Good evening, ladies and gentlemen.
I thank you for your invitation and for the privilege of testifying before the committee.
I have a couple of caveats. I'm no lawyer and I come at this strictly as a political scientist. I've also been asked to comment specifically on the issue of hybridization, so I shall limit my remarks to that particular remit.
I will be happy to answer your questions in both official languages.
The overall strategy, as far as I can tell, with regard to hybridization is to provide an incentive for people to plead out. If, on an indictment, you face a long sentence, you have not much of an incentive to plead. If, under a summary conviction, you face a much shorter sentence, you have a strong incentive to plead out. That incentive is reinforced by programs such as justice on track that provide a financial reward for Crowns to plead out on cases. The Crowns will be happy, because this will result in more money in their pocket, but I have some concerns here.
The first is that, ultimately, as I point out in my submission, the vast bulk of cases go through provincial court. A tiny number of cases go through superior court, so this bill risks unclogging the superior court system at the cost of the provincial court system. Of course, this also raises many of the potential maximums to two years less a day. It also risks reinforcing the number of people who find themselves in provincial systems where, by and large, they don't have access to the sort of programming they have in federal court. I'm not sure that having even fewer cases go through superior court than we already have is really going to be particularly effective in terms of the correctional system that we have in place.
Second, we already have people who deliberately drag out the court process because they take advantage of dead time. Dead time, which used to be credited at two for one, is now at the discretion of the judge. It can now be credited and is often credited at one and half for one. Now your incentive is to drag out the process as long as possible, because the longer you can drag it out, the less chance you have of ever doing any jail time under this new proposition if the offence is a summary conviction. It will reduce the number of people who will effectively do any jail time under their sentence.
Third, very few cases ever go to trial. I provide some of the data here. It is well upwards of 90% of cases that are cleared by other means than trial. To what extent is hybridization really going to achieve the objective of unclogging the court system?
Fourth, many offences are already hybridized. What is particularly interesting here is, of course, the long list of acts and violations that are not currently Criminal Code violations but other forms of violations. I point to one particularly curious matter, which is that the act lists the implications for every offence except for one, which is the exploitation and trafficking in persons, where the only reference is to another bill that is currently finding its way through Parliament.
The reason I pick out this particular example is that I am not sure to what extent the Canadian public will tolerate hybridization for sentences that currently have 10-year maximums. The reason is presumably to signal with these 10-year maximum sentences that these are serious offences. If we now hybridize these offences, the signal that we are sending is that these offences are no longer as serious as they were before. We will need to test that with public opinion.
Fifth, expanding the latitude for the Crowns has important procedural implications that I am not sure have been carefully contemplated. I list these implications, implications with regard to warrants, with regard to statutory limitation and charges, with regard to fingerprints, with regard to the right to elect a trial by judge and jury, and when you can apply for a pardon. We are talking about some fairly significant procedural changes here.
Sixth, a Crown or police presumably lay charges for a reason. The reason is that they believe there is a reasonable chance of obtaining a conviction. Shouldn't we let the justice system then take its course? Aren't we doing a disservice to the law enforcement agencies and to the Crown who believe there was merit in laying a charge to begin with? What is the point ultimately of having a justice system when our sole objective now becomes to resolve as many cases as possible before they ever go to trial?
Seventh, I have concerns about the implications for investigators that, by having fewer cases go to trial, it means that the few cases that come to trial are very serious cases that are going to be highly complex.
If we have fewer investigators with extensive experience being questioned by aggressive and very talented defence lawyers, I think there is a greater risk that these particularly complex and notorious cases will subsequently fail as a result of the inexperience of some of the law enforcement members who show up to provide testimony.
Eighth, this point has already been expanded upon in a much more articulate manner than I ever could by the families of victims present here. I suspect that even though we have a Canadian Victims Bill of Rights, this has already become rather a pro forma matter in consultation. It doesn't appear that the changes being proposed here will reassure their faith in the criminal justice system. They're probably likely to be somewhat unpopular with victims.
In sum, I would conclude that it appears hybridization puts the benefits of the judicial process before the interests of victims, investigators, prosecutors, provinces, the public, the integrity of the justice system, and the rule of law. I'm apprehensive about any legislative change that puts the merit of process before the merit of substance.