This is my first time having the pleasure of appearing before this committee. I have to give some comments on or insight into at least some of the legislated changes contemplated by Bill .
As a general prelude, I operate a general practice, but most of my work is as a criminal defence lawyer, mainly in small towns in rural Nova Scotia. One would surmise that even though the Criminal Code and the other related statutes that we all deal with are national and apply or should apply uniformly throughout the country, there clearly are differences in the manner in which the criminal laws are adjudicated upon. I am certain that other criminal defence lawyers here will echo my comments, not only from province to province, but even in different regions in each province.
The reason I referred to this is that part of the bill allows for the exercise of more discretion by Crowns as to the operation of preliminary inquiries, hybridizing more or most of the offences in the Criminal Code, and certain other things. My point today is not to mount an attack on Crown attorneys just because I'm a criminal defence lawyer. Rather, I propose to offer some general comments and some concepts that may have gone by the wayside. I'm certain a lot of this is going to be redundant or repetitive to what my colleagues will say here.
We've all read a lot of literature not only about Bill , but also about many other suggested bills and amendments to the code, and this could be parliamentarians, legal scholars, newspaper reporters, Crown attorneys, defence lawyers, or members of the public. All this is under what I'll refer to as the rubric of making Canadians feel safer—I've seen the words “public safety” and “national security”.
Obviously we all want that, but I think it's important that we not lose sight of some of the most important concepts of criminal law that we at least used to take for granted, and I hope we still do: namely, the presumption of innocence and the concept of proof beyond a reasonable doubt. I know I'm speaking of a given here, or what's supposed to be a given, but I sometimes wonder, with the utmost respect, with respect to some of the amendments or proposed amendments, whether the pendulum is swinging way too far the other way.
People can never really truly appreciate the safeguards and high standards of our system until they or a loved one is facing a criminal charge. I find it amazing when I am representing a police officer now, or a Crown, or a judge, or a family member of one of those persons, how people start carrying the torch for these safeguards if a family member or a friend is in the unfortunate position of facing a serious criminal charge.
At the risk, once again, of being redundant or repetitive, I'm going to speak briefly about some of the preliminary inquiry amendments and some of the purported reasons or justifications for the reduction or elimination of preliminary inquiries that I respectfully submit are just simply not borne out by the statistics. I won't refer to the statistics specifically. We talk about the number of matters that go to preliminary inquiries and so on. We talk about saving victims or not revictimizing victims by having them testify more than once. We talk about trial efficiency and efficacy, and the 2016 decision of the Supreme Court in Jordan. In actuality, I submit that Jordan was to a large extent a reaffirmation of what courts have been telling us or trying to tell us for a long time.
Paragraph 11(b) of the charter was enacted in excess of 36 years ago, in April 1982. It was not meant to be mere window dressing, so the actors or participants—i.e., the Crown, the defence, the police and the judges—have been told to get their act together.
The preliminary inquiry serves a unique and instrumental purpose in the system, not just for the defence but—it's important and I'm going to emphasize this—for the Crown. It allows both the Crown and the defence to test witnesses as to their actual observations and recollection of events that happened in the past. It permits both the Crown and the defence to identify often crucial issues that may not otherwise be noticed in the disclosure: i.e., the RCMP reports, statements and so on provided by the parties.
It allows both the Crown and the defence to see not only what somebody says in a written statement, but how they say it: the nuances, the body motions and the inflection of the voices. To use a blatant example, if someone is asked if they consented to sexual relations, a transcript might show them saying, “No”, when it's either “No!” or “Um...no.” On paper, they look the same. These are but small examples of just how much benefit can be provided not only to the defence or the accused but also to the Crown.
In my experience, preliminary inquiries result not only in a committal to trial, but often in a weeding out of cases that should not be proceeded with, either by having the Crown withdraw the charges or, certainly more so, by having a resolution of charges after both the Crown and the defence have had an opportunity to have a true view—one might say, a dry run—as to what the case consists of. They're incredibly helpful, not only to the accused, but to the Crown and ultimately to our system, by cutting down on delays and costs, at least in my experience, not just in rural Nova Scotia, but in a lot of other areas. I'm in Halifax virtually every week, and I find the same up there.
I'm just coincidentally involved in two very serious cases, one of which, last week, was dangerous driving causing death. A day-long preliminary inquiry probably saved us a trial of a week and a half because the case was resolved. I realize you can't look at one case and use that as the cornerstone, but I think it's important to highlight that, because I'm certain all of us could speak from similar examples in our experience.
A lot of this has already been addressed by Parliament by reducing the time in preliminary inquiries by enacting section 540 and related sections of the code. The Jordan timelines, I note, allow for another year for indictable offences.
There are other things here, but at the end, what I have left is certainly the most crucial aspect of what I propose to comment on today. I prefaced my remarks earlier by referring to the hallmarks, the cornerstones, if you will, of our criminal justice system: the presumption of innocence and the concept of proof beyond a reasonable doubt.
In my view, removing a procedural safeguard such as preliminary inquiries will almost certainly lead, at least indirectly if not directly, to more wrongful convictions. Canada, in my respectful view, has a criminal justice system that, although not perfect, is likely among the best, if not the best, on this planet.
Having said that, we have skeletons in our closets, the Donald Marshall Juniors of Nova Scotia and the Guy Paul Morins, to name but two people who have gone into infamy because of serving lengthy periods of incarceration for crimes they did not commit. That time cannot be given back to them. This is irreparable.
The system was not good previously. I look at the rape shield laws, where there was an open season on alleged victims before, and the pendulum swings. I think it's important to remember that the pendulum should not swing too far the other way. We should not allow legislation to be passed that could have the direct effect of leading to more, perhaps many more, Donald Marshall Juniors.
There's a mention of the need for robust initiatives, transparency and a culture shift by all, but we should not and cannot erode, undermine or sacrifice these benchmarks of our criminal justice system at the altar of public safety and\or national security.
Thank you very much.
Thank you, Mr. Chair and honourable members. We're glad to be here and to be invited to speak to the work of this very important committee.
Really, we appear today on behalf of the 1,400 members who are part of our organization, which includes criminal defence lawyers and also academics in Ontario and otherwise. We hope to persuade you to consider making recommendations to amend the bill as it currently exists and to also consider suggesting that aspects of the bill not be passed at all.
By way of introduction, we have been critical of the bill, but there are many aspects of the bill that we think are laudable and heading in the right direction, aspects that you've heard about from other witnesses, such as amending the proposed bail provisions; the concept of judicial referral hearings; giving the discretion to judges not to impose the victim fine surcharge; increased case management powers; and, finally, bringing criminal justice into the century that we practice in by taking advantage of video conferencing. Obviously, these are all positive things that will assist in the orderly, timely administration of criminal justice throughout Canada, but there are aspects of the bill that we find particularly troubling.
We have outlined those submissions in the paper we've provided you in advance. Many other people will speak to many of the things we've outlined, but today, in the brief time we have, the 10 minutes before we are asked specific questions, we would like to talk about the proposed jury selection amendments.
Again, we want to acknowledge at the outset that the government's acknowledgement of the potential problems in the jury selection process and the goal to bring more fairness and transparency to the process are laudable. Eliminating discrimination in the jury selection process and ensuring that jurors are truly representative of the community where the crimes are alleged to have occurred is a goal that we wholeheartedly support.
The goal of addressing systemic racism or discriminatory practices within the jury selection is similarly shared by our members, but unfortunately, as we look at the means that have been chosen, they fall far short of what's required and, if adopted, will not actually assist in addressing the problems.
We view ourselves as significant stakeholders in the administration of criminal justice. We believe that, like all significant stakeholders, we have a responsibility to ensure that community members who become jurors decide the case fairly, objectively and without prejudice, bias or favour for either party, whether it's the accused or the Crown prosecuting the case.
The race, gender, nationality, socio-economic status or other descriptor of either the accused person or the victim of crime has no role to play in terms of what the result in a criminal case should be. Discrimination or improper stereotyping has no place in the courtroom or in jury deliberations, or in the way in which juries are chosen.
The way in which jurors are chosen not only has to be substantively fair, but it has to appear to be fair. The appearance of fairness with respect to the jury selection process is very important. This includes having a diverse pool from which the jury can be chosen.
Recent high-profile cases have raised questions about whether the current procedure, including the use of peremptory challenges, meets that standard, particularly in relation to the appearance of fairness. We don't need to name the cases that get named all the time with respect to this issue, but let's just be clear. No one was entitled to have a biased juror. No one was entitled to have a biased jury in favour of the accused or in favour of the Crown.
That is no doubt the impetus for this really significant change. When the came and spoke to you most recently, she described this as a significant, substantive change to the law, and we agree. The difficulty is that in terms of eliminating the peremptory challenges without some of the other proposed ways that academics and practitioners are telling you to consider, changing the jury selection process will not help the system. It will not lead to diversity and in fact will leave us without the opportunity to protect our clients, who are most often racialized, indigenous or other marginalized people. These are the bulk of the people who come into conflict with the criminal justice system.
