Justice Committee on Sept. 24th, 2018

[The Chair, Liberal, Anthony Housefather]

You have every right to have a vote on your motion. I was simply suggesting that, again, there may be other ways to tackle it than the type of study proposed. Even if there's a vote today, it doesn't mean that we won't find some other means to handle it.

Is there any other discussion on the motion? Not hearing any, may I call a vote? Is that okay with you, Mr. Rankin?

Mr. Rankin has made a motion. All those in favour of the motion?

(Motion negatived [See Minutes of Proceedings])

I thank you again, colleagues, for the way that you handled this. I very much appreciate the cordiality that occurs even when there is disagreement in this committee.

Because we have multiple votes tonight that will prolong our meeting, I also was wondering, colleagues, since we're a little bit early, if we might call the panel up that was here at four o'clock so that we can start a little bit early.

If so, may I call the witnesses for the four o'clock panel up, please, all four of you. I very much appreciate your forbearance in sitting through this with us. If you have speaking notes, please, if you wouldn't mind, provide them to the clerk. Thank you.

I promise there can be multiple handshaking at the end of the panel. I just want to make sure we try to get two panels through before we leave for the vote. The best we can do, we will do.

It is a great pleasure to resume our study of Bill C-75 and be joined by this illustrious panel that we have today. It is a pleasure to welcome as an individual Ms. Laurelly Dale, who is a criminal defence counsel for Dale Law Professional Corporation. Welcome, Ms. Dale.

[Laurelly Dale, Criminal Defense Counsel, Dale Law Professional Corporation, As an Individual]

Thank you.

[The Chair, Liberal, Anthony Housefather]

We have Mr. Michael Spratt, who is a criminal lawyer at Abergel Goldstein and Partners.

Welcome, Mr. Spratt.

[Michael Spratt, Criminal Lawyer, Abergel Goldstein and Partners, As an Individual]

Thank you.

[The Chair, Liberal, Anthony Housefather]

As well, we have the Canadian Council of Criminal Defence Lawyers, represented by Mr. Richard Fowler and Ms. Rosellen Sullivan. Welcome.

[Rosellen Sullivan, Canadian Council of Criminal Defence Lawyers]

Thank you.

[The Chair, Liberal, Anthony Housefather]

We're going to go in the order of the agenda, if that's okay with you, which means your eight minutes will go in that order. I won't cut you off until 10 minutes, but if you could stick to eight, that would be amazing.

We're going to start with Ms. Dale.

[Laurelly Dale]

Good afternoon. I'm grateful for the opportunity to be before the committee today.

My name is Laurelly Dale. I am a criminal defence counsel of over 11 years. I share an office in downtown Toronto with the reputable John Rosen, and I also have an office in northwestern Ontario, in Kenora.

I am first and foremost an officer of the court. My views today are in response to your invitation to offer my opinion on a fragment of Bill C-75 that would eliminate preliminary hearings.

Extensive consultation with lawyers is necessary to shape our pending laws. As defence counsel, I am but one player in the larger administration of justice. I submit to you that there is a disconnect between reducing delay by eliminating preliminary inquiries. The administration of justice would be obstructed by this removal. It is not a debate between Crown versus defence strategies.

I am also a member of the Criminal Lawyers' Association, and I adopt and support their position on this. It's not my intent to reiterate their position. I'm here today to provide you four reasons justifying my position.

First, disposing of preliminary hearings will not save time. This will have the reverse effect, by causing further delay in court. We're well aware of the Supreme Court of Canada decision in Jordan declaring a specific presumptive ceiling of 30 months with or without a preliminary inquiry. The objective of Jordan is to preserve the section 11(b) charter right to be tried within a reasonable time. It was not to use this case as a weapon that will harm the administration of justice.

The claims that this will reduce court delays are false. Only 3% of cases utilize preliminary hearings. The majority of the cases that did proceed to preliminary hearing were resolved in provincial court. Two major studies have concluded that preliminary inquiries do not contribute substantially to the problem of court delay. Preliminary hearings facilitate the resolution of potentially lengthy and expensive trials in superior court. They are often used instead of rather than in addition to trials. They expedite the administration of justice. It is far easier and quicker to get a two- to four-day prelim, as opposed to a one- to two-week trial in superior court.

