Evidence of meeting #108 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 victims.

A video is available from Parliament.

On the agenda

MPs speaking

Also speaking

Yves Gratton  Lawyer, Criminal Section, Aide juridique de Montréal, Laval
Caitlin Shane  Lawyer, Pivot Legal Society
Moses  Lawyer, Pivot Legal Society
Robert Leckey  Law Professor, McGill University, and Past-President, Egale Canada, Egale Canada Human Rights Trust
Steve Coughlan  Professor, Schulich School of Law, Dalhousie University, As an Individual
Tom Hooper  Contract Faculty, Law and Society Program, York University, As an Individual
Gary Kinsman  Professor Emeritus of Sociology, Laurentian University, As an Individual
Calla Barnett  Board President, Canadian Centre for Gender and Sexual Diversity
John Sewell  Member, Toronto Police Accountability Coalition
Joel Hechter  Barrister and Solicitor, As an Individual
Rick Woodburn  President, Canadian Association of Crown Counsel
Christian Leuprecht  Professor, Department of Political Science, Royal Military College of Canada, As an Individual
Bruno Serre  Executive Board Member, Association des familles de personnes assassinées ou disparues
Karen Wiebe  Executive Director, Manitoba Organization for Victim Assistance
Nancy Roy  Executive Director, Association des familles de personnes assassinées ou disparues
Maureen Basnicki  As an Individual
Julia Beazley  Director, Public Policy, Evangelical Fellowship of Canada
Arif Virani  Parkdale—High Park, Lib.

5:15 p.m.

NDP

Murray Rankin NDP Victoria, BC

All right. Could you elaborate a little bit on that? I know you haven't done the analysis, but why would it possibly not be charter-compliant?

5:15 p.m.

Prof. Robert Leckey

It's because with proposed section 156 the intention is to preserve the power to prosecute historical conduct that we still believe is reprehensible. This includes same-sex abuse of children by priests in orphanages, and that kind of stuff. There's no attempt to make that out of the criminal law's reach when we repeal 159.

The problem with 156 is that it relies on today's age of consent of 16 as the basis for deciding whether something can be expunged or not. To me, it's unfair that in the past, when the age of consent for “ordinary” different-sex intercourse was 14, it feels problematic to me that historically we're in a sense lowering the age of consent for anal intercourse, but only to 16. There is actually a group of people who had sex—an 18- or 19-year-old having sex with a 14-year-old—and if they had been a boy and a girl, that would have been perfectly legal.

If it were two men, and if 156 passes as it's currently drafted, there's the potential that you could prosecute for sodomy or anal intercourse, because under today's law a 14-year-old cannot consent to someone more than a couple of years older.

5:15 p.m.

NDP

Murray Rankin NDP Victoria, BC

Thank you. I understand.

Is there any time left, or am I finished?

5:15 p.m.

Liberal

The Chair Liberal Anthony Housefather

You're finished.

I just want to make sure we get it in before the buzzer.

Mr. Fraser.

September 25th, 2018 / 5:15 p.m.

Liberal

Colin Fraser Liberal West Nova, NS

Thanks. I'll be very brief because I know the bells are going.

I just want to thank all of the witnesses for appearing today. This has been a very interesting round, and I appreciate the presentations that have been made.

Professor Coughlan, I really appreciate the thoughtful way you put forward your argument, and in a very sound way that made a lot of sense. What I'd like to ask you is, if there's going to be a possibility of having, every couple of years, these charter cleanup bills come forward, given the fact that sometimes court rulings impact on one part of a section, or elements within a section of the Criminal Code, I would imagine that it would be wise to have some sort of consultation to ensure that it actually reflects the court ruling.

You mentioned a law reform commission being necessary at the federal level to try to give some guidance, perhaps, to legislators when they're drafting that. How else could you see any sort of consultation with the legal community for that kind of bill that cleans up our code as we go?

5:15 p.m.

Prof. Steve Coughlan

In an informal way, such lines of consultation exist now. As I mentioned, a large group of criminal law academics sent a letter to the Minister of Justice in December of 2015. That has led to some informal collaboration on a number of things. We have provided the department and the minister's office with the names of people who are interested in, and experts in, a number of different areas. I know, for example, you've heard from Marie-Eve Sylvestre on the bail issues, and she's one of the people on the expert lists around bail. Really, at that informal level, those lines are there.

There certainly would be no harm in something more formalized, though. Personally, I am in favour of the notion of a law reform commission to have something on an ongoing basis, but the last time the Criminal Code was amended—which was, embarrassingly, before I was born—a royal commission was struck. A royal commission to amend the Criminal Code conducted those kinds of consultations with affected communities. This was not just with academics, but of course, with the people themselves who were connected, either through, say, Pivot Legal Society to get input from that community, or the kinds of organizations that are here as well today. We want wide consultation, not just with academics about this but with the affected people.