The unfortunate reality is that although racialized and indigenous persons are overrepresented in the criminal justice system as accused persons, their communities are unrepresented in the jury pool from which the jurors are chosen to decide a case. In communities with large indigenous populations, there are often very few indigenous people who ultimately come before the court as part of the jury pool from which 12 men and women from the community are chosen to decide a case. Even in large urban centres like Toronto, the pool of eligible jurors does not reflect the diverse Toronto urban community.
There are many reasons for this, some of which can be dealt with through legislative action that is missing in the proposed bill.
First, although this is not within the purview of Parliament, the way in which people are summoned for jury duty—which is left to the provincial governments and has been done by relying on property tax assessment rolls or on other areas—leads to a situation in which a case does not actually draw the representative, diverse community wanted in the jury pool. Historically, this leads to the exclusion of people like renters, boarders, and low-income people—people who might be considered to be on the margins of society but who nonetheless reflect our communities. It also leads to the exclusion of indigenous jurors. You have many submissions before you from groups that speak to this issue, not simply from the Criminal Lawyers' Association. One of the problems is that the pool from which juries are chosen is not diverse.
Second, which this committee knows particularly well, is the failure on the part of provincial governments to compensate jurors properly for their time in court. It was the subject of a report that this committee released in May. One of the recommendations you made is important with respect to this issue.
Just imagine how this plays out in practice. People get excused from the jury pool on the basis of financial hardship. Anyone living day to day in Toronto, Ottawa, Saskatoon or in more rural communities who cannot afford to take time off work to serve on a jury pool is going to be excused, and so should they be. You don't expect people to go into financial ruin to serve on the jury pool. What does that leave you with? It leaves you with some unionized people whose unions are smart enough to negotiate compensation. It leaves you with a lot of retirees. It leaves you with very wealthy people. You're not drawing a representative sample in terms of the eligible people who can in fact serve on a jury.
When it comes to dealing with the issue of peremptory challenges, the collective experience of our members is that when an accused person is a different race or colour or looks different from most of us in this room, who are white, it's important that potential jurors be asked questions to determine whether there are racial stereotypes or biases that will affect the way they will adjudicate the evidence vis-à-vis our clients. This is normally done through a challenge for cause process. You have all the background information on this. Jurors are basically asked one or two questions so that someone can decide—some other two people who are chosen from the jury pool—whether they display bias such that they should be removed from the jury.
As a consequence of the lack of diversity in the jury pool, peremptory challenges are used each and every day by responsible criminal defence lawyers in this country to try to get deeper into the jury pool in the face of having lack of diversity on the jury. When you're looking out at a room of 200 people and your client is a young black man from the city of Toronto, and you see five, six or 10 people who, by the time those with financial hardship are weeded out, are actually eligible to sit on the jury, you're trying to find someone diverse on that jury.
As I said, we're not interested in bias or partiality. What we're looking for is to have someone in the room who is representative of the actual community. That's the way our members are using peremptory challenges. It's the only tool we have in our tool kit to get deeper into the jury pool to try to improve the diversity of the jury. Sometimes people can get through a challenge for cause—for reasons that are difficult to explain—even if they do display signs of bias. I know the new legislation will give a judge the power to control the challenge for cause, but again, peremptory challenges allow a lawyer to try to shape the jury in such a way that actually encourages diversity.
There are three things this committee should consider:
First, it should consider providing a more robust statutory challenge for cause, based on evidence. This means taking an evidence-based approach to determining how the jury is chosen and asking modest questions of the jurors to determine whether or not they display potential bias.
Second, it should consider inviting submissions from the parties. Professor Roach, whose submission you have before you, speaks to this issue as well, and I know you're going to hear from other academics on this issue. There seems to be a myth being perpetuated that the practitioners are at odds with the academics on the issue of jury diversity or on the issue of peremptory challenges. We all want the same result. It's how you get there, at the end of the day.
Third, it should consider forcing the provincial government to create mechanisms to have representative jury pools. Because of the division of powers, the only way to do that is with the proposed amendment that we suggested for subsection 629(4), which would be a new provision that would allow for a challenge for cause based on the lack of representation in terms of the jury pool that's been assembled.
If the provincial governments won't act, then this government needs to act. It needs to create a challenge for cause process and provide compensation for those jurors. Your recommendations were welcome before, and they will be welcome again, but let's go further. Let's suggest transfer payments to the provinces so they can compensate people, or do whatever is needed. With all these very smart people running our collective governments, perhaps we can compensate people so that the poor, the marginalized and the racialized are not excluded.
We have a lot to say about the legislation otherwise, but I do appreciate this opportunity to speak to you directly about the jury issue.
Thank you very much.
Thank you for the opportunity to appear before this committee again. Legal Aid Ontario, LAO, is Canada's largest legal aid plan, and a significant funder and provider of services in every level of criminal court in Ontario. We have a pressing interest in the federal government's criminal justice reform initiatives.
LAO's submissions on Bill reflect our position and views, both as a funder focused on making the most cost-effective use of public funds, and as an access to justice organization dedicated to addressing the legal needs of our low-income and frequently highly vulnerable clients.
LAO has a particular interest in the bill's amendments aimed at addressing bail and remand issues. LAO would like to see a section added to Bill that ensures that the bail process outlined in the R. v. Tunney decision becomes the baseline procedure for bail. The bifurcated process requires the justice to consider the appropriate release after submissions by the defence counsel and the Crown before moving on to the suitability of a surety. This simple change of procedure makes the bail process faster and fairer, and the Criminal Code needs to be amended to reflect the Tunney decision and recognize that without direct procedural reform in bail court the new amendments will fall short of making the necessary changes to fix the bail process.
LAO supports many of the expanded police powers in Bill , as they aim to address police concerns that may be preventing them from exercising their authority to release. LAO agrees with Justice Gary Trotter and others, who have made the point that expanding the powers of the police to impose conditions must be approached with caution so that the very reforms aimed at alleviating pressure in the justice system do not have the unintended consequences of adding even more people into the system.
A particular concern about expansion of police discretionary powers is the potential for disproportionate and discriminatory impact on particular groups. For these reasons, LAO recommends modest amendments to proposed subsection 501(3) of the bill, consistent with the principles of restraint and the goal that conditions can be reasonably complied with so the police are not given the authority to impose the following two types of conditions, which we believe are overly broad, unnecessary and likely to increase rather than decrease the number of remand detentions: conditions aimed at preventing the future commission of unnamed future offences, and curfews attached to residential conditions of release, in particular the requirement that a person present themselves at the entrance of their residence on request, which is a condition that is used sparingly even by justices, and when used is too often breached for innocuous reasons, resulting in further charges and detention orders.
Bill as drafted restricts the availability of preliminary inquiries to offences punishable by life imprisonment, which we've heard concerns about already. On its face, this would appear to be a cost-saving and delay-reducing reform, as it eliminates a step in the process. However, LAO's own experience and research conducted by prominent criminologists indicate that this is a more complicated issue that should be approached cautiously.
LAO is not convinced that this proposed amendment will reduce court system delays or costs. In fact, it may produce the opposite effect. There appears to be no evidence suggesting that preliminary inquiries are a major cause of delay in the system. At the same time, there is evidence that preliminary inquiries serve as a screening function that enables more matters to be resolved without the necessity of a trial.
LAO's own data suggests that preliminary inquiries play an effective role in screening out charges and reducing the number of cases that proceed to trial. We looked at internal data related to cases funded through our big case management program between 2004 and 2014. Over this 10-year period, preliminary inquiries were held in 491 cases of 1,034 LAO-funded cases that did not involve life sentences; 75% of those cases did not result in setting a trial, providing a clear suggestion of the value of preliminary inquiries in reducing cost and delay. We believe that there is a strong case to be made for rethinking this proposed amendment.
Therefore, LAO recommends removing the restriction on the availability of preliminary inquires to offences punishable by life. At the very least, we believe there needs to be a process for requesting access to a preliminary inquiry on a case-by-case basis.
Another potential way to reduce some of the negative impacts of removing the preliminary inquiry screening function may be to broaden the scope of discovery to encompass some of the screening aspects of this process. LAO also strongly recommends further study on the issue.
LAO has significant concerns with increasing the maximum sentence for all summary conviction offences to two years less a day. This would open the door to harsher sentences for lesser offences. It would broaden the serious immigration consequences of a criminal conviction by rendering non-citizens potentially inadmissible to Canada or subject to deportation on the basis of a minor conviction.
It would also preclude law students and paralegals from assisting persons charged with minor offences. For LAO, and other legal aid plans, this proposed amendment would restrict our ability to meet our mandate by providing cost-effective access to justice for many low-income people who cannot afford a lawyer. Students and paralegals help legal aid plans to assist people who are facing summary charges that are serious enough to give them a criminal record and mar future employment or other life prospects, but are not likely to result in jail time.
Where the liberty test is not met, a person will be ineligible for a legal aid certificate in Ontario. As the committee knows, there are also stringent financial thresholds for certificate eligibility. Based on research, including our own independent analysis of eligibility and coverage, we know that those caught in this access to justice gap are statistically more likely to be women, members of a racialized community and indigenous persons.
The overrepresentation of indigenous and racialized persons in the justice system is a matter of record, and is of concern to both LAO and the federal government. Given their limited resources and restrictive coverage guidelines, LAO and other legal aid plans rely on services provided by students and paralegals to help fill the serious access to justice gap.
