation on two key areas. One is the elimination of peremptory jury challenges and the other is the acceptance of routine police evidence in writing.

With respect to the elimination of peremptory jury challenges, The Advocates' Society is concerned that Bill C-75's proposal to eliminate the peremptory challenge is not the product of careful study or extensive consultation. The Advocates' Society recommends further study and stakeholder input on other possibilities for reform before any measures are taken.

The peremptory challenge provides a mechanism to both the defence and the prosecution to help ensure an impartial and representative jury. It also gives the accused person a certain measure of control over the selection of the triers of fact who will determine his or her fate in a criminal proceeding. The criminal defence bar overwhelmingly believes that the peremptory challenge is a vital tool in protecting the fair trial rights of an accused person, particularly where that person is indigenous or a person of colour. The defence can exercise peremptory challenges to attempt to secure a jury that is more representative of the Canadian population.

The stated rationale in the minister's charter statement for eliminating peremptory challenges is that either the Crown or the defence can use them in a discriminatory way. The possibility that peremptory challenges may be abused should not be used as a rationale for their elimination. Given that peremptory challenges do serve a useful social function, the focus ought to be on reform rather than abolition.

If the concern is with the discriminatory use of the peremptory challenge, then it is the discriminatory use that ought to be eliminated, not the peremptory challenge itself. The few courts in Canada to have considered these issues have held that the Crown's discriminatory use of peremptory challenges violates subsection 11(d) and section 15 of the Canadian Charter of Rights and Freedoms and deprives the accused of the right to a representative jury.

In the United States, when counsel believe that their adversary has used a peremptory challenge for a discriminatory purpose, they can mount what is termed a Batson challenge—based on a 1986 decision of the Supreme Court of the United States in Batson v. Kentucky—and ask that the judge demand a racially neutral reason for having exercised the peremptory challenge. If the judge finds that the objecting party has made a first impression or prima facie case, the burden then shifts to the party exercising the peremptory challenge to justify its use.

The mere existence of the Batson process has been shown to have a chilling effect on discriminatory conduct in the United States in jury selection. The Advocates' Society recommends further study and consultation with stakeholders on the use and utility of the peremptory challenge. Alternatively, our society recommends adopting a Batson-type procedure in Canada instead of abolishing the peremptory challenge.

The second area is with respect to proposed amendments to the provisions of the Criminal Code dealing with what is termed “routine police evidence” in writing. The Advocates' Society has concerns that these provisions will not enhance efficiency, will infringe on the rights of the accused, and may be constitutionally vulnerable. The Advocates' Society recommends that these proposed provisions be removed in their entirety from Bill C-75.

The breadth of the definition of “routine police evidence” is such that the vast majority of evidence that is provided by police officers in criminal trials would be admissible in writing. This would effectively rob accused persons of their opportunity to test the credibility and reliability of Crown witnesses through cross-examination, which has been uniformly heralded as a central aspect of our Canadian criminal justice system and a constitutionally protected entitlement for those who stand accused of criminal offences.

Cross-examination allows defence counsel to examine potential frailties or inconsistencies in police evidence and determine whether disclosure has been fully made. Uncovering issues with regard to Crown evidence can assist in reducing wrongful convictions. Large-scale restrictions on the accused's right to cross-examine the Crown's witnesses will not necessarily make for a criminal justice system that is more efficient while still fair. We know of no empirical data to support such a claim. It must remain the responsibility of the trial judge in enforcing the rules of criminal procedure and evidence to manage trials such that cross-examination that is abusive, redundant or irrelevant does not take up court time.

In combination with the proposal to eliminate preliminary inquiries in all but the most serious cases, admitting Crown evidence in this fashion would pose a potentially insurmountable hurdle to making full answer and defence. In addition, putting the onus on the accused person to justify their request for the Crown's evidence to be presented orally would likely require the accused to reveal aspects of their defence to the Crown. This may interfere with the accused's constitutionally enshrined right to remain silent in the face of a criminal allegation. The Advocates' Society recommends that clause 278 and other proposed sections dealing with routine police evidence be removed in their entirety from Bill C-75.

Thank you, Mr. Chair and members of the committee, for giving The Advocates' Society the opportunity to make submissions this evening. We would be pleased to answer any questions your committee members may have.

[The Chair, Liberal, Anthony Housefather]

Thank you so much.

Ms. Hassan is next.

