OTTAWA, Thursday, May 2, 2019
The Standing Senate Committee on Legal and Constitutional Affairs, to which was referred Bill C-75, An Act to amend the Criminal Code, the Youth Criminal Justice Act and other Acts and to make consequential amendments to other Acts, met this day at 10:30 a.m. to give consideration to the bill.
Senator Serge Joyal (Chair) in the chair.
The Chair: Good morning and welcome. It’s my pleasure to invite the distinguished guests that we have in the audience this morning to be in attendance, and I would like to introduce them to my colleagues around the table.
We have the honour of hosting a delegation from Lagos State in Nigeria at the invitation of the professor of my Nigerian language practice, Professor Chidi Oguamanam from Ottawa University, who is hosting the Nigerian delegation. They are composed of nine guests, and they are led by the Chief Judge of Lagos State, the Honourable Justice Opeyemi O. Oke. Welcome, Chief Justice. With her is the Honourable Tunde Buraimoh, member of the Lagos State House of Assembly. Among the delegation, I would also like to greet the Executive Secretary of the Lagos State Judicial Service Commission, Olubukola Oyenike Salami.
You will have the opportunity to see how we proceed at this Legal and Constitutional Affairs Committee. We are charged presently with studying Bill C-75, a very important piece of legislation amending the Criminal of Canada, the Youth Criminal Justice Act and other related Acts. We heard yesterday the Minister of Justice and an official from the Department of Justice in our opening session in studying this bill.
This morning we continue our study of this legislation with contributions of the Canadian Bar Association, represented by Mr. Tony Paisana, Legislative and Law Reform Coordinator, by video conference. Good morning, Mr. Paisana. Are you hearing me well?
Tony Paisana, Legislative and Law Reform Coordinator, Canadian Bar Association: Yes, I can hear you well. Thank you, senator.
The Chair: We also have from the Law Society of Ontario, Ms. Sheena Weir, Executive Director, External Relations and Communications. Welcome, Ms. Weir. She is accompanied by Mr. Will Morrison, Strategic Policy Counsel, Policy Division. Welcome, Mr. Morrison.
We also have, on behalf of the Federation of Law Societies of Canada, Ms. Frederica Wilson, Executive Director, Policy and Public Affairs, and Deputy Chief Executive Officer by video conference. Are you hearing me well, Ms. Wilson?
Frederica Wilson, Executive Director, Policy and Public Affairs and Deputy Chief Executive Officer, Federation of Law Societies of Canada: Yes, I hear you just fine, thank you.
The Chair: Thank you, Ms. Wilson. We also have Mr. Morgan Cooper, Vice President. Welcome, Mr. Cooper. I had the opportunity to meet you in the stairway.
You will have approximately five minutes for your presentations, and then senators around the table will be very keen to question you or exchange comments on specific aspects of this legislation.
We will start with the Canadian Bar Association, Mr. Tony Paisana. Mr. Paisana, we’re listening to you.
Mr. Paisana: Thank you for the invitation to present the Canadian Bar Association’s views on Bill C-75. The CBA is a national association of over 36,000 lawyers, students, notaries and academics. An important aspect of our mandate is to seek improvements in the law and the administration of justice, and it’s that aspect of our mandate that brings us to you.
I am the Legislation and Law Reform Coordinator. This section’s membership represents a balance of Crown and defence lawyers from across the country. Personally, I predominantly practise in criminal defence in Vancouver and its surrounding areas, but from time to time I also practise as Crown counsel or on behalf of vulnerable witnesses.
On the question of delay, which is an important part of Bill C-75, I was co-counsel for Mr. Jordan in the Supreme Court of Canada — the case that brings us all here today. I’ve subsequently argued section 11(b) motions on behalf of other accused in the post-Jordan era. I’m happy to answer questions about the lead-up and fallout to that important decision.
We have provided the committee with a letter addressing changes to the bill made by the house, as well as an executive summary that links to our comprehensive submission that addresses this omnibus legislation. I will not be able to review in detail all of our recommendations, which number 17 in total, but they are set out in our full submission.
My opening statement will focus on one aspect of Bill C-75 that we view as particularly problematic, and here I’m referring to the availability of preliminary inquiries.
Any practitioner who spends time in our courts will have their own anecdotes regarding the value of preliminary inquiries to their practice. Crown counsel will tell you about instances where serious cases were dropped without the need for a trial, having seen the weaknesses in their case exposed at a preliminary inquiry. Defence counsel will explain how timely guilty pleas before trial were facilitated through the accused witnessing the apparent strength of the Crown’s case at the preliminary inquiry.
Police officers and investigators can attest to the value of testifying at a preliminary inquiry to prepare them for the substantive and Charter issues to be litigated at trial. Even some witnesses and victims of crime who testify at preliminary inquiries say it can assist in boosting their confidence and familiarity with what is otherwise a foreign and intimidating environment.
However, we appreciate that anecdotes alone cannot inform public policy. Evidence and statistics should also inform the analysis and these, too, show that preliminary inquiries are a valuable cost-saving tool in the criminal justice system.
With recent amendments over the past decade, preliminary inquiries have been significantly limited in their scope, resulting in a streamlined process that is usually deployed where one of the benefits I’ve outlined earlier can be realized. In fact, only 25 per cent of eligible cases actually make use of the availability of a preliminary inquiry, and these usually only comprise two days or less of hearing time. However, when they are used, they are typically used in serious cases but which do not always carry a maximum penalty of life in prison.
Few statistics are actually kept on clearance rates of cases which go through a preliminary inquiry. However, a recent legal aid study from Manitoba showed that about 75 per cent of cases which had a preliminary inquiry ended in a resolution before trial. I suggest to you that that is an important and staggering statistic. It demonstrates that preliminary inquiries, unlike what some believe, actually mitigate delay despite adding a process to the overall trial timeline.
This is in line with my own experience and those within our organization from both Crown and defence backgrounds. In addition, I can tell you that even when these cases end up going to trial, the time-saving nature of the preliminary inquiry persists. Counsel, now having questioned witnesses under oath, may admit their evidence by way of admissions or simply agree to have the transcript of their preliminary inquiry testimony admitted at trial. Counsel, now aware of the strengths and weaknesses of a witness’s evidence, can narrow the scope of their examination.
Finally, if a witness provides evidence at a preliminary inquiry relevant to a pretrial motion, that kind of motion can now be identified earlier and result in a timely and organized hearing.
For example, it is not an uncommon occurrence for a complainant to provide evidence about a diary or medical records that were otherwise unknown to the Crown and defence. The disclosure of that material can be litigated pretrial as opposed to that issue rearing its head in the middle of a trial, necessitating an adjournment and causing delay.
These practical realities of the preliminary inquiry are not found in any textbook or ruling; they’re found in the experience of criminal law practitioners like the ones you will hear during testimony. Please pay heed to their collective wisdom and experience.
We appreciate that court delays are a problem. However, other measures proposed in Bill C-75 will better address this issue in a meaningful way without compromising an important procedural tool. You will see from our submission that we commend the government’s proposals regarding bail and administration of justice offences in particular on this footing. We also offer some other simple amendments that target court delays without compromising fair trial interests. These proposals include making judge-alone trials available for murder cases and promoting more electronic appearances through email for routine matters.
This latter proposal was already taken up by this committee in its report on delay, and we highlight it again in our full submission at page 19.
Again, we thank you for inviting us to speak on this important bill. I’m happy to answer any questions you have.
The Chair: Thank you, Mr. Paisana.
Ms. Weir will speak on behalf of the Law Society of Ontario. Will you share your time with Mr. Morrison?
Sheena Weir, Executive Director, External Relations and Communications, Law Society of Ontario: Mr. Morrison will be here for questions. Thank you very much, and good morning. I’d like to thank you all for the opportunity to address this committee today.
The Law Society regulates 53,000 lawyers and 8,500 licensed paralegals in the province of Ontario. We have a statutory duty to protect the public interest, maintain and advance the cause of justice and the rule of law and to facilitate access to justice.
Our comments today are focused on an element of Bill C-75 that we feel undermines access to justice and the independent regulation of legal professionals. Our concern relates to the proposed classification of offences and the maximum penalties that attach to them. Currently, the Criminal Code permits an accused person to appear before a court on a summary conviction offence either personally, by counsel or by agent.
In Ontario, licensed paralegals, licensing candidates and law students are all considered agents under the code. However, section 802.1 of the Criminal Code restricts agents representing individual defendants from appearing in criminal court if the defendant is liable to imprisonment for a term of more than six months.
Bill C-75 increases the default maximum penalty for all summary conviction offences to two years less a day of imprisonment. When these increased maximum sentences are read in conjunction with section 802.1 of the code, the effect is that regulated agents will lose the ability to appear before courts on summary conviction offences except to request adjournments. The effect on defendants and on the efficient and effective functioning of the justice system will be material and, in our view, negative.
We are concerned that it will also increase pressures on the underfunded legal aid system, expanding the so-called “gap” population of people who did not qualify for legal aid but also cannot afford to retain a lawyer. The agents in Ontario who help fill that gap by representing criminal defendants before the Ontario Court of Justice are all subject to Law Society regulation. Uniquely in Ontario, paralegals are independent legal professionals who are licensed and regulated by the Law Society to provide a defined set of advocacy-focused legal services to the public based on their training and education.
Many paralegals regularly represent clients on summary conviction offences. In any given year in Ontario, thousands of people use the services of licensed paralegals for these matters. Similarly, Ontario’s lawyer licensing candidates and law students regularly appear in summary conviction court. Many candidates and students attend court to speak to routine matters such as set dates. They also conduct plea hearings and trials.
The Law Society acknowledges the federal government’s commitment to advancing access to justice, reducing judicial delays and enhancing fairness. However, Bill C-75’s proposed increase to maximum sentences introduces three significant issues which, in our view, undermine these goals.
Longer potential sentences for summary conviction matters result in fewer options for representation. This impairs access to justice. Currently, people in Ontario who cannot afford a lawyer but do not qualify for legal aid may seek more affordable representation through paralegals, articling students or law students in legal clinic settings. If these options are eliminated, it’s likely that more vulnerable people facing longer sentences will go unrepresented. This outcome would also strain court resources and exacerbate delays due to the challenges that unrepresented defendants encounter when navigating the legal process.
On this topic, we are currently dealing in Ontario and other provinces with significant strains on legal aid funding. We would urge this committee to consider the relationship between the access challenges that Bill C-75 imposes and legal aid services for criminal and immigration matters.
The proposed change may be especially detrimental to Indigenous and racialized defendants, who are already disproportionately represented in the criminal justice system in terms of their higher conviction rates and higher rates and lengths of incarceration.
The Law Society’s third key concern is that Bill C-75 eliminates a component of the scope of practice of Ontario’s regulated agents. In so doing, it undermines our jurisdiction as the regulator of the legal professions in Ontario. The Law Society’s ability to identify competence areas for the professionals that it regulates is a critical component of its jurisdiction and the independence of the legal professions.
This authority would be diminished by a federally legislated removal of established scope of practice for paralegals, lawyer licensing candidates and law students. Their education, training and licensing standards have all been designed to take into account the parameters of section 802.1.
It has been suggested that the provision in section 802.1, allowing the lieutenant-governor-in-council of a province to approve a program or to establish a criterion as amended by the house, could provide for continued representation by agents, including Ontario’s regulated advocates.
In our view, however, this solution inappropriately interferes with the Law Society’s independent regulatory scheme and also insufficiently guarantees the continued existence of a successful regulatory framework that provides affordable access to quality legal representation.
To avoid undermining both the federal government’s justice sector goals and the provincial regulators’ jurisdiction, the Law Society recommends maintaining a category of summary conviction offences punishable by a maximum of six months’ imprisonment. If such a category were maintained in the Criminal Code, there would be no issue with the continued operation of section 802.1, and regulated agents would be permitted to appear on those offences but not on all other summary conviction offences. This outcome would effectively preserve the status quo, correcting a significant oversight in the bill without impairing efforts to streamline and improve court processes.
That is our submission. I thank you for your attention, and I’m happy to answer any questions you might have.
The Chair: Thank you very much, Ms. Weir. You made it within the time frame.
I would like to invite Mr. Morgan Cooper to speak. The floor is yours.
Morgan Cooper, Vice President, Federation of Law Societies of Canada: Thank you, Mr. Chair. I’m appearing today as Vice President of the Federation of Law Societies of Canada, along with my colleague who is joining us by teleconference, Frederica Wilson. I will present the opening statement on behalf of the federation, and Frederica and I will jointly respond to questions from the committee.