5:20 p.m.

Liberal

Colin Fraser Liberal West Nova, NS

Great, thanks.

I know my friend has a question.

5:20 p.m.

Liberal

The Chair Liberal Anthony Housefather

Thanks for giving me the rest of your time, Mr. Fraser.

I have three short questions, so short answers, please.

Dean Leckey, on the proposed section 156 issue, is the issue, for you, that you're concerned that men today, not benefiting from the close-in-age exemption, will be charged for acts before 2008 where they had sex with 14- or 15-year-olds, or are you concerned that their convictions for something they have been convicted for, for having sex with a 14- or 15-year-old before 2008, will not be expunged?

5:20 p.m.

Prof. Robert Leckey

It's both. I think the chance of fresh charges being laid now is relatively remote. I think it is more concrete in that it's a gap. I don't think the expungement provision goes as far as it was intended to go in Bill C-66. Given that we know that the criminal law can be used in ways we don't imagine, I think you should fix them both, but I also think realistically there's a real problem with the expungement.

5:20 p.m.

Liberal

The Chair Liberal Anthony Housefather

That's perfect.

Mr. Hooper, Mr. Kinsman, following Bedford and following Labaye, as I read the bawdy house provisions right now as they are stated, they are not at all what the judgment in Labaye says, so nobody, on the plain reading of the bawdy house provisions, would know what was illegal.

Would you agree with that?

5:20 p.m.

Prof. Tom Hooper

Absolutely, Chair.

5:20 p.m.

Prof. Gary Kinsman

Yes, it uses language like “acts of indecency” that are incredibly vague and have no concrete meaning at all.

5:20 p.m.

Liberal

The Chair Liberal Anthony Housefather

Following your reading of the current statute and the decisions in your historical analysis, would you be able to confirm that absolutely no provision is meant to be touched by the bawdy house provisions that is not covered by another provision in the Criminal Code, which remains in existence for what the court said that it should mean in Labaye?

5:20 p.m.

Prof. Tom Hooper

I don't know what a bawdy house would look like in 2018 and I don't know if it has ever existed.

5:20 p.m.

Liberal

The Chair Liberal Anthony Housefather

That's perfect, and—

5:20 p.m.

Prof. Gary Kinsman

If the problem was violence and harm, other sections of the Criminal Code are much more appropriate to deal with that.

5:20 p.m.

Liberal

The Chair Liberal Anthony Housefather

I totally agree.

Ms. Barnett and Dean Leckey, on the last issue you raised on intersex children, I completely understand the issues that you and Mr. Boissonnault presented. I just want to be reassured that the interpretation you're giving in terms of doctors and parents making a sex selection at birth in no way would infringe upon the rights of parents to circumcise their children in the future for religious reasons or other things. You're not making the argument that parents should lose such a right, are you?

5:20 p.m.

Board President, Canadian Centre for Gender and Sexual Diversity

Calla Barnett

No, I'm not making that argument.

I don't think that what Dean Leckey has indicated should be repealed, the language, there is no—

5:20 p.m.

Liberal

The Chair Liberal Anthony Housefather

I agree it's not covered under that. I just want to make sure that we're not introducing an argument that it should be criminal to do circumcision

Dean Leckey.

5:20 p.m.

Prof. Robert Leckey

No, I don't think so. The basis for a circumcision being permitted today is not that it's producing a normal reproductive function, or that it's giving a normal sexual appearance.

5:20 p.m.

Liberal

The Chair Liberal Anthony Housefather

That's perfect. I really appreciate that.

Thank you, Colleagues, and thank you to this panel.

We will be back for the next panel following the votes.

The meeting is recessed.

6:08 p.m.

Liberal

The Chair Liberal Anthony Housefather

Hello, colleagues. I want to apologize to our third panel of the day for being late. Votes in the House of Commons sometimes are things we cannot control.

It is a pleasure to welcome our third panel of the day on Bill C-75. We're joined by Mr. Joel Hechter, barrister and solicitor. We're also joined by the Canadian Association of Crown Counsel represented by Mr. Rick Woodburn, president. By video conference from Kelowna, British Columbia, representing the Toronto Police Accountability Coalition, we have Mr. John Sewell.

Welcome.

Mr. Sewell, because you are here by video conference, we're going to you first. You have eight minutes. I turn the floor over to you.

6:08 p.m.

John Sewell Member, Toronto Police Accountability Coalition

Thank you very much.

I'm in Kelowna because my wife and I are visiting friends in the interior of British Columbia, so although I'm usually in Toronto, today I'm in Kelowna. The weather out here is terrific.

