Justice Committee on Sept. 24th, 2018

[Rosellen Sullivan]

I agree. I think that in Newfoundland as well they use the health care system, and Labrador in particular would involve these issues. I've just recently done a jury trial in Labrador. It was the panel itself that was problematic in that case. Even though they did use the health care system, many of the reserves were so far away from the judicial centre that even getting there was a problem, so a lot of people were exempt on the basis of undue hardship and were never participants in the system at all.

I think you need to improve those sorts of things—for example, by making sure everyone is accessible. People do want to serve on juries.

[Randy Boissonnault, Liberal, Edmonton Centre, AB]

You mean widen the pool.

[Rosellen Sullivan]

Widen the pool and make it easier for people to come. In Newfoundland, geographically, this is a big issue.

[Randy Boissonnault, Liberal, Edmonton Centre, AB]

Of course.

[Rosellen Sullivan]

If you make it so that people can come, so that it's not a hardship for them to get there, then people are willing to serve on juries and the pool is more representative.

[Randy Boissonnault, Liberal, Edmonton Centre, AB]

What else can we do to make juries more representative and keep peremptory challenges?

[Rosellen Sullivan]

In my experience, people haven't tried to manipulate the process in that way.

[Randy Boissonnault, Liberal, Edmonton Centre, AB]

I appreciate that.

Mr. Fowler, would you comment first on that? Then I have a question for you on another matter.

[Richard Fowler]

I agree. It's the provincial jury acts that dictate, to a large extent, how big the array is. You can pay jurors more because it's inconvenient.

When it comes to indigenous people, we have to recognize a fundamental.... They have a mistrust of the criminal justice system for obvious reasons, all the reasons you've stated. How do we encourage them to trust the system enough to want to participate on a jury?

I've selected juries in B.C. and the Yukon. The Yukon uses health records, so many more first nations people come. They all say they don't want to sit. Many people try to find reasons not to be on the jury. It would be partly through education and encouraging indigenous people to understand that they have much to gain by being on a jury.

[Randy Boissonnault, Liberal, Edmonton Centre, AB]

We have the same issue in the LGBTQ2 community and in racialized communities, particularly the black community, which rightly feels it is overrepresented in the criminal justice system, yet under-represented on the juries.

I wanted to go to your point, Mr. Fowler. You started to go down the path of some reforms that could happen on preliminary inquiries. How would those or other recommended modifications to the system speed up the criminal justice system?

[Richard Fowler]

As it stands, because of a decision from the Supreme Court of Canada called Mills, provincial court judges sitting as preliminary inquiry judges do not have the same jurisdiction they would have if they were trial judges. You have the same individual, with the same level of experience and education, but because it's a preliminary inquiry rather than a trial, they can't do many of the things, or almost all of the things, they could do if they were trial judges. They can't make orders for disclosure and they can't rule on third party record applications or make rulings in respect of prior sexual history applications.

If we could broaden the jurisdiction of the provincial court judge at a preliminary inquiry, we could take many of these applications in the preliminary inquiry. They are simply being delayed and can only be heard at the Supreme Court trial. It would make the preliminary inquiries much better at gathering the information and resolving many of the questions so that the trial doesn't have to duplicate some of that.

[Randy Boissonnault, Liberal, Edmonton Centre, AB]

I haven't seen your brief, but if you could share with us some of those recommendations, I would certainly deliberate on that with my colleagues.

[Richard Fowler]

Thank you.

[Randy Boissonnault, Liberal, Edmonton Centre, AB]

Mr. Spratt, I have a question for you and Ms. Dale in terms of other ways to speed up the criminal justice system, as well as on keeping peremptory challenges and preliminary inquiries.

[Michael Spratt]

Before I answer that, could I just add one more thing to the jury issue?

The issue is, indeed, the representative sample. Beyond that, it's about who can actually have the privilege if you actually have the representative sample. Take national child care. Every single mother who I've had on a jury wants out, and it's not enough to throw a few bucks; it's national child care that supports people to serve on juries and participate fully, as one prong.

To speed up a trial, there are a few things. I think the preliminary inquiry speeds up trials now, so I think we have to foster that, but if you want to speed up trials, get me more judges, get me more courtrooms. I'm ready to go to trial tomorrow on a number of charges, especially if my client is in custody. The reason we have to wait eight months or 12 months isn't because of disclosure issues—I can solve those in the meantime—it's because the first date that the court offers me is six months or 12 months, and in Ottawa you wait six months or 12 months, and when you get to trial, there are three other cases set in that court.

Just today I had a matter set, and luckily one of my associates was able to take the matter. It was a short trial, but she wasn't able to actually start that trial until about 3 p.m., because she was waiting for a court.

[Randy Boissonnault, Liberal, Edmonton Centre, AB]

With the time remaining before the chair intervenes, do you share Mr. Spratt's concern, Ms. Dale, that if we remove preliminary inquiries, the 30 months will go down to 24 under Jordan?

[Michael Spratt]

It's 18.

[Laurelly Dale]

I'm sorry; can you repeat the question?

[Randy Boissonnault, Liberal, Edmonton Centre, AB]

If we get rid of preliminary investigations do you think the court will, over time, shorten the amount of time we have in Jordan?

[Laurelly Dale]

I share his concerns that the Jordan clock and the evaluation in that respect will change the landscape.

[Randy Boissonnault, Liberal, Edmonton Centre, AB]

Thank you.

[The Chair, Liberal, Anthony Housefather]

Thank you very much.

This is a fascinating panel and we could do multiple rounds, but unfortunately, given the number of panels today, I've got to cut it short here.

I want to thank each and every one of you very much; you've been very helpful to the committee.

I'm going to call a short recess for one minute to change panels. I'd ask the next panel to please come up, because we have a vote and I want to get at least the speaking parts done before we have to leave for the vote.

[The Chair, Liberal, Anthony Housefather]

We will resume. I invite everyone to please take their seats.

I know that there's lot's to do, but I want to make sure that the meeting gets on track and we get the benefit of the time with all of our witnesses that we can.

We're joined today, for our second panel...and I have to correct myself. As Mr. Clement pointed out to me, I had the wrong hour for the vote. The panel that will be interrupted is actually our next panel, not this one, so fortunately, for you guys, there's going to be continuity and you won't have to wait in between your statements and our questions.

We're joined today by Ms. Lisa Silver, who is assistant professor in the faculty of law at the University of Calgary. Welcome.

[Lisa Silver, Assistant Professor, Faculty of Law, University of Calgary, As an Individual]

Thank you.

[The Chair, Liberal, Anthony Housefather]

We have Mr. Daniel Brown, who is from Daniel Brown Law. Welcome.