I thank you on behalf of the federation for the opportunity to appear today.
The Federation of Law Societies of Canada is the national coordinating body of the 14 regulators of the legal profession in Canada that are responsible for governing, collectively, 125,000 lawyers, Quebec’s 3,800 notaries and Ontario’s more than 10,000 licensed paralegals.
The Federation understands that the primary goal of the amendments to the Criminal Code set out in Bill C-75 is to reduce delays in the criminal justice system by improving efficiency, and we take no issue with that goal. However, we are worried about the consequences of two of the major reforms proposed in the bill: the reclassification of more than 100 offences from indictable to hybrid and the increase in the maximum penalty for all summary conviction offences to two years less a day.
We take no position on the merits of this strategy or the underlying policy rationale. Our concern is with what are clearly the unintended consequences of the proposed amendments: the impact on the rights of the accused to be represented by an agent on summary conviction offences.
In the interests of time, I won’t review the specific provisions of the bill or the Criminal Code. Subject only to some narrow exceptions, it is sufficient to say that the result of the increase in maximum sentences would be to eliminate the right of accused persons to be represented by agents on all summary conviction offences.
This would preclude representation by law students working in clinics operated by law schools and licensing candidates, known in most jurisdictions as articling students. It would also preclude representation by licensed paralegals, but as the Law Society of Ontario is the only regulator of paralegals in Canada, the Federation defers to their submission on the impact of the bill on paralegals.
The impact of ending representation by law students and articling students would be significant. We don’t have precise numbers, but we can say that some 10 clinical programs provide student representation for summary conviction offences to accused who do not otherwise have access to legal counsel. Added to this are the articling students working in law firms who provide legal representation in similar circumstances.
At a time when we have an access-to-justice crisis in this country, when money for legal aid is limited and large numbers of Canadians can neither access legal aid nor pay for legal representation themselves, we cannot afford to eliminate student representation in the criminal courts. As senators, you are already aware of this concern. It was raised by the Federation and other stakeholders when the bill was before the House of Commons.
The impact of the increase in maximum sentences for summary conviction offences on the right of agents to act was recognized when Bill C-75 was before the House of Commons, and the bill was amended as a result. The amendment added an additional exception to section 802.1 to permit agents to act when the maximum sentence exceeds six months’ imprisonment, pursuant to criteria adopted by the lieutenant-governor-in-council of a province.
While the Federation acknowledges that the intent of the amendment was to respond to the access-to-justice issues raised before the house committee, in our view the amendment does not adequately address the problem. The amendment would rely entirely on the will of the provinces to create programs or establish criteria to permit law and articling students to continue to act in summary conviction matters.
In addition to the very real possibility or potential that some provinces may not establish programs or criteria, the amendment would almost certainly lead to inconsistencies between jurisdictions; a result that could not be justified on any principled basis. An accused person should have access to the same rights of representation, regardless of where in the country they are located.
We would also note that it is the responsibility of the law societies to regulate the scope of the practice of students. They have both the jurisdiction and expertise to do so effectively. In our view, it would be inappropriate to vest with the provincial governments the authority to decide when student agents can appear on summary conviction matters.
We recognize that there are a number of possible ways to avoid the unintended impact on access to justice. The Federation has proposed that section 802.1 be aligned with the summary conviction offence provisions in the code to preserve the right of accused persons to be represented by an agent, and that position is reflected in our formal submission to the committee, dated April 29, 2019.
We also see merit in the recommendations of the Law Society of Ontario and others to define categories of summary conviction offences to ensure that agents may continue to appear on those with a maximum sentence of six months. Alternatively, as the Association for Canadian Clinical Legal Education has suggested in written submissions to this committee, section 802.1 could be amended to include a schedule of serious summary conviction offences for which agents would not be permitted to appear.
On behalf of the Federation, thank you very much for your time and patience. Ms. Wilson and I would be happy to answer any questions you may have.
The Chair: Thank you very much. I have on my list 10 senators who want to engage with witnesses. We have three panels this morning, so I would invite senators to be as succinct as possible with questions, and expect the answers would be similarly succinct.
Senator Boisvenu: I want to welcome our witnesses. Mr. Paisana, as you know, Bill C-75 would maintain the surcharge. Yesterday, I asked the minister about the decision made last December by the Supreme Court, which determined that the surcharge was unconstitutional. I asked him whether maintaining the surcharge in the bill would undermine its applicability. I want to hear your opinion. Will this decision negate the presence of the surcharge in Bill C-75?
Mr. Paisana: No, I don’t believe so. The decision in the Supreme Court of Canada was dealing with the mandatory nature of the victim fine surcharges as it was previously articulated after amendments by the previous government.
The decision held that the mandatory imposition of victim fine surcharges, particularly in circumstances where there were multiple counts on the same indictment, could constitute cruel and unusual punishment, because the fines would stack one on top of the other.
The bill now provides a discretion to judges to waive the victim fine surcharge where there would be an inability to pay, thereby rectifying the problem that previously existed with the previous incarnation of the victim fine surcharge. So it, in fact, is consistent with the spirit of the ruling in the decision you are referring to from last year.
Senator Boisvenu: I have one last question. With respect to a breach of any conditions of a release, it was determined that a police officer could, in some cases, make an arrest if the breach causes a victim physical or emotional harm, property damage or economic loss. Who will define whether the breach has caused a victim emotional harm? The definition of “emotional harm” isn’t included in the Criminal Code. Does this responsibility lie with the police officers, or should this clause be amended to define emotional harm?
Mr. Paisana: I think what you are referring to is the new diversionary regime having to deal with administration of justice offences. You will see from our comprehensive submission that we, too, find the term “emotional harm” as a vague term that doesn’t really have any history in the Criminal Code, other than the victim impact statement regime. We recommend the removal of “emotional harm,” “property damage” and “economic loss” as disqualifiers for that diversionary regime. We, too, believe that will lead to inconsistent application of these principles by both the police and the Crown, because the concept of emotional harm in particular is such a subjective consideration. One victim may consider something emotionally harming and another may not, even though it is the same conduct: for example, getting into an argument when someone is under conditions to have no contact. We have highlighted an example of that in our submissions. So we agree that the term “emotional harm,” as it’s included in the diversionary regime part of the bill, should be removed.
Senator Dupuis: Thank you for joining us this morning. I have a specific question for the representative of the Canadian Bar Association. You discussed the reversal of the burden of proof in Bill C-75, when it comes to violence against an intimate partner. There’s a reversal of the burden of proof with regard to the release. Could you elaborate on why you’re opposed to this reversal?
Mr. Paisana: The reversal of the burden of proof on bail necessarily means that the accused person, who is in custody and already at a disadvantage, will have to show the court why their release is justified, as opposed to being presumed to be releasable like every other accused.
What we highlight in our submissions is that, generally speaking, those provisions are usually ruled unconstitutional because of section 11(e) of the Charter, which guarantees reasonable bail. The one exception that has already been identified has to do with drug trafficking cases. The rationale you see in those cases to justify that reversal of burden is that drug trafficking cases involve an incentive. They involve an incentive on the part of the accused to continue to act in the way that they were acting before being arrested, such that there is a higher risk that they will continue to reoffend as a matter of course, as a matter inherent to the offending. Domestic violence, although it has its own separate issues, does not involve the same sort of offending.
In addition, in our submission you will see that we highlight that Bill C-75 includes other important amendments that force the bail judge to turn their mind to whether the individual has a history of offending in the domestic violence context and whether or not the offence itself includes an intimate partner. Therefore, the bail judge will already be turning their mind to these important issues and highlighting their aggravating nature in the course of their reasoning without the need for a reversal of the burden.
The last point we make is that the reverse onus typically disproportionately affects the marginalized and racialized accused within our system because those are the people who have the fewest resources to put forward a plan for release like sureties or good bail plans because they just don’t have the resources. They are the ones who are typically most affected by the reverse onus. As our Supreme Court of Canada decision in Antic has said, detention should really be the exception not the rule, and this sort of provision is inconsistent with the long-standing trend of our highest court to discourage detention except in the most serious cases.
Senator Dupuis: Has the Canadian Bar Association looked at the definition of “intimate partner” and the lack of consistency between the “dating partner” defined in the English version and the “partenaire amoureux“ defined in the French version, whereby the two concepts don’t match?
Mr. Paisana: Yes, we agree. Part of the problem we have identified with including the term “dating partner” is that doesn’t have any common law or even really a common understanding amongst people of what that means. Does someone who goes on a single date constitute a “dating partner,” even though it was 10 years ago? The section deals with both present and former people in intimate relationships. That seems to be missing the boat in terms of who this provision is intended to capture.
What they are intending to capture are people in long-standing relationships where there is this trust between the parties, and it is the breach of that trust that makes violence against an intimate partner so aggravating and so important to address on a large scale. Where a “dating partner” does not have that trust relationship with the accused, it indicates to us that the provision is probably just a little broader than it should be. We are recommending that that part of the definition be removed.
Senator Dupuis: The interesting thing about your definition is that you assume that the concept of dating partner must imply a time frame, which would be necessary to establish the relationship. Strictly speaking, I’m not sure that’s the case, but thank you for raising this point.
I have a question for Ms. Weir. In your presentation, you referred to three elements, but I’m interested in the second element. What do you mean when you say that the proposed change — the increase in sentences to two years less a day — is especially detrimental to defendants from “Indigenous, racialized or immigrant communities,” who are already disproportionately represented in the system? Based on the experience in Ontario, what makes you think that this is the case?
Ms. Weir: Thank you for your question.
We think the second point we have made is a very important one. The Law Society of Ontario has spoken a lot about what we should be doing, and I think it addresses the point that my colleague from the Bar Association also made about the length of sentences and the damage to vulnerable people. The reality is that if they are incarcerated for longer times or the ability for them to be incarcerated for longer times, it will fall disproportionately on those populations. They are already woefully represented or they have lack of representation, so it will just exacerbate an already bad situation. We think that it will have an impact.
Where the federal government suggests longer sentences, it seems to us that there is an implication that they are expecting those sentences to be seen. We worry that those currently under six months you will see people that have sentences over six months, which was not the intention of this bill. So we are quite concerned about that and hope that you will address that in amendments. We think that the suggestion to maintain the six-month provisions will be very helpful in that regard.
Senator Gold: As a law student at UBC and later a professor at Osgoode, I had experience both as a student and as a professor with legal clinics. I understand their value. I cut my teeth in them in Vancouver a lifetime ago. So I understand very well your concerns. That’s the subject of my question.
Ms. Weir, do I understand your recommendation correctly that it’s to carve out a subset at six months from the category of offences that are being hybridized?
Ms. Weir: You are correct.
Senator Gold: I understand that. That’s going to be challenging, given the time left in this Parliament. I offer that as a concern.
Mr. Cooper, you also shared the same concern and suggested that we align the article 802.1. Do you have specific recommended drafting language that you could propose to us for that? It wasn’t clear from your submission, unless I missed it, exactly how we would accomplish that if it turns out that the offences remained at two years less a day rather than some carve-out for a smaller amount. That’s my general question.
The other is that I understand the concern about the new provision that would vest some authority in the lieutenant-governor-in-council to solve the problem on behalf of agents: law students and others. Although perhaps not your preferred solution, can you live with that solution if no better solution is ultimately adopted? Let me rephrase it.
We can recommend what we recommend, and we can pass this, but ultimately the government will decide what it does and we’ll have to consider how to deal with that. What would be the impact on the Law Society of Ontario, of which I’m a member, or others if, at the end of the day this was all that we had with regard to the problem of agents: law students and the like? I wonder, Mr. Cooper, if you could start.
Mr. Cooper: Thank you, senator. I’ll make a couple of comments. I will add that as a graduate of Dalhousie University, I was a student in the clinic at Dalhousie. It gives me a very personal appreciation for the clients and individuals in need who have benefited from representation by students.
Bringing that perspective to my answer as well, I would simply repeat and emphasize the concern raised in the Federation’s submission about the approach, whereby a lieutenant-governor-in-council of a province can make a decision to expand representation and allow representation by students, articling students or paralegals. Our concern is failure to act, potentially, inconsistency in application, which would then lead to variation across Canada. And perhaps more importantly, in the absence of action, we have a circumstance where individuals charged with summary conviction offences, albeit subject to a greater maximum period of two years less a day, we have a large number of accused in Canada who, in the absence of action, will not be able to be represented by the individuals they have been represented by in all jurisdictions in Canada, and we believe effectively, in the past. That’s a serious concern.
