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.