Recently I've had two matters proceed to prelim that ultimately saved the court from having two very expensive jury trials in the superior court. The first was a consent issue in a sex assault case. We proceeded to prelim. My client was able to truly appreciate the evidence against him in a way that watching video statements cannot. Midway through the day, my client reviewed his position and decided to plead guilty. The complainant left knowing that she would no longer be needed to testify in that matter. In the second, after day one of the prelim, the Crown was made aware of weaknesses in their case. The preliminary inquiry revealed a complete lack of evidence for the charges, resulting in a withdrawal.

None of those results could have been attained in the same time frame had we proceeded directly to the superior court. Preliminary inquiries help formulate accurate trial estimates and deal with front-end applications, discovery issues, and motions.

I ask you to look at the youth criminal justice system. This is an example of an existing system that doesn't have preliminary inquiries except in rare circumstances. There are still delays in the youth system.

I had a youth client who was charged with aggravated assault. The complainant was a child of eight months. The charges were very serious. The child suffered a cerebral hemorrhage that caused permanent damage.

Young offenders are not permitted a preliminary hearing except if charged with murder or as an adult or if proceeded with as an adult. This case is an example of one for which we needed a preliminary hearing. There were major causation issues. The Crown did not produce an expert report, but still wanted to proceed. There was limited medical evidence. In order to fully answer and defend the charge against him, my client required numerous third party records. The section 11(b) time was running out through no fault of the defence. We scheduled the trial not knowing how many experts there would be or if there would be charter issues. We received medical records through third party records application.

From those, we needed further child and family services records to begin the process of organizing our own expert. Evidence substantiating this could be obtained through the testimony of the mother's child, through the trial that would be adjourned mid-testimony to proceed with a third party records application. This is getting very much into the weeds, but it's establishing a real point that from there, transcripts would be ordered and another third party records application scheduled. We'd hear the schedule, wait 60 days to produce the records and another 90 to organize our expert. The trial would resume many months later. This would be our world if we eliminated preliminary hearings in the adult system. This is not how justice was intended to be administered.

The second justification is that both players, defence and Crown, already have tools that can be used to bypass the preliminary hearing. Deciding to have a preliminary hearing requires a case-by-case analysis. We must not assume that they are to be utilized by defence as a delay tactic or to earn higher fees per file. As defence counsel, I am often waiving preliminary hearings for a number of reasons. Sometimes it's because of the offence and jurisdiction, other times my client's in custody, or sometimes it's because of the strength of the Crown's case.

I was counsel involved in a large drug project in Toronto. Multiple accused were involved. We had a five-day prelim scheduled for November, and in a rare move the Crown preferred the indictment. This is a tool that they have. The authorization of the Attorney General is required; however, the Crown has used this tool to now force this matter to skip over prelim right into the superior courts.

The third justification is that Bill C-75 prioritizes false hope of efficiency over trial fairness. Section 7 of the charter guarantees both substantive and procedural safeguards to those accused of a crime. It is important to remember that preliminary inquiries are only available to those facing indictable offences, lengthy prison sentences and significant consequences if convicted. This extra step adds a layer of protection against wrongful convictions of the most serious crimes.

I was raised in northwestern Ontario. My paternal grandmother was Métis. My office in Kenora covers a substantial territory in the north. We participate in circuit court. Each week, roughly, we attend remote aboriginal reservations by squishing into cigar planes and crossing our fingers in the hopes that we land through the fog and ice sometimes. It is well known, sadly, that aboriginal peoples are overrepresented in our justice system. In my office located in Kenora, they represent over 90% of my criminal clients.

It is they who will suffer the consequences of this amendment. Adding further delays means they will spend longer in pretrial custody. Removing a safeguard means they will be the most likely to be wrongfully convicted. Bill C-75 did not consider how this would impact the most vulnerable group.

My fourth and last point is that eliminating preliminary hearings ignores the root causes of delay. I'm not here to provide you with an exhaustive list. However, substantive research has established that delay is caused by mandatory minimum jail sentences, disclosure practices, and self-represented litigants.

