Justice Committee on Sept. 24th, 2018

[Murray Rankin, NDP, Victoria, BC]

Thank you.

I'm going to start with you, Mr. Fowler, because I think you've come the farthest. I want to say something to you, sir. I disagree with you on some things, but in terms of which is the right coast, I think we would agree that of course it's the left coast. I just wanted to put that on the record.

I think the thrust of your remarks was the need to improve and not abolish preliminary inquiries. I think everyone said that. I thought you said that very forcefully.

You did raise parenthetically the whole issue of peremptory challenges. You said that in your experience they were never misused. I think many people who have come here would say that in the Stanley case in Saskatchewan with Colten Boushie, in which there was an indigenous deceased, the lawyer for Mr. Stanley managed to get no indigenous people on the jury. It certainly caused a lot of Canadians who wrote to me great concern.

I appreciate that some people have indicated that they use peremptory challenges precisely to get racialized people onto juries. I'd just like to give you an opportunity to expand on your forceful remarks on peremptory challenges. I ask you whether you don't think that there was a misuse in at least that case.

[Richard Fowler]

Well, you know, I wasn't there, but I've read a lot about it. As far as I know, I've seen no data on who was stood aside, who was indigenous. I've heard no evidence about how many indigenous people were on the array, which is the panel of people from which the jury is selected. Also, I strongly believe that we should not do fundamental criminal law reform based on anecdotes. We should do it based on research and reliably gathered data.

Let me just ask you this rhetorical question, because we know about the Boushie case. Let me ask you this question.

A client is charged with sexual assault. We have gotten rid of peremptory challenges, so the Crown has no ability to decide who is on the jury; I have no ability to decide on the jury. By chance—because that's what it will be—12 men are selected. It's a high-profile sexual assault case, there are 12 men on the jury, and my client is acquitted. What do you think the outcry is going to be?

I can tell you that with peremptory challenges in place, there would be women on that jury. We utilize peremptory challenges because those of us who do jury trials—and many lawyers don't—believe that a representative jury in terms of age, occupation, and gender is the best way to have a cohesive group of 12 people sitting in that room deliberating about our client's fate.

[Murray Rankin, NDP, Victoria, BC]

I understand, and we would have a longer debate that time doesn't permit here, but the Criminal Lawyers' Association, for example, has suggested that there be a stand-alone section that allows a judge at the end of the day to eyeball that jury to see if it is representative of the community. If that section were in place, I think we would probably avoid an all-male jury.

[Richard Fowler]

I agree with you, and as best as I know, New Zealand is the one jurisdiction that has that.

[Murray Rankin, NDP, Victoria, BC]

All right. Thank you.

[Richard Fowler]

They have that ability to say to everybody, “This jury is just not representative. You have been misusing your peremptory challenges. We're going to get rid of the jury, and we're going to start again."

[Murray Rankin, NDP, Victoria, BC]

Thank you, Mr. Fowler.

Ms. Dale, I just want to re-emphasize one of your initial anecdotes, because we've heard so frequently that the problem with preliminary inquiries for women in the case of sexual assault cases is that they are retraumatized by having to do it twice. I thought your suggestion was really powerful in the case that you were involved in where the accused was led to plead guilty and therefore the trial never happened. I want to thank you for giving us that illustration.

You also talked about delays and about a number of reasons that were given for delays. You suggested that mandatory minimum sentences was an important one, as well as self-represented litigants. Could you expand on that?

[Laurelly Dale]

As I noted, the research isn't exhaustive on that point. Particularly with regard to the self-represented litigants, I do know that there have been a number of studies to support the position that there should be more legal aid funding in the criminal justice system because it has been determined that self-represented litigants do add to court delays.

There's a reason we went to law school. We have this experience. It is a very complicated process, and having self-represented litigants who are trying to navigate it on their own causes significant delays in the system.

The mandatory minimum sentences reflect a lack of discretion with respect to the sentences that are imposed. Therefore, more of a need is created to determine the strengths and weaknesses at every available opportunity and for the clients to make full answer in defence, because if they are facing a mandatory minimum sentence, those consequences are extremely significant. Then, of course—

[Murray Rankin, NDP, Victoria, BC]

Then there would be more trial time because people have nothing but a mandatory large sentence to face—

[Laurelly Dale]

Yes.

[Murray Rankin, NDP, Victoria, BC]

—and, therefore, there's no incentive to take the time-saving measures.

[Laurelly Dale]

Exactly, and the consequences are severe, reflecting penitentiary-length sentences, and of course that's a significant consideration.

[Murray Rankin, NDP, Victoria, BC]

I was also impressed with your reference to the disproportionate impact on indigenous people.

Mr. Spratt, if I could—

[The Chair, Liberal, Anthony Housefather]

I just want to warn you that your time has elapsed. If you have a short question for Mr. Spratt, then try to be....

[Murray Rankin, NDP, Victoria, BC]

I don't know how long it will take.

[The Chair, Liberal, Anthony Housefather]

If it's going to be that long....

[Murray Rankin, NDP, Victoria, BC]

I'll just ask it anyway.

[The Chair, Liberal, Anthony Housefather]

Sure.

[Murray Rankin, NDP, Victoria, BC]

You did talk about the who, what, where, and when that the Stinchcombe information gives you. You also said “why”. You said the preliminary inquiry often allows the important question of “why” to be addressed and provides context that cannot be teased out of paper disclosure.

My question is, how come? Elaborate on why the "why" would be more relevant, then.

[Michael Spratt]

Perhaps I'll use the example of a police officer who engages in a search. The officer will always say what he did and where he found it, but the subjective motivations of the police officer—what he was thinking, why he thought certain aspects of his observations were important, and how those related to what he did—are often not recorded in notes, especially dealing with those important charter issues.

[Murray Rankin, NDP, Victoria, BC]

Thank you.

[The Chair, Liberal, Anthony Housefather]

That was an excellent succinct answer. Thank you.

Mr. Boissonnault is next.

[Randy Boissonnault, Liberal, Edmonton Centre, AB]

Thank you, Mr. Chair, and thank you to all of the guests for being here today.

To give you some context, I come at this not from a legal point of view but from that of a business consultant, an NGO director. It's not from the deep steeping in the law that all of you have, with over 100 years of representation at the bar and what have you.

I want to share some stats with you. I come from a province that is part of the country and has 55% of the indigenous population of Canada. Twenty-five per cent of the youth in my city are indigenous, and we will have the absolute largest concentration of indigenous peoples anywhere in the country by 2025. Indigenous peoples are overrepresented in the criminal justice system, yet under-represented on juries. We're 27 years from the Sherratt decision, which made it clear that peremptory challenges can help make it more representative but can also harm representation.

I take you at your word, Mr. Fowler, that you're one of the good ones and that you don't use peremptory challenges to exclude people, but we have lots of anecdotal evidence that it occurs.

I want to start with Ms. Sullivan. How do we get to this goal of more representative juries if we keep peremptory challenges and practitioners are able to abuse them? I'd like comments from all of you on what Nova Scotia does. Instead of using property ownership as a means to select juries, it uses the health care system. If you take a look at how we're selecting our juries, it's like where we were before women's suffrage for voting.

[Richard Fowler]

Yes.

[Randy Boissonnault, Liberal, Edmonton Centre, AB]

The justice system evolves, according to Mr. Clement, but maybe we could help move the evolution along a little bit.

I'd like comments on those two points.