It is simply a fact that if the doors are closed to us by Bill , more low-income and disadvantaged people will be representing themselves, thus contributing to, rather than alleviating, justice system delay. It is also likely that more will inappropriately be guilty, and may also be exposed to harsher sentences, thus growing the population of persons enmeshed in the criminal justice system as a result of a minor charge.
LAO recommends that subsection 802(1) be amended to ensure that law students and paralegals continue to be able to provide legal services to persons charged with minor criminal offences. This may be accomplished by either identifying specific exceptions, making it clear that these are offences to which agents like law students and paralegals may continue to provide services, or identifying serious offences where agents may not provide services, leaving it open for agents to represent individuals for the remainder of summary offences.
In closing, I would again like to thank the committee for the opportunity to provide our input. I would also like to mention that Stephanie Heyens, a senior litigator at Legal Aid Ontario, is presenting to the committee on the bill's amendments to the police affidavit evidence. LAO fully supports her brief.
Thank you very much.
My name is Jillian Rogin and I am an assistant professor in the faculty of law at the University of Windsor. I'm so honoured to be here today on behalf of the Association for Canadian Clinical Legal Education, or ACCLE.
I just want to take a moment to acknowledge that the land we're currently on is unceded territory belonging to the Algonquin Anishinabe people, and I'm really thankful for being allowed to be here today.
In addition to being an assistant professor and appearing on behalf of ACCLE, I'm also a criminal defence lawyer. Relevant to what we're going to talk about, I've worked as a duty counsel lawyer in the provincial courts. I was also a reviewing lawyer at a legal clinic in Windsor, Community Legal Aid, so I have experience in the provincial courts representing marginalized people.
To start out, ACCLE commends the intent of Bill insofar as it aims to reduce inefficiencies in criminal matters and it focuses on reducing over-incarceration of indigenous people and other marginalized people, but I want to focus on aspects of the bill and the proposed amendments that might undermine those laudable goals. Specifically, I'll be looking at the reclassification of offences and the impacts of that reclassification scheme both on law students and on the clients that legal clinics serve across Canada.
The increase in the maximum penalty, the proposed amendment to subsection 787(1), of course precludes law student representation, articling student representation, and representation by paralegals. All three will be precluded entirely from representing anyone any longer in any criminal matter in the provincial courts. This is of course because there's no corollary amendment to section 802.1 of the code.
To be frank, there is no stated rationale that I can find for this dramatic and drastic change to the legal landscape in Canada. There's no data I can point to that shows there is any difficulty with law student representation of people charged with minor criminal offences, and it's not clear what the legislative purpose is of eradicating that form of representation for marginalized people.
What we do know is that this eradication of law student representation will cause an access to justice crisis across this country. Legal clinics across Canada that for decades have been representing clients in summary conviction matters will suddenly come to a halt, and accused people will not have much-needed access to legal representation to answer to the criminal charges they're facing.
As it currently stands, section 802.1, as you all know, allows for the provinces to enact orders in council. I'm going to speak briefly about why, in my respectful submission on behalf of ACCLE, that is not an appropriate or adequate response to the difficulty of the proposed amendments.
Firstly, it's a piecemeal approach, so it means that provinces may or may not act. You may have a situation where there are some provinces that act and some that don't. There's no obligation on any province to do so.
Secondly, which is most alarming to me, even if the provinces act, it's very unlikely that they will do so in a manner that's timely, to prevent a gap in representation. If Bill were enacted tomorrow and passed into law the day after or on the day, we would have to attend court and make applications to get off the record for the current clients we have. That would have to happen all over Canada. We would not be able to appear in court except to get off the record.
Thirdly, on that point, in a sense—and I say this with respect—it's misguided to suggest that the antidote to the massive decrease in the provision of legal services can derive from the provinces enacting orders in council. Respectfully, the question should be, why are we taking away the current law student representation that has been in effect for three decades? Of course, it's a very drastic change.
We know also that this can't be justified by efficiency. It's not more efficient to have more people in the provincial courts who are unrepresented, with no legal representation. We know that not only are unrepresented litigants at a disadvantage, but they tend to clog an already clogged system, and the purpose of the bill is to address delays. We know, as I referenced in our brief, that unrepresented indigenous people disproportionately plead guilty when charged with an offence. The lack of representation is an incentivizing force of guilty pleas, and that should be alarming for all of us, especially with the stated intention of the bill.
This access to justice crisis is a crisis not just for clients who are facing those criminal charges, but also for law student education. Exposure to working with marginalized people facing criminal charges, exposure to the community organizing that has been a hallmark of clinics for decades, exposure to the promotion of social justice issues and—perhaps most important to me as a mentor and as somebody who had wonderful mentors—the opportunity to work really closely under the direct supervision of a criminal defence lawyer is a foundational experience of law school education. In my opinion, it's crucially important, particularly in criminal law. It is a crucial part of that clinic experience.
The evisceration of law student, articling student, and paralegal representation has constitutional dimensions, and it may impact fair trial concerns pursuant to section 11(d) and section 7, and perhaps section 15, depending on who is being denied representation, and in what circumstances.
In terms of our clients, I'm going to address the increase in the maximum penalty. It has been stated that this is not a change in sentencing ranges; however, it is a direct intent to raise the maximum penalty for summary conviction offences. The idea that it's not going to have an impact on sentencing ranges, in my respectful view, is misguided.
I'm speaking from that experience of being in the provincial courts, being in the plea court when you have a client who has 1,000 convictions for theft under. They go before the judge and the Crown is asking for 30 days and the judge says, “I'm done with you, six months”, because that's the maximum. The idea that's not going to happen and isn't justifiable with legal principles is, respectfully, perhaps misguided.
In terms of court efficiencies, we know that the proposed changes are not going to alleviate delays in the lower courts, in the provincial courts. There's nothing to suggest that's the case. The provincial courts are already overburdened. Many lower courts across Canada are facing crisis levels of criminal cases passing through, as I've noted in our brief. Provincial courts currently, in a recent Statistics Canada report, are seized with 99.6% of all criminal cases in Canada, the superior courts secure 0.4%. In that sense, it's very difficult to imagine, in terms of the hybridization of offences, how the choice to proceed summarily is going to create further efficiencies for the Crown or for the criminal justice process.
I'll turn now to the recommendations that ACCLE is putting forward.
We're boldly asking that the proposed amendment to subsection 787(1) not be made at this point, not with a more thorough charter analysis of the proposed amendment having regard to who it might most impact. This includes perhaps looking for further ways to reduce court delays that do not disproportionately impact marginalized people. Alternatively, we're asking that if this does go through, then an amendment be made to subsection 802.1 that allows for the continuation of law student representation.
Good afternoon and thank you for the opportunity to address you today.
The Canadian Alliance for Sex Work Law Reform is a coalition of 28 sex worker and allied organizations from across the country advocating for law reform that advances the rights and safety of people who sell or trade sex. Our member groups have expertise regarding the impact of criminal law on the lives and well-being of sex workers, so it's on those grounds that we submit our response to Bill .
I'm going to be really frank and say that we are very disappointed and frustrated that the Criminal Code provisions targeting sex workers and their personal and work relations are not slated for repeal or meaningfully addressed in Bill . The Liberal and NDP parties of Canada voiced staunch opposition to the Protection of Communities and Exploited Persons Act, or PCEPA, when it was introduced. In 2015, the declared that she was “definitely...committed to reviewing the prostitution laws”, yet this review has stalled.
This isn't just a matter of principle or a matter of promises unkept. Each day that passes, sex workers' rights, safety and dignity are violated through the individual and collective impact of laws prohibiting the communication for, purchase of, material benefit from, procuring of and advertising of commercial sexual services. We are past the time for review, and we need action.
We believe that excluding the repeal of PCEPA from Bill was a gross missed opportunity, given the overall alignment of many the bill's principles and elements with those of sex work law reform.
First, Bill rightly repeals several Criminal Code provisions ruled unconstitutional by Canadian courts. In 2013, the Supreme Court found in Bedford that several criminal prostitution laws caused harms that violated sex workers' charter right to security of the person. The subsequent Criminal Code provisions enacted by PCEPA replicate these harms, and their constitutionality is similarly impugned.
Second, Bill rightly repeals the offences of anal intercourse and abortion that targeted sexual or reproductive activities and autonomy and that disproportionately impacted LGBTQ2S communities and women respectively. Prohibitions on sex work activities similarly undermine the rights to liberty, autonomy and security of the person and disproportionately impact women, indigenous and migrant communities, and other marginalized groups.
Third, Bill correctly proposes to attend to the discriminatory treatment and overrepresentation of indigenous and marginalized peoples in the criminal justice system. Sex workers and/or personal and labour relations reflect the diversity and inequality of social locations in Canadian society. For many, sex work prohibitions represent the criminalization of their poverty and perpetuate the over-policing and over-incarceration of indigenous and black peoples.
Sex work laws continue to be employed and enforced in a racist and colonial manner. Indigenous women are over-policed and under-protected. Asian migrant workers are targeted for investigation and deportation, and young black men who happen to be boyfriends or associates of sex work workers are labelled and prosecuted as pimps.