I would simply add that either the Federation recommendation or the merits that I alluded to of the position of the Law Society of Ontario, both have the merit of consistency across Canadian jurisdictions, and both have the merit of allowing individuals and groups or categories of non-lawyers who have acted in the past to continue to act.
I would ask my colleague Ms. Wilson if she wishes to add a different perspective to the senator’s question.
Ms. Wilson: I would only say that when you ask the question about what alignment means, there are at least a couple of ways in which that would be achieved. It could be achieved by allowing agents to act on cases where there are longer sentences or it could be achieved, for example, by a recommendation such as the Law Society is making where you define a category of offences with a maximum penalty of six months. That would certainly accomplish that goal.
Senator Gold: Thank you. Just to be clear, it would either be the carve-out or an amendment that would provide that agents would continue to be entitled to continue to represent those charged with summary conviction offences. That is to say to align it to the two years less a day rather than the six months in the code. Is that correct? Is that what you mean by “alignment”?
Ms. Wilson: Either possibility.
Senator Gold: I’m trying to get as much help from you as we can.
The Chair: The goal for you is the wording. As you will have time in the next 48 hours to provide wording, we will be expecting it.
Ms. Weir: The attraction for us of the carve-out also addresses the other point of access to justice for shorter terms for crimes that, until now, have been punishable by six months. That would have an impact. I remind you of those concerns as well. Thank you, senator.
Senator Pratte: My question is for Mr. Paisana. Yesterday we heard from Justice Department officials on preliminary hearings, and we asked them what their rationale was. First they gave us Statistics Canada information, which purported to indicate that the median in cases for which preliminary inquiries were held was 433 days, and the median for other cases was only 106 days.
Second, they told us that many people, including provincial attorneys general, had been requesting the elimination of preliminary hearings for many years and that the Department of Justice’s position in Bill C-75 was a balanced compromise between the two positions — those who wished the hearings to remain and those who wished that they be gotten rid of.
Mr. Paisana: Thank you for the question. Those statistics are probably not telling you the full picture. That is because preliminary inquiries are usually utilized in the most serious cases, like murder. Murder cases are notoriously the longest cases in our criminal justice system, and the existence of the preliminary inquiry will not make much of a difference in the length of those cases. They will still go on for a year plus, because those are the nature of those cases.
It’s kind of a misleading picture, because most cases that go through the system and are attributable to that number of 106 days are the cases that are in and out of the courtroom quickly, like the administration of justice offences we have heard so much about in this bill and others where a preliminary inquiry is not available as it stands now, let alone after this amendment.
Senator Pratte: Thank you. I find your proposal on preliminary hearings interesting and compelling. What is your expectation of the frequency of cases where both parties would agree to a preliminary hearing or the judge would estimate that it’s in the interests of justice, according to the criteria that you set out? What is your expectation of the proportion or number of cases? Would that still lead to a reduction in the number of preliminary inquiries?
Mr. Paisana: Yes. I think the consent provision is particularly important because, as I mentioned, half of our membership is Crown counsel. We have heard from countless members of our Crown friends who say preliminary inquiries are really important to the administration of justice and their work. Where a Crown would like to have a preliminary inquiry it is just a matter of consent, and the matter can be streamlined in such a way to secure that consent. That is, the Crown can say, “I will consent to a preliminary inquiry if you, defence, agree that we will only call one or two witnesses, and only these areas will be canvassed.” It’s an elegant solution for keeping the preliminary inquiry where it’s useful to the parties. I think it will help with delay overall.
I will add, the CBA has a submission with respect to this question of agents. If possible, we would like to provide our input at some point during this hearing.
Senator Dyck: I have a question today on the provisions of intimate partner violence. Yesterday, in response to a question from Senator Lankin, the minister confirmed that there was a gender-based analysis of Bill C-75. It’s quite clear, on looking at the bill and from yesterday’s conversation, that there wasn’t an analysis of the bill with respect to Indigenous women.
As you well know, it has been documented that, compared to non-Indigenous women, Indigenous women are more likely to be victims of intimate partner violence. To make matters worse, compared to non-Indigenous women, Indigenous women are more likely to be under-protected in the judicial system because of systemic gendered racism simply because they are Indigenous and female.
Indigenous women are more likely to have intimate partners who are also Indigenous. While violence against non-Indigenous women is going down, it is not going down for Indigenous women.
As you know, we now have a National Inquiry into Missing and Murdered Indigenous Women and Girls that will be releasing a report fairly soon.
Given the facts and characteristics of violence against Indigenous women, do you think that Bill C-75 has taken this into account? Will it actually enhance fairness for Indigenous women in the judicial system? Will it adequately protect them? They are the most vulnerable and overrepresented as victims in intimate partner violence. I’m looking at the CBA representative.
Mr. Paisana: You’ve raised an important consideration that, unfortunately, is beyond the scope of the Criminal Code. This is an issue which is multi-factorial. The Criminal Code is a tool that is used in the enforcement of criminal law provisions.
To the extent that it does have a role to play, I would say a couple of things. First, the recognition of intimate partner violence as an aggravating feature and its highlighting throughout the Criminal Code, as proposed in Bill C-75, is something we support. It’s important that there be a recalibration of the Criminal Code to recognize the principles and concerns you have raised.
Our concerns with respect to the provisions having to do with intimate partner violence have to do with the balancing that is required. I spoke earlier about the balancing that is required in the bail setting, and we have further submissions about the balancing required at the sentencing phase.
It is important to also recognize that Indigenous people are often the accused in these cases as well. We don’t want to inadvertently, in trying to address the concern that you have raised, overrepresent Indigenous accused in the prison population through amendments that are unnecessary and do not, in the end, achieve the objectives that you have set out.
Senator Dyck: You said the Criminal Code should be recalibrated. Could you provide an example of your thoughts in regard to that?
Mr. Paisana: What I’m getting at with a recalibration is a better recognition of the need for attention to rehabilitation and attention to, and recognition of, vulnerable populations in Canada.
There are some aspects of Bill C-75 that already do that. In this regard, I’m thinking about section 493.2, which forces courts to address the over-representation of Indigenous people when making determinations on bail.
We have spoken at length in previous hearings on bills about the need for that sort of recognition at the sentencing phase as well. There has to be a recalibration in the sense of recognizing that the Criminal Code is not a one-size-fits-all proposition. Different populations are being affected by these provisions in different ways, and disproportionately, as we all know, in the Indigenous context.
Senator McIntyre: Thank you all for your presentations. I had a question for the Law Society of Ontario and the Federation of Law Societies of Canada, but my question has been answered.
I will direct my question to the Canadian Bar Association. Mr. Paisana, in Jordan, the Supreme Court stated that there is a:
. . . culture of complacency towards delay that has pervaded the criminal justice system . . . .
Do you believe that Bill C-75 addresses this culture of complacency?
For example, do you believe that specific training should be offered to the main actors of the criminal justice system in order to ensure effective implementation of the provisions of Bill C-75?
Mr. Paisana: I don’t think the bill in itself speaks to the culture of complacency. That is a cultural thing that is already being, I can tell you from my own experience here in Vancouver, rectified with great speed and expediency. I think that culture is disappearing.
Your point with respect to training, we make the recommendation in our submissions that, with respect to this diversionary regime that has been proposed, training should accompany that suggestion to both police and the Crown to ensure that they take advantage of this important diversionary regime for administration-of-justice offences. Then these sorts of offences will not clog up the system and will be diverted into this regime.
It’s an education piece. Police and Crown will have to be educated about the rationale for that provision and why they should be making use of it when they can.
Senator McIntyre: Other than the bill, what other initiatives could the federal government implement to respond to the Supreme Court of Canada decisions in R. v. Jordan and R. v. Cody? Do you believe that a national law reform commission would be an ideal way to get things going?
Mr. Paisana: There are three things. One is the one you just mentioned. That is a great suggestion, and one the CBA has been in favour of for a long time.
The second point is the repeal of mandatory minimums. They have been contributing to delays at an increasing rate for a number of years at this stage.
The third is what we highlighted before this committee in the delay hearings, and that was a uniform charge approval standard of a substantial likelihood of conviction. Federal prosecutors now use a reasonable prospect of conviction. That standard usually results in far more cases being approved for charges, which later result in either acquittals or stays of proceedings once it is realized that the strength of the case is not what it should be.
In British Columbia we have a substantial likelihood of conviction standard and, quite unsurprisingly, we have lower case rates and better clearance rates than most provinces in Canada.
Senator Sinclair: In your submissions, all of you raised a lot of questions that I would like to address. However, given the time, I’m going to focus on the Law Society’s presentations with regard to appearances by agents.
I recognize the provision that is in the bill and the limitations and exclusions it will create. It will exclude agents appearing on summary conviction matters, and I sympathize with that.
Something needs to be done so that for certain things, law students, in particular, should be allowed to appear under supervision. As a trial judge, I have seen the benefit of that, not only from the perspective of the speed of charges but also with respect to the experience that young law students can get.
Given the fact that there is a possibility that the bill may go through with an increased number of summary conviction matters that will be subject to a possible lengthy maximum sentence, do you see any need for there to be some limitation placed upon appearances by agents for trial purposes, for example, so that for trials there should be a properly legally trained person who is in charge of conducting a trial? Could I have each of you speak to that?
Ms. Weir: I’m happy to start, and Will may want to add some things.
Currently in Ontario, paralegals and students under supervision have addressed themselves to a particular set of offences, so we feel there would be a lot of difference if they did the full two years. It would be difficult to have them removed in terms of access to justice. We think it’s quite a conundrum.
I think there are about 450 paralegals, 100 to 150 of them with significant portions of their businesses serving thousands of clients. As I know you are aware, student legal clinics serve about 400 clients at any given time.
We think this will have significant impact. It’s very difficult not to address this, because we currently can manage within the six-month provisions without renewing training and examining competencies in the broader spectrum.
Will Morrison, Strategic Policy Counsel, Policy Division, Law Society of Ontario: If I understood your question, senator, you are asking about whether we might allow representation for certain stages of the proceedings.
We have done extensive consultation with paralegals and students in the field. They are currently taking on the full representation, whether they do that through a clinic or whether someone retains the services of a paralegal. They currently have the ability to go all the way to trial, and they are doing that.
Our concern would be that potential clients and people who need these services might be deterred from retaining the services of, let’s say, a student legal clinic, a law student, a paralegal, if they know that ultimately that representative will not be able to see their matter through. It can raise costs for them and raise delays in the resolution of their matter.
Mr. Cooper: I’m going to ask my colleague Frederica to directly respond to your question.
Ms. Wilson: I would say that certainly what Ms. Weir is saying for the Law Society is a valid point. Right now, students act on matters with a maximum penalty of six months, and there is a great deal of attraction to that. It’s clear they’re dealing with, generally speaking, the less serious offences, or at least those with less serious consequences. But students are supervised by lawyers, both in legal clinics and in their articling process. If what we are talking about is accused people being unrepresented versus having some representation, I think there is a compelling argument to be made that they need some representation.
We are not discontent with the current situation where the charges for which students can appear have a maximum sentence of six months. But if the trade-off is to lose appearance rights altogether, I think we would favour being able to act, even in the more serious offences, understanding that they are supervised.
Senator Sinclair: If there is a distinct possibility that these accused, who will not be able to appear with agents, will appear unrepresented because, as you say, the legal aid monies are drying up, or at least declining, and their ability to afford counsel is likely quite poor, chances are we will see more unrepresented accused appearing on these charges.
What implications do you think that will have for delay or perhaps an inappropriate conviction?
Ms. Weir: I think the treasurer, Malcolm Mercer, addressed this issue at committee. He couldn’t be here today; otherwise he would be.
I would draw your attention to what he said, which is that there is absolutely every likelihood that this will cause further delay. This is something he addressed when he was before the House of Commons committee when the bill was there. He said that he knew from judges that unrepresented litigants clog up the system; they waste court time and resources.
It’s sort of ironic that we’re looking at this in juxtaposition with the purpose of the bill, which is to improve efficiencies, and in fact it could end up having this alternative impact of holding things up because of unrepresented litigants. We see this outside of the criminal context as well in family law, where 70 per cent are unrepresented. It’s a real problem. That’s what I would offer.
Senator Sinclair: Anything to add, Mr. Cooper?