[Sayeh Hassan]

Thank you for the opportunity to address the committee on proposed Bill C-75, and in particular on the preliminary hearing. This is the first time I have appeared before the committee, and it's a pleasure to be here.

I have practised as a criminal defence lawyer with Walter Fox & Associates for over a decade. I chose the field of criminal defence in part because of my background, being born in Iran and having lived under an oppressive regime.

I'm focusing my submission on the preliminary hearing, and I'm very happy to do so because I believe the preliminary hearing provides an essential procedural protection for all accused, but in particular for those who are marginalized, for the accused who can't afford a lawyer, for the accused who may have mental or addiction issues, and also for those who are overrepresented in our criminal justice system, including indigenous people.

I want to briefly touch on the statistics that we do have. We know that between 2015 and 2016, only 3% of the total number of charges that were before the court had preliminary hearings, and we also know that in the same years, of the charges that had preliminary hearings, only 7% went over the presumptive ceiling.

There are also statistics that indicate cases that have preliminary hearings are much more likely to get results in the Ontario courts rather than being taken to the Superior Court for a trial, and as someone who spends quite a lot of time in both the Ontario Court of Justice and the Superior Court of Justice, I can attest to the fact that the resources in the Superior Court of Justice are extremely limited and that anything that the government does to ensure that cases do not unnecessarily go up to the Superior Court I think would be extremely beneficial.

These are the statistics we do have, but there are also information and statistics that we don't have. To the best of my knowledge, there are no statistical studies that show that eliminating the preliminary hearing for certain offences would lead to speedier trials, thus protecting the accused's right to be tried within a reasonable time. We don't have these statistics, and if the government is seeking to eliminate a very important procedural protection, my recommendation for the government and for this committee would be that the government should at least invest the time and the resources on those empirical studies to ensure that the desired result is going to be achieved if we get rid of those procedural protections.

I would also recommend that the results of those studies be shared with the public.

I want to focus the rest of my submission on the impact of the elimination of the preliminary hearing on the marginalized groups. I think that's very important and I know that's a concern for the Honourable Minister of Justice. The charter statement for Bill C-75 clearly says that the bill seeks to address the overrepresentation of particular groups within the justice system, including indigenous persons and those with mental illness issues and addictions, and I would add another group: the group that doesn't have the economic resources to hire and retain lawyers.

Let's talk about how eliminating the preliminary hearing would negatively affect these individuals.

One of the areas, I believe, would be the use of private investigators. Eliminating the preliminary hearing would lead to a wider use of private investigators by the defence, and I'll give you an example. There are cases where we as the defence need to find out something about the background of a complainant or a witness. That type of information is not the kind of information that would be disclosed by the Crown. We would explore that during the preliminary hearing, but if we don't have a preliminary hearing, defence would hire private investigators to obtain that information.

That puts at a disadvantage individuals who in the first place are not able to hire a lawyer and who can't hire an investigator. If they don't have a preliminary hearing, they're seriously disadvantaged compared to individuals who do have the resources to hire lawyers and private investigators.

Another issue, of course, is the disclosure issue, and yes, the Crown has an obligation to disclose material—very true—but there's a real distinction between disclosure and organized disclosure. When I first start practising, we used to get huge stacks of paper disclosure, and everything was just stapled together. I would have to pull everything apart, review everything, and then see what goes where and what's important, what's peripheral and what's missing.

In recent years, things have changed, and now we've moved away from paper and toward disc disclosure. We obtain discs, and then we have to use a computer to upload the disc, print the disclosure, and then go through that entire process of reviewing the disclosure.

That's all well and good for me. I am a trained lawyer. That's what I do. It's a different story, however, for those accused who can't afford to hire lawyers. These are people with no legal education and often no formal education. Some of them suffer from addiction issues or mental health issues that may impact their ability to function properly, but they're expected to go through this disclosure and figure out what's what, and what case they're facing.

The benefit that the preliminary hearing provides for these individuals is that the Crown will organize the evidence against an accused at the preliminary hearing. The witnesses will testify in a sort of logical and organized manner, and the accused who doesn't have a lawyer is able to see for himself or herself what case he or she is facing.

Another advantage is that the preliminary hearing provides the accused with the opportunity to sit in a real courtroom and see how things function as well as the opportunity to be able to cross-examine witnesses, so that the first time this person goes to court, it is not at the Superior Court, where they're facing trial and their freedom is at risk. Not having this opportunity, I would submit to you, would put unrepresented individuals and marginalized groups at a very great disadvantage.