We recognize that most of the PCEPA laws have been absented from Bill and thus cannot be repealed or otherwise altered through committee amendments. We note, however, that clause 111 reclassifies the material benefit offence as a hybrid offence and that clause 112 amends the sentencing provisions of the advertising offence. Because these two offences are addressed within the bill, if it's a procedural possibility, we strongly urge amending the bill to repeal these Criminal Code provisions in their entirety. By criminalizing the act of materially benefiting from another party's sex work, section 286.2 restricts sex workers' capacity to engage in supportive work relationships that enhance our safety and improve our work conditions. In fact, this provision reproduces the harms of the prior “living on the avails” offence that was struck down by Bedford for violating our section 7 charter rights.
Any proposition that the listed exceptions to the offence satisfy Bedford are false. All but one simply codifies jurisprudence that predates the Supreme Court's decision. Then there are exceptions to the exceptions, which further repress sex workers' autonomy and security. For example, paragraph 286.2(5)(e) prohibits a liability exception in the context of a commercial enterprise. This captures all escort agencies, massage parlours and any other sex work business that creates safe, structured indoor work environments.
While we appreciate that the exceptions may allow a worker to hire, say, a bodyguard or a receptionist, we are mindful that only a tiny number of highly privileged workers have the resources to do so. Instead, many of us seek out parlours and escort agencies because they offer services such as screening, secure venues and advertising without the upfront costs and overhead of independent work.
It is often the most marginalized and under-resourced workers, such as indigenous, poor, or migrant workers, who benefit from working for someone else. However, these same laws that prevent sex workers from ensuring our safety and rights are upheld, because we work for businesses, do so, ironically, because they effectively preclude us from accessing basic labour, occupational health and safety, or human rights protection. To make it worse, material benefits arising from the context of a commercial enterprise is considered an aggregating factor upon sentencing.
As with the former “living on the avails” provision, the material benefit sanction imposes an evidentiary presumption on anyone who lives with or is in the habitual company of a sex worker. In addition to reinforcing the false assumption that people, particularly women, who sell or trade sex can't be legitimate objects of affection, the threat of presumed criminality disrupts the security and autonomy of our personal relationships.
I will make a final comment on the material benefits offence. Although when we discuss it we typically describe it as benefiting from another party's sex work, the provision itself does not specify a third party benefit. Under the letter of the law, sex workers are ourselves captured in the material benefits provision. We are only granted immunity from prosecution via section 286.5. This is a clear illustration that PCEPA does indeed continue to construct those of us who sell or trade sex as criminal.
We therefore recommend that clause 111 of Bill be amended to call for the repeal of the material benefits provision, as a first step towards a more comprehensive sex work law reform.
Next I'm going to turn to Criminal Code section 286.4, which prohibits advertising paid sexual services. As with the prohibitions on communicating and purchasing, this provision undermines the safety benefits that sex workers derive from openly communicating terms and conditions with their clients, and establishing boundaries in advance of in-person contact.
Prohibiting advertising creates significant barriers to working indoors, which the evidentiary record in Bedford demonstrates is much safer than working on the street. Since the enactment of the advertising provision, many websites and newspapers will no longer publicize sex worker services. Those that do have often discontinued their virtual lounges that allowed workers to share safety and other valuable information with each other.
With these points in mind, we recommend that clause 112 of the bill be amended to call for the repeal of the Criminal Code section 286.4.
Continuing with the Criminal Code provisions addressed in the bill, we want to reiterate our opposition to Bill and Bill , which is now incorporated into clause 389 of Bill .
Bill introduced an evidentiary presumption that living with or being in the habitual company of an alleged trafficking victim is proof that the accused exercised control, direction or influence over the alleged victim's movements for the purposes of exploitation. Given the ongoing conflation of third party involvement with sex work and trafficking, we are concerned that, as with the reverse onus provision for material benefit, this presumption will further alienate sex workers from police and social services, as we continue to actively avoid implicating our colleagues and loved ones as traffickers.
We do support the bill's removal of consecutive mandatory minimum sentences for trafficking offences. However, like others who have responded to Bill , we are perplexed as to why mandatory minimums have not been repealed across the board.
Other Criminal Code offences that are insufficiently addressed in the bill are the bawdy house, indecent acts and vagrancy sections. These have traditionally been used to condemn individuals and communities based on their sexual activities, relationships and identities, including people who sell or trade sex. The 's 2017 apology to LGBTQ2S people should be buttressed by the repeal of these sanctions.
The alliance doesn't have a current position on the bill's Criminal Code amendments regarding intimate partner violence. However, we will note that intimate partner violence impacts our communities, not simply because sex-working women, like other women, experience intimate partner violence, but also because such instances of violence are often mislabelled and prosecuted as materially benefiting, procuring and trafficking. If criminal sanctions related to intimate partner violence were used instead of third party sex worker trafficking laws, where appropriate, we might be able to express support. However, we're concerned that they would be used as add-ons.
Additionally, we have potential concerns about increased sentences and reverse onus bail provisions, because we know only too well the effect of heightened criminalization and its disproportionate impact on the most marginalized among us. However, we have no specific recommendations on these points.
Finally, on a general note, we are concerned that elements of Bill will impede access to justice and fair treatment for people in and associated with the sex trade who come in conflict with the law for any reason, and who are further marginalized by their social or structural locations.
Increasing the maximum sentence for summary convictions risks the continued over-incarceration of marginalized peoples, both through the increased maximum sentence itself and by restricting access to agent representations.
Permitting the written admission of routine police evidence risks undermining trial fairness by complicating defence access to cross-examinations that can expose cases of police error, impropriety or actual abuse, and which are especially vital to protect the rights of indigenous and black defendants.
Those are our thoughts and concerns. Thank you for taking the time to hear them.
Thank you, Chair, and thank you for the opportunity to make a submission on Bill .
I am Crown counsel at Ontario's Ministry of the Attorney General, but it's important that I make clear I'm appearing in my personal capacity, and that my views don't represent the Government of Ontario or Ontario's attorney general.
The focus of my submission is on section 271, which is the proposal to eliminate peremptory challenges from the Criminal Code. I'm supportive of the amendment. My view is basically summed up in three points. I will try not to make them very long.
First, peremptory challenges undermine both the representativeness and impartiality of Canadian criminal juries. Second, peremptory challenges undermine the public confidence in the administration of justice, and third, peremptory challenges can invite mischief associated with jury vetting in some cases.
My first point is that the requirements of having representative and impartial juries are crucial elements to ensure both the fair trial rights of an accused person as well as ensuring that the conscience of the community is represented in adjudicating on acceptable conduct. When I say representativeness, of course, I don't mean there has to be a statistically perfect cross-section, or that every possible group and demographic subgroup in society has to be represented on a jury.
However, juries are really only representative if they are randomly selected from a reasonably representative segment of the population. Similarly, impartiality is achieved both by excluding people who are not indifferent as to the outcome in a criminal case, but it's reinforced by what sometimes is referred to in the case law as the diffused impartiality that happens when you have a representative and diverse range of viewpoints on a criminal jury.
It's my view that peremptory challenges undermine both of these goals. They certainly don't further either one.
When we're looking at representativeness, when you have peremptory challenges, you're getting further and further away from the ideal of random selection, and instead of having random selection, what you actually do is introduce an element of selection bias, where you're replacing the random selection with assumptions about behaviour that are based primarily on stereotypical assumptions, and no real information about how perspective jurors might behave.
When you're looking at impartiality in the context of peremptory challenges, instead of excluding people on a good faith or rational basis that they are not impartial about the outcome, what ends up happening is that both Crown and defence counsel are invited to attempt to secure a strategic advantage in the litigation to which they are not really entitled.
No one is entitled to a favourable jury, only one that's impartial. It would be my view that if there is a realistic prospect, and a rational reason why a juror might be incapable of being impartial, then the remedy for that lies in having a challenge for cause that's established on evidence and ruled on by a trier of fact.
Moving to my second point, having peremptory challenges cannot help but lower the public confidence in the administration of justice when members of the public and perspective jurors watch perspective jurors excluded on the basis of no reason, on the basis of no evidence, and without any information.
When those exclusions are based basically on the gut feeling of who is likely to be sympathetic to one side or the other, then that doesn't give the public or perspective jurors a feeling that jury selection is happening in a way that is fair and impartial, and also represents the community. Of course, it can't help but create an assumption that the juror who has been challenged, again usually on the basis of no evidence and for no reasons given, is in some way incapable or incompetent to have been selected or to be impartial in the case.
My third and final point is simply that the existence of the challenge for cause mechanism invites a mischief in the form of jury vetting. Jury vetting is the process of finding out information about prospective jurors for the purpose of finding or divining their attitudes, beliefs and preferences with a view, potentially, to exercising a peremptory challenge to exclude them. The case law is full of cases where this has been done, both on permissible and more impermissible bases.
My overall point is that the peremptory challenge creates an incentive for both the Crown and for defence counsel to try to find out information about jurors' backgrounds. Many prospective jurors would be alarmed if they knew what Crown or defence counsel were trying to find, and it can, in some cases, be a violation of their privacy.
Just to sum it up, it's my view that the existence of the peremptory challenge mechanism invites abuse by creating a perverse incentive.
That's my submission. Thank you.
Thank you very much, Mr. Chair. Thank you to the committee.
