Evidence of meeting #106 for Justice and Human Rights in the 42nd Parliament, 1st Session. (The original version is on Parliament’s site, as are the minutes.) The winning word was conditions.
A recording is available from Parliament.
September 19th, 2018 / 3:55 p.m.
Liberal
The Chair Liberal Anthony Housefather
Hopefully we'll have a chance for a short snapper for you at the end.
Go ahead, Mr. Fraser.
Liberal
Colin Fraser Liberal West Nova, NS
Thanks very much.
Thank you all very much for being here. I appreciate your presentations and the briefs that you submitted.
I understand that, from the CBA's point of view, the way this bill deals with administration of justice offences in combatting court delays is well received. Having a diversionary sort of process that administration of justice offences could go through seems like a good idea, and I appreciate your submissions on that.
One thing I'm wondering about, though, is that you recommend a change to that to allow flexibility to the Crown when dealing with situations.... You propose basically that, if there's physical harm to a person, that would not be allowed. Then you talk about emotional harm, and that's not really known, so delete that, or if there's property damage, take that out and just leave it up to the Crown for flexibility.
Am I reading that correctly, that basically what you're saying is, unless the breach is associated with physical harm to a person, you think the Crown should have the ability to put it through diversion? Is that right?
L & LR Coordinator, Canadian Bar Association
Yes, you're right. We do applaud the government for introducing a measure to divert these sorts of cases. As we cite in our main brief, there are about 78,000 such cases every year. Not all of those are related to bail and failure to appear, but many are.
Essentially the way we see it working with this bill is that there are four disqualifiers: if the breach caused physical harm, emotional harm, property damage, or.... The last one's escaping me now, but in any event—
L & LR Coordinator, Canadian Bar Association
Economic loss, yes, thank you. What we propose is eliminating all except the physical harm, because there are other ways you can address those other issues, should they be so significant that they do not warrant this sort of response. We can't lose sight of the fact that this is totally discretionary in the hands of the police or Crown. They're the ones who are going to decide either up front or at some point after the person has been charged whether to afford that person the benefit of diversion. If the emotional harm or the economic loss or property damage is significant, they can opt not to use the diversionary regime.
There may well be cases where those sorts of things are present but are the very types of things that you want to get out of the system. The example we provided in our submission is this: Two friends get into a fight and one is put on a no-contact order and he phones and is sort of drunk and, in an apologetic state, tries to apologize to the person, and this upsets the victim. That's understandable, but those are the sort of low-level administration of justice offences that could very well benefit from being diverted into a system where conditions can be tinkered with.
Liberal
Colin Fraser Liberal West Nova, NS
Right, thanks for that answer.
Ms. Pentz, I'll ask you a question. One of the things we heard dealing with preliminary inquiries is that it takes up very little court time, and I think you put it at 2%. Some other witnesses have said 3% of court time. Isn't the problem the delay that's caused by having to set a hearing and then that hearing not having to proceed, and then having to set a trial date, and it pushes back or stretches out the length of time that a matter goes to trial?
It's not so much the court time, but it's the length of time that it requires to set all these things in place. Oftentimes there are large delays as a result, because the court schedules are so busy. Wouldn't you agree with that?
Vice-Chair, Canadian Bar Association
One of the things that we noted in our brief was that there isn't a large.... Although you've quoted the percentage of court time, I believe it was 75% of offences that were eligible for preliminary inquiries did not opt for preliminary inquiries. Certainly, it does sort of push the envelope back, but since the other provisions have been put in place in terms of streamlining preliminary inquiries, there has not been, in our experience, a major issue in terms of the timeline.
We also have to remember that there are other mechanisms that the Crown can use to speed things up. In a worst-case scenario, if we feel there will be timeline problems or if it's being abused, we can certainly prefer a direct indictment. The Crown can admit statements by way of paper copies, and the court can certainly curtail what it considers to be a vexatious cross-examination.
There are certainly cases where preliminary inquiries are set and then they don't go ahead, but those are not what we have seen as the bulk of the cases.
Liberal
Colin Fraser Liberal West Nova, NS
Thank you.
I want to turn now to victim fine surcharges. I appreciate that you support giving discretion back to the judges, which was changed in 2013, making it mandatory for the imposition of victim fine surcharges.
You talk about making a change, though, to the bill, to allow the court discretion to not impose them for administration of justice offences. Why would that be needed if we're going back to giving the judges the discretion to not impose them if they create hardship anyway?
L & LR Coordinator, Canadian Bar Association
This point is in response to this secondary discretionary feature that's been built into the regime, whereby administration of justice offences are stacking up and creating a large fine. There is specific discretion to reduce the fine in light of that stacking, but there exists no equal mechanism for non-administration of justice offences.
I agree with you that it might be redundant if we expand the discretion generally to everything and get rid of this one specific example, but if you're going to extend this secondary discretionary feature to administration of justice offences, then we see no reason why it should not be expanded to substantive offences that are stacking up in the same way.
NDP
The Vice-Chair NDP Murray Rankin
Thank you very much. It's my turn.
I want to say thank you to all three of you for your excellent presentations and your great briefs. I want to, in fact, help drill down on a couple of recommendations that, understandably, you didn't have a chance to get to.