Mr. Cooper: What I would add, honourable senator, is that I know from a number of the briefs this committee has received that there is reference to the fact that unrepresented litigants can add to delay to the court system as the court tries to deal with them and make sure their interests are protected.
What I can say emphatically is that certainly the Federation’s position that section 802.1 be amended to allow agents to appear, if the bill should proceed with the sentences as they are, will mean that, subject to what Ms. Wilson said about students being subject to and having the benefit of supervision with respect to their appearance, it is less an issue of under-representation.
If the bill moves forward as it is and a lieutenant-governor-in-council in a particular province doesn’t move to increase the representation by some criteria or otherwise, then I think it necessarily means there will be fewer represented candidates or accused before the courts.
Senator Lankin: So many questions and so little time.
I won’t ask any questions around the six-month to two-year hybrid offences. I will suggest that I think I heard the Law Society of Ontario say a carve-out of those summary offences would be capped at six months, and I think I heard the Federation perhaps make the carve-out at the other end of those offences where an agent could not appear. I’m not sure.
If there is a common position that could be arrived at, and a suggestion for wording that has a lot of support behind it, that might make it easier to have a discussion with government about whether or not they would be willing to accept those changes. I’ll leave it at that.
With respect, however, to the change in summary offences from six months to two years, I have one specific question with respect to the impact on immigrants awaiting citizenship and the potential of conviction of something that will now carry over six months, and what that does in terms of placing them in peril of deportation automatically. We’re examining this. If you have any wisdom on that, I would appreciate it.
Ms. Weir: Yes, we are concerned about that as well, Senator Lankin. In fact, we are concerned that they would become inadmissible for citizenship, absolutely.
Senator Lankin: Am I right that, at least in Ontario — when you’re in the Ottawa bubble, sometimes digging into what’s happening in budgets and that — legal aid representation for citizenship hearings, quite aside from what we’re talking about with the Criminal Code here, is being limited as well, or eliminated, or something is happening?
Ms. Weir: Refugee funding has been eliminated at the provincial level. There is federal funding that was in the amount of about $15 million for about a $34-million program.
Senator Lankin: There is an overlapping impact. Okay.
The other question I have is around intimate partners and the definitions and everything. I certainly heard what the Canadian Bar said, and I echo the concerns of my colleague Senator Dyck.
We were told by the Justice Department that 15 years ago a study indicated that Indigenous women were more likely then to be dually charged. Since the implementation of mandatory charging, with which many of us agree, there was, at least for a period of time — we’re not sure if it’s still trending — the advent of more dual charging.
In my previous experience in community work, it largely impacted Black and immigrant women, as well as, as has already been identified, Indigenous women.
There are a lot of us who feel that the neutral definition in the Criminal Code is problematic. We may get policies at a policing level, as we heard yesterday, to say, “Okay, primary aggressor be charged.” That’s an evolution over time. But every time you put something in that is open and can be used that doesn’t have a gender lens or gender analysis, or that doesn’t build that into the assumptions, we’re creating more problems and more unintended consequences.
I don’t know if any of you have looked at that. If you have, I’d be interested in hearing it. If you haven’t, in your network of legal clinics, particularly those focusing on women’s law, I’d appreciate seeing submissions on that.
Ms. Weir: We have not specifically looked at it through that lens. For all of our policies at the Law Society, we have two important advisory groups: the Indigenous Advisory Group and the Equity Advisory Group, both of which try to inform all our policies through those lenses. So I hear you.
Senator Lankin: Thank you.
Senator Batters: Mr. Paisana, the Canadian Bar Association Criminal Justice Section represents a balance of Crown and defence lawyers from all across the country, and you practise mostly in criminal defence work in Vancouver. The Canadian Bar Association’s submission comes from that perspective: not only defence lawyers but Crown attorneys as well.
Dealing with the issue of peremptory challenges, the CBA brief from September 2018 states this:
While we share the concern that peremptory challenges may be misused to racially discriminate against Indigenous people, our experience is that they are more frequently used to the benefit of Indigenous and other racialized persons. Those populations are disproportionately drawn into the criminal justice system, and often use this same process precisely to avoid an “all-white” jury.
Then your brief goes on to say:
Bill C-75 was introduced less than two months after the Stanley verdict. Some amendments to the jury process, including abolishing peremptory challenges, seem insufficiently considered. If legislative reform is required, it should be based on empirical data generated through a thorough examination of the jury system. The CBA Section recommends that the government undertake further study before making any major legislative amendments to the jury process.
Mr. Paisana, I share this concern of the Canadian Bar Association, and I think that many Canadians believe that our particular criminal justice system includes perhaps more American-style jury questioning and examination than is actually the case, and perhaps that’s because we watch a lot of American television and movies. Could you tell us a little more about the CBA’s concerns about eliminating peremptory challenges, in particular with regard to potential harm to Indigenous and other racialized persons.
Mr. Paisana: Our submissions come from the very first principled basis that you are entitled to a jury of your peers, and “your” means the accused’s peers. As we have heard over and over again throughout these hearings, Indigenous people and other racialized communities are overrepresented in the criminal justice system. The idea that that individual, faced with a jury that does not look like a jury of their peers, could have no meaningful say in the composition of that jury is very problematic for us.
We do take the position that this peremptory challenge process gives such accused an opportunity to shape the jury so that it is more representative of their interests, of their community, of their cultural background and their experience, both in life and in the criminal justice system, to provide for a jury of their peers, not a jury of everyone’s peers.
Senator Batters: It also gives that opportunity without having to incur a significant expense and delay to the criminal trial process, which, of course, is a huge concern for us on this particular committee and for everyone in Canada, because we don’t want to see the criminal court delay crisis in Canada worsen at all.
Could you speak a bit, in the brief time we have left, about whether you share the concern then, as I do, that getting rid of this particular tool in the tool box for such accused would then lead to more delay because it will lead to more challenges for cause applications.
Mr. Paisana: I think that’s a necessary outcome for this amendment. You will see more challenges for cause. They are time consuming. They are very difficult to advance on behalf of the accused, so the results of those challenges will likely be fruitless in many cases.
In addition, you will note from the bill that they have proposed that the judge actually have some form of peremptory challenge themselves in the name of the administration of justice. What we envision, unfortunately, is all sorts of applications by accused persons to force the hand of the judge to exercise that power, resulting in voir dires or appeals where the judge refuses to do so and more delay, more applications where we already have a system where this sort of thing unfolds quite quickly.
Typically speaking, jury selection for a run-of-the-mill case will take perhaps an hour, because you can’t ask any questions on peremptory challenges. You run through jury pools quite quickly. Now, that’s not always the case with very large cases where there are challenges for cause but, generally speaking, it is a pretty fluid and efficient way of picking a jury.
Senator Batters: Thank you so much.
Senator Dalphond: Some comments were not made in your briefs about the hybrid offences. Many offences will be transformed from indictment to summary conviction or indictment at the choice of the Crown, what I will call the hybrid offences. I understand you didn’t comment about it because the Federation of Law Societies and the Canadian Bar Association are of the view that this is not a problem.
Mr. Cooper: Senator, it’s an important question you ask. There’s no question that, to the extent that you have offences which were previously subject to more significant maximum sentences of 5 or 10 years, as the case may be, when you allow the Crown to move forward by way of summary conviction. You’ve added, I believe, to the type of offences which an individual may deal with. Again, when a decision is made to proceed by way of summary conviction, then you move forward before the courts in a forum where you have a maximum penalty of 24 months less a day.
To the extent that articling students are involved in representation in relation to that category, which moves forward as a summary conviction offence, then they work under the supervision of lawyers and have shown that certainly in the offences that they have represented to be effective in that forum, and we have confidence with the supervision that they are subject to.
Senator Dalphond: But this is not really the sense of my question. Thank you.
Maybe the Canadian Bar Association could answer it.
Mr. Paisana: Yes. I have two points to make. One is that we support the hybridization of offences because we feel it gives greater flexibility to Crown counsel in the way they may proceed with charges, and it opens up a series of new sentencing options to cases where they were otherwise prohibited. In particular, the existence of the conditional sentence order becomes available when the offence becomes hybridized because the maximum penalty is reduced. We feel that is an important addition to the Criminal Code.
With respect to the problem of agents and the by-product and unintended consequences, what we say is we recognize the concerns of the law societies and support their position generally. One of the things that we’ve considered is whether or not this body should adopt a definition of the term “agent” so as to not include law students and articled students working under the supervision of lawyers. We think that might be a quick, elegant solution, or at least fills the gap in such a way that a schedule could be produced later when there is more time.
Someone asked for a particular language, and I was just sort of thinking it through. You could have something like, “For the purposes of section 802.1 ‘agent’ does not include a person under the supervision of a lawyer in good standing in Canada, who is a law student enrolled in an accredited law program at a Canadian university or an articled student approved of by a law society in Canada.”
That’s one example of how you might do it.
The Chair: Thank you, Mr. Paisana.
Senator Dalphond: The Federation of Law Societies referred to the need for uniformity, but isn’t the reality that there is no uniformity here? Paralegals are regulated in Ontario but nowhere else in Canada. Legal clinics can provide legal services only to the extent that the local bar authorizes it, and if they go beyond what is authorized by the local bar they will be sued by the local bar for illegal practice of the law. When you refer to the need for uniformity, aren’t you referring to something that does not really exist? Maybe the suggestion of the Canadian Bar is an interesting one that we can propose to your law society members to adopt a uniform definition?
Mr. Cooper: Honourable senator, I would like to defer and ask my colleague Ms. Wilson, Executive Director, Policy and Public Affairs to address your question.
The Chair: Ms. Wilson, could you make quick comments to the suggestion made by Senator Dalphond?
Ms. Wilson: Yes. I would say there’s less inconsistency than it might appear from the fact that law societies individually regulate the scope of practice of law students and articling students. In reality, in fact, there is a great deal of consistency in terms of what they are permitted to do.
In terms of the situation with Ontario paralegals, they are in a unique situation. It’s not that there is inconsistency but that it is the only jurisdiction in Canada which has licensed paralegals.
The Chair: I would like to draw the attention of honourable senators to an element of our report entitled Delaying Justice is Denying Justice in relation to a point raised by the honourable Senator Sinclair. I was going to throw it into the discussion when you raised it, senator, that unrepresented accused, according to a Department of Justice Canada report on the Legal Aid Program of 2012 states the following:
. . . recent studies, showing unrepresented accused are less likely than accused with counsel to be granted interim release, be acquitted, receive a stay of proceedings, or have chargeswithdrawn or dismissed.
In other words, not only are they slowing down the process, but the justice they receive at the end is not of the same quality as that of represented accused. This is a very important element, because it’s not only in relation to time but to equal measure of justice. Any accused in Canada should be entitled to the same measure of justice. It is a very important point that this committee should keep in mind when reviewing this bill in relation to the question raised by the Honourable Senator Sinclair.
Thank you very much for sharing your experience and wisdom with honourable senators, the public and our guests this morning.
We now have the privilege to receive, from the Criminal Lawyers’ Association, Mr. Daniel Brown. He is accompanied by Ms. Enenajor, who is also from the association; and from the Canadian Council of Criminal Defence Lawyers, a familiar contributor to our work, Mr. William Trudell. You’re very much welcome, Mr. Trudell and Mr. Brown.
Daniel Brown, Vice President, Criminal Lawyers’ Association: Good morning, Mr. Chair, and honourable senators.
I’m here today on behalf of the Criminal Lawyers’ Association, along with my colleague Ms. Enenajor, and I’ll be speaking in the limited time I have about the preliminary inquiry. I will offer some remarks on how preserving the preliminary inquiry for all indictable offences can help improve fairness and efficiency in the criminal justice system.
Ms. Enenajor will be prepared to address the committee on the proposed changes to the jury selection process and the increase of the maximum sentence for all summary conviction offences to two years less a day.
First and foremost, it’s important to understand that the preliminary inquiries can play multiple functions in a criminal case and may play a very different role depending on the type of case.
In some cases, as Senator Pratte was asking questions about yesterday, and we heard from Mr. Paisana this morning, the preliminary inquiry acts as an essential screening tool to weed out the weak cases from the justice system before a significant amount of time is spent resourcing and prosecuting those cases. This screening time can also reduce the amount of time an accused person unnecessarily spends in custody for something they didn’t do or can’t be proven in court.
It would be a mistake to think that we can take the time we allocate to a preliminary inquiry and replace it with a trial to ensure timely justice. Preliminary inquiries are much more abbreviated hearings than trials for a number of reasons.