I start from the proposition that in 1999, the Supreme Court told us there was a crisis in our justice system when 12% of prisoners were indigenous. The most recent statistics, which are reflected in my brief, suggest that 28% to 30% of custody admissions are indigenous people: 50% of youth and 42% of women. Not only is this overrepresentation, but the murder rate of indigenous people is six times that of other homicide victims. The most serious crimes, those crimes that are most likely to be tried by juries, disproportionately involve indigenous people as accused and victims.
I've been commenting on and writing a book on the Gerald Stanley case as well as the Peter Khill case. Juries are here to stay. They are a symbol of the community that we are, and they are a symbol of the community we want to be. In this vein, I agree with Mr. Kettles that we should abolish peremptory challenges, which were used to exclude five visibly indigenous jurors in Gerald Stanley's case, but we need to do more. We need to do much more.
To that end, I will propose five amendments for the committee to consider. The first is to amend section 629 of the Criminal Code, which is essentially unchanged since 1892, to allow the prosecutor or the Crown to challenge the composition of the panel of prospective jurors, not only on the grounds of partiality, fraud or wilful misconduct, but also, I would propose, on the grounds of significant under-representation of aboriginal people or other disadvantaged groups that are overrepresented in the criminal justice system.
You've heard from the Criminal Lawyers' Association. They also propose a somewhat similar amendment to section 629. Although we don't agree on peremptory challenges, we agree on this issue. This would essentially set a higher standard in the Criminal Code than the Supreme Court had in the 2015 case of Kokopenace. It's well within Parliament's prerogative to set higher standards than the minimum standards that the Supreme Court sets. I would suggest that the Stanley case especially shows us the significant under-representation of indigenous people on our Canadian juries when they are so overrepresented among both accused and victims.
The language there picks up on other parts of Bill , which makes specific reference to indigenous people and other disadvantaged groups that are overrepresented in the criminal justice system. This is not about a perfectly proportionate jury or jury panel that represents all, every personal characteristic, but it's about the people most affected by the criminal justice system.
Second, I would amend the disqualification of jurors, which in Bill would move from only forever permanently disqualifying those sentenced to two years' imprisonment. Right now it's one year. To me, I think that, for an otherwise qualified juror, it should not matter whether they had been sentenced to any time of imprisonment. Michael Johnston has also submitted a brief to you, and I'm in agreement with it in that respect.
This is in responding to concerns that some defence lawyers have raised about the abolition of peremptory challenges, that they will make our juries less diverse. I take those concerns seriously. I think one way to address that is to allow permanent residents of Canada to serve as jurors. You don't have to be a Canadian citizen to be a lawyer. I think a permanent resident of Canada shows enough attachment. Our jury system is designed so that judges educate jurors about the law.
As Justice Iacobucci discussed, I would also amend section 638 to allow otherwise qualified volunteer jurors from indigenous communities.
Moving on, the third amendment would be to give judges some more guidance and signals from Parliament about the need to screen jurors for racist bias. I propose, in my amendment number three, to amend section 638(b) in a way that is frequently done in the Criminal Code to encourage judges to pay special regard to the dangers of discriminatory stereotypes that may apply to aboriginal accused, witnesses and complainants, and those from other groups that are vulnerable to discrimination and to the difficulties of determining whether a prospective juror would act on discriminatory stereotypes.
I was counsel in the Williams case in 1998 that allowed the one blunt question. I'm a lot older now. Williams was decided in 1998. We know a lot more about racist bias, subconscious bias, implicit bias, but judges have been extremely conservative because of their concerns about efficiency and the privacy of jurors. I think Parliament needs to encourage the judiciary to allow more searching challenges for cause.
The fourth amendment I would propose is to amend section 633 where Bill will add to the judicial power to stand aside jurors, the ability to stand aside a juror to maintain confidence in the administration of justice. I agree with the Criminal Lawyers' Association that this is too vague as it is currently written, and I propose language with special regard to the fair representation of aboriginal people and other groups overrepresented in the justice system. Again, this would allow judges, as opposed to defence lawyers or Crowns using peremptory challenges, to try to ensure the representativeness of a jury in a more accountable way so we don't have a repeat of something like the Gerald Stanley case where, regardless of what you think of the verdict, the fact that five visibly indigenous people were excluded undermined public confidence for a significant number of the Canadian public.
Then finally I'm very happy that the government has recognized the growing problem of false guilty plea wrongful convictions, and is amending section 606, which applies before a guilty plea is taken, to require the judge to find a factual basis. I think this is a very warranted amendment to the Criminal Code. I praise the government for doing that, but I also think that subsection 606(1.2), which essentially says this is all optional for judges, must be repealed to make meaningful the factual basis requirement as well as the voluntary and knowing requirements for guilty pleas.
Thank you very much for your time and attention, and I look forward to your questions.
Mr. Chair, Vice-Chair and honourable members, thank you for inviting me to testify on the amendments to the jury selection provisions contained within Bill .
I'll say just a few words about myself so you know where I come from. I'm a criminal defence lawyer in Ottawa. I've had the privilege of picking juries across the province, including in first-degree murder trials. I've picked juries. I've exercised peremptory challenges, and I've exercised the challenge for cause provisions. I also lecture part-time in the law of evidence and criminal trial advocacy at the University of Ottawa. It's a pleasure to be here tonight.
I want to begin with the following general, broad observation.
We all know that Canadians expect laws to be passed that are legislated on the basis of sound policy. That policy will be formulated upon the consideration of empirical research and verifiable evidence. This is particularly important in the criminal law context, where amendments to the code and related legislation have profound impacts on the rights and liberties of accused persons. But most importantly, when it comes to process and procedure, unwise amendments, of course, risk eroding the protections that have been put in place to avoid wrongful convictions or other miscarriages of justice.
With that in mind, I look at the peremptory challenge and the proposal by the government to abolish it in Bill .
I go back to February 4, 2018. In the aftermath of the not guilty verdict in the Gerald Stanley case in Saskatchewan, the issued a statement to the media. She stated, among other things, that she is concerned with the under-representation of aboriginal persons on juries. As you'll hear, of course, I share the minister's concerns. But then she turned to the topic of peremptory challenges. She stated that changes to the use of peremptory challenges would need to be "carefully studied and considered”. What are the results of that careful study and consideration? How careful and considered could that study have been, when two months later Bill was tabled, which proposes the wholesale abolishment of the peremptory challenge, most importantly without any meaningful substitute?
I note that the topic of juries, much less peremptory challenges, was not mentioned at all in the 's criminal justice system review, conducted, pursuant to her mandate letter, between May 2016 and May 2017. Consider that among the dozens of suggestions for improvements to the justice system, there was not a word about the peremptory challenge.
The fact of the matter is that there is no empirical evidence whatsoever to suggest that the peremptory challenges used systemically exclude minorities or indigenous persons. The reality is this: There actually has been no objective research conducted by this government, or any other, on the use of peremptory challenges in the criminal justice system. There is, however, clear and convincing evidence that our criminal juries in general fail to represent the populations they serve.
Earlier this year, the Honourable Justice Giovanna Toscano Roccamo, a judge of the Ontario Superior Court of Justice, delivered her report to the Canadian Judicial Council on jury selection in Ottawa. It was about a jurisdiction that I'm very familiar with, right here. Her report was based on the statistical analysis of jury pools in Ottawa, and it compared them with the demographic makeup of the census tracks they were drawn from. In Ottawa, an individual living in Orleans Queenswood, a census track with a median income of $56,000, where 92% of the residents are homeowners and only 13% are visible minorities, is 10 times more likely to be chosen for a jury panel than is a person living in Ledbury—Heron Gate, where the median income is $24,000, fewer than 7% of people own their homes, and over 69% are visible minorities.
Her findings about aboriginal under-representation were even more stark. In her study of Hastings County, which includes both Belleville and the Tyendinaga Mohawk Reserve, she found that “not a single juror among prospective jurors on any panel list was drawn from the First Nations reserve.”
This is directly related to the way juries are chosen in Ontario and elsewhere in Canada. Bill does absolutely nothing to remedy that. Instead, this bill would abolish one of the few tools that counsel can actually use to improve the representativeness of the criminal jury.
I'm aware that the committee has heard some testimony. I heard it in the panel prior. I am more than happy to discuss my own experience.
You've heard anecdotal evidence about criminal counsel using peremptory challenges to exclude indigenous or racialized jurors in criminal trials. I'm here to tell you that the opposite is true.
Peremptory challenges are regularly used by counsel to improve the prospects of a more diverse jury. I have regularly used them this way, as have many of my colleagues.
Given the overrepresentation of aboriginal persons and racialized minorities as accused in our criminal justice system, at present the peremptory challenge is often the only tool counsel can use in order to ensure that the jury, even in some small way, is representative of the accused. Remember that in Canada we have struck a particular balance when it comes to jury selection. Unlike many other jurisdictions, we do not allow our jurors to be questioned extensively about their backgrounds or potential biases. Instead, a combination of the peremptory challenge and a very regimented challenge for cause process strikes this balance between juror privacy and the need to determine the impartiality of the triers of fact in a criminal proceeding.
Removing the peremptory challenge without any suitable substitute upsets this balance. To do so without any objective data as to how peremptory challenges are presently being used—or misused, as some would allege—flies in the face of the evidence-based decision-making we've heard so much about.
