Evidence of meeting #107 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 inquiries.
A recording is available from Parliament.
NDP
Murray Rankin NDP Victoria, BC
With that advertising out of the way, I would also like to say that in your brief—which was, as my colleague said, really appreciated—you reminded me of the example of Susan Nelles in the early 1980s. We protect people from having to go to a trial when none is necessary, when there is that complete lack of evidence and the trial doesn't proceed. That's a very important reason, in and of itself, for preserving preliminary inquiries.
Thank you for that reminder.
Assistant Professor, Faculty of Law, University of Calgary, As an Individual
You're welcome.
NDP
Murray Rankin NDP Victoria, BC
I had forgotten that example.
Both you and Mr. Brown—Mr. Brown on page 3 of his brief and you on page 3, I guess, as well—talk about the paper and video disclosure, but you say that with no opportunity for cross-examination, it's not a suitable substitute for the preliminary inquiry. You refer to Chief Justice McLachlin and all of that.
I want to ask you to elaborate on that, because there certainly must be some places we're going to use more video, and video disclosure and the like would be useful. Could you elaborate a bit on that aspect of your submission?
Assistant Professor, Faculty of Law, University of Calgary, As an Individual
I think in terms of using paper disclosure, you have to be concerned about what exactly you're getting out of it. You already heard during the last panel—and it could be applied here—Michael Spratt say it's about the “why”. Often in a very contained video or a very contained paper statement, you're not going to have the ability to pull out what is needed for trial, particularly because there is an ability to offer hearsay evidence at a preliminary inquiry. When you get into that, you are losing focus on the endgame, which is the trial. That's what I think you have to do when you're doing that ancillary purpose of the prelim.
Lawyer, Daniel Brown Law, As an Individual
I think it's important to remember that, again, what appears on paper or what we see on a video can't tell us whether or not there is collusion between the parties. It can't tell, as Professor Silver says, whether or not it was first-hand information or something they heard from someone else that they haven't clearly articulated in that witness statement. There are a lot of benefits that can be explored by the preliminary inquiry in asking these questions that can't necessarily be answered on paper.
NDP
Murray Rankin NDP Victoria, BC
I want to turn to Deputy Chief Constable Chow.
Thank you for your presentation. Obviously I look forward to reading it in more detail, because you went quickly through a number of points. To note for the record, you talked about routine police evidence and said that needs clarification, that it's overly broad. We've heard that constantly. It's reassuring to hear it from the police as well.
Second, regarding the definition of “vulnerable population” being required, I thought you were very good in putting that on the record as well.
Frankly, I don't know if I grasped the point about the databases. I would like to go through that with you. You talked about the hybridization and that if you proceed by summary conviction, DNA can't be obtained and sent to the centre. Have I got that right? I think your recommendation was that you permit DNA orders to be made under Criminal Code section 487.04, regardless of the Crown's election. Have I got that right? Is that what you are recommending to address that situation? I may have misunderstood your remarks.
Deputy Chief Constable, Vancouver Police Department, Canadian Association of Chiefs of Police
I'll turn this over to Ms. Huntsman.
Legal Counsel, Royal Newfoundland Constabulary, Canadian Association of Chiefs of Police
I'll address that. To get a DNA order at sentencing, the offence has to be either a primary offence or a secondary offence. If it is a primary offence, then the judge shall make a DNA order. If it is a secondary offence, the Crown can request that a DNA order be made, and it's up to the judge to decide whether to make that order.
Within the secondary offences, there are a number that are called listed offences. I'm not quite sure offhand how many there are, but let's say there could be 10 or 15. They are identified by section number.
There are also some offences that we may call generic. They are defined as being indictable offences for which the period of imprisonment is 10 years or less. However, the Crown must have proceeded by indictment.
NDP
Murray Rankin NDP Victoria, BC
Then if we have hybridization and the Crown chooses to proceed by summary, they're out of luck.
Legal Counsel, Royal Newfoundland Constabulary, Canadian Association of Chiefs of Police
Exactly. It's out the window. That is the problem.
Because Parliament is looking to increase the period of incarceration for summary conviction offences from six months to two years, that would obviously invite the Crown, I would suggest, to proceed by summary conviction more often than not, so we're going to see that a large number of offences that would have received a secondary DNA order will no longer receive that order.
NDP
Murray Rankin NDP Victoria, BC
And there would be the consequences for policing that Deputy Chief Constable Chow alluded to.
Legal Counsel, Royal Newfoundland Constabulary, Canadian Association of Chiefs of Police
Right.
NDP
Legal Counsel, Royal Newfoundland Constabulary, Canadian Association of Chiefs of Police
We did, in fact, offer what we believe to be a solution, which is to just make those 85 offences primary offences, or list them as secondary offences.
NDP
Murray Rankin NDP Victoria, BC
That kind of amendment would address your concern entirely, wouldn't it?
Legal Counsel, Royal Newfoundland Constabulary, Canadian Association of Chiefs of Police
Yes, we think so.
Liberal
Liberal
Iqra Khalid Liberal Mississauga—Erin Mills, ON
Thank you, Chair.
Thank you to the witnesses for your very interesting testimony today.
This is to Professor Silver or Mr. Brown. You spoke at length about preliminary inquiries, as have a lot of other witnesses. The Canadian Bar Association gave us some stats. They said that only 54% of Superior Court cases are subject to preliminary inquiries, out of which 25% of eligible cases actually opt for a preliminary inquiry. The proportion of cases with a preliminary inquiry does not exceed 5% of the overall caseload in any part of Canada, and at most, 2% of all court appearances are used for preliminary inquiries, and the vast majority take two days or less.
My understanding from all of the testimony we've heard is that only a very small number of cases use preliminary inquiries. We've heard a substantial amount about the negative impact that would be imposed on the justice system if preliminary inquiries were taken away. Can you explain how many people would be impacted if preliminary inquiries were indeed taken away, as is suggested in Bill C-75?
Assistant Professor, Faculty of Law, University of Calgary, As an Individual
It's my position that it's not the quantity but the quality. That was the purpose of my little narrative at the beginning. It's not about “How much time are you going to save?” or “Oh, there's only 5%. What does it matter?” Every person matters, particularly when we're looking at our presumption of innocence, those principles. If a person is going to be discharged, it matters to that person.
Yes, it's only 5%, and in terms of time, maybe not as much as everyone thinks, but I don't think that matters. What matters is the “why”. Why do we have these inquiries? It's the primary committal function that we should be concerned about.
Lawyer, Daniel Brown Law, As an Individual
The only thing I'd add is that there exists a report on the wrongful conviction of James Driskell. One of the things the Crown did in that case was to prefer a direct indictment; they skipped over the preliminary inquiry. Thirteen years later, after James served all of those years in jail for something he didn't do, Justice Patrick LeSage looked into the wrongful conviction and concluded that the absence of a preliminary inquiry in that particular case, and the failure to discover the non-disclosure that led in part to the wrongful conviction, were contributing factors.
Again, whether we're talking about 5%, 10%, or 3%, for any one person who is wrongfully convicted, we want to do what we can to ensure a fair and just system. A preliminary inquiry helps achieve that.
Liberal
Iqra Khalid Liberal Mississauga—Erin Mills, ON
Are there other tools available that serve the purpose of preliminary inquiries?