First of all, a judge doesn’t make credibility findings at a preliminary inquiry and must accept the witnesses’ evidence at face value. Because of this, lawyers often focus the inquiry on questioning the most important witnesses or exploring the legal issues they believe will assist them at trial, instead of trying to prove a witness is lying.
This explains why statistics show that most preliminary inquiries are completed in a day or two, because they are focused on discrete issues intended to, in some cases, demonstrate constitutional violations or reveal the weaknesses in the prosecution’s case.
In contrast, presenting a criminal case at trial is far more complex and requires scheduling weeks, if not months, of trial time. It’s simply good policy to have a mechanism such as the preliminary inquiry in place to screen out weak cases before significant time and resources are expended on them.
A preliminary inquiry provides an opportunity to have fruitful resolution discussions as well. Prosecutors may appreciate the significant weaknesses in their case, or the defendant may see the case is insurmountable against them. Preliminary inquiries foster resolution of trial matters.
Now, there are some — and we have heard from those people — who will question the value of preliminary inquiries in light of expanded disclosure obligations placed on the police and Crown. However, disclosure cannot act as a substitute for the discovery function of a focused preliminary inquiry. While there is a constitutional right to disclosure, there is no constitutional guarantee to an exhaustively thorough police investigation.
There may simply be times when the witnesses refuse to speak to the police. Disclosure is only as good as the police officers investigating the allegations and the willingness of the witnesses to participate in that process. There is also no right to compel any Crown witness to speak with the defendant or the defence lawyers prior to a trial or for a witness to answer any of those questions honestly.
Preliminary inquiries also help ensure trials are accurately scheduled and stay on track. Late disclosure or the late discovery of relevant medical or psychiatric evidence can derail a trial and lead to a lengthy adjournment in order to investigate and secure this type of evidence.
It’s clear that the vast majority of preliminary inquires don’t contribute to delay or create inefficiencies in the justice system. So the real question becomes whether eliminating preliminary inquires for the most serious offences enhances fairness by protecting witnesses who may be required to testify twice. I know this is also a concern that Justice Minister Lametti was speaking about yesterday.
While there may be some occasions where the Crown attorneys wish to protect vulnerable witnesses, the Criminal Code already offers a complete tool box to address this concern without the need to eliminate preliminaries in all cases.
For example, the Crown attorney can apply for a direct indictment, which can take any case, regardless of the charge, immediately past the preliminary inquiry stage. Regardless, our Criminal Code also provides a whole host of other provisions that protect vulnerable witnesses, such as the right to give evidence behind a closed-circuit television or screen, for court-appointed lawyers to cross-examine vulnerable witnesses when a person is self-represented, publications bans, and there are many other tools to protect vulnerable witnesses.
A flexible approach to the preliminary inquiry, one that allows for the inquiry to be tailored to the case at hand, will much better meet the objectives of fairness and efficiency and allow the Crown and defence to both benefit from some of the many advantages a preliminary inquiry has to offer. This approach is obviously far superior to the wholesale elimination of the inquiry for most offences simply to protect vulnerable witnesses when other options already exist to achieve that goal.
I will make the following recommendations to the committee. The first is to maintain preliminary inquiries for all indictable offences. The second is to adopt reforms that allow the preliminary inquiry to be streamlined. We have already heard in this bill about some of those case management strategies included in clause 242 that will give greater controls over the preliminary inquiry. The last recommendation is to adopt reforms that would allow the preliminary inquiry to perhaps exist in a discovery function but offer the flexibility such as allowing, for example, where Crown and defence agree to have a preliminary inquiry, to seek permission from the judge for leave of the courts where it would be in the interests of justice to have a preliminary inquiry.
The Chair: For the benefit of viewers watching us, I will reintroduce Mr. William Trudell, Chair, Canadian Council of Criminal Defence Lawyers.
William Trudell, Chair, Canadian Council of Criminal Defence Lawyers: Honourable senators, t’s an honour to be here again. Someone asked me yesterday where I was going, and I said I was going to Ottawa to speak on Bill C-75. They said, “Isn’t that an out-of-control, speeding train?” I said, “No, I’m going to the Senate.”
Honourable senators will know that the Canadian Council of Criminal Defence Lawyers, which is over 25 years old, has frequently been a public and private supporter of the work of the Senate. We don’t look upon you as a chamber of sober second thought. We look at you as the essential gatekeepers who don’t have to be concerned about political initiatives and have a chance to really look at the wide X-rays of legislation that comes before you.
Mr. Chair, I heard you mention something in the last panel about 48 hours. The changes you are going to ask be made in this bill are historical and fundamental, and you must take time. There is absolutely no question that there are some very interesting and positive features of this bill. What they come from is collaboration and consultation, the increased role of judicial case management, restraint in bail and dealing with the administration of justice offences. All of those examples come from lots of consultation and collaboration throughout the country and with all the stakeholders.
But, with the greatest respect, there was no collaboration or consultation on ending pre-emptory challenges.
I heard mention in relation to preliminary hearings that the Honourable Minister of Justice talked about statistics. Those statistics are, with great respect, not reliable. The preliminary hearing has been talked about for years as getting in the way and causing delays.
Let’s go back historically. A talented judge sits there, and the test is so narrow that he or she doesn’t get to really be a judge. Why isn’t the test being changed? Why don’t we do that? Jordan is in the background of all the discussions here, but Jordan didn’t say to change fundamental parts of the criminal justice system. It said to look at complacency. Jordan is not affected. Delay is not affected by eliminating the preliminary hearing, because you will have disclosure motions in front of the high court. It will increase delay.
In my respectful submission, even though you might say we have been talking about preliminary hearings for years, there has not been enough real consultation about the effect of preliminary hearings. The suggestion that preliminary hearings are taking up all kinds of time and creating problems with Jordan doesn’t make sense right now. The complacency issue is being addressed across the country, but preliminary hearings are still in existence. The culture of complacency has been addressed all through the country by collaborative approaches, but the preliminary hearing is still in existence. It is an incredible tool.
I referred to the Senate as a body that X-rays. That’s what a preliminary hearing is. It’s the X-ray before an operation. When you are making these decisions about Bill C-75, I ask you to stop and look at the ones that maybe haven’t had the consultation.
I don’t want to make anyone upset, but let’s be frank: If the decision in the Stanley case had been a conviction, we would not be talking about pre-emptory challenges. Two weeks before that decision, I had the honour of testifying in the House of Commons on juries, looking after their mental health and gathering juries together. There were experts from all over the world about how to increase the representation. There was not one peep about pre-emptory challenges.
With respect, I say to you that the decision in this bill to get rid of pre-emptory challenge is not fact-based. It is not supported by the evidence. There was no consultation. It was a reaction to a decision in one case. I’m not suggesting that we don’t need to do something about jury panels, but you need, with great with respect, to stop, listen and gather the information from people right across the country, in the North, about the effect of getting rid of pre-emptory challenges.
I agree when my friend said that it’s going to increase the time it takes to choose juries and invites this bill to give more power, if I might say, to the judge. The judge should not have more power in the selection of juries.
So there are tremendous pieces of suggested changes in this legislation, and every one that we would support is because of extensive collaboration and study. But there are sections of this bill that have not been studied properly, and I hope you will take the time, because the changes you make here will be historical.
The Chair: Thank you, Mr. Trudell.
Senator Boisvenu: Good morning, everyone. Mr. Trudell, we would like more time to study this bill. However, we’re being urged to study it over a short period of time, which I find unfortunate.
I’m particularly concerned about what happens to victims of crime in the judicial process. With respect to preliminary inquiries, my views vary depending on the evidence heard. I had agreed with the elimination of preliminary inquiries, but I’m less and less in favour of it. For many victims of crime, the preliminary inquiry adds to the trauma that they’ve experienced, especially in cases of sexual assault and domestic violence. The preliminary inquiry is quickly incorporated into the judicial process, but the trial often takes place years later. At this point, we see that almost 50 per cent of women who have been sexually assaulted or abused will drop their complaints for a variety of reasons. However, the reason is often that they experience harassment between the preliminary inquiry and the trial. This is unfortunate, because only one in ten women report their abuser. If one in two women drop the legal proceedings, that’s a huge amount. In the end, only one in thirty men will be sentenced to prison in cases of sexual assault or domestic violence.
If we keep the preliminary inquiry, how can we improve the judicial process to minimize the trauma of victims so that they can preserve their energy throughout the proceedings, which are often too long? I don’t know whether my question is clear.
Mr. Brown: One of the things we’ve already seen is that once the ceilings had been set in the Jordan decision, there has a lot greater effort to move the cases through the court system more efficiently. We see that not just in the way the judges handle the cases; we see it in the way prosecutors and police handle the cases.
One of the concerns about cases taking too long to make their way through the court system is already being addressed simply by the ceilings that have been set in these very fixed ceilings.
We have concerns sometimes about vulnerable witnesses testifying on more than one occasion. I said that the Criminal Code already offers tools to address that. A direct indictment is something the Crown attorney can seek out when they have a vulnerable witness. They apply under section 571 of the Criminal Code to move a matter right to the trial stage.
The tools already exist. We don’t want a one-size-fits-all approach that says that in every case where preliminary inquiries used to exist, they no longer exist because we are concerned about one very small subset of vulnerable witnesses. We can address those on a case-by-case basis, and we can remember that the preliminary inquiry still plays that valuable role in all those other cases and can actually expedite them and bring resolutions to fruition much earlier than we would expect.
Senator Boisvenu: I was looking at you and I would like to know your point of view.
Mr. Trudell: We have come a long way in this country to protecting women and vulnerable witnesses. This is not a circus where witnesses come in and are attacked. That doesn’t happen anymore. Judges make sure that it doesn’t happen, and defence counsel who adopt that approach will go nowhere.
In the criminal justice system, we respect individuals. We just have jobs to do. But what’s happened in the last number of years is that there are a lot of witness and victim assistance programs. Nobody has talked about the money here — legal aid. Government needs to support more of these programs so that a witness understands that they’re not going into a gladiator’s arena; they are going into a court to have the opportunity to talk about what happened.
I’m not downplaying it, senator, but there is lots of anecdotal evidence that it’s traumatic for victims who have to testify twice. It’s traumatic for them. But we have come so far in this criminal justice system to make sure they are protected, to make sure questions are relevant and not to just abuse them again, which is what the phrase used to be.
The disclosure function of the preliminary hearing is sacrosanct. Right now, you have heard people talk about the discovery. In some areas of the country, there are discoveries where Crown and defence agree to just discover a witness. But if you get rid of the preliminary hearing, that’s gone, and there is no opportunity to ask questions and to find out the basis upon which the evidence is presented.
I challenge the Minister of Justice to produce statistics that show that preliminary hearings don’t save time in the high court, don’t save the expense of trials and that they are not effective. The Canadian Bar Association told you this morning, and they represent Crowns, too. This is a vehicle that is not being abused, but it has been inappropriately kicked around for years.
If you get rid of the preliminary hearing, in my respectful submission, it will be a lot more difficult for that victim who testifies at the trial. There will be a lot more areas explored. I would rather have that screening at the front end.
Sure, it happens. Sure, there are victims who are not treated properly. But I would say, after 45 years in the criminal justice system, that it is so rare now that it should not be a reason advanced for getting rid of a fundamental protection that is not being abused and is not causing the Jordan problem.
Senator Dupuis: Thank you for joining us today. I listened to you carefully. I sometimes have the impression that we don’t live in the same world, probably because I’m seeing all this from outside the criminal justice system.
Our committee heard a great deal of evidence when it studied the issue of delays in the criminal justice system. We heard that it’s a closed-loop system. People told us that things must change, including preliminary inquiries. These people were involved in the criminal justice system. I would like to turn the question around. You emphasize the advantages of the preliminary inquiry. From the perspective of victims, what’s the advantage of the preliminary inquiry?
Mr. Brown: There are a number of advantages from a complainant’s point of view. Sometimes a victim will testify at the preliminary inquiry and disappear. They are no longer available to come to trial sometimes. They are simply not available. And the evidence captured at the preliminary inquiry can be introduced as evidence at the trial even without the witness there to be cross-examined.
It’s sometimes a way to preserve evidence when you have it, when the witness is around, and that evidence can still be used later. It’s captured at a time when they are not necessarily in front of a jury and a full courtroom. It’s just in front of a judge, the Crown attorney and the defence lawyer.