I would first like to say, to the Canadian Bar Association, that page one of your executive summary has quite a succinct summary of where you stand. You say, “other proposals, including those to curtail preliminary inquiries and introduce 'routine police evidence' by way of affidavit, would exacerbate, rather than alleviate, court delays, while simultaneously sacrificing important procedural protections”. I thought that was a very good summary.
In fact, to you, Ms. Pentz, your anecdote about preliminary inquiries in the province of Nova Scotia was precisely what Mr. Star, a defence lawyer in Nova Scotia, said to us yesterday. I thought that was very helpful.
As I said, I would like to talk about things that you didn't have a chance to talk to. The Canadian Bar Association has given us 17 recommendations. I'd like to talk about number 15, in which you recommend that the choking and so-called supermax penalties be deleted from Bill C-75. You say those are, “particularly unnecessary”. I wonder if you could elaborate.
L & LR Coordinator, Canadian Bar Association
With respect to the choking, what we understand Bill C-75 will accomplish is to create a third route of liability for assault causing bodily harm and/or assault with a weapon—that's the way it's defined—and sexual assault. Instead of proving bodily harm and/or assault with a weapon, those offences would be made out by an act of choking, regardless of whether or not there was bodily harm, or a weapon used. It would be treated in a way akin to the way in which those offences are treated.
We say it's redundant because choking is already a form of assault. If the person has been assaulted by way of choking, they will be convicted of that offence under section 266. That will be deemed an aggravating factor at sentencing, just given the way the assault took place. Therefore, it is redundant to create a whole new offence at a time when we're trying to streamline and simplify the Criminal Code.
L & LR Coordinator, Canadian Bar Association
With respect to supermax offences, it's a similar problem. Choking someone, domestic violence, and multiple convictions are already considered aggravating factors on sentencing, and will be taken into account on sentencing. There is no need to create a supermax penalty regime.
Vice-Chair, Canadian Bar Association
In relation to the choking aspect, I would note—it's fairly dated now, from May 2006—that the Uniform Law Conference of Canada also looked at this issue in terms of making choking a distinct offence. They concluded, as we have now, that it's encompassed under section 266. They also noted that it can be encompassed under section 268, aggravated assault, in terms of endangering life, if the choking is extreme.
Their conclusion was the same one we reached: It did not necessarily need to be a separate offence.
NDP
The Vice-Chair NDP Murray Rankin
I'll get to Mr. Johnston. I would just like to ask one more. Your recommendation 16 is that clause 389, which enacts the rebuttable presumption in human trafficking cases, be deleted from this bill. Why?
L & LR Coordinator, Canadian Bar Association
We made submissions in 2014, regarding the first incarnation of this, which was Bill C-452. You will see that some parts of that brief are reproduced in our brief here. The rebuttable presumption is vulnerable under paragraph 11(d) and section 7 of the charter, as a violation of the right to be presumed innocent.
We do not think it will be saved under section 1, because there does not exist enough evidence to show that the section 1 test will be fulfilled. If you are habitually in the company of someone who is exploited, it does not necessarily follow that you are responsible for the exploitation. In fact, you may imperil various people who are in the company of people who are exploited but who are not themselves exploited but who happen to be in the area.
We provided an example in our original brief about a worker who was being paid but whose co-worker is not being paid and is being exploited. That person could be at risk of a human trafficking conviction because of this rebuttable presumption.
NDP
The Vice-Chair NDP Murray Rankin
Thank you.
Mr. Johnston, you were passionate about trying to expand the jury pool and we heard a lot about that yesterday as well, regarding the representativeness issue. Yesterday, we heard a suggestion that health cards are preferable to property rolls because, by definition, those that don't own property wouldn't be brought in. Today, you've suggested that criminal record holders should be added to the list in order to expand the pool, thereby adding 10% of the population, which is quite remarkable. We also heard yesterday that permanent residents ought to be included, as they have a sufficient connection to the community to be included.
Would you agree with those other suggestions?
Barrister-at-Law, As an Individual
I would agree with the other suggestions. I know that some people talk, for example, about increasing juror participation by allowing jurors to volunteer, as opposed to mandating them by way of subpoenas or juror notices.
That being said, there are many ways that we could create or encourage greater juror participation and I would adopt all of those.
NDP
The Vice-Chair NDP Murray Rankin
I only have 30 seconds.
On challenges for cause, section 640, you're very clear. We've had it since 1892. Essentially, you're saying that if it ain't broke, don't fix it. However, we've heard a lot of people, although you're not one of them, who say we ought to agree with the bill and abolish peremptory challenges. Yesterday, Professor Roach said that if we remove peremptory challenges, maybe we need to beef up challenges for cause. If we chose that route, would you agree?
Barrister-at-Law, As an Individual
I would not agree because peremptory challenges provide an accused person with the ability to challenge the fairness of what is transpiring. We know that the jury pool and panels are constituted by the provincial governments. They are randomly constituted and they ought to be randomly constituted. The accused has to have some say in who ultimately ends up in the pool. Just by looking at the individuals, there could be any number of reasons why someone can feel it proper to challenge a person peremptorily.
More importantly, there is a residual ability for prejudice to surface during the challenge for cause process. As potential jurors are being challenged and they're being asked if they're racist.... These are situations in which people who may not have been acrimonious to your cause or your opponents cause actually develop that level of prejudice. It would provide an opportunity to use a peremptory challenge in a proper way.
