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.