In conclusion, eliminating preliminary hearings will impede the administration of justice. Discretion is stripped away at the provincial level. Lengthy and expensive superior court trials will become the norm, causing a demand for resources that our system cannot fulfill. There is no data to support Bill C-75. My experience and the available data suggests that eliminating them will, in fact, cause significant delay.

Bill C-75 represents an illogical response to court delay. The public could lose confidence in our administration of justice if our accused are stripped of their ability to make full answer in defence, and court delays inevitably will still exist despite the elimination of preliminary hearings.

Subject to any questions, those are my submissions.

[The Chair, Liberal, Anthony Housefather]

Thank you very much, Ms. Dale.

Mr. Spratt is next.

[Michael Spratt]

Thank you. It's always an honour and pleasure to appear before this committee. I have submitted a brief. It's nine pages, so I don't intend to go over that in detail. You have that information. I think you will find that my friends and I are perhaps in violent agreement on some of these issues.

The preliminary inquiry is really a long-standing feature of the Canadian criminal justice system and it's a procedural safeguard. It's available only for those individuals who are charged with some of the most serious offences to ensure that there is sufficient evidence so that they will proceed and face the jeopardy of a trial. In addition to that primary screening function, the preliminary inquiry also confers a number of other incidental benefits that promote efficient operation of the justice system, enhance the fairness of the justice system and also increase the quality of justice that we have in our courts.

As my friend said, preliminary inquiries occupy only a very small time in provincial court dockets, but they do deliver huge savings to the system. Preliminary inquiries deliver these efficiencies in a number of different ways. They focus the issues to be litigated at trial. They identify evidentiary landmines that can arise in the middle of a trial, and they also ensure that parties have a sufficient and detailed knowledge of the evidence and that can assist in resolving matters that don't need to go to trial in the first place. Importantly, preliminary inquiries increase the fairness of our trial system by allowing both the Crown and the defence to probe the strengths and weaknesses of a case to evaluate the reliability and credibility of witnesses and, importantly, they also act in many cases to preserve and memorialize evidence at an early stage. Many times a preliminary inquiry has allowed the Crown to introduce evidence at trial of witnesses who have absconded, who find themselves in custody, who have recanted their statements, or who have become deceased while awaiting trial.

The government offers two justifications for the preliminary inquiry limitations in this bill. One is efficiency and one is to reduce the burden on witnesses and complainants. My friend is right: There is a delay problem in our courts, but preliminary inquiries are not the cause of that delay. In fact, the focus on efficiency doesn't just ignore the questions of fairness that I raised but it also ignores the available evidence and experience that we have in dealing with how preliminary inquiries can actually expedite the procedures. I'm not going to go over the evidence with you. I have cited some of that in my brief. It does show that preliminary inquiries are decreasing in frequency, that preliminary inquiries specifically looking at Jordan issues don't disproportionately cause those issues that we see in Jordan about cases being stayed. But there isn't a wealth of evidence here. The proponents of this bill have not put forward exactly when preliminary inquiries occur, how many cases resolve after a preliminary inquiry, or how many court hours are saved. That's the type of evidence that I think we would like to see before changes are made. That's the evidence-based policy-making that I think we deserve in the criminal justice system.

I think it's safe to say that preliminary inquiries aren't a common occurrence, but they are something that has been studied to some extent. Of course you will be familiar with the 2017 report of the Senate Standing Committee on Legal and Constitutional Affairs that found that there wasn't consensus amongst the witnesses they heard about whether preliminary inquiries should be eliminated. There wasn't a consensus among those witnesses about whether they should be restricted. Indeed, that committee said that there wasn't a consensus even amongst the provinces about what should be done with preliminary inquiries.

When you look at the preliminary inquiry, what we do know and what I as a practitioner am here to tell you is that they are an ideal way to actually bring efficiencies to the justice system. As I said, they can identify issues. These are invaluable tools to ensure that a charter issue or an issue about search and seizure isn't just discovered in the middle of evidence at a trial. In a sexual assault case, if there is an issue about third party records or about prior sexual history, that those issues don't raise their head in the middle of a trial, causing adjournment in the superior court or, more likely in the case of a jury trial, endangering the whole trial itself. You can't adjourn a jury trial to litigate those issues, but we can identify them early through a preliminary inquiry.

