Justice Committee on Sept. 25th, 2018

[Julia Beazley]

That was certainly not our intention. As I said, our interest in that provision is that it enables us to look at places where individuals are held and exploited, quite often trafficked. The definition is really quite vague. We can accomplish a lot by bringing some precision to that definition, and making it very clear what it is we're addressing, what we're after.

[Randy Boissonnault, Liberal, Edmonton Centre, AB]

Thank you very much.

I have one minute for Mr. Virani.

[The Chair, Liberal, Anthony Housefather]

We'll go to Mr. Virani, hopefully for the next round of questions. Perhaps Mr. McKinnon will let him have the first part of the next round.

Mr. Rankin.

[Murray Rankin, NDP, Victoria, BC]

Thank you, Chair.

Thank you to all the witnesses.

Professor Leuprecht, you were good enough to list your unintended consequences one by one. There were eight, I think.

I'd like to start with the one that caught my attention and that is the issue of hybridization, taking a backlog in the superior courts and visiting that on the provincial courts. It sounds to me a lot like downloading by the federal government.

I thought your statistics about how we have 99.6% of criminal cases already going through the provincial courts was very sobering. The implications of hybridization, I think I understood you to say, would be that even fewer cases go through the superior court, all of which would lead to enormous additional expenses for the provinces.

In the research you've done, is there any empirical evidence on how much the additional cost would be?

[Dr. Christian Leuprecht]

I've done an entire book on the Canadian Constitution and issues arising from it. I'm also a scholar of federalism and an associate of the best-known institute in the country that deals with issues of federalism and intergovernmental relations.

All that is to say that I speak with some background on this about concerns about, on the one hand, implicit downloading by federal governments, not just in Canada but elsewhere, at the expense of other jurisdictions that share in the sovereignty of Canada and the consequences incurred for those jurisdictions, which also, let's remember, have a very different capacity to deal with it. A province like P.E.I. has a very different capacity to deal with an increase in cases than a province such as Quebec or Ontario has.

I'm happy to try to come back to the committee and see what research I can dig up on the actual costing. If I were a provincial premier, I would not want to have any of this without adequate compensation and the costing from the federal government of the additional overall costs incurred by these measures.

[Murray Rankin, NDP, Victoria, BC]

You're absolutely right. I've talked to attorneys general who have already told us they're absolutely flabbergasted that the federal government would, in the name of delays in the superior courts, Jordan, which is what allegedly caused this 302-page bill to be before us, that the implications of what they're doing is simply to download the expense and the additional burden on already overburdened provincial courts. As you say, 99% plus of criminal cases already occur there. So the implications are not lost on the attorneys general.

I thought that was a very helpful point that you made.

[Dr. Christian Leuprecht]

They're not my numbers. They are Statistics Canada numbers that are submitted as an addendum to my brief.

[Murray Rankin, NDP, Victoria, BC]

Absolutely. I thank you for bringing that reality to our attention here.

The other thing I wanted to ask you was about number six of your eight points. To refresh your memory, that was the one about the charging provisions in British Columbia, New Brunswick and Quebec.

We've heard other witnesses already tell the committee that we have a charge approval process that the Crowns are required to do. That has led to many fewer trials because the Crown has to be satisfied that there is “a substantial likelihood of conviction”. Routinely, Crowns say there isn't, and cases don't proceed.

In itself that would be one of the best ways, I suggest. Others at least have suggested, and I put to you for your comment, to deal with the clogging up of our courts, if there was a check between the police and the courtroom. Do you have any comments on that? Number six says:

Usually Crown or police (depending on the province) lay charges only when they believe there to be a reasonable chance of obtaining a conviction. Presumably, the justice system should then take its course. What is the point of having a justice system when the state's overarching objective becomes to resolve as many cases as possible before they ever go to trial?

I'm saying it's not a reasonable chance of obtaining a conviction; it has to meet the standard that there's a substantial likelihood of conviction. If we went to that higher standard, don't you think that would have an impact on generating less business for the courts of the land?

[Dr. Christian Leuprecht]

As you know, and your own legal experience in this field testifies to that, we already have different types of standards when it comes to warrants, for instance, so introducing these types of standards would make good sense. It also is in line with the practice with which complex cases are increasingly prosecuted, including by the Public Prosecution Service of Canada, where we now have Crowns who are actually embedded with investigations and guiding investigations so we can actually take good direction and instruction from Crowns, not simply when police are done with investigations but throughout the course of the investigation, to ensure that we can, by the end of the investigation, actually meet the standard that you propose.

[The Chair, Liberal, Anthony Housefather]

Okay, Mr. Virani, you were going to get a minute. I'm assuming Mr. McKinnon will give you his first minute to make sure you can get your one minute.

[Arif Virani, Parkdale—High Park, Lib.]

It's a question and it's prefaced by a comment.

Mr. Cooper and one of the witnesses, Ms. Basnicki, raised the Khadr matter and Mr. Cooper asked rhetorically, what the priorities of the government are. He said they seem to be a bit skewed and it makes one openly question the priorities of the government.