I know that there is some criticism of preliminary hearings, and one of the criticisms is that preliminary hearings function as sort of discovery hearings and that not much happens during these hearings. I don't agree with that, and I've set out what my ideas are about the preliminary hearing in my brief. My recommendation is that if the government is concerned about that issue, there could be more legislation to sort of bolster the preliminary hearing. You could broaden the jurisdiction of preliminary hearing judges, for example, to allow them to order the Crown to provide disclosure. Currently, they're not able to do that.

We can broaden the jurisdiction of the preliminary hearing judges to allow them to hear charter applications. That becomes very important when the only evidence there is against an accused has been obtained as a result of a charter violation, so if we can eliminate that evidence at the preliminary stage, then it doesn't go to trial, where we would get the same result eventually.

The last thing I would recommend would be the exit pretrials. Right now they are done sort of informally, but I find it extremely useful when a preliminary hearing judge sort of sets out the strengths and the weaknesses of the case so that both the Crown and the defence are able to make an informed decision on whether they want to move on to trial or not.

Finally, I want to leave you with one thought. Efficiency in the justice system is important, but it's not the most important thing. You never hear about delays and inefficiencies under dictatorship regimes. People are arrested, tried in five-minute trials behind closed doors, imprisoned, and executed very efficiently in a very speedy manner.

We live in Canada, however, in a constitutional democracy, and I think that both we as citizens and also our elected government need to ensure that an accused has a fair trial and a fair fighting chance within the criminal justice system when defending themselves against a state with infinite resources.

Thank you.

[The Chair, Liberal, Anthony Housefather]

Thank you very much.

Ms. Leamon is next.

[Sarah Leamon]

Thank you.

Thank you to all the members of the committee for having me here again. It's always a pleasure and an honour to appear before you.

I'm going to be limiting my submissions this evening to the issue of preliminary inquiries. We know that Bill C-75 endeavours to make a number of wide, sweeping amendments to the Criminal Code, and most of those amendments are being made in an effort to hopefully modernize the justice system and to help curb delay and to conform with the presumptive ceilings as established by Jordan. I certainly applaud those efforts.

As the committee is also well aware, the purpose of preliminary inquiries is to evaluate and test the strength of the Crown's case, not to make any binding determinations with respect to guilt. They are currently available for all indictable offences.

Bill C-75 seeks to restrict the availability of these inquiries to offences committed by adults that are punishable by life imprisonment. It also seeks to strengthen the judge's powers with respect to limiting the range of issues that can be explored and the witnesses that can be called. It's important to note that the Criminal Code, under section 537, already allows a judge to have general powers to regulate the preliminary inquiry process, but of course this bill seeks to make those much stronger.

The guiding rationale behind this appears to be squarely in line with attempts to curb delay. Now, we know that when a person does decide to go ahead with a preliminary inquiry, the matter will take significantly longer to conclude and is likely to use more judicial resources. That is supported by statistics from Statistics Canada, as well as The Canadian Bar Association, and I've provided footnotes for those statistics in my brief, which has been provided to members of the committee in advance. It's also available online.

While it is true that it does take longer, the same studies have also revealed that very few people actually ever elect to undergo this process. The vast majority of people who are charged with criminal offices do not engage in a preliminary inquiry, and depending on the statistics that we're looking at, the frequency of these inquiries is between about 2.8% and 5% of all criminal matters, which is minute. There are also statistics to support that the prevalence of these inquiries is rapidly and steadily declining over the years. There are all kinds of explanations or theories about why that is, but more likely than not it's because of heightened disclosure requirements following the Stinchcombe decision.

That doesn't mean that preliminary inquiries are irrelevant. It doesn't mean that they should be done away with in the interests of curbing delay either. In fact, because they're so rarely used, the delay that we're seeing in our criminal justice system cannot be attributed, in my view, to preliminary inquiries; doing away with them will create perhaps some decrease in delay, but it could be negligible at best.

There's evidence to also suggest that doing away with preliminary inquiries can or may actually contribute to delay, because preliminary inquiries are very helpful at streamlining criminal proceedings, and when they are used, they're helpful to defence counsel, to Crown counsel, and to an accused person.

Preliminary inquiries are useful are the discovery of witnesses, both civilian witnesses and police witnesses, and that's extremely useful for defence counsel and for an accused person who doesn't have the benefit of interacting with these witnesses prior to trial and doing pretrial interviews.