Another advantage is that witnesses will often say that they come, they testify at the preliminary inquiry, and they get the jitters out. Now they understand that when they come for trial, they are better prepared. They know what to expect, the type of questioning, and they know what it’s like to sit in the witness box. They are a better witness at trial because they have had an opportunity to testify before.
Not that we are designing a system to make it better for the victim. What we want is a fair system that will address wrongful convictions and to ensure someone isn’t found guilty when they shouldn’t be. We want a fair system.
There are times when an accused person will listen to this witness testify at the preliminary inquiry and realize that they are a very credible witness, they are willing to come forward to court and testify, and the case won’t go to a trial.
There are a number of benefits. The preliminary inquiry doesn’t just serve one side or another. The Crown Attorneys Association, who gave evidence, that testified in your report on delaying justice, I went back and read what the Ontario Crown Attorneys Association said. They said that getting rid of preliminary inquiries will not solve the delay problem in the justice system.
I testified on this issue about six months ago before the House of Commons Standing Committee on Justice and Human Rights. There were also briefs submitted by the Alberta Crown Attorneys’ Association. When you read those reports, you would have thought we were in the same room together, drafting our submissions and them drafting theirs. It was almost verbatim. We were all saying that preliminary inquiries are a good thing universally. While the Minister of Justice can come and say that the provinces don’t want it, the front-line people — the defence lawyers and the Crown attorneys who are prosecuting and defending those cases every day — want it. It’s an essential feature of our system.
Mr. Trudell: A victim has alleged that she, for instance, has been assaulted. Our criminal justice system gives them an opportunity to be heard, to testify, to talk about the harm and what happened to them, and look for someone to be accountable.
It’s a magical system, but it is tough. It is tough to talk about the problems that you have gone through, but I hope that no one is suggesting that a victim can just say it and they are not going to be tested. That’s not the system we have. Because for the number of victims that could say, “I was abused, it was a terrible system and I wasn’t listened to,” we could produce statistics where victims were found to be unreliable, where victims were found to be motivated by something else. We have a system controlled by terrific judges and counsel who have responsibilities to the administration of justice. What I’m hearing is that people are poisoning that by suggesting that victims are suffering in these trials. You shouldn’t make a victim suffer twice. They shouldn’t have to testify twice. There are all kinds of restrictions on that. You give up an enormously important, fundamental aspect of criminal justice because of what? Anecdotal stories of bad cases.
When Minister McLellan was the Minister of Justice, there was a round table, and I remember her coming into the room and saying, “I’m hearing all kinds of anecdotal stuff about why the preliminaries are no good and all kinds of anecdotal stuff about why they are great. I’m not going to make changes until there is fundamental evidence here because it’s so important.”
The fundamental evidence still doesn’t exist. Preliminary hearings are not factors contributing to the Jordan situation, in many circumstances, because we still have them and they are working.
Senator Dupuis: Mr. Trudell, I’d like you to clarify one thing for me. You mentioned complacency in the system. Mr. Brown, you also talked about the fact that all kinds of methods are available right now, and that, for example, individuals can testify behind a veil. Elements in the system have been identified, and perhaps you can help me list them when you talk about complacency. There are elements of systemic discrimination against women. I’m not talking about a witness whose experience makes them unreliable. I’m talking about the systemic discrimination against women in the criminal justice system. If you can help me determine the areas of complacency, maybe we can reach common ground. In any case, I’d like you to help us identify these areas, because there are issues.
Mr. Trudell: I will give you one example. The national Steering Committee on Justice Efficiencies, the annual symposium on reinventing criminal justice, collaborative efforts for years, some especially led by Associate Chief Justice Pidgeon in Quebec talked about judicial case management. Historically a Crown would walk into a criminal pretrial and that Crown would not have ownership of the file. They would be there to tick off the box. The defence counsel cannot afford to be there because they are not being paid by legal aid, and they know nothing is going to happen. Then a judge would come in and tick off the box. This is what has happened now.
One of the best features of this bill is that it energizes judicial case management. Because now judges are doing case management who will roll up their sleeves and say, “Ladies and gentlemen, we have a court to worry about. I want to know how much time you are going to take. Do you really have a strong case, Crown? Mr. Trudell, you don’t have a defence, so let’s get going here.” There was so much complacency in that one aspect of criminal justice — the judicial pretrials. No one paid any attention to them.
That has changed as a result of Jordan. Just that. Complacency in terms of what comes into the criminal justice system. Front-end management right across the country has now been given new energy because of Jordan.
But Jordan was not a problem in every province. Ontario and Manitoba were pushing to get rid of the preliminary hearing because of Jordan problems.
Other provinces didn’t have a Jordan problem; so we changed the national Criminal Code because of situational events. But if you took some of these complacent practices and changed them, like proper case management in the front end, we will not have the delays.
But what you are talking about is taking something fundamental out of the criminal justice system, and there is no reliable evidence that it is contributing to the problem. We can do things better, but we cannot fundamentally change the Criminal Code as the solution.
The Chair: Thank you for that.
Senator Dalphond: Mr. Brown, I’m not sure if you are advocating for the status quo or for a change about preliminary inquiries. Before I put my question, I’ll give you some background.
We all agree that preliminary inquiries are not designed to test credibility of witnesses, especially Crown witnesses. This is not the purpose. The preliminary inquiry was set up at a time when the Crown had no obligation to communicate any information about its case. Nowadays the Crown has to communicate all the information in its possession which is relevant to the case, including the damaging evidence to the Crown’s case. This is quite a change.
We all know now that the criminal system is not as neutral as some people would like us to believe, and the way it operates, especially for victims of sexual assault, as my colleague Senator Boisvenu rightly pointed out, a preliminary inquiry is an ordeal to go through. We have seen some of the fallout in the press.
We all know that all the provincial and territorial governments have agreed that we should abolish preliminary inquiries. We know that the Supreme Court itself said that Parliament may wish to reconsider their value in the Jordan case. The Supreme Court said in paragraph 140 of its judgment:
And Parliament may wish to consider the value of preliminary inquiries in light of expanded disclosure obligations. Government will also need to consider whether the criminal justice system (and any initiatives aimed at reducing delay) is adequately resourced.
Preliminary inquiries have been singled out by the attorneys general across the country and by the Supreme Court as an area where improvements must be made. Are you still saying that the system is fine and that we should preserve the status quo?
Mr. Brown: No. I think Bill C-75 offers a lot of tools to make the preliminary inquiry more robust. It offers the ability for the preliminary inquiry judge to focus the preliminary inquiry. We saw similar amendments back in 2002 that allowed nonessential evidence to be presented at the preliminary inquiry. Statistics showed almost 20 per cent fewer preliminary inquiries, and 40 per cent fewer serious preliminary inquiries following those amendments.
What I’m saying is that we don’t need to abolish a procedural safeguard which has existed since the inception of our Criminal Code just to accomplish efficiency. What we can do is give the judges the ability to regulate and create more efficiencies. Bill C-75 does that already. It hybridizes a number of offences and says that these are offences that will no longer be prosecuted by indictment where you wouldn’t otherwise get the right to a preliminary inquiry anyway.
There will be fewer cases that would qualify for a preliminary inquiry because they will be hybridized. Already we can find efficiencies in the justice system without eliminating the safeguards. Yes, Justice Moldaver said in the Jordan decision to look at preliminary inquiries, but has anyone done that? Do we have statistics other than the statistics that say —
Senator Dalphond: Certainly he is an experienced lawyer and an experienced judge in criminal law.
Mr. Brown: Absolutely, but the statistics don’t suggest that preliminary inquiries cause delay, so we don’t want to remove something because Justice Moldaver said maybe we should look at that. Yes, we are looking at it now, and everyone is saying that it’s not the right way to solve this problem. There are better ways to solve this problem of delay.
Senator Dalphond: Would you agree with the Canadian Bar Association in its brief where it recommends that we limit access to preliminary inquiries to cases that are preserved according to some criteria, either by consent of both the Crown and the accused? Otherwise, if there is no consent, you go before a judge and the judge will apply some restrictive criteria to decide if a preliminary inquiry should be granted.
Mr. Brown: It wouldn’t be my preference, but as a compromise that may be the way to go. One would say to the judge that this particular case, where the investigation was less than stellar, where the police officers didn’t get an opportunity to interview these witnesses or this particular issue was never canvassed, this is the benefit of a preliminary inquiry here. Let us hear from these particular witnesses, let us discover them on this important issue because it could foster resolution or, more importantly, it could reveal challenges with the Crown attorney’s case.
I say it’s a halfway house and perhaps a compromise, but a robust preliminary inquiry is better than a permission requirement for one.
Senator Pratte: I want to follow up on Senator Dalphond’s questions. If we’re trying to look at solutions, the CBA proposes a way out. In leaving the discretion to the presiding judge, wouldn’t it be extremely difficult for the judge in each case to say no, looking at the complexity of this and the vulnerability of the victim and so no preliminary inquiry? Wouldn’t there be enormous pressure on the judge to allow preliminary hearings because the defence would ask for it? I’m wondering whether this potential solution is really a solution.
Mr. Brown: There are tools that already exist. Section 540(7) of the Criminal Code allows a Crown attorney at a preliminary inquiry to tender credible or trustworthy evidence. Sometimes they use this provision to essentially bypass having to call a vulnerable witness at a preliminary inquiry. The judge then gets to decide whether the defence has the right to question that witness or whether their evidence is presented on its own.
Already judges are faced with these decisions about whether to call vulnerable witnesses at a preliminary inquiry, and they seem to manage just fine. Yes, of course, judges are always balancing both sides of the coin, the vulnerability of the witness and the right to make answer full answer in defence, but it is something they are tasked with doing. That is why they get paid the big bucks, so to speak.
Senator Pratte: Would there be cases where both Crown and defence would agree to a preliminary inquiry?
Mr. Brown: I don’t think there will be many cases, but I think there are certainly a few cases where both sides will see a benefit to it. It’s also important to also maintain an independent criteria.
Senator Pratte: If it’s so evident to you and Mr. Trudell that preliminary inquiries are an essential feature of our criminal justice system even today, why is it — as Mr. Trudell said — that we’ve been playing political football with it for years? There are many people who also advocate for the disappearance of these preliminary hearings. Why?
Mr. Brown: Because of the false perception that there is a cost or time savings to it. I think it’s a false economy, because what you save on the front end you will pay back twice or three times on the back end. You will have longer, more complicated trials, trials that become derailed, time lost and over-resourcing those cases. Yes, you save in one space but then you pay it back somewhere else even more.
Mr. Trudell: I think you would find that Crown and defence agree more often that there should be a preliminary hearing or some discovery.
One of the complaints about preliminary inquiries historically has been: Imagine you were a judge sitting there as a referee but you can’t make any rulings or order disclosure. The test was so narrow. It was really a waste of judicial energy and talent.
Justice Moldaver didn’t say to get rid of it. He said maybe we should look at it. The Canadian Bar’s proposal is looking at it. Changing the test for committal is looking at it. What you’re doing here is what Justice Moldaver has suggested. If you’re a provincial court judge, you want to judge. If committal is not an issue — it has been a strain on judicial talent, but there have been calls on many occasions to change the test. You’re going to shift the disclosure applications and adjournments to the Superior Court trials.
I know that the Crown has an obligation to give disclosure. They give what they got, but that doesn’t mean that there cannot be and must be an opportunity to discover.
In civil cases there is discovery, and we’re talking about money at the end of the day. Here we’re talking about liberty, livelihoods, reputations and incarceration. Why would there not be discoveries? That’s what the preliminary hearing is in our system.
In my respectful submission, the Canadian Bar Association’s thoughtful approach is perhaps a response to what Justice Moldaver has said, and perhaps a response to what some provincial governments were complaining about.
Senator McIntyre: Thank you all for your presentations. In your view, what are the advantages and downfalls of the proposed reclassification of offences? Is the list of offences converted into hybrid offences in Bill C-75 appropriate? For example, should some offences be excluded from the list?
Mr. Trudell: Summary conviction offences are summary in name only. The time frame, the limitation period for laying the charge has been extended. The penalty provision has been extended. In my respectful submission, they are provisions that haven’t been thought out.
I echo some of the concerns of the previous panel. There will be so many people in this country who will not have lawyers or legal representation, and there’s no money coming down from the federal government to address some of these changes.
I think that it is a fundamental change, sir. It’s done, really, as a result of a suggestion of delay, because cases will be opted to be prosecuted by summary conviction.
