Thank you, Mr. Chair.
My name is Emilie Taman. I'm a lawyer with expertise in criminal law. I have worked as legal counsel at the Supreme Court of Canada, as a federal prosecutor at the Public Prosecution Service of Canada for eight years, and for the last two years I have been teaching criminal law and advanced evidence to students at the University of Ottawa's common law section of the faculty of law.
I want to open by saying I cannot agree more with Professor Parkes in particular in her assessment of the need for comprehensive criminal justice reform.
My personal view is that re-establishment of a federal law reform commission is something that should be very seriously considered and pursued by this Parliament. I have a written brief that will make it to you shortly, but I did circulate a chart, which is in both official languages. I likewise have three main concerns when it comes to the reclassification of offences and the so-called hybridization of offences in Bill C-75.
I think it's important, though, that the members of this committee understand the consequences of a summary conviction versus indictable offences and the various discretionary choices conferred on both the Crown and the accused depending on the nature of the offence. I'm going to take most of my time today on that. I would, of course, very much echo the concerns in relation to access to justice by virtue of the raising of the ceiling for summary conviction offences by default to two years. Also I am very skeptical about whether this hybridization will have the desired impact of enhancing efficiency or expediency in the criminal justice process.
I would just put on my law teacher hat here and ask you to turn your attention briefly to what's noted as appendix A, which is an appendix to my brief, which you don't yet have. It attempts in a very clumsy way, given my lack of expertise with any kind of graphic design, to explain a little bit about the consequences of hybridization.
Essentially in the Criminal Code you have, generally speaking, three kinds of offences. You have what we would refer to as straight summary conviction offences. Those are statutory offences that can proceed only by way of summary conviction. On the other hand, you have what we would call straight indictable offences. Those would be statutory indictable offences. Then there are a large number of offences that we refer to as hybrid offences. Those are offences that can proceed either by way of summary conviction or indictably. The question as to which of the two ways hybrid offences will proceed is really all about the exercise of prosecutorial discretion. Early in the proceedings when it comes to hybrid offences, the Crown is asked to elect whether the matter will proceed summarily or by indictment. You see that with the green arrows in the chart, which are my attempt to show you the Crown's elective options.
Summary conviction offences all proceed in provincial court. If it's a straight summary offence, it goes to provincial court. If it's a hybrid offence in relation to which the Crown has elected to proceed summarily, it likewise can go only into the provincial court and the accused has no election in that regard.
On the other hand, in straight indictable offences or hybrid offences in relation to which the Crown has elected to proceed by indictment, the accused as a general rule can make one of three elections. The accused may elect to have his or her trial proceed in provincial court with a judge alone, because there are no juries in provincial court, or the accused can elect to have his or her trial in superior court presided over by a judge alone. The third option is that the trial can proceed in superior court with a judge and jury.
There are two statutory exceptions to the accused election set out in sections 553 and 469 of the code. Those are very limited exceptions. Certain enumerated offences do fall within the absolute jurisdiction of one court or the other. What I want to highlight here is the impact that hybridizing a large number—136 straight indictable offences—will have in particular when it comes to the accused's right to elect to be tried by jury.
As it stands with these 136 offences, because they are straight indictable, the choice lies wholly with the accused. I really want to underscore that it is common for accused to elect to be tried in provincial court. I wasn't, unfortunately, able to find the exact numbers on that, but I just want to make sure this committee understands that it is not presently the case that all indictable offences proceed in superior court. In fact, a significant number proceed by trial in provincial court.
By taking these 136 offences and making them hybrid, the Crown will now have a very important role to play in relation to the question of whether an accused can exercise his right to a trial by jury. If the Crown should elect at the outset to proceed summarily, the accused loses the ability to elect to have a trial by jury. This is something—again I don't know if this is an intended consequence or if it's an unintended consequence—that I do think is significant. I want to make sure that the committee fully understands that.
I am very concerned any time we take discretion away from a judge and put it in the hands of the Crown. Likewise, here we're taking a choice from the accused and at the outset conferring that decision on the Crown as to whether the accused will even be legally able to elect to be tried by a jury. The exercise of prosecutorial discretion is almost completely lacking in transparency and is not subject to review except at the very high bar of abuse of process.
I want to be clear in saying that this does not give rise to a technical breach of paragraph 11(f) of the Charter of Rights and Freedoms, which is the constitutionally protected right to trial by jury, because paragraph 11(f) is only triggered in the context of offences punishable by five years or more. In hybridizing these offences—offences that currently, as Professor Parkes noted, have statutory maximums of two, five, or 10 years—when the Crown elects to proceed summarily, by virtue of the new default maximum for summary conviction offences being raised to two years, the constitutional right will not, technically, be engaged. But it is the case that, for someone charged before this bill and someone charged after this bill with the same offence in the same circumstances, one of those accused will have the right to elect to be tried by judge and jury, and the other, in the case where the Crown elects to proceed summarily, will no longer be able to exercise that, at least, statutory right. It is an important consequence I want to highlight.
One other thing I want to briefly note about the impact of raising the statutory ceiling, the maximum penalty for summary conviction offences from six months to two years, is that it's important to understand that, as things stand, it is not the case that all summary conviction offences are punishable by a maximum of six months. That is the statutory default, but there are a number of offences, including assault causing bodily harm and sexual assault, for which, even where the Crown proceeds summarily, there is a statutory maximum of 18 months.
The effect of that, and I just want to build on what my colleagues from the student legal aid clinics were noting, is that currently, students and other agents—and it should be noted that a significant number of agents are neither law students nor articling students but paralegals and others—are currently authorized to defend persons charged with offences carrying a maximum punishment of up to six months, that is, not all summary conviction offences. That's why I would be concerned about attempting to address this, I think, unintended consequence of the bill by simply saying that agents can do all summary conviction offences.
The effect of proceeding that way would significantly expand the offences that can be defended by students and agents, and I think there are concerns there. As far as remedies for that go, I would certainly be more on the side of Legal Aid Ontario's submission to have a schedule of offences that would be excluded from agent representation.
I've made some other points in my brief, which will be forwarded to you, but I'll leave it there for now. Thank you.