I take it, and I'm going to assume, that this committee is aware of Dr. Webster's study. I know it has been cited in a number of different briefs. That's a very valuable resource that supports some of the anecdotal evidence that you will hear from us today.

There are two issues that I think haven't been discussed. The first is in relation to the preliminary inquiry as an important judicial screening function. What this bill will do in a large number of cases is download that discretion, that function, into the hands of Crown attorneys, which of course isn't reviewable and can cause some issues. That shift in judicial discretion was the topic of some negative critique by the Supreme Court in the Nur case.

Second, with respect to delay issues, when we look at Jordan, the Supreme Court specifically considered the 30-month Jordan time period for a two-stage proceeding. That's a proceeding that has a preliminary inquiry.

I don't think there's much justification for that 30 months if we turn these cases into a one-stage proceeding. That's an issue that's currently before the Court of Appeal for Ontario. By eliminating the preliminary inquiry, we could be in a much bigger Jordan issue, above and beyond the efficiencies that preliminary inquiries can bring.

I do want to speak about the discovery function in my last few minutes.

I know proponents of limiting the preliminary inquiries say that since the advent of the charter, since Stinchcombe, the defence has a wealth of disclosure. That's true; we do. That disclosure often tells us the who, the what, the where, and the when, but quite often that disclosure doesn't tell us the why. Police officers don't always record that in their notes. That disclosure doesn't tell us issues about reliability or credibility that can only be apparent through testimony.

I can tell you that just today in the Ottawa Superior Court of Justice, I was in pretrial for a matter that had a one-day preliminary inquiry. It would have been a two-week trial, but that case was resolved because those questions of “why?” were answered, and it caused the parties to come together.

Lastly, I want to say that in my brief I've set out some possible amendments that can be made to formalize a discovery procedure or perhaps require a more robust justification on the defence of the party seeking a preliminary inquiry.

I want to dispel some misinformation that's out there. The Minister of Justice, in the House of Commons, said that some procedures already exist to cure some of the problems about this discovery function. She said that there would remain the flexibility in existing processes such as out-of-court discoveries that have been implemented in some provinces already, such as in Ontario and Quebec.

I can tell you that's not really true. In Ontario there is no formal out-of-court discovery process for criminal procedures. It can be done with consent of the Crown informally, but there's no formal mechanism for that. That means, if this committee is going to rely on that procedure as a safeguard to alleviate some of the concerns, it's not uniform across Canada, and it certainly isn't available in all cases in a regulated way in Ontario.

Preliminary inquiries and unnecessary preliminary inquiries have already been curtailed through the use of section 540 of the Criminal Code that allows the Crown to adduce written evidence and statements as evidence. That has reduced some burdens on people testifying. Of course we have the requirement that the requesting party, which is usually the defence, comply with section 536.4 and 536.5 of the Criminal Code about notice of issues and notice of witnesses it would like to hear from.

Perhaps amendments can made to make those slightly more robust, but those current controls have addressed some of the issues that have already been raised. I'm very concerned that we're sacrificing fairness for the sake of efficiency, and we're not really going to gain the efficiency that's sought at the end of the day.

[The Chair, Liberal, Anthony Housefather]

Thank you very much.

We'll move to the Canadian Council of Criminal Defence Lawyers.

[Richard Fowler, Canadian Council of Criminal Defence Lawyers]

Thank you very much, Mr. Chair and honourable members of the committee. This is my third appearance before this committee, and it's an honour to be back again today. My colleague and I are here from the left coast and the right coast—I'll leave it to you to decide which is the left and which is the right. We know a lot less about what happens in the middle.

I want to start by saying that we echo and support the comments you have already heard. The strength of our agreement as defence counsel shows what we've learned from many years of experience. Combined, my colleague and I have over 44 years of experience. I myself have conducted over 500 trials, of which more than 50 have been murder cases. I've conducted preliminary inquiries when necessary.