They're also useful in uncovering potential charter issues that can be argued at trial. They're useful in eliminating weak charges and in fostering resolution discussions that are more meaningful. They're also extremely useful at ensuring that trial issues are focused and witnesses that perhaps don't need to be called aren't called at trial. For the Crown, a preliminary inquiry may reveal insurmountable weaknesses or challenges in their case that may ultimately lead them to either withdraw the charge or stay the charge or to engage again in more meaningful resolution discussions. For defence, it can reveal the gravity of the evidence against the accused person and it may elicit an early guilty plea, which can be taken as a mitigating circumstance in sentencing, which of course is to the benefit of your client.

They're also a very useful tool for people who are unrepresented. As my friend Ms. Hassan has mentioned, not all people can afford the benefit of a lawyer. The preliminary inquiry allows a person who's unrepresented to interact with the criminal justice system in a meaningful way without having any jeopardy with respect to their liberty. It allows them to familiarize themselves with evidentiary rules and procedures and it allows them to appreciate the evidence in the case against them and make an informed decision about what they should do—proceed to trial or perhaps enter a plea.

In my view, limiting preliminary inquiries in the way that has been suggested in Bill C-75 will have a disproportionate impact on these people who are more marginalized and who cannot afford the benefit of a lawyer.

We know that the allegation of a criminal offence is one of the most stigmatizing things that anybody can face. It can significantly limit them in terms of creating new barriers and also compounding already existing barriers. For that reason, accused people do have the right to defend themselves, and it's a charter-protected right to do so under the full ambit of the law.

Procedural protections like these are extremely important; in fact, they're essential. The decision in 2016 in R. v. Catellier was just one recent judgment that recognizes the importance of procedural fairness and the preliminary inquiry process. In that case, it was described as a procedural protection for an accused person.

As a criminal defence lawyer, I do, at the end of the day, have significant concerns about limiting such a valuable exploratory tool that has been made available to people who are accused of criminal activity in this country. I have particular concerns about doing so without the evidentiary basis for it.

Delay in the criminal justice system is, of course, in nobody's best interest. It's not in the interest of the community or the complainant. It's not in the interest of witnesses, and it's not in the interest of the accused person either. They do want to have a final resolution to the matter. If they're detained, they want to ensure they're spending the least time possible in pretrial custody. In order to curb delay and to better deal with this issue of delay and efficiency, I would respectfully suggest that instead of limiting inquiries in this manner, we should adopt a more practical, multi-faceted and nuanced approach to dealing with these issues, such as better practice management.

I've made a list of those suggestions on page 7 of my brief. Some of those, off the top of my head, would be ensuring that counsel is giving more appropriate estimates for trial time and ensuring adequate judicial resources, particularly in remote and growing communities, and so on. I think that these kinds of concrete approaches will ensure that we are combatting that issue of delay while also allowing accused people to have this right to a preliminary inquiry and to have the ability to defend themselves in a proper and adequate manner.

I thank you all for listening to my submission on this. I do look forward to your questions.

[The Chair, Liberal, Anthony Housefather]

Thank you.

Mr. Cowper is next.

[Geoffrey Cowper, Lawyer, Fasken Martineau DuMoulin LLP, As an Individual]

Thank you, Mr. Chair, and members of the committee.

Thank you for the opportunity to address Bill C-75. Let me say at the outset that I'm here as a private citizen. I represent no firm or organization. I might be what passes as an outsider in this debate, as may come clear in a moment.

The main reason that it was suggested I come here was that in 2012, I authored a reported called “A Criminal Justice System for the 21st Century”. In that report, I identified what I thought to be a culture of delay in our criminal justice system. That term and the report were referred to by the majority, and the minority, in the Jordan decision as one of the reasons that action is required to reduce delay in our systems.

I also served for the better part of a decade on the board of our legal services society, administrating the defence side of the criminal legal system, and I encountered in a managerial sense the issues of administration from that perspective. Otherwise, I'm not a criminal law practitioner. I have occasionally practised criminal law, but only at a high risk to my clients.

I have a couple of general comments and then I have some specific requirements.

First, I think the most useful thing I can do is to shine a bit of a light on the general enterprise. Delays have a hugely long history in our justice system and in almost every justice system that you can study. If you study this carefully, you see that delay is a chronic, recurring problem and that solutions, almost always, are short and temporary fixes that don't produce enduring benefits for the public good.

The first point I would make is to recognize that an enduring solution here will have to be organized around changes that are legislative in nature but that will have an impact on the culture of our system and systemic changes.

