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.