I want to start by also saying we're here today to talk about the preliminary inquiry, but there are other parts of this bill that we have significant concerns with. I will just say, as an aside, that the abolition of peremptory challenges is a huge mistake. I've selected over 100 juries, and I've never seen it misused. It's necessary.

Let's go back to preliminary inquiries. I'm convinced they're an essential tool for an efficient, fair and reliable justice system. I also have seen no data that in any way suggests a justification for their abolition. In fact, the bill itself is inconsistent because it preserves preliminary inquiries for offences where there's a potential for life imprisonment, but that's also arbitrary—in the case of robbery, for example. Abolishing preliminary inquiries is short-sighted and will lead to far greater problems than many will anticipate.

I'll give you an example. I was counsel for an accused charged with historical sex offences. There were five complainants. The offences dated back to 1959, covering a time period to 1992. We elected trial by Supreme Court judge alone, and requested a preliminary inquiry. One was scheduled. Shortly before the preliminary inquiry was due to start, Crown counsel preferred an indictment and we went straight to the Supreme Court.

The trial took over two years to complete. Why? Unbeknownst to either the Crown or the defence, there were a number of section 276 issues—that is, prior sexual history—as well as at least two, maybe three, third party records applications. You can imagine that in historical sexual offence cases, you're very likely to have applications related to third party records. There was also a severance application. We were successful on all of those applications. In other words, they all had merit. They led to the trial having to be adjourned three or four times.

Of course, rescheduling a trial that's been adjourned is very difficult. It's also, ironically, very inconvenient for complainants. They start their testimony; they've started a cross-examination; evidence comes to light that requires a section 276 ruling; we have to adjourn, and then they have to come back.

In my respectful submission to you, they should not and must not be abolished. They need to be improved. For example, provincial court judges at a preliminary inquiry have almost no powers. The test for committal is very low. We need to give judges at preliminary inquiries more powers, such as the jurisdiction to order disclosure. It's often self-evident to everybody in the courtroom that the defence is entitled to this disclosure, but we have to wait till we get to the Supreme Court for an order to receive it. Judges need the power to hear third party record applications and to rule on prior sexual history.

In other words, we should give them the powers to adjudicate on matters prior to getting to the Supreme Court for trial. Let's utilize the preliminary inquiry to make sure that when we get to trial in the Supreme Court, the trial occurs efficiently, without interruption and without unnecessary motions.

It's the lack of power in the “preliminary inquiry justice”, as it's defined in the code, that gives rise to concerns that in some cases they seem to be a waste of time.

We need to make them better, not abolish them.

Thank you.

[Rosellen Sullivan]

Good afternoon. I'm Rosellen Sullivan, and I'm here from Newfoundland. I'm going to say that's the right coast.

[Some hon. members]

Oh, oh!

[Rosellen Sullivan]

I think that goes without saying, actually.

I don't want to repeat what my colleagues have said. Again, we all agree that we all agree, which I think is important.

I do want to speak about my experience in Newfoundland, which I believe probably had less than a 3% Jordan issue, even when Jordan was an issue.

My concern, of course, is whether the decision itself has rectified many of the issues that led to Jordan in the first place, and I don't think there's any empirical data to suggest that. Particularly, I would suggest, from my neck of the woods, that a lot of the delay issues have mostly to do with disclosure, as opposed to the preliminary inquiry. That's particularly true in large CDSA cases and in a lot of cases that have a lot of forensic analysis and forensic disclosure, which are pretty commonplace these days. Oftentimes that's the reason that cases are being delayed.

In fact, I would submit that some of the other proposed amendments are going to have consequences in terms of delay. Again, I know we're here to talk about the preliminary inquiry, but if you look at peremptory challenges, I would submit that those are going to be causing delay, because they're going to lead to more challenge for cause applications. The other example that comes to my mind is police officers reading in evidence, which is going to lead to an extra step along the way of defence counsel bringing applications to cross-examine on that.

In terms of whether or not the system has already addressed Jordan issues, I can tell you that it is commonplace now in Newfoundland for all the issues to addressed on the record. Waivers are explicitly asked for. Reasons for postponements are explicitly put on the record, so that they're clear and articulated.

