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.

6:20 p.m.

Liberal

The Chair Liberal Anthony Housefather

Thank you very much.

Mr. Woodburn.

6:20 p.m.

Rick Woodburn President, Canadian Association of Crown Counsel

Good evening, everybody.

Listen, I know it's going to spread around that I may have a flight. I'm not worried about that. The important thing here is that we get this right, so don't hold back on the questions.

I'm Rick Woodburn, the president of the Canadian Association of Crown Counsel. We represent approximately 7,500 Crown counsel across the country, from the 10 provinces and the federal government. This is both Crown attorneys and Crown counsel, so a wide variety of input came into our submissions.

I didn't file a brief. However, we have limited submissions that we'll make, and we'll take questions, of course, as need be.

Thank you to the panel for inviting us. I appreciate that. Some of our comments may go against the grain a bit. I don't want to disparage anybody, the drafters of legislation or anybody who worked diligently on this, but we would like to delve into it a bit.

Our role isn't going to be to endorse or go against the bill itself, but we want to give you the pros and cons, give you some information about what, on the ground, prosecutors and Crown counsel are saying about this particular bill.

Between Crown counsel, of course, we're not universally in agreement with all the sections either. There are viewpoints from both sides, and I hope to get some of that out today, at least to give you the information so that you can perhaps go back and when you think about amendments and about the different sections, some of these things will help in terms of knowing what's going on, on the ground.

The first thing we'd like to look at is the bail reform, and particularly the change from sections 523 and 524 to the new section 523.1.

My understanding of proposed section 523.1, which would be inserted just before section 524 and takes up that entire section, is that we're not eliminating, from what I can see, section 523. Therefore, there's still that opportunity for a Crown to make an application to have somebody's bail revoked. In the Crowns' submission, what this extra layer does is just tack on, in some aspects, another administrative hearing to charges of breaches, and so forth. When we look at it, it actually is repetitive in a lot of senses. We all agree that we're trying to prevent delay here, and having a repetitive section in the Criminal Code won't necessarily help us.

Here's what I mean.

When we look at section 523 as it is right now, the Crown has the discretion to do everything that proposed section 523.1 says. We can withdraw the charge, we can ask that the bail be revoked, and so forth. We can already do that. Proposed section 523.1 presupposes that the Crowns aren't looking at the charges when they first come in and assessing the strength of the Crown's case, but we are. As Crown attorneys, it's important for us to ensure that these charges, these breaches of bail, are sufficiently looked after. In our submission, it's just another layer that is not needed in reality, because the Crowns are already doing their jobs and vetting through this.

The other thing that is interesting about administration of justice charges, or breaches, is that there seems to be a lot of talk about the number of breaches that are in the system and how they're clogging it up. I can tell you from the ground, they don't clog up the system. They don't take that much time. A breach of a court order takes very little time to prove, even if it goes to trial—and that's rare. Keep in the back of your mind that these charges aren't clogging up the system. There are lots in the system, but they're not clogging the system.

The other thing to remember about these charges is, when somebody breaches their court orders, it's important for everybody to realize that this is a cornerstone of our bail system: Somebody has been released on bail, they're supposed to be following conditions and they don't, so they're arrested and brought in. There has to be a penalty to this. My understanding of proposed section 523.1 is that actually, if it plays out, it looks to be more of a slap on the wrist. Believe me, the criminals will realize fairly quickly if there's this extra layer and they can use it, and there will be more people breaching their court orders.

That's a little about the bail reform. Of course, we'll be open to questions later about that.

When we look at preliminary inquiries, we see a lot has been said. I've heard some of the testimony and read some of the briefs. It's very controversial about eliminating preliminary inquiries for non-life sentences.

Once again, Crown attorneys have voiced opinions on both sides of this, and I'd kind of like to give you the pros and cons a little bit about that. First, among the pros to getting rid of them, one of the obvious and most glaring concerns sexual assault victims. Of course, having sexual assault victims testify twice, even a witness here has stated, re-victimizes them, and I've seen it first-hand. Eliminating that will perhaps encourage people to come forward in sexual assault trials. They know they will only have to testify once. Of course when we talk about testifying, that also includes children.

For some reason the bill doesn't include aggravated sexual assaults. In those cases, of course, there's a right to a preliminary inquiry.

There are some issues from a Crown's perspective with regard to preliminary inquiries as they stand right now. Part of it is the so-called focus hearings, and that's where Crown and defence go before the court and we tend to focus the issues at trial. What we're finding more often than not is that they're not getting focused. We end up running what's called mini-trials and we're put to the test to prove our case under the Shepherd test of course. The focus hearings you hear about in the Criminal Code don't necessarily work the same way that they're being explained to you.