I'm the coordinator of the Toronto Police Accountability Coalition, an organization that's been around in Toronto since 2001. Our job is to propose progressive policies to the Toronto police board and the Toronto police force.

We've been dealing with lots of issues in the last 17 years. Some of the more recent ones are carding, how the police deal with those in mental crisis, the question of strip searches, racial profiling, police oversight, police training and police recruitment. TPAC has an electronic bulletin that is published bimonthly for free. It generally summarizes the kinds of things that are happening in Toronto and our thoughts about them.

TPAC has submitted briefs to the Toronto police board in support of a policy requiring Crown attorneys to report to the board in cases where a judge has concluded that an officer was not telling the truth under oath. That seems to happen three or more times a year in Toronto. The board has now adopted such a policy.

Our concern that we want to voice today is in regard to proposed section 657.01 of the bill. This section permits police evidence to be entered by way of affidavit. It says that affidavit evidence can be used for the presentation of routine police evidence.

I want to deal with some of the things that seem to be routine at the current time, at least in Toronto, and I suspect in other cities.

One is carding, where police stop citizens at the whim of the officer, who demands certain information of those stopped. Carding has been considered a routine of the police in Toronto and in Ontario until very recently, when the law was changed. We know that carding is basically done to black youth, and it's shown to involve racial discrimination. We think it's unreasonable to suggest that evidence gained this way should be provided to the court by way of affidavit.

Another routine police activity deals with arrest for the possession of marijuana. This is also infected with racial discrimination. Three times as many black people as white people per capita are arrested. Again, we think this is wrong and should not be allowed to happen by way of affidavit.

Thirdly, strip searches in Toronto are considered routine. At least 40% of all those arrested for any crime in Toronto are strip-searched, even though the Supreme Court of Canada has declared in its decision in 2001 that such searches should be rare, which we interpret to be less than 10%. As we know, the fact that strip searches have been done is in some cases a reason for the judge to throw charges out.

The other point we'd like to mention is that there are instances, which I've mentioned already, where police evidence in court is challenged as being untruthful. Sometimes officers give evidence that they know is untrue, and the courts struggle to determine what the truth actually is. Often, courts have to come to this decision on the basis of the officer's demeanour, and that would not be available by way of affidavit evidence.

We recognize that there are some cases where the police affidavit evidence may be challenged, but we aren't convinced that's a good way to proceed. It's sort of after the fact. We believe that this section should be deleted from the bill.

We do want to stress that we wish to support actions that shorten trials in order to save precious court time and resources. This is an issue that our organization has addressed. We think the way to proceed on that is by instituting pre-charge screening, where Crown prosecutors sit with officers to determine what charges should proceed.

This now happens in three provinces in Canada: British Columbia, Quebec and New Brunswick. In fact, there has been a very significant saving of time for courts because of pre-charge procedures. In Ontario, the charges that would actually proceed would be reduced from about 93,000 per year to 70,000 if pre-charge screening were in place and the same rules were adopted as those in Quebec.

Also, many fewer cases are stayed in courts or withdrawn. In Quebec, the numbers stayed or withdrawn—and that's where they have pre-charge screening—is 9%. In Ontario, it's 46%. If you want to save court time, forget about the affidavit evidence by officers and, instead, proceed by way of pre-charge screening.

That is our submission, which is respectfully given to the committee.

Thank you very much.

6:15 p.m.

Liberal

The Chair Liberal Anthony Housefather

Thank you very much, Mr. Sewell.

We will now move on to Mr. Hechter.

6:15 p.m.

Joel Hechter Barrister and Solicitor, As an Individual

Thank you.

Thanks for inviting me to make these submissions.

These days, it can sometimes feel a bit like the world's going to hell in a handbasket and there's nothing you can do about it. I suspect each of you ran for office because you wanted to do something about it. You want to make things better for your families, just like I do. I'd be a terrible politician, but as a lawyer and a father, I'm here to try to help so that the Canada my son grows up in has the best possible system of criminal justice.

Because I have only a few minutes to address you in these opening submissions, please forgive my bluntness. There are a few good measures in Bill C-75, but much of it, from where I sit, appears arbitrary. I'm very concerned that if it passes in anything close to its current form, it will do far more harm than good, which is really too bad.

In respect of the consultation that's taken place, I have been looking at some of the evidence you guys have already heard, and I've read some of the briefs that have been submitted to the committee. Had this been the process before the bill was tabled, I suspect it would have come out quite differently. The government would have had the benefit of thoughtful submissions from criminal lawyers who spend every day dealing with these issues. Now that it has passed second reading, however, the government has poured a lot of political capital into it, and I worry that despite your commitment to do what is right, what I'm about to say may fall on deaf ears.

My principal recommendation is this: Don't rush this.