I would go beyond what my friend has said in terms of giving the preliminary inquiry judge more power. I would also suggest that one of the things that could be contemplated is raising the threshold for committal. A scintilla of evidence is actually pretty low. So many times the judge will say, “I can't weigh credibility issues. I can't decide those things.” If the threshold were higher and those issues could be dealt with, I think it would be a lot more effective and even go beyond being able to pare off the cases that don't go to trial. I know anecdotally we've all told you, but I can tell you that in the last two preliminary inquiries that I've had, in one of them the Crown pulled the charge after the prelim because the witnesses were clearly very inconsistent with their statements. With the other one, the strength of the case against my client was so obvious that we ended up making a deal.

I would think that the prelims are more effective in terms of streamlining cases.

Subject to any questions you might have, those would be my comments.

[The Chair, Liberal, Anthony Housefather]

Thank you very much to all the witnesses.

The Conservatives have the first question.

[Tony Clement]

Thank you to the panellists for taking time to be here with us as we study the bill.

I want to get a couple of elaborations from a couple of the individuals.

Ms. Dale, you talked about the false hope of efficiency when it comes to eliminating preliminary inquiries. In your view, and maybe this is to Mr. Spratt as well, are there jurisdictions you're aware of that could buttress the case you're making? Has there been any evidence—maybe even to Mr. Fowler or Ms. Sullivan—from other jurisdictions that should be a warning to our jurisdiction on this issue?

[Michael Spratt]

I certainly don't have that sort of evidence on the tip of my fingers. My experiences are more anecdotal.

I know that this committee in the past has heard from Dr. Doob and Dr. Webster, and they might be in a better position to provide some supplementary information about the statistics.

[Tony Clement]

But in terms of the experience of your practice—that's where you do have some expertise obviously, because you're there on the ground where these cases are being considered—you're not concerned that it's contributing to the challenge that is being faced in the wake of the Jordan decision.

[Michael Spratt]

No, quite the opposite. I can say that preliminary inquiries are rarely set. I rarely set them. When they are set, even for very complicated matters such as second degree and first degree murders, they have been very constrained and very focused, especially lately, and I can say without a doubt that every hour I spend in a preliminary inquiry saves tenfold hours at the door of the superior court.

[Tony Clement]

Have you seen many cases of abuse of the preliminary inquiry in your practice?

[Michael Spratt]

I haven't, and part of the reason I haven't seen that sort of abuse is that for the very serious charges that are set for preliminary inquiry, many of my clients are in custody, and one of their big issues is that they don't want to delay their trials, and getting court time can be a delay. That's why I don't see any defence counsel setting preliminary inquiries to delay matters, setting preliminary inquiries to obstruct matters, or setting preliminary inquiries that deal with repetitive, needless, or useless questioning.

[Richard Fowler]

I'll just echo what my friend has said. Abusing the preliminary inquiry, has it ever happened? Of course it has—let's be honest—but is it used routinely to cause delay? No, because judges have the powers now, with the focus hearing, to require counsel to come before them and to ask them, “Well, what are you going to do with this court time I'm giving you? What witnesses are being called? How much time is each witness going to take? What are the issues at the preliminary inquiry?” They're very streamlined.

Most of the preliminary inquiries I've done have been on murder cases, and often they take no more than three or four days, even if the trial is going to take a month or two. We focus on issues for which the preliminary inquiry is going to provide sort of value for money in a very real sense.

You also have to be aware that preliminary inquiries are very helpful to the Crown. In fact—not to let too many secrets out here—I often waive a preliminary inquiry because I know it's going to be more helpful to the Crown than it is to me.

They are tremendously valuable, then, and until you get down there and look at a case and prepare it for court and know what trials are like, it's hard to appreciate how helpful they are, but they really are.

[Michael Spratt]

If I could just add this very briefly, in terms of just the practicality of scheduling a preliminary inquiry, I can't walk into court and say that I want to set a date for a preliminary inquiry and they'll just hand out that court time. In virtually every jurisdiction, you need to have a judicial pretrial with a judge to actually obtain the court time, so there's a front-end limit on wasting court time or scheduling time that may not be used appropriately.

[Tony Clement]

Well, you don't want to gain a reputation in the system of abusing that privilege either, as a defence counsel.