What I would say to that is simply that the priorities are in defending the Charter of Rights and Freedoms and standing by the charter, and that when the government is complicit in the torture and violation of an individual, the government should take responsibility for that complicit behaviour. It is important not to conflate either in this committee or in front of these witnesses the difference between terrorism that occurred in Afghanistan and torture that this government was complicit with in Guantanamo. After two consecutive defeats in the Supreme Court of Canada on this very issue, when Mr. Cooper's party ostensibly believes in reducing court backlog and courtroom delay, it really begs the logical question as to why one would return to the courts, which we all seem to agree are clogged, with yet another likely failed charter claim.

Apropos that, Ms. Basnicki, if we can agree that addressing court backlogs is an important imperative of this bill, is settlement of cases a way of reducing court backlog?

[Maureen Basnicki]

I'd like to respond that the charter as it stands does not define victims' rights. I worked on the Victims Bill of Rights and I'm only asking that my rights be regarded as Mr. Khadr's are regarded. I am not here to take away from Khadr's rights; I'm only suggesting that as a victim, I should have rights too.

Mr. Khadr was a self-confessed terrorist, not in an act in...perhaps the venue was Afghanistan. He was convicted and self-confessed in the U.S. I am a Canadian citizen. He committed his crime—it was not alleged; he was convicted—outside our country. I'm only asking as a Canadian citizen, as he is, that I have rights too and it would appear there is no balance in this as it stands right now.

He belonged to the very organization, al Qaeda, that was complicit in the murder of my husband. You can only imagine how I feel when I see my government give him $10.5 million for a violation of rights and I am at the same time begging my country to afford me rights as a victim and a Canadian citizen who was married to a Canadian who lived in Canada.

[Arif Virani]

I'll pass that over to Ron. I just want to make sure that the record reflects that Mr. Khadr is also a Canadian citizen, Ms. Basnicki. But your point is well taken.

[Maureen Basnicki]

Yes, I pointed that out. I'd like to remind you that I'm a Canadian citizen. Thank you.

[Arif Virani]

Thank you.

[The Chair, Liberal, Anthony Housefather]

Mr. McKinnon, you have three minutes.

[Ron McKinnon, Liberal, Coquitlam—Port Coquitlam, BC]

I'd like to—

[The Chair, Liberal, Anthony Housefather]

Guys. You're out of order. Stop it. We have a little bit of decorum at this committee. I appreciate the passion on both sides, but we heard from the witness. She defended herself very well. I don't think we need your adding in.

Mr. McKinnon.

[Ron McKinnon, Liberal, Coquitlam—Port Coquitlam, BC]

Thank you, Chair.

I'd like to address my question, at least initially, to Ms. Wiebe.

You spoke to us about the eight-year trial and made a statement that you'd like to see all the levels of government get together and determine what is appropriate for what is needed. My perspective on the evidence I've heard on this committee is that's really the point of the hybrid offences. They still maintain their maximum, so if there is any deterrent effect, they still have that same effect but it allows the prosecution the discretion to, in a particular case, decide what is the best way to proceed to prosecute. In some cases, they will choose a summary offence as opposed to an indictable offence because that seems to be the best way forward for justice to happen, and also it means that sometimes they will proceed with the specific offence rather than charging a different offence that might be more amenable to prosecution.

I'd like your comments on that, and I would invite everyone else to follow.

[Karen Wiebe]

I hear many questions in your question. I don't hear just one of them.

Let's deal first of all with the preliminary hearing, the preliminary trial and whether that is something that can have both levels of government working on it. Provincial court—

[Ron McKinnon, Liberal, Coquitlam—Port Coquitlam, BC]

Excuse me. I'm sorry, but I only have a certain amount of time.

I wasn't talking about preliminary hearings. I was talking about hybrid offences. The testimony that I've heard is that they facilitate justice by allowing the prosecution to choose a more appropriate manner of prosecution, depending on the circumstance, allowing them to proceed with a specific offence, be it a terrorism offence or whatever, rather than charging something else, which they feel is more likely to achieve a conviction.

If you could, I would like you to address the hybrid offences question.

[Karen Wiebe]

I think that the Crown attorneys already have the right to decide what types of charges are going to be laid. In my experience in Manitoba, when a person is arrested for a crime, the police department brings the evidence to the Crown attorney, and the Crown attorney examines the evidence. My assumption, maybe incorrectly, is that the Crown attorney looks at what offences have contravened what laws we have. That's what they base their decision on what charges are to be laid. That has been my experience.

Maybe I'm not the best person to speak to this in terms of what you're asking, because my understanding is that they lay the charges according to the laws that have been broken.

[Ron McKinnon, Liberal, Coquitlam—Port Coquitlam, BC]

Fair enough.

[The Chair, Liberal, Anthony Housefather]

Mr. Leuprecht wanted to say something on that issue.

[Dr. Christian Leuprecht]

I have a 20-second intervention here.

As I've stated in several fora in recent days, one of the issues with gun violence is that this is a multivariate problem, precisely because we've reintroduced discretion into a process that previously had a mandatory 10-year minimum sentence. There's good evidence both in Canada and abroad from the data, not my point of view, but from the research that we have, that mandatory minimum sentences impose a serious deterrent on this type of violence.

There is evidence that there might be situations where discretion is probably not the best way to achieve the outcomes for public safety that we're looking for.