The other part is putting forward our case by paper or putting in the witness statements and so forth. Different jurisdictions do this different ways, but what I'm hearing is that in most jurisdictions the courts aren't allowing and defence aren't agreeing to the Crown simply putting in a paper preliminary inquiry. Different jurisdictions do it differently, but we're finding that it's not really the case there. When we're looking at eliminating preliminary inquiries, we see some of the issues that are attached and, I guess, the pro side of it.

The con side of it is, of course, that it doesn't give an opportunity for the parties—not only the Crown but the defence—to analyze the case, see the witnesses, see how the evidence actually comes out. It also doesn't allow for the Crown and defence to come to some sort of resolution after the preliminary inquiry. Those are some of the things that are missing when you're talking about that.

There are some pros and cons, and we've heard some of those already, but I think it's important to keep those in mind.

One of the other things is about the peremptory trial challenges, and that's important. I've done probably 50-plus jury trials and been through many challenges for cause, and it will last somewhere in the range of a day to a day and a half for a homicide trial, so it's a lengthy process as it is right now and if you look through the general exemptions, specifics, and then peremptory challenges, and sometimes a challenge for cause depending on how high it is.

I notice in the Bill now, in proposed sections 638 and 640, that while peremptory challenges are eliminated, the challenge for cause section is actually still there. If you look at it under proposed subsection 640(2), you'll see that there is room for defence counsel and Crown to raise issues regarding the impartiality of a juror. “Juror” as it's been interpreted means the jury panel, so when we have a challenge for cause, that's the section that's invoked. If you look at it, the logical end to that is that we're going to have challenges for cause in more cases, which take a great deal of time, so that's one issue.

The other issue, of course, is that ultimately the judge is going to make the final decisions on each juror who's picked.

If you look at how this is going to actually play out in a challenge for cause, some questions are done up between the Crown and defence and decided upon. Each juror is brought in and questioned. How we envision this to unfold is that the jurors are brought in, they're asked the questions, the defence and Crown are given an opportunity to speak to it, and then the judge is going to ultimately make a decision with regard to whether or not that juror is impartial or not, and that continues on until you have your 12 or 14 or 16 jurors, depending on how it goes, which will make it a lot longer process. It can move from a day to two or three days, depending on how long it's going to take.

The way that we see this is that it's very problematic because you've taken one issue and turned it into a bigger issue, in our submission at least, but we can see how it logically comes out.

Of course there are the cases. The Supreme Court of Canada has stated that a judge should and shall stay out of those impartiality hearings, so their making a decision on the impartiality of a juror inserts them right into the picking of the jury itself. The Supreme Court of Canada says that may be unconstitutional, which is where that part of the bill may end up after we run a couple of jury trials. We find that problematic.

How are we doing for time?

6:35 p.m.

Liberal

The Chair Liberal Anthony Housefather

You're past your time.

You might as well try to wind it up, if you can.

6:35 p.m.

President, Canadian Association of Crown Counsel

Rick Woodburn

On hybridization of offences, there are two basic things we can say about that. Obviously 12 months for the summary offence is fine by us, I guess. The increase from six months to two years is not problematic because Crowns in a sense have to make a decision about whether or not somebody is going to get more than six months or less than six months when we're looking at a summary offence. We've been electing indictably in a lot more matters when we feel that, given the nature of the offence, the record of the accused and other circumstances, we have been having to go by indictment. That's one of the issues we've had. Now that it's gone up to two years, there's that grey area where for people who could be getting more than six months but less two years, we can actually elect summary. That's the pro. The con of that, of course, is that you may see a lot more serious cases and more cases in provincial court.

Thank you very much for your time. Sorry, I went over.

6:35 p.m.

Liberal

The Chair Liberal Anthony Housefather

No problem. Thank you very much.

We move into questions.

Mr. Cooper.

6:35 p.m.

Conservative

Michael Cooper Conservative St. Albert—Edmonton, AB

Thank you, Mr. Chair. I'll direct my first question to Mr. Sewell.

You made reference to different types of routine police evidence. One of the issues with Bill C-75 is that routine police evidence is pretty broad, as it's defined. It includes everything from observations, to identifying or arresting an accused, to the gathering of physical evidence. That doesn't sound to me like routine police evidence. That sounds like it could be the entire case in terms of evidence.

6:35 p.m.

Member, Toronto Police Accountability Coalition

John Sewell

Yes. I don't disagree with that. I gave some examples of things that have been considered routine in Toronto, but in fact, it's a very broad definition, and I think that's a problem. That's why the section should go.

6:35 p.m.

Conservative

Michael Cooper Conservative St. Albert—Edmonton, AB

Do you care to weigh in on that?

6:35 p.m.