That's not to say that our system is perfect or immune to review or improvement. In my respectful view, there are a number of simple measures this committee should consider with respect to jury selection.
Number one, as recommended by the Law Reform Commission report on the jury in 1980, all potential jurors on the panel should be given a detailed, standardized questionnaire in order to provide the judge and counsel with substantive information upon which to justify the exercising of challenges or stand-asides.
Number two, this questionnaire could also be retained and anonymized in order to serve as the basis for academic research about the makeup and biases of our jury pools. Moreover, basic statistical research should be conducted about how peremptory challenges are being exercised. In other words, we need to answer the simple question: Are peremptory challenges being misused? The last time this matter was studied by the federal government was in 1980. Policy decisions about the trial process are too important to base on anecdote and innuendo. Real research and hard data should be the basis of criminal legislation.
Number three, in my respectful view—and I will correct Professor Roach—recommendation 15 of the Iacobucci inquiry does not call for the abolishment of the peremptory challenge. Justice Iacobucci calls for imposing a "modified Batson challenge", an American challenge modified for our system that requires individuals who appear to be exercising the peremptory challenge on a discriminatory basis to explain to the judge what their non-discriminatory basis for using it is. That was Justice Iacobucci 's recommendation.
Number four, section 629 of the Criminal Code should be amended to allow either party to challenge the jury panel on the ground of unrepresentativeness, as found by successive studies and judicial inquiries. This is in line with what was proposed by the Criminal Lawyers' Association and by Professor Roach.
I close with this thought. Peremptory challenges have existed in our common law for nearly a thousand years. They have been a constant in the Canadian jury selection process since the very first Canadian Criminal Code. They're part of this careful balance that's aimed at preserving the fairness and integrity of the jury trial, which is a right guaranteed to all accused persons charged with serious offences.
Jury selection can no doubt be improved. Bias and discrimination can be removed from the process. Juries can be made more representative, but nothing in Bill as presently drafted would accomplish any of that. Judges, lawyers, jurors, and all justice system participants deserve better.
Thank you very much for your time and your kind attention.
Thank you for having me here tonight.
As the chair said, I am a law professor at the University of Ottawa. I have taught criminal law, constitutional law and the law of evidence since 2010. I also practise criminal defence part-time. I've written extensively about the jury selection process. I've appeared before this committee, most recently on the question of mental health and other supports for jurors.
I'll begin by saying that I support the government's proposal to abolish peremptory challenges. I think it's important here to provide a bit of context, partly in response to Mr. Friedman's opening comments, to situate this legislation in the broader context of law reform around juries.
The important point to keep in mind here is that it's absolutely true that these proposed changes, the proposed abolition of peremptory challenges, did come about as a result of the acquittal of Gerald Stanley in a murder case in Saskatchewan. As you all no doubt know, Stanley was charged after he shot Colten Boushie, an indigenous man, on his property. There were no indigenous people on the jury that acquitted Stanley, and there was some suggestion that the defence may have exercised its peremptory challenges to exclude indigenous people.
It's undoubtedly true that this was the impetus for these amendments, but as Professor Roach said earlier, for decades there have been government reports recommending that these kinds of changes occur. I'll also say that there has been a sustained concern in the academic literature about peremptory challenges. It's important to distinguish between the impetus for the law reform and its overall wisdom. That case may have gotten the issue on the political agenda, but this is a long-standing concern and one that I'm very happy to see the government addressing.
As you no doubt know, peremptory challenges allow the Crown and defence counsel to exclude jurors without providing any reason for doing so. The reality is that when counsel exercise their peremptory challenges, they typically know very little about the potential jurors they're challenging. They know name, address, and occupation, and they know whatever they can glean about a potential juror's gender and race by looking at them. Because they know so little, inevitably the decisions counsel make about whether to challenge a potential juror are based on stereotypes, whatever conclusions they draw, based on where someone lives or what they look like, about whether they're likely to be partial or to favour the Crown or the defence. My concern about this type of approach, and about a system that allows that approach, is, as others have pointed out, that this can undermine the perceived legitimacy of our justice system, of the criminal process, and that it creates the potential for these challenges to be misused and to be based on stereotypes, racial and gender stereotypes in particular, about the way potential jurors are likely to conduct themselves or engage in decision-making.
My first submission to the committee would be that the abolition of peremptory challenges is justified by the concern for the legitimacy of our system, the impartiality of our system, and the fairness of the criminal process.
The other thing that's important to point out here is that peremptory challenges have the potential to harm accused persons as much as they help them. In the context of this proposed amendment, there has been a lot of discussion about whether abolishing peremptory challenges could disadvantage accused persons and whether that could disrupt important protections that exist for accused persons. In this way, again, it's important to contextualize the Stanley case, which gave rise to these proposed amendments. The Stanley case dealt with a white accused who was facing trial for murder of an indigenous man, but far more often what you're dealing with is a racialized accused who is on trial, and the potential that the Crown will exercise its peremptory challenges to exclude jurors of a particular race, indigenous people, women, or the like. It's important to recognize that these challenges have historically been, and can be, used against accused persons to their detriment.
We have to balance the perceived benefit of having the peremptory challenge in your pocket to challenge someone whom defence counsel doesn't feel quite right about against the very real risk, I would suggest, that these challenges are going to be used in a way that disadvantages the accused person. My view is that, on balance, the potential harm, not only to the system but to accused persons, is greater than any benefit that accrues.
Finally, and other witnesses have suggested this, it's important for the federal government to view this particular piece of law reform as part of a larger discussion about reforming the jury process across the country. Mr. Friedman and I agree here that there are serious concerns with the representativeness of jury pools in Ontario and elsewhere.
The difficulty here, of course, is that the federal government is limited in its ability to bring about significant changes to the way juries are composed. The early stages of this process, where the representativeness issues are most severe, fall within provincial jurisdiction, but there is no reason why the federal government can't take a leadership role in getting provinces together and talking in a serious way about how representativeness can be meaningfully achieved.
Certainly, in the province of Ontario, the current practice is to use municipal property assessment lists to select potential jurors, and it won't surprise you to learn that if you compile jury roles from property assessment lists you're going to end up overrepresenting property owners and people who can afford to purchase property, and you'll under-represent people who aren't meant to be on that list in the first place, because we're talking about a property ownership database.
This is a significant problem that I would suggest ensures that the process is flawed from the start. By the time you get around to exercising the few peremptory challenges you have or don't have, following the entry into force of this bill, assuming it's passed, my sense is that the horse has already left the stable. You can't fix fundamental problems with jury representativeness using the peremptory challenge.
What we really need to do, if we want to get to the root of this problem, is get the provinces together, and get all provinces that are not currently using health card lists as the jury source list to use those lists. They are by far the most accurate lists. More or less everybody has a health card. The privacy issues that might be associated with the use of health cards are actually easily addressed. You start with a good list, and then you build in measures to ensure that the representativeness of that list isn't eroded. The suggestion that somehow peremptory challenges can help increase diversity when you start out with a flawed list is, I think, a flawed argument.
I'll stop there. I agree with all of the proposed amendments that Kent Roach suggested earlier.
Sure. That refers to the Batson v. Kentucky decision in the United States. It has to be modified for Canada, because in the United States jury selection process they engage in something they call “voir dire”. We call “voir dire” something completely different. They have sustained questioning of jurors about their backgrounds and their biases so there's more information to work with in respect of any challenge.
The way many lawyers foresee that working, and it appeared the Iacobucci commission did that as well, is that, for example, if you believe the other party is exercising the challenge in a discriminatory manner, they are required to explain to the judge what their non-discriminatory basis is.
I could speak from personal experience. If I see that the 20 members who have been called up using the lottery system from the body of the court are 12 white people, and then an aboriginal or a racialized person, and I want that jury to be representative, I will use some of my peremptory challenges, even though they are being used against people who all appear to have the same racial identity. If I'm asked about that, my explanation would be that I want a more diverse jury, not a less diverse jury. A Crown counsel, for example, may challenge two young black people and say that it's because of their occupations, or because they live close to where the crime was committed.
I also want to respectfully disagree with Professor MacDonnell about how limited the information is that we have now. Generally, the week before the jury trial you will get a full jury list that has the name and the general location, if not the address, of the juror. We live in the social media age. It's quite easy to go through those lists and find out all sorts of fascinating things about that jury pool upon which to make use of your peremptory challenge.
To say that it's just looking at the colour of the person's face, or whether they look at your client.... I will say this. Sometimes whether they meet my client's eyes is, indeed, an important consideration. The registrar says, “Juror, look upon the accused. Accused, look upon the juror.” If that juror won't look my client in the eye, I probably don't want them sitting in the jury box.
It's not a perfect tool; it's a flawed tool. If we put those constraints on it, like the Batson challenge.... We have to remember that the jury trial itself is like the parliamentary equivalent in the judicial system. It imports democracy into the criminal process. That's why judges don't make the findings of fact. But what we're going to do now is put in everything: the challenges for cause to be decided by the judge; the stand-asides, which would otherwise be peremptory challenges, to be determined by the judge. We want that element of democracy.
