Thank you for the invitation to present the Canadian Bar Association's views on Bill . The CBA is the national association of 36,000 lawyers, students, notaries and academics. An important aspect of our mandate is seeking improvements in the law and the administration of justice. It's that aspect of our mandate that brings us to you today.
Our section's membership represents a balance of Crown and defence lawyers from all parts of the country. Personally, I predominantly practise in criminal defence in Vancouver. I have become particularly interested in issues affecting court delays after acting as counsel for Barrett Jordan at the Supreme Court of Canada. I am joined by Kathryn Pentz, a chief Crown attorney from Nova Scotia who also acts as vice-chair of the criminal justice section in our organization.
We have provided the committee with an executive summary of our comprehensive 40-page submission. It can be found by clicking on the hyperlink included in our executive summary. I commend this larger document to you. Its thorough analysis of the 300-plus pages in the bill could only be briefly summarized in the 10 pages of the executive summary. This larger document includes detailed references to source material, statistics and explanations for our 17 recommendations.
My opening statement will focus on two overall perspectives that have informed aspects of our position on Bill . First, we say that evidence-based reforms are far preferable to hurried, or what some may even characterize as knee-jerk, criminal law policy. Second, omnibus bills like Bill hinder the ability of important bodies like this one to investigate and study each proposal. They also negatively impact the public's ability to understand and participate in this important debate.
Let me begin with evidence-based reforms. For any practitioner or experienced committee member, it becomes fairly clear fairly quickly, I would suggest, when a proposed amendment is evidence-based as opposed to hurried in response to a public outcry. As you will see from our submissions, we applaud the government for making meaningful reforms to several areas, including in particular the bail process and the administration of justice offences regime. These reforms are connected to empirical study, they are consistent with recent case law, and they are logical.
Other proposed reforms, however, such as nearly abolishing the preliminary inquiry and introducing police evidence by way of affidavit, are very different. They are different and largely indefensible because they are not evidence-based, they are inconsistent with case law, and they lack internal logic, in our respectful view. For example, watching the testimony of officials earlier this week, it struck me as rather remarkable that no meaningful data could be offered to justify the curtailing of preliminary inquiries. Similarly, no study or evidence could be cited to explain why or how the introduction of what has been suggested to be routine police evidence is causing delays currently. These sorts of reactions to Jordan, with respect, do not pass the smell test, and quite rightly have been criticized by various stakeholders who have come before you.
The second general point I will address concerns the omnibus nature of Bill . As we did with the previous government, the CBA is critical of this government's use of omnibus legislation. The bill is quite large. In our brief we address no less than 14 different areas of the system affected by this bill. There are substantive and procedural changes to various topics, ranging from abolishing peremptory challenges—a subject that on its own is so important that you might expect a bill devoted to it alone—to simple changes related to technology in the courtroom. Some reforms are front and centre. Others are buried in the bill, such as the coming into force of a highly problematic rebuttable presumption in human trafficking cases.
The other problem we've identified with omnibus legislation is that it does not allow for incremental implementation and change, something that might be very useful in trying to reform court delays without unduly eroding protections afforded to the accused.
There are indeed great reforms in this bill, which, if correlated with ongoing efforts to resolve delay, may well alleviate the pressure on the system without having to cast aside important tools that have proven their worth over time and that, if cast aside, will only lead to further and new charter challenges and pretrial applications—in other words, more delay. There are smart, focused reforms available to address delay that do not require the wholesale removal of procedural protections.
We offer two such suggestions here in our submissions on Bill related to elections in murder cases and electronic appearances for non-contentious hearings.
We are happy to address other proposals the CBA has offered, most recently on the Senate study on delay, and we have brought with us our brochure or pamphlet of the top 10 ways to reduce delay that was offered to that committee. These included proposals related to reforming sentencing law, suggestions regarding whether Crown approval standards should be implemented nationwide and other practical solutions that can address the problem at hand.
With that general introduction, I now turn to my colleague to address some more specific concerns that we have identified with respect to Bill .
As my colleague mentioned, we've made 17 detailed recommendations. Some are suggestions to slightly improve existing proposals and others reflect our more serious concerns. I'd like to focus my comments on two areas: the curtailment of preliminaries as well as the admission of what is called “routine police evidence”.
The restriction on preliminaries is said to be justified as a means to achieve court efficiencies, yet research has shown that at most 2% of all court appearances are used for preliminary inquiries. From the perspective of front-line practitioners—both Crowns like myself and defence counsel—we do not see a system overburdened with preliminary inquiries.
Further, the proposed amendment arbitrarily limits preliminary inquiries to those charged with offences carrying a maximum of life imprisonment. We say this is arbitrary because some offences that carry maximum penalty of life, like robbery, for example, are extremely broad and can encompass conduct far less serious than other offences precluded by this criteria, like aggravated assault, some firearms offences and offences related to organized crime. These offences can be far more serious than those that happen to carry a maximum of life imprisonment, particularly those that carry mandatory minimum penalties.
There are those who argue that in the era of full disclosure, preliminary inquiries are unnecessary. But the reality is that even with full disclosure, the viability of a Crown's case is not always readily apparent. What a witness says in a statement to the police or in a meeting with the Crown is not necessarily what that witness will say on the stand. The other reality is that accused often believe that witnesses will not testify, particularly if that witness is a close associate. There's no possibility of any discussion of resolution until the witness takes the stand.