I think one of the problems in this debate is that we strive to avoid delay, which ought not to be our goal. Our goal should not be to avoid disaster. Our goal should be to deliver justice in a timely way that's responsive to the public interest and to the needs of the victim and the community generally. All too often we don't state or pursue those goals in any aspects of our system, and I think we need to achieve that cultural change.

The success of the changes you're considering really depends upon not only the wisdom of the changes you make but also in resourcing the execution of those changes. In history, the number of changes that have been passed legislatively that weren't supported by resources is legion.

Second is to gather data as to what's working and not working. One of the difficulties is that people make changes, and then no one sees what happens and gathers the information about the consequences and then responds appropriately. The latter two are difficult to do in any system, but they are the most important. I will come back to the implications of that for specific proposals.

With respect to the elimination or reduction of preliminary inquiries, for most of the people in this room, this debate started when you were in grade seven. The first time that I participated in a debate about whether preliminary inquiries had any modern utility was in the 1980s, and that dates me a little. However, there was a consensus amongst most of the first ministers of this country in the early 1990s that preliminary inquiries were no longer necessary and needed to be radically reduced.

In my respectful submission, the fact that they originated in their current form over a hundred years ago is not a reason to hold on to them. I think we have to let go of the preliminary inquiries and find better ways to address the goals that they originally sought to address.

If I can take one of my earlier remarks, the whole Stinchcombe reality has changed the context in which preliminary inquiries are conducted. I think we have to recognize that and tell the system it has to find better ways to achieve those goals.

With respect to routine police evidence—and I may well be the dissenter in all of this—if you wander around the provincial courts and you're not a criminal practitioner, there seems to be an enormous amount of time spent on nothing, on things that people ought not to spend time on. Taxpayers who do that will say, “I went on jury duty and wandered around the courthouse. What was happening there?” We need to take hold of this issue. I support the proposal to identify categories of evidence that don't require cross-examination as of right. Judges can be trusted to identify and respond to applications where cross-examination isn't necessary.

Most importantly, it's an opportunity to learn. If we do that, we may learn how to discriminate between areas of evidence that require a conventional approach and those that don't.

I would say two things about peremptory challenges. First, there is a waterbed effect that I'm concerned about with respect to peremptory challenges. It's not sleep, which is probably what you were hoping I was going to suggest you do. If we eliminate peremptory challenges, the challenges for cause become much more popular elsewhere. That has been done in other systems. We know that challenges for cause can increase astronomically, because it has happened in jurisdictions in the United States. Those can end up being much more conducive to delay and loss of efficiency, and I think that's a very legitimate concern.

Let me make a remark you may not have heard from others. It relates to what we know about the jury system in Canada. We have made it a criminal offence to study the jury system, because jurors are not allowed to disclose jury deliberations. There is an ocean of legitimate research in the United States looking into the effectiveness of jurors—how they conduct their work, and when they're good and when they're bad—because research is allowed. As a result of section 649 of the Criminal Code, that's not permitted in Canada.

There have been calls from time to time for its qualification, and I strongly suggest that anybody who cares about the jury system would support an amendment to qualify the prohibition to permit legitimate academic research into the Canadian jury system. That proposal has wandered around the policy halls and really should be taken up and dusted off as part of this debate, in my respectful submission.

I have a comment on administrative offences. I looked at this in some detail in British Columbia, and I would say the astronomical increase in administrative offences justifies doing something differently with them. What to do with them brings up a fair amount of debate, but I would hope that after due consideration, we would think differently about the terms of release and how we supervise them.

My final point is not a legislative one but an observation about a critical question of the success of any package of proposals. If the resources found for this are unequally parcelled out among judges, the Crown, and police officers, and we don't properly resource defence counsel through the legal aid plans in Canada, they will not succeed. I can guarantee that. Legal aid is still the poor sister in these debates and discussions, and in my respectful submission, it can be the source of collaborative and effective partnership in making our system more effective.

Thank you.

[The Chair, Liberal, Anthony Housefather]

Thank you so much.

Those were excellent presentations. Sometimes after hearing a multitude of presentations, it's hard to pay attention, but you were all excellent and we were able to pay attention. That was great.

Now we're going to questions. We're going to start with Mr. Cooper, who will definitely be entertaining.

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

Thank you, Mr. Chair.

I'll pose my questions to Ms. Hassan or Ms. Leamon.