When you step back and take a look at this bill from a distance, a pattern emerges. Bill C-75 gives greater discretion to police officers and Crown prosecutors, restricts the discretion available to accused persons and their representatives, and fails to restore the discretion that was taken away from judges by the Harper mandatory minimums.

On that last point, we all know that Senator Kim Pate managed to draft what I think is a fairly simple fix to the mandatory minimums several months ago in Bill S-251. You take out the preamble and the explanatory notes, and that bill's three pages long, including both official languages. It's simple, elegant, drafted to stand the test of time. As you know, a week later, your colleague Sheri Benson, NDP member for Saskatoon West, proposed a similar solution with Bill C-407.

I was really disappointed to see that after nearly three years of studying this issue the government has not tabled anything in this bill to deal with those mandatory minimums. I say this with a bit of sadness, but also with respect. I submit that the government's actions may speak louder than the words they're using to describe this bill. What does this action, this Bill C-75, say? It says that a lot of trust is being reposed in police officers and Crowns, which in certain circumstances is perfectly reasonable.

But let's look at what that actually means. If the bill passes in its current form, officers will have a lot more discretion for dealing with breaches, for example. Permitting officers to give evidence in writing, which Mr. Sewell was just talking about, maybe without even being cross-examined is a breathtaking expression of trust. For their part, Crowns are going to be entrusted to decide what procedural protections are available to accused persons in a much wider scope of cases.

I'm not pulling this trust thing out of thin air. As parliamentary secretary, Mr. Mendicino, who is no longer part of this committee but was until recently, made it clear in the House that Bill C-75 is meant to increase the Crown's ability to exercise informed discretion on a case-by-case basis. That's one big reason why the government is hybridizing so many more offences.

He said this shortly after suggesting in the House of Commons on the same day—and this was June 5, 2018, in response to a question from Elizabeth May about routine police evidence—that defence counsels suffer from bad judgment and quibble over immaterial things.

Now, don't get me wrong. I'm not saying that Crown discretion is a bad thing. We know that Crown discretion is a key part of a properly functioning judicial system, of a criminal justice system. But as the Supreme Court made clear in a case called Bain back in 1992, basic rights cannot depend on the continuous exemplary conduct of the Crown. That case, interestingly enough, was about peremptory challenges and stand-asides. At the time, the Crown had significantly more opportunities to affect jury composition than the defence. The Supreme Court said that this was inconsistent with subsection 11(d) of the charter.

By contrast to all that additional discretion granted to agents of the state, Bill C-75 takes away from my colleagues and me basic tools that we use to ensure that justice is done fairly. Our role as a check against abuse is significantly constrained. To be clear, abuse does sometimes happen. That's why in my brief, which I know you all got this morning and so you may not have had a chance to read it, I recommend enacting a criminal provision prohibiting non-disclosure.

The justifications for this bill that I see in Hansard don't make a lot of sense in a free and democratic society. Take this idea of sparing witnesses from having to testify twice. If you take that to its logical conclusion, complainants would be spared even more if we moved straight from arrest to conviction without the need for a trial. We'd also save a lot of time and a lot of money, but that's not what a fair system of criminal justice does.

If we look south of the border, the United States Supreme Court talked about the need to ensure the integrity of the fact-finding process through things like appropriate cross-examination. This is from a case, Coy v. Iowa, from 1988 in the Supreme Court. It said that while the process “may, unfortunately, upset the truthful rape victim or abused child...by the same token it may [also] confound and undo the false accuser, or reveal the child coached by a malevolent adult.” The court concludes that passage by saying, “It is a truism that constitutional protections have costs.”

Our system of criminal justice is not exactly the same as the Americans', nor should it be, but that case says something universal. We don't have trials because they're convenient. They're not. Nor are they generally much fun for the people involved. They can be expensive and in rare cases they can take a long time.

I can assure you, despite what you may have heard, that the defence bar is not complacent about that. The overwhelming majority of accused persons want the whole process over as quickly as possible, but not at the cost of injustice.

While cases with a preliminary inquiry often do take longer than those without, that's no reason to abolish most preliminary inquiries. It's simply a reflection of the fact that more complex cases tend to be the ones that require prelims to ensure that the subsequent trial is fair. Every Canadian accused of a crime, not just those facing a life sentence, rightly expects to have a fair trial.

Perfection is always going to be unattainable, but procedures that support fair trials are critical to preventing wrongful convictions. In many Canadian criminal cases, a well-conducted prelim is what makes the subsequent trial fair. Cross-examination as a right is a cornerstone of fairness in free and democratic societies around the world, so I urge you to carefully consider the consequences of passing Bill C-75 as is. It will take years of expensive litigation to undo the damage, during which time a number of innocent people will almost certainly lose liberty as a direct result of the bill. Fix it now and you can prevent that.

Thank you.