I’m very concerned about it. I think there ought to be some that are carved out, and I see delays and unrepresented litigants and accused persons, as a result of this increased hybridization.
Senator McIntyre: My second question has to do with audio or video conferencing. The bill proposes that provisions allowing the accused, the judge and participants to appear at or participate in proceedings remotely by audio or video conference be added to the code.
In your view, will the right of the accused to cross-examine the witnesses be fully safeguarded if the judge permits the witness to testify remotely by audio or video conference?
Mr. Trudell: This was extensive work by the national Steering Committee on Justice Efficiencies and Access to the Justice System. You always have the right to protect the accused. The judge can make that decision, but it’s one of the positive features built upon collaboration from all stakeholders that is a good provision in this bill, especially with remote appearances where judges have to go to a community. An accused may be over here and the police are over there. It addresses the geographical problem in criminal justice, but the preservation of an accused’s right is something a judge should always be able to rule on.
Annamaria Enenajor, Committee Member, Criminal Lawyers Association: The primary concern about the hybridization of offences from the perspective of the Criminal Lawyers Association is that, in effect, it downloads further cases onto the provincial courts of justice.
The issue with that is it was intended to relieve the higher courts of the function of dealing with some of these cases so that they could deal with more serious offences, but it was undertaken without any assessment or study of the capacity of provincial courts to undertake a larger number of cases.
The concern we have with respect to that is it will overburden an already burdened provincial court system and that it is not necessarily the right approach, given that there has been no extensive study done about capacity and how capacity can be built in provincial courts.
Senator McIntyre: As I understand, it did not look at it each offence separately, but took a block approach.
Ms. Enenajor: Yes, on the basis of available sentences.
Senator Lankin: I’ll direct my comments and questions to Mr. Trudell. I appreciate all of you being here and your presentations today.
I want to talk about the issue of peremptory challenges and focus in on that. I have to say that you made a number of strong statements that I reacted to very strongly. This is not the forum to enter into debate.
With respect to your comment on the Stanley decision when you suggested that we be frank: had there been a conviction, this wouldn’t be in the bill. I personally find that a problematic perspective. I think there have been years of examination and study, particularly with respect to Indigenous peoples and the role peremptory challenges has taken. I completely disagree with you that we have moved miles and miles. We’ve moved, but we haven’t moved miles and miles and there’s a long road ahead.
I believe, as you said, that we need an evidentiary base to things, and there have been many learned writings about this and people who have examined it. As you said, for example, you can give many cases where women have been found to be unreliable in their testimony as victims. As many times as there are wrongful convictions, there are probably wrongful assessments of that, too. I would suggest what you provided is anecdotal and not evidence-based, either.
Senator Sinclair is here, who is one of the authors who has written about peremptory challenges from a range of perspectives. It seems to me that we need to understand how we benefit in the system from peremptory challenges, and evidence if you can provide it. Why should that continue in the face of a body of anecdotes, which I believe is lived experience and should count for something.
I want to say one last thing with respect to your comment that had the Stanley decision gone elsewhere, this wouldn’t be an issue. I might point out to you that we had the first Indigenous woman Attorney General, and her body of experience and knowledge around this might equally have borne some weight with respect to the examination of these issues, and that in our political system that is entirely appropriate.
From your perspective, anecdotally or with evidence, why should peremptory challenges be allowed to continue?
Mr. Trudell: Let’s just take the Stanley decision. You have your view, and you are the senators. I have another view.
It should, then, have led to collaborative study. Has anyone talked to those who practise in the North in terms of a very small community where people are all related to each other? The peremptory challenge helps without getting into the questions of challenge for cause.
Senator Lankin, it may very well be that some of the writings that have taken place in relation to peremptory challenges are directed into a more responsible, wider jury panel and could have led to consultation and study. That’s all we’re saying.
Look at the report on delay that you did and all the work. Hold on on this provision. Find out whether, and not just anecdotally, but in an evidence-based manner, the peremptory challenge is important or whether it’s a waste of time by reaching beyond the big cities to some of the smaller communities.
I must tell you that it was the verdict. Those words came out, “the verdict,” and then you heard what happened after. It was time to look at it. It was time to ask the House of Commons committee to look at juries and peremptory challenge. That’s all I’m saying. We come back here and it has been looked at, and after the study has been done, if you decide it’s not worth it, then get rid of it, but it hasn’t been done yet.
Senator Batters: I was out of the room for the portion of the time when you were speaking about the Stanley verdict, but I came back in as you started to speak about the peremptory challenges. Mr. Trudell, I absolutely agree with your concerns about eliminating peremptory challenges. My home province is Saskatchewan, and I’ve been a practising lawyer there for 25 years. I’ve heard these same concerns, not only from defence counsel who represent many Indigenous accused in jury trials, but also from prosecutors and judges in Saskatchewan.
I would like you to explain to us how eliminating peremptory challenges will increase criminal court delays and how criminal defence lawyers like you will likely proceed if this change is made — if your clients are able to afford it, that is.
Ms. Enenajor: With respect to how eliminating peremptory challenges might contribute to delay, first I want to backtrack a little bit and talk about our perspective on this issue.
People of Indigenous descent in Canada, as well as racialized Canadians, are overrepresented as accused in our criminal justice system and underrepresented in jury pools.
There is a very limited mechanism for criminal defence lawyers where their client is an Indigenous or a racialized person. There is really no mechanism by which we can ensure that there is representativeness from their community on the jury. The peremptory challenges have been the only tool available for us to do that, to get to the only one, two or three members of the jury pool who might be of Indigenous or racialized background such that our client has members from their community on the jury. That is an important aspect of the use of peremptory challenges from the perspective of defence counsel representing vulnerable, marginalized and Indigenous people.
With respect to the delay, what this bill proposes is the elimination of peremptory challenges, which is a quick and efficient way that doesn’t require an application process in order to select jurors who are more representative of our client. But it also replaces it with a system that downloads a lot of that power onto judges.
Where judges make those decisions, they are longer, require applications and are subject to appeal. Appeals can be extraordinarily catastrophic or burdensome to the justice system in cases of serious offences that go to the jury. Oftentimes jury trials are months long, and where there is an appeal on the basis of improper jury selection or instruction, that entire verdict can be invalidated and has to go back for retrial. It then burdens the system twice with an additional trial that can be months long as well.
So there is that additional delay by shifting what is now an easy, quick process to a judge, to one that is more vulnerable to review and likely to be lengthier.
Senator Batters: Thank you very much.
The Chair: Thank you very much, senator, for your intervention. It was short and to the point.
It’s my pleasure to thank you all, Mr. Brown and Ms. Enenajor on behalf of the Criminal Lawyers’ Association, and Mr. William Trudell for the Canadian Council of Criminal Defence Lawyers. Your contributions have been most helpful to our reflection.
Mr. Trudell: May I leave you with a very quick story? At a recent symposium on Indigenous justice, a respected elder told this story. On weekends, in his family, one of the children would go over and stay with their grandparents. It was his weekend. In the middle of the night there was a knock on the door and it was a young boy on the reserve, and he said, “My father is beating my mother. You must come.”
And the grandfather told his grandson to get the horses ready to go. His wife was brought down, and they went over to the house. The beating was ongoing. The woman took the spouse who was being beaten, told her that she did not have to put up with it and took her home. The man, the elder and the grandfather, said “We’re putting you to bed, and we’ll be back in the morning,” because he was so drunk.
They went back in the morning, and they confronted him with what he did. Fast forward, and this is what happened: The women gathered and they spoke to the abused wife and told her that the community was there for her and she did not have to put up with it. There was a healing ceremony over dinner, and the family went back together and there was never a problem again.
And the elder and the grandfather said to the man, “You must not do this, and we will drop in on you to make sure that you’re not doing it. It has never been a problem before.”
Senator Lankin: That’s a powerful anecdote.
Mr. Trudell: Let me just leave you with this. Let’s say the police had been called. What would have happened? We know what would have happened: detention, prosecution, separation and jail. We have so much to learn from different approaches to criminal justice like that. It was so powerful and shook the room, just as an example of how separating these people from their community doesn’t solve the issue.
The Chair: Thank you.
I welcome our next witnesses. From the Canadian Police Association, Mr. Tom Stamatakis, President; and from the Canadian Association of Chiefs of Police, Mr. Dale Weidman and Ms. Rachel Huntsman.
You will understand that we are under a time frame, because the bell will start ringing soon.
Tom Stamatakis, President, Canadian Police Association: Good afternoon Mr. Chair and honourable senators. Thank you for inviting me to appear before you today as you continue your study of Bill C-75.
As many of you know, I’m here on behalf of the Canadian Police Association, an organization that represents over 60,000 front line civilian and sworn police personnel. We’re the largest policing advocacy organization in the country, with members serving in agencies from coast to coast to coast right across Canada.
It’s extremely difficult to make an opening statement regarding a bill that is as wide ranging as Bill C-75 in only five minutes, so I’d like to focus my comments on two particular areas of the legislation and then leave time for your questions.
First and foremost, our organization wholeheartedly supports the principle behind Bill C-75. Reducing the delays currently found within the judicial system needs to be a priority for all stakeholders and levels of government. Since the Jordan decision, I can’t begin to properly express the frustration that I’ve heard from our members who have seen serious and, in some cases, dangerous offenders who have been set free due to the courts missing key deadlines. These investigations are almost always extremely complex and time consuming, and watching that time and effort discarded due to time constraints is an end result that is definitely not in the best interests of our police services, but especially not in the interests of the broader goal of community safety.
That said, the first area of concern I’d like to address is in regard to the amendments that were made to this legislation during the committee study by members of the House of Commons.
The Chair: Mr. Stamatakis, the translator cannot follow you.
Mr. Stamatakis: I was trying to be mindful of the time, but I can slow down. As you are all well aware, the house committee, based on testimony from a number of criminal defence attorneys, removed provisions in the legislation that would have streamlined the process that allows police officers to provide evidence during criminal trials.
While I am, to a certain degree, sympathetic to the concerns raised by defence counsel and I would never wish to suggest any changes that would materially impact on an accused’s right to a fair trial, I believe the removal of these provisions was short-sighted.
Members of this committee will no doubt be aware of the shortage of resources facing our country’s police services. Investigations, as I mentioned earlier, are increasingly time-consuming and complex, and our officers are consistently being asked to do more with less. It is a testament to their professionalism that they continue to produce extraordinary results even under these conditions. That said, one the biggest drains on police resources is the amount of time our officers spend in and, more often, sitting outside of court. The original version of Bill C-75 before amendments at committee recognized this crunch and made an effort to alleviate some of that strain.
While there is no doubt that we need to make every effort to respect the rights of the accused, some common sense changes to streamline the process, particularly in cases where the evidence being presented by police is non-controversial, would have been a tremendous relief to our members and the criminal justice system in general. I would suggest that honourable senators on this committee may wish to consider amendments to Bill C-75 to return some of those original provisions.
The second area of concern is around mandatory minimum sentences. I believe Bill C-75, as an omnibus bill, missed a significant opportunity to fix a common sense mistake that exists in sentencing. Police officers are, appropriately, subject to the most rigorous oversight regime of any profession in Canada. While incidents involving the use of force are extremely rare — less than 1 per cent of interactions, according to Canadian statistics — there are occasionally cases where police personnel have been held accountable for what courts have deemed unlawful uses of force.
Sections 220 and 236 of the Criminal Code of Canada provide for mandatory minimum sentences of four years when an individual is convicted of manslaughter or criminal negligence causing death where a firearm has been used in the commission of the offence. While the original goal of these minimum sentences was to act as a deterrent with respect to the proliferation of firearms, unfortunately these minimum sentences failed to take into account the unique nature of the duties of police personnel who are required to carry a firearm as part of their regular uniform and can deploy that firearm as part of the recognized use-of-force continuum.
I would like to take this opportunity today to ask you to consider further amendments to Bill C-75, particularly to the framework with respect to sections 220 and 236 of the Criminal Code of Canada. It should be recognized that police personnel are authorized, and at times required, to use their firearms in the course of their duties and officers should be exempt from the mandatory minimum sentences prescribed in the current Criminal Code of Canada. The judiciary should be given the discretion to recognize that even in circumstances where police officers are being held accountable, the officers themselves may have been acting in good faith as they discharge their duties.
Obviously, we are not looking to weaken oversight and accountability for police personnel, but seek only to return some discretion to the judiciary with respect to sentencing on these matters.