Barrister and Solicitor, As an Individual

Joel Hechter

Yes, I think not only is it overbroad, but it's problematic in that you guys and your colleagues in the House aren't psychic. It's impossible to know before a charge is laid or even a crime has been committed what's going to be important to cross-examine at a trial. I routinely as defence counsel build the defence by cross-examining different police officers and figuring out what exactly it is that is important. I figure it out in advance, but it's helping the judge or jury figure out exactly what is important.

We as counsel, and I'm talking about Crowns and defence counsel, routinely put together agreed statements of fact—which I know you guys have already heard about—because sometimes issues aren't in dispute, and that tightens things up and we all see that. Like I say, we're not complacent about delay. We want to see things move expeditiously as well, but to say in advance that any category of evidence is going to get a free pass from cross-examination or that we have to apply to cross-examine a particular witness, makes no sense. It is unprecedented really in common law jurisdictions around the world that you would have to apply for the basic right to cross-examine, which is protected under the ICCPR, as I mentioned in my brief. Should there be something that's truly trivial, it can go in an agreed statement, but you can't know here and now—with the greatest respect because you guys are all clearly very smart and take this very seriously—in advance what is and is not going to be contentious or significant.

An officer contradicting another officer can be the beginning of a thread that unspools the entire prosecution. It changes the perspective of the court. It can lead to an acquittal or, frankly, can justify a conviction. You can't know that until you're in possession of all the facts.

That's my answer to your question.

6:40 p.m.

Conservative

Michael Cooper Conservative St. Albert—Edmonton, AB

Thank you for that.

Perhaps you could also speak to how you see this separation of having a stream of offences that would be eligible for a preliminary inquiry, namely those wherein the maximum sentence is life, and for all other offences there would be no opportunity to have a preliminary inquiry. In the case of a robbery offence that might have a maximum of life, for example, there would be a preliminary inquiry option, but for another offence, such as a drug trafficking offence, the sentence that the judge would likely apply might be the same, but in that case there would be no preliminary inquiry. How much sense does that make?

6:40 p.m.

Barrister and Solicitor, As an Individual

Joel Hechter

It doesn't make a lot of sense. It seems to me very arbitrary. I understand that the drafters of this legislation were probably trying to figure out how to cut this off and how to make it.... Maybe in the most serious cases, you do need a prelim, but that's not how prelims work and that's not the function that they serve in real-life criminal trials.

We, based on the issues, elect to have a prelim or not. Very often I'll take an indictable matter to a straight OCJ trial—OCJ being the Ontario Court of Justice—provincial-level trial, because there is no point to having a prelim. I just want to go. It's a simple matter. I want to get this done as quickly as possible and so does my client.

There may be something where the maximum sentence is currently somewhere in the range of five years, but the issues are such that you absolutely need a prelim. I talk about this a little bit in my brief, the issue of section 278, because I think one of the unintended consequences of this legislation is that you are going to have in matters that are serious, that are subject to the regime, the Mills 278 regime. I talk about this in my brief, but for anyone who hasn't had a chance to read my brief, it is third party records where there are, to put it as broadly as possible, sexual allegations involved. There's a special set of protections, and one of the most important sets of protections in the regime is that the complainant or witness is not compellable on a third party records application.

What that means is, if I want to establish the existence of records in order to be able to bring them to court and apply for access to them before the trial starts, I use the prelim to do that, because the complainant is there at the prelim. She is not compelled at the application. The prelim is where we build the record to bring the application. If that process is not available, suddenly we're in superior court, if it's a serious matter, and we're in superior court in front of a jury, potentially. The complainant is on the stand, and I'm asking him or her about records that I need in order for the court to do its job finding facts. I'm building the record to bring a third party records application. I then bring the application mid-trial. The complainant is entitled to retain counsel. The record holders, be they doctors or institutions, are entitled to retain counsel. We have a long adjournment to deal with this, maybe a mistrial, because we have a jury sitting there wondering what the hell is going on, and that's not conducive to a swift and effective justice system.

I'm going on longer, probably, than you wanted me to in answering this question, but it really shows how this particular legislation in the context of a criminal code, which has provisions like that, is going to create train wrecks.

6:40 p.m.

Conservative

Michael Cooper Conservative St. Albert—Edmonton, AB

Yes, thank you. That's helpful.

6:40 p.m.

Liberal

The Chair Liberal Anthony Housefather

Ms. Khalid.

6:40 p.m.

Liberal

Iqra Khalid Liberal Mississauga—Erin Mills, ON

Thank you, Chair.

Thank you to the witnesses for your testimony.

Mr. Hechter, if I may, during my articles—it seems like a lifetime ago—I was prosecutor for the provincial court, also known as traffic ticket court.

6:40 p.m.

Barrister and Solicitor, As an Individual

Joel Hechter

Provincial offences....

6:40 p.m.