At the end of the day, when you're charged with a serious offence, you're constitutionally entitled to put your faith in the hands of your fellow citizens, and the peremptory challenge lets it remain, in my respectful view, democratic.
We appreciate the invitation to appear before you on this important piece of legislation. It is an honour to do so.
I am the executive director of two legal clinics affiliated with the University of Windsor law school and Legal Aid Ontario. Both Community Legal Aid and Legal Assistance of Windsor have provided legal services to the low-income residents of Windsor and Essex County for over 40 years. Community Legal Aid services include representation on summary conviction offences. Legal Assistance of Windsor services include representation on immigration and refugee matters.
We have reviewed the briefs submitted by the Association for Canadian Clinical Legal Education and the Student Legal Aid Services Societies, and we support and endorse their recommendations.
There are three issues we would like to address with the committee today. First is the ability of law students to continue to represent financially eligible clients on summary conviction offences.
Second is the impact of increasing the maximum sentences for summary conviction offences on refugee applicants and permanent residents.
Third is the impact of increasing the maximum sentences for summary conviction offences on our communities.
The first issue I'd like to address is that the current maximum sentence for a summary conviction offence is six months, and the proposed legislation would increase the maximum sentence to two years less a day. As a result, and by the provision of section 802.1, law students would no longer be able to represent clients charged with summary conviction offences. The impact would adversely affect clients in accessing legal representation and would prevent law students from gaining important experience and training in the criminal justice system.
Our law students work under the close supervision of staff lawyers. Every aspect of their work is reviewed and approved. Clients who are denied legal aid because there is no likelihood of a jail sentence are referred to our clinic for representation. The accused are often first-time offenders who have made a mistake that results in criminal justice engagement.
Our clients are young mothers who have been charged with shoplifting—usually diapers and food from a grocery store—or they are the neighbours or family members whose breakdown in relationship has resulted in assaults or threats, which are often fuelled by mental health issues. Our students have the time to uncover the backstory that led to this behaviour. They can reach out to community agencies and professionals for appropriate support and intervention. A criminal offence does not occur in isolation, and addressing the intersectionality of poverty, housing, mental health and addiction issues allows our students the chance to develop professional and effective advocacy skills.
Last year, this committee's report on legal aid noted that students in legal clinics, when supervised by staff lawyers, provide appropriate and low-cost services to community members. This committee has recommended that the role of law school clinics be expanded to increase access to justice.
Without our participation, these clients will have to represent themselves, which will cause more delays in the criminal justice system, increase the probability of guilty pleas, and put more pressure and strain on Crown attorneys, judges and court staff. The results would exacerbate the problems you are trying to solve. Therefore, we request that the provisions of section 802.1 be amended to correspond with any amendments that you make to the definition of a summary conviction offence.
The second issue I would like to address is the impact of redefining summary conviction offences on permanent residents and refugees. The Immigration and Refugee Protection Act defines serious criminality as the conviction of an offence "for which the term of imprisonment of more than six months has been imposed". Under Bill , all non-citizens of Canada would be at risk of a finding of inadmissibility, regardless of whether they are convicted of a summary or indictable offence. This appears to be another unintended consequence of Bill C-75.
We can certainly understand why Parliament would want to give Immigration the tools to consider the impact of granting residency where serious criminal acts have resulted in significant periods of incarceration. However, it has been our experience at Legal Assistance of Windsor that our clients sometimes brush up against the criminal justice system in their early years in Canada during periods of personal crisis and adjustment to Canadian society. Post-traumatic stress disorder is often a factor, and proper treatment of the condition removes the risk of repeat behaviour. The criminal justice system is capable of addressing those concerns without triggering the imposition of a loss of immigration status and residency. The proposed change also impacts the permanent residents' ability to appeal a loss of their status in Canada and any subsequent removal order. An amendment, therefore, is required to avoid these consequences.
The third issue we wish to address is the impact of increasing summary conviction sentences on the clients we serve. The increase in sentence would be a signal to the bench that it is the will of Parliament to increase sentences for summary conviction offences, and it would indicate that greater periods of incarceration are required. We all understand the importance of deterrence in sentencing. However, this change throws the balance between deterrence and rehabilitation out of sync.
Our communities are struggling with serious issues of homelessness and addiction. In Windsor, we have 4,700 people who are on the subsidized housing waiting list. If every person who is currently housed in subsidized housing moved out tomorrow, we would still have people on the list.
We have a mental health court and a drug treatment court that are able to help only a fraction of eligible clients/candidates because of a lack of resources. We have significant wait times for treatment centres, and often on discharge, the lack of secondary housing means that clients are forced to return to the same rooming houses and shelters where their addictions flourished. Therefore, they are placed at risk of recidivism. Longer jail sentences aren't going to address these problems. Indeed, we've seen the medical reports of clients who have been incarcerated, and the difficulty they have in receiving a consistent diagnosis and treatment only exacerbates their unemployability, and does not assist them in their return to being productive members of our community.
To conclude, our law students at the University of Windsor also have the opportunity to study at the University of Detroit Mercy, in Detroit, Michigan, and the stark contrast between the American and Canadian justice systems is poignant and provides an opportunity for us to learn from their mistakes. Longer incarceration periods for our marginalized populations are not productive, cost-effective or just.
We'd like to thank you for the opportunity to make this presentation this evening, and I would be pleased to answer any questions you have.
Good evening. My name is John Muise. I am the volunteer director of public safety at Abuse Hurts, formerly the Canadian Centre for Abuse Awareness. It's a charitable NGO dedicated to the eradication of child abuse. Abuse Hurts provides support for survivors and victims. It does not accept government funding.
My professional experience is relevant to the topic at hand, so I'll note it briefly. I was a police officer with the Toronto Police Service for 30 years. I retired in 2006. I was a detective sergeant. I spent six of those years seconded to the Ontario government's Office for Victims of Crime, where we tried to help crime victims and, as an arm's-length advisory agency, provide policy advice to members of cabinet at the time. In 2009, I was appointed to the Parole Board of Canada as a full-time board member in adjudicating numerous parole decisions.
It's been a long day for all of you, and time is short, so I'll get right to the point. I want to address three areas of serious concern that Abuse Hurts believes are likely to potentially diminish public safety. I won't be talking about peremptory challenges.
First, I will address the proposal to hybridize a large number of indictable offences, thereby allowing for a Crown summary election option. There are a large number of serious crimes set for hybridization, including certain serious driving offences, terrorism-related crimes, and a criminal organization offence. I note that the government just appointed a new member of cabinet to address organized crime, and that's a good thing. However, for Abuse Hurts, the very last one on this long list jumps off the page, and that is the breach of a long-term supervision order. Most of you know what an LTSO is, but I would like to explain how an offender gets one of these orders.
He—and it is most often a “he”—must receive a sentence of two years or more, and there must be a substantial risk of reoffending. The court can make this determination if the offender has been convicted of one of a number of very serious sexual offences and has displayed a pattern of repetitive behaviour that shows a likelihood of causing death or injury to a person, or a likelihood of inflicting severe psychological damage, or by conduct that shows "a likelihood of causing injury, pain or other evil". The word “evil” is not my word; that's the word that's contained in the Criminal Code.
Many of these offenders are also identified by the court as having met the standard to be declared dangerous offenders; however, if the court determines there is a reasonable possibility of managing risk in the community, the offender must be sentenced as an LTSO.
An LTSO is a post-sentence supervision order for up to 10 years, replete with multiple conditions, federal parole officer supervision, and more often than not, particularly in the early years of an order, a residency condition. All of these conditions are imposed by the Parole Board of Canada.
Clearly, the legal bar to receive this designation is high, and with good reason. These are very serious sex offences, and serious offenders who pose an ongoing risk to innocence even while out on these LTSO orders, so when these kinds of offenders appear before a court for an LTSO breach—usually an early warning of a return to their serious offence cycle—they must be dealt with appropriately. In the view of Abuse Hurts, that should be by way of indictment.
These are the kinds of offenders for whom incapacitation through further incarceration safeguards innocents in the community. We all know that Crown attorneys work hard and constantly manage significant workloads. It is not appropriate or fair, for that matter, to allow this offence to be included in the basket of offences where a decision to proceed summarily might be taken because the Crown is under intense pressure from on high to reduce the number of trials in the Superior Court.
Abuse Hurts proposes to the committee to reconsider some of the serious offences on the list I noted earlier and consider removing them. Please, if you see fit, remove breach of LTSO from the list of offences to be hybridized.
Second, I'd like to speak to the judicial referral amendments. If you work in the criminal justice system, one thing is apparent. It's a well-known axiom that a small number of offenders commit a disproportionately large number of crimes, and many of these offenders routinely violate release conditions, fail to appear in court, and reoffend while out on one or more conditional releases or while at large on a warrant.
I think of the young man who, for all intents and purposes, executed a St. Albert police officer not that long ago in Alberta. He was this kind of offender.
These are the offenders who offend the sensibility of many Canadians, drawing criticism about the “revolving door” nature of our justice system. These circumstances can and sometimes do bring the administration of justice into disrepute, yet Bill proposes an alternative mechanism to deal with many of these offenders that I believe is less public safety-oriented. Anybody involved in the criminal justice system knows that there is very little coordinated information both within and outside jurisdictions to track criminals. Even critical documents, such as criminal records and CPIC entries, are routinely, and sometimes woefully, not up to date.