Once again, I thank you for the invitation today. I always enjoy appearing before you, and I look forward to any questions you might have.
The Chair: Thank you very much, Mr. Stamatakis.
It’s my pleasure now to welcome Mr. Weidman.
Dale Weidman, Inspector, Canadian Association of Chiefs of Police: Good afternoon, distinguished members of this committee. On behalf of Chief Constable Adam Palmer, the President of the Canadian Association of Chiefs of Police, we are pleased to be given this opportunity to meet with you today. I’m here with Rachel Huntsman, Legal Counsel with the Royal Newfoundland Constabulary.
We are here today representing the CACP, and we want to discuss two reclassifications of offences and the judicial referral hearing — two amendments that we believe have unintended consequences that will adversely affect the collection of DNA samples into the national DNA data bank and the fingerprinting of persons charged with criminal offences.
First, I’d like to briefly mention the importance of submissions of DNA samples into the DNA data bank to police investigations. These samples identify suspects, exonerate the innocent, link crime scenes and help determine whether a serial offender is involved.
How will DNA collection be impacted by the reclassification of offences? Bill C-75 proposes to reclassify 118 indictable offences from straight indictable to hybrid offences. For 74 of these 118 indictable offences, the convicted offender can be ordered to provide a DNA sample for submission to the national DNA data bank, but only if the charges were preceded by indictment.
The submissions for these 74 indictable offences have assisted law enforcement by matching DNA profiles from known offenders. Over the last 10 years — and the numbers are significant — the DNA data bank has received 9,368 submissions for these offences, which led to 610 matches being made to a DNA profile. Of these matches, 17 were for homicides and 21 for sexual assaults.
If these offences were reclassified and the Crown elects to proceed summarily, the offences are no longer eligible for DNA collection from the convicted offender. Our position is that it is not in the public interest to remove these 74 offences from possible inclusion into the DNA data bank.
We feel that the solution to this problem is quite simple: If these 74 offences are reclassified, there should be an amendment to the Criminal Code that will list them as primary or secondary offences. This amendment will permit a DNA order to be made regardless of the Crown’s election to proceed by indictment or summary conviction.
Rachel Huntsman, Legal Counsel, Canadian Association of Chiefs of Police: The reclassification of offences under Bill C-75 will also impact the police’s ability to fingerprint and photograph persons charged with criminal offences. The Identification of Criminals Act provides that fingerprints and photographs may be taken from a person who is in lawful custody, charged with or convicted of an indictable offence. This section places two conditions on the police: First, the information must be sworn before fingerprints are taken; second, charges must proceed by indictment.
The reality facing police is many offenders are not being fingerprinted. This problem is getting worse as more offences are being reclassified.
Offenders who are arrested and held for a bail hearing must be fingerprinted between the time the information is sworn and the first appearance in court. Since there can be delays in swearing the information, especially in charge-approval provinces, it is often not possible for the police to fingerprint the offender within this narrow window of opportunity. The police also face problems with persons who are given a date to appear for fingerprinting but fail to appear.
It is vitally important that persons charged with criminal offences are fingerprinted. Fingerprinting permits outstanding charges, convictions and arrest warrants to be accessible to the police through the Canadian Police Information Centre, or CPIC. From this perspective, not fingerprinting a person undermines the administration of justice, as it provides an incomplete picture of whom it is the police are dealing with.
We believe that this is the time to fix this problem. We propose an amendment to the Identification of Criminals Act to allow for fingerprinting upon arrest, with proper safeguards in place such as destroying fingerprints of persons who are not charged — so they may be arrested but, for instance, in the charge approval provinces they may not be charged — or only permitting fingerprints taken before arrest to be used for identification purposes. The second option would be to amend the Identification of Criminals Act to allow fingerprinting for all Criminal Code offences or, at the very least, to allow fingerprinting, notwithstanding the Crown’s election to proceed summarily.
It’s also our position that referring offenders to the judicial referral hearing will impact fingerprinting and DNA collection. When an offender is referred to a judicial referral hearing, this will be for a section 145 offence. That will be either a failure to appear or a breach of an undertaking. When someone is referred to this hearing, there is no charge that is laid, so no fingerprints are taken.
Also, regardless as to whether you refer to these as simply being administration-of-justice offences, the fact remains that they are a breach of a bail condition. When a police officer has someone under arrest and they have to make that vitally important decision as to whether that person will be arrested or held, breaches of bail are red flags to the police. They want to know whether someone has a history of breaching section 145 offences, which this bill is referring to as administration-of-justice offences.
Second, with no fingerprinting, we have no record of who has been referred to the judicial referral hearing. Has this person been referred once, twice or twenty times? The police will have no way of knowing, especially as an offender may move from one jurisdiction to another.
We are asking this committee to take a good look at the impact that reclassification of offences and the judicial referral hearing will have on both fingerprinting and DNA collection.
Mr. Weidman: On behalf of the CACP, we would like to thank you and everybody who has contributed to this bill and the debate that has occurred and is continuing. Overall, the CACP is pleased with the improvements being recommended. We are hopeful that the areas of concern we have mentioned today and in our written response will be given some consideration to minimize the adverse effects that this bill might have on policing and public safety.
Thank you for your time, and we are happy to take any questions.
The Chair: Thank you, Mr. Weidman. We have 20 minutes before we will have to go to the chamber.
Senator Boisvenu: I regret very much that we have only 20 minutes for our witnesses. I want to welcome all of you.
I’m very concerned about the fact that people will commit serious crimes and that we won’t have the opportunity to put those people on file. I’m also worried about the fact that a number of these crimes may be repeated in other provinces. I’m thinking of child abduction, which could become a summary offence. This means that the people may not be put on file. That’s what I understand. The notion of a hybrid offence ensures that, instead of dealing with the criminal case, we’ll proceed by summary conviction, without a trial. Today, however, fingerprints are taken when charges are laid.
Ms. Huntsman: Today, fingerprints are taken under the authority of the Identification of Criminals Act. This act states that fingerprints are taken when a person is in lawful custody, charged with or convicted of an indictable offence. So when you have someone charged with a straight indictable offence, then that person can be fingerprinted after the information is sworn and as well after the person appears in court.
However, when an offence is reclassified, and so we take the offence that you have mentioned, the Crown then has obviously the option of proceeding by summary conviction. And so if the fingerprints are not taken before the person’s first appearance in court and the Crown then elects to proceed summarily, that means the offender can no longer be fingerprinted because the charge is not being prosecuted by indictment. The hybrid offence loses its identity as an indictable offence once the Crown makes its election. You are right that with reclassification there will be the possibility or maybe the probability that we will lose out on fingerprinting offenders who are charged with serious criminal code offences.
Senator Dupuis: I’d like to continue along the same lines as Senator Boisvenu. Am I to understand that one of your proposed solutions is on page 3 of your brief, where it says in the last paragraph at the bottom of the page that these offences could be listed as primary or secondary offences, which may resolve the issue that you’re raising this morning? Is that correct?
Ms. Huntsman: Yes, that is correct. It is such a simple solution. We think this was an unintended consequence to the reclassification aspect of this bill.
As my colleague has said, there are a number of offences that have been caught up within this. I think there were 74, in fact. All you need to do is take these offences and list them in the code as primary or secondary offences. It’s so simple, and then there is no problem.
Senator Dupuis: I have a question for Mr. Stamatakis. By the way, I want to say hello to you, because I’ve seen you a number of times by video conference. Welcome to Ottawa. Thank you for agreeing to appear before the committee.
Do you support the Association of Chiefs of Police’s proposal regarding the issue of fingerprinting?
Mr. Stamatakis: Yes, I would support that.
Senator Dupuis: Thank you.
Senator Lankin: In the interest of the time, I want to say that I agree with the concerns that you have raised. I share those concerns.
Have you had conversations with the minister, the minister’s office, and pursued the possibility of their support for friendly amendments to this bill? It may be an expeditious route to go at a time when I believe our date for reporting on this bill agreed to by leadership in the Senate is next week, and there are a lot of issues before us. If you haven’t, I would urge you to do that.
Mr. Weidman: We haven’t had the opportunity to do that. We’ll try.
Senator McIntyre: Thank you all for your presentations. First of all, I share your concerns regarding the reclassification of offences and the judicial referral hearing, which will both have an impact on DNA collection and the identification of offenders. I also share Senator Lankin’s view of seeking a friendly amendment on this bill regarding this issue.
I have two short questions. First of all, it has to do with the Youth Criminal Justice Act. Under Bill C-75, the Attorney General would no longer be required to determine whether to seek an order that the youth be liable to an adult sentence in cases where the offence is a serious, violent offence when the youth committed the offence after reaching the age of 14. What will be the impact of this change?
My other question also has to do with the Youth Criminal Justice Act. The bill removes the option of lifting the ban on publishing the name of an adolescent young person who is not subject to an adult sentence. Do you agree with that change?
Ms. Huntsman: I’m sorry, can you just repeat your first question?
Senator McIntyre: The youth being liable to an adult sentence.
Ms. Huntsman: I’m not totally prepared to address the issues pertaining to the YCJA. It’s difficult for me to speak on behalf of the CACP with respect to this issue.
Senator McIntyre: Maybe Mr. Stamatakis could answer.
Mr. Stamatakis: I think the main frustration is from the victim’s perspective who are victimized by youth who commit, in some cases, very serious crimes and what impact it has on them. And then there is the broader public safety perspective of not knowing who has committed these serious offences and how they have occurred.
Having said that, I qualify my response a little bit because we are dealing with youth, and typically when you look at sentencing provisions and how sentences are imposed, these are offences that occur when people are young. Our criminal justice system is based on the principle of rehabilitation, giving people a chance to reform and become contributing members of society. These are concerns we hear from victims we deal with on a day to day basis.
Senator Dalphond: Following up on this question, we are going to do some hybridization on what is being proposed, a long list of offences. You have outlined some unintended consequences you are asking us to fix. At the end of the brief from the chiefs it says, “Overall, we are pleased with the improvements recommended.”
So I understand that for you the hybridization as such, making hybrid offences of all these things that were so far indictable offences to this point, is not really a problem.
You were in the field and you have conducted investigations. We have received letters from groups of people sending the message that going hybrid instead of indictable offence will only complicate police work and victims will no longer come to the police, they will be scared and these people will be released earlier back on the street.
They say this will harm police work. Is that your perception?
Mr. Weidman: I don’t believe so, no. When we look at the devil in the details, many of these hybrid offences still have potential for severe penalties, like up to five or ten years. We also have summary conviction offences where the maximum sentence has increased up to two years less a day.
From a police perspective — the policeman on the road, if you will — this kind of thing doesn’t impact them. They treat an aggravated assault is indictable, and it’s still indictable. They will still treat it the same way. A common assault is a hybrid, and they are still going to treat it the same way.
In short, the actual hybridization of offences will have very little impact. I don’t see victims thinking it through that much that it will make them reluctant to come to the police. I’m using assault as the example. If they have been assaulted, they will report it to the police one way or the other. Any changes of penalty from indictable to dual will not change their minds.
Ms. Huntsman: We would trust the Crown to make the correct election. You have an offence that is now straight indictable. It’s going to be reclassified. I have complete faith that the Crown will elect to proceed, looking at the facts and who the offender is.
I think we have to look at the victim as well. It would be a travesty to unnecessarily drag a victim through possibly a Supreme Court judge and jury trial when the Crown could take this, elect to proceed summarily and you could have a trial in the provincial court. I know in the province of Newfoundland and Labrador that maybe within four months you could have your trial. I think that services the victim.
Mr. Weidman: Overall, we are happy with this bill because, as people have written, it attempts to modernize the system and address Jordan and make it more streamlined and efficient.
From the police’s point of view, if we can get to justice — and I realize that’s a big word — quicker, then that’s better for the victims.
Senator Dalphond: I assume those in the rank and file share the same perspective?
Mr. Stamatakis: I do. I agree with the comments that were made. People who are victimized, in my experience, report it to the police. They want somebody to do something, and I don’t think they are going to be discouraged by these changes.
The Chair: Thank you very much. On behalf of my colleagues it’s my privilege to thank you all. You have been very effective in identifying the unintended consequences you want this committee to address.
I think sometimes it’s not the longest speech that is the most effective; it’s the speech that explains in a nutshell what you are looking for. It is very sensible, and I think members of this committee will take that into account.
Thank you so much, Mr. Stamatakis, Mr. Weidman and Ms. Huntsman.
(The committee adjourned.)