First of all, there is zero empirical evidence that limiting preliminary inquiries is going to save court time and address the backlog. It's nothing more than anecdotal at best. To the degree, however, that any efficiencies are going to be created, Bill C-75 still provides for preliminary inquiries—and thank goodness it does—for cases involving a maximum of a life sentence. It would seem to me that the preliminary inquiries that take the longest would involve some of those most serious offences, like murder.

Doesn't that reality just further illustrate that this is really going to do absolutely nothing to save court time? We know the statistics, which show that 86% of cases are resolved following preliminary inquiry.

[Sarah Leamon]

It's very interesting that you point out that the preliminary inquiry process will remain available for those who are charged with the peril of a maximum penalty, which is life imprisonment. In that way, we're tacitly endorsing the value of preliminary inquiries. We're saying that a person is only entitled to them if they have committed the most horrendous possible offence. For me, as a criminal defence lawyer, that doesn't make very much sense.

I can tell you that preliminary inquiries are extremely useful when somebody is charged with many different offences and a lot of indictable offences appear on the same information, or when we have multiple parties. I think a lot about my clients who are charged, for instance, with drug trafficking and conspiracy. In those kinds of situations it's very useful, because we actually end up paring down the number of accused people after maybe only one or two days in a preliminary inquiry, and some people are severed. That saves a lot of judicial resources and a lot of court time.

I don't know if Ms. Hassan has anything to add to my comments.

[Sayeh Hassan]

The only thing I would add is that I would go back to my point that we can't sacrifice people's rights and procedural protections for the sake of speeding things up. This is not a fast-food restaurant; it's the justice system. Let's make sure that we keep that in mind when making those decisions.

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

Yes, I agree. In restricting it to maximum life sentences, it seems somewhat illogical in a lot of ways.

Ms. Leamon, you talked about drug trafficking, which I don't think carries a life sentence under the Criminal Code, but something like robbery I think does. Certain types of robberies would be life sentences, yet although the types of sentences that would likely be applied for robbery or for drug trafficking would be in the same range, one would be entitled to a preliminary inquiry and the other wouldn't.

[Sarah Leamon]

Absolutely. It does create really illogical situations. For example, somebody who does an attempted break-and-enter is not entitled to a preliminary inquiry, but somebody who completes the break-and-enter is. Somebody charged with impaired driving causing bodily harm, which can carry extremely high and punitive sentences of incarceration, would not be entitled to a preliminary inquiry, but somebody who engages in impaired driving causing death would be. It's just very bizarre to me to see this kind of discrepancy. I don't think there's any evidentiary basis for doing so. There's no logical basis either, in my view.

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

That's right. Mr. Cowper had referenced Stinchcombe, but as both of you had pointed out, the purpose of preliminary inquiries is much more than just Stinchcombe.

Ms. Hassan, you talked about the difference between disclosure and orderly disclosure, but there is some degree of discovery function in preliminary inquiries. Perhaps you could elaborate on that.

[Sayeh Hassan]

There is, and I think that's a very important aspect of it for the unrepresented accused. For example, I have been part of a very long fraud trial for which there was a preliminary hearing. A number of co-accused were not represented. These individuals were able to see what the case against them was. I don't know who else is a criminal defence lawyer here, but when you have a fraud case, you have boxes and boxes of disclosures, and it's impossible to make sense of that, sometimes even for defence lawyers, let alone these unrepresented individuals. It does serve the discovery purpose, and I think that's a very important part of it, absolutely. Maybe we could bolster that function even more if we increased the power of judges who do preliminary hearings.

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

Thank you.

[The Chair, Liberal, Anthony Housefather]

Thank you very much.

Mr. McKinnon is next.

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

Thanks, Chair. I'd also like to save a minute for my colleague Mr. Virani.

[The Chair, Liberal, Anthony Housefather]

All right. I will stop you before you get to that point.

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

Thank you.

Ms. Hassan, I'm very interested in exit pretrials. First, I'm going to play the I'm-not-a-lawyer card. I don't really know what goes on there.

Are the judges who preside over pretrials the same ones who might preside over the trials themselves?

[Sayeh Hassan]

No. The preliminary hearing takes place in the Ontario Court of Justice, and once the accused is committed for a trial, the case moves up to the Ontario Superior Court of Justice, where the trials happen.

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

I was concerned that maybe having a judge opine on a pretrial might be prejudicial to them if they sat on the case later on.

[Sayeh Hassan]

No.