What's going to happen with these judicial referrals? At best, they might end up written out in court-stored information. How would that help anyone identify the real risk associated with a given offender?
As a former member of the Parole Board of Canada, I can confirm how difficult it is to get even the most basic police record information that is missing from an offender's file. Even if you are able to obtain this information, will the court view it in the same way as a criminal record? Obviously, it won't. As well, a possible unintended consequence of this extensive and detailed new judicial referral plan is that it might use up more court time.
In my opinion, these amendments will varnish the truth about offender behaviour, with important information no longer entered on the official record. How would this reinforce the public's faith in the administration of justice? How does it help quality decision-making? How is it good for public safety?
Abuse Hurts is aware that the federal government consulted a number of people and organizations about this proposal. We know there was significant support among a number of participants in the criminal justice system for an alternative to the charges of fail to comply and fail to appear.
Abuse Hurts proposes creating a mechanism to ensure that judicial referral entries appear on the right side of the criminal record, allowing for use when future decisions to release, refer or detain are being made by police, courts and parole boards.
There's policy that goes along with legislation, so if this committee is interested in looking at that, that might be the route to travel, coupled with regulations.
Third, Abuse Hurts would like to address proposed section 493.1. I'll just refer to it as the principle of restraint section in the new bill. The proposed section reads as follows:
|| In making a decision under this Part, a peace officer, justice or judge shall give primary consideration to the release of the accused at the earliest...opportunity and on the least onerous conditions that are appropriate in the circumstances, including conditions that are reasonably practicable for the accused to comply with, while taking into account the grounds referred to in subsection 498(1.1) or 515(10), as the case may be.
It's important to know what's in those two sections.
Subsection 498(1.1) instructs police officers about what to consider when releasing, either on the street or from the police station by an officer in charge. Considerations include establishing identity; securing evidence; preventing continuation or repetition of the offence or commission of another offence; ensuring the safety and security of a victim or witness; and considering whether the accused is likely to attend court.
Section 515 sets out the grounds a court must take into consideration when determining whether to release or detain. Grounds include, again, ensuring attendance in court; whether detention is necessary for the protection or safety of the public, including any victim or witness; and whether there is substantial likelihood that an accused will commit an offence or interfere with the administration of justice. An accused can be detained if it is necessary to maintain confidence in the administration of justice based on the apparent strength of the case; the gravity of the offence; circumstances surrounding the offence, including whether a firearm was used; and where the accused is liable on conviction for a potentially lengthy prison sentence.
It's pretty clear what all of those points speak to: public safety and the need for a properly and carefully administered justice system so as to ensure it doesn't fall into disrepute and lose the confidence of Canadians.
I believe that this new proposed principle of restraint in section 493.1 as written is going to trump well-established and, for the most part, long-standing safeguards. This section gives the principle of restraint primary consideration. The dictionary defines “primary” as “of first rank, of importance or value, of chief importance.”
I accept that this section was written with the best of intentions, but with the greatest of respect, I believe it overreaches. Abuse Hurts is particularly concerned about the risk it poses to public safety. Courts are already required to employ the principle of restraint in their release decision-making. The charter, criminal law and case law all tell them to do so. I believe it is wrong to give the principle of restraint primacy.
Abuse Hurts proposes including that principle of restraint section in your bill as written, but removing one word, the word “primary”.
Thank you for this opportunity. I look forward to answering any questions you might have. It's the first time I've appeared before a committee when I didn't have a brief prepared, and I apologize for that. There were circumstances beyond my control, but I've provided my speaking notes electronically to the clerk.
Thank you, sir.
Good evening. I'm also honoured to be here. I know the hour is late and, brevity being the soul of wit, I will get straight to the point.
I'm here to speak primarily on the issue of law students, dealing with section 802.1 in the code. I'm on the board for Community Legal Aid in Windsor, Ontario, as well as the amicus curiae in the 672 Court in Windsor, Ontario. That's the mental health court. We've had that court for about eight or nine years now. I act primarily as duty counsel in that court, so I deal with a lot of mentally ill accused, as well as, more importantly, a lot of people who do not qualify for legal aid.
I'm sure you've heard that, at one point, legal aid had a period of time when certificates were given to people with mental health issues. Unfortunately, due to financial constraints, that has really gone by the wayside. That's why the students are present in our court system and are able to assist people charged with relatively minor offences. Most of the people who come into the mental health court and do not qualify for legal aid are first-time offenders who have no real history in the criminal justice system. It's the perfect opportunity for students to work on these matters.
The recommendation that's available in CLA's memo deals with the amendment to section 802.1 by adding wording essentially dealing with the agents and the articling students being allowed to appear even with the change in the amount of time for the offences being dealt with. I'm not here to speak on the issue of maximum potential penalties for summary offences. Whatever you do with that, you still have to deal with the issue of the law students being there.
I'm asking you to allow the articling and law students to continue in this area of law, because they're under the direct supervision of a lawyer. This is different from a paralegal. Legal Aid's approach is to ask you either to enumerate a number of sections of the code that they should be allowed to act on, or to exclude them.
However, having been a criminal lawyer now for 17 years, I know that these nice tiny little boxes into which things fit just don't exist in criminal law. Every case has its difficulties, even if it's something as small as a theft under a certain amount or an assault in a bar fight or something like that. There could be issues in that case that a student might have a problem with, but because the student has an articling principal and all the clinics have staff lawyers who review all the files, they will have the ability to look at the individual case and give the student some direction on what to do.
It's much like doctors and residency, because our students are in law school. Before doctors go into residency, they have medical training. Our students have legal training. That's why I'm asking you to consider that. I'm sure there's a big issue with the paralegals. I'm not here to speak for or against the paralegals, but I think there should be some kind of exemption for the students. They're in a different class because of the training they've had: Either they're in law school or they're articling.
With the direction of an articling principal or one of the staff lawyers, there is someone there to see the problems in each individual case and to sound the alarm. If you do it in the way Legal Aid is asking, with the enumerated sections or the excluded sections, there's still potential for danger. That's why I'm asking you to deal with that amendment by adding those words to it.
Under a program approved by the lieutenant governor in council of the province.... I don't want to put too much on the table here, but I think we could cross that out. This is a federal statute, the Criminal Code, and I think that with direction, if you intend to allow the students to do that, it should be across the board instead of having each province do that. More importantly, if you leave it to the province to do this, there's going to be a gap for the people who are most vulnerable in the system, marginalized people as well as mentally ill people. As I said, dealing with the 672 issues, I have a real passion for the mentally ill accused.
I'm a lawyer who donates some of his time as amicus, but there's not a lot of me, if I can put it that way. The students fill a big part of the problem of dealing with the people who otherwise would be alone in the system.
Furthermore, getting rid of the students would cause further delay, because self-represented accused will cause delay in the system. There's empirical data that points to this.
I've dealt with people who have come to me in the 672 Court who weren't even notified by duty counsel that it existed. Once they came to me, essentially, I found out they had been trying to plead guilty for four or five months. They had been sent to a mandatory pretrial because the Crown position is that if you're going to have a self-represented trial, you have to have a pretrial in front of a judge. This causes delay and burdens the system.
There's always this caveat that there's a direction, that there's a lawyer present to watch the students. Allowing this would facilitate the marginalized people to still have representation in the system.
On preliminary hearings, I want to tell you that, being a lawyer for 17 years, I've read the material. A very small percentage of court time is used for preliminary hearings. As a criminal defence lawyer exclusively, I find them to be very valuable.
I'm not sure if anyone has said it before, but I would like to tell you that sometimes, even though I know things are not going to go well for my clients at trial in superior court, we have a preliminary hearing so they can see the evidence. They can see the Crown's case against them.
What happens in these cases is that a lot of times these matters resolve. We have preliminary hearings to test the evidence, and it doesn't take up much court time. Take the example of a sexual assault case. A preliminary hearing will last perhaps two hours. If it's a strong case, I sit down with my client after that, and then we alleviate a week-long superior court trial.
Also, sometimes the Crown doesn't really know what they have, and when I ask them to test the evidence after the preliminary hearing they see the frailties. The lawyers see it. It's the other players who don't, and they are the ones who need to see it at times. What happens at that point is that, again, there is resolution.
I would ask you to consider keeping preliminary hearings.
Finally, I would like to speak briefly about victim fine surcharges. Kudos to the committee for dealing with this issue. Again, being amicus and dealing with a lot of mentally ill accused, it's almost comical at times when I have somebody homeless or mentally ill in court. Guess what: They don't come to court. They get charged with failure to appear. They are not a danger to the public, and with the Antic decision and the new bail system, they keep getting released. Then you have them back in court with seven or eight separate pieces of information—breaches for not going to probation, not being at the residence where they are supposed to be, and failure to appear. Say, there are seven or eight charges. They plead to five. It's victim fine surcharge upon victim fine surcharge.
My clients, in some senses, become the victim of the victim fine surcharge. In that example, it is going to be $500 or $600. They don't have the money. They will never have the money, so I don't see the point of piling it on. I'm very happy to see the committee has wrapped its mind around that. I'm obviously in support of adopting your recommendation dealing with the victim fine surcharges.
Thank you, unless you have any questions.