Liberal

Iqra Khalid Liberal Mississauga—Erin Mills, ON

Yes. In that, we received dockets of over 50 at a time, where you would have many police officers just waiting around to give their testimony.

My understanding and the way that I understand routine police evidence is that there's still the discretion of the judge to decide whether officers should be brought in for cross-examination or examination themselves.

In your experience—and I'll ask both of you to provide your feedback—what is the percentage of time a police officer's evidence being provided needs to be questioned? If it's not nine times out of 10, and it is in the judge's discretion to allow for cross-examination as is required for the administration of justice, do you not think that this would impact in a positive way delays that our court system faces and also the challenges of our police forces in terms of having police on the streets?

6:45 p.m.

Barrister and Solicitor, As an Individual

Joel Hechter

I can tell you that I don't spend a lot of time in traffic ticket court. I'm dealing with matters where police evidence is more often more involved than “I stopped his car, I gave him a ticket, I moved on”.

That said, I'm sure my friend will agree with this proposition that Crown and defence counsel routinely, before a trial, try to narrow the issues. If there is an officer whose evidence is not strictly required and we can put it in an agreed statement of facts before the court, or if it's just really not that important for either of us, even though they may have relevant evidence to give on some issues that neither of us think is going to make any difference at trial, then we can dispense with the evidence already. That already happens. It happens a lot.

I did a murder trial that took a long time, but we had 14 separate and distinct agreed statements of fact on different sets of issues, which we put before the jury. It's a system that works, and that the litigators themselves, who know what is and is not important, can control to ensure that the court has everything it needs to make a safe and sound finding of fact.

I recognize that sometimes officers sit around for a while. That is perhaps a little less efficient than we'd all like to see. There was an article written by Michael Bryant, former attorney general of Ontario, in which he said that efficient justice is kind of like efficient music or efficient circumcision—not a really good idea. There's a certain point at which efficiency can trump justice, and you cannot take efficiency to the point where it gets in the way of justice being done.

There has to be a point somewhere. I think that forcing the defence to apply for an officer to come and give evidence so that they can be cross-examined and, in some cases, having to reveal why it is that they want to cross-examine that officer when they are trying to establish something, like a charter breach or something else.... We do, in our notices of charter applications, set out the basic things that we're alleging, but it is sometimes.... There's a set of cases out of Alberta called Evenson, which talks about the danger of giving too much information to a witness in advance, even a well-intentioned witness, because it can change in retrospect, when they think about things, their own memory of how something went down at the time.

Cross-examination is a difficult process and one that we have to preserve and protect, so—

6:45 p.m.

Liberal

Iqra Khalid Liberal Mississauga—Erin Mills, ON

To my understanding, though, the way I read the provision is that it's a decision between counsel and the judge, not the police officer.

6:45 p.m.

Barrister and Solicitor, As an Individual

Joel Hechter

Yes, but if counsel has to apply, then they're providing to the court and the prosecution—and to the public, ultimately, unless the application is sealed—all the information about what they want and why they think the officer should be there. There's nothing stopping the officer from getting that information.

6:45 p.m.

Liberal

Iqra Khalid Liberal Mississauga—Erin Mills, ON

Mr. Woodburn, do you have some input?

6:45 p.m.

President, Canadian Association of Crown Counsel

Rick Woodburn

Not as much as that, but my friend is correct in some aspects.

Look, we have agreed statements of fact all the time. It's not an issue as far as the section goes. If we need to call a police officer, we will. Sometimes they have to wait around. That's what happens. In a lot of the routine police evidence, if two officers can speak to the same thing, we call one of them. It's easier and faster just to call the officer than it is to draft an asking for permission and do everything else. Overall, we're going to end up just calling the officer.

6:45 p.m.

Liberal

Iqra Khalid Liberal Mississauga—Erin Mills, ON

Again, I want to clarify so that I understand this correctly. Basically, this routine evidence provision takes discretion away from the counsel and puts it in the hands of the judge to decide whether or not a police officer will be examined and cross-examined and what the agreed—quote, unquote—statement of facts is.

6:45 p.m.

President, Canadian Association of Crown Counsel

Rick Woodburn

It is in some aspects, because when the Crown applies and puts forward the affidavit and the defence says they want to cross-examine, the judge ultimately makes the decision, but in reality and on the ground, it's not going to happen that way. We're either going to make an agreement between ourselves that it can go in or I'm just going to call the police officer. It's pretty straightforward. That procedure will bog things down, and that's not what we want. We want efficiency. Ultimately, we'll end up just calling the police officer.

6:50 p.m.

Barrister and Solicitor, As an Individual

Joel Hechter

If we have to litigate this, it's going to take a long time, and it's going to slow things down rather than speed them up.

6:50 p.m.

Liberal

Iqra Khalid Liberal Mississauga—Erin Mills, ON

Do I have time for one more question?