To illustrate the value of preliminary inquiries, I have two examples. Recently in my jurisdiction, a preliminary inquiry was held in a sexual assault case. The victim was the only witness and her evidence was very strong. Defence counsel have now opened discussions for a guilty plea. The preliminary took about an hour and a half and now has a potential of resolving the case, saving a trial in Supreme Court, which would have taken in excess of a week.
In another case, again of sexual assault, the case rested on DNA evidence because the complainant could not identify her assailant. At preliminary inquiry, the defence cross-examination of the forensic evidence exposed some irregularities in the report. The problems did not preclude the admissibility of the report at the preliminary, but could well have been fatal if the Crown had only discovered it at trial. As it was, the Crown was able to correct the deficiencies and was successful in obtaining a conviction.
The preliminary inquiry is an important tool that makes an invaluable contribution to the effective and efficient operation of the criminal justice system. For example, it provides an opportunity to explore pretrial motions like section 276 applications and O'Connor applications that otherwise would be litigated mid-trial, running the risk of delays.
A second major concern we have is that Bill proposes to allow for routine police evidence to be introduced by way of affidavit or solemn declaration. If an accused wishes to cross-examine the police officer, then an application must be made.
We see this section as fraught with difficulties. The definition of “routine police evidence” is so broad that it would potentially allow the Crown to call virtually any aspect of an officer's testimony by affidavit. If the accused wished to cross-examine, as undoubtedly they would, they would have to give notice of intent. In the absence of an agreement, the court would then be called upon to adjudicate. In this process as well, the defence would necessarily have to expose aspects of its strategy in order to justify calling the witness.
Such a process would expend more court resources than simply calling the officer, and will have the exact opposite effect of what Bill hopes to achieve. It would add more delay.
There are also some practical problems with this proposal, which we highlight on page 13 of our full submission. Who will draft the affidavit? Will it be the already overburdened Crowns and police officers? How will the trier of fact weigh affidavit evidence that conflicts with viva voce testimony? How will juries be instructed to deal with affidavit evidence?
To conclude, the CBA recognizes the need to streamline aspects of the criminal justice system in response to Jordan. We believe that such reforms must be evidence-based and must be presented in a way that allows for meaningful debate by this committee, practitioners and the public. We offer slight improvements on existing proposals and oppose other proposals altogether.
With respect to some non-delay-related amendments in the bill, such as the jury selection process, we encourage further study.
Thank you for the opportunity to present. We will be happy to respond to any questions.
My name is Michael Johnston. I am a citizen and a barrister-at-law and, as often as my clients' cases and causes permit, I am a jury lawyer.
Before speaking about Bill and jury selection, I did want to take a moment to thank you for extending to me this incredible democratic opportunity. Not every country gives its citizens a voice in the legislative process. Not every political system is prepared to hear evidence that may call into question the wisdom of a proposed course of legislative action. Providing citizens with a voice and providing citizens an opportunity to be meaningfully involved in acts of government bespeaks a vibrant democracy.
In spirit, Bill seeks to give citizens more of a voice. Bill C-75 seeks to put more citizens in the jury box, to have more citizens involved. Insofar as that spirit is in Bill C-75, it's to be acknowledged and celebrated. However, it takes more than good intentions to make good legislation. I think we all know that there's a saying about where good intentions alone might sometimes take you.
Bill 's measures with respect to jury selection seem a bit perfunctory. They require, in my respectful submission, greater deliberation and calibration to achieve the stated objective, and most importantly, in some cases outright elimination, because if you're going to do something, you must have evidence that there's a problem and have evidence that this is going to achieve the solution.
Trial by jury needs to be better understood in terms of how the provinces and the federal government interplay to achieve a representative jury role. There needs to be a better understanding of how challenge for cause informs and works with peremptory challenges.
Ultimately, trial by jury isn't something that just happened overnight. In many ways, trial by jury started before the Norman Conquest, with trial by compurgation. Over the last thousand years, trial procedure has slowly evolved through trial and error. The provisions that have persisted over time, I would suggest to you, aren't there just as historical vestiges, but stand the testament of time.
Bill with respect to jury selection comes along 48 days after the government's very public declaration of disagreement with a verdict. Forty-eight days to study provisions and otherwise come up with solutions, from my most respectful perspective, simply isn't enough time.
As a result, in my respectful submission, much of what Bill proposes in terms of jury selection is a legislative rush to judgment, and while the bill lacks a rational connection between its noble objectives and its actual measures, there nevertheless are some things that can be advanced here today, in my most humble opinion.
We know that there is unfortunately a great problem and a tragic problem of overrepresentation of aboriginal people in our criminal justice system. Correspondingly, there is under-representation in the jury boxes. What is the correlation there? It is criminal records. Criminal records are used to exclude tax-paying citizens, citizens who have a right to vote in federal and provincial elections. Criminal records that don't disqualify them from those civic responsibilities and duties do disqualify them from sitting on a jury. Up to 3.8 million Canadians have a criminal record. Criminal records are used both by the provinces and by the federal government to exclude up to 10% of the population.
Now, if Bill wants to rid itself of discrimination in the jury selection process, this is the lowest-hanging legislative fruit. Get rid of criminal records as a vector for excluding citizens, and if you want to exclude citizens because you think they're biased, produce the evidence. We have provisions already in place to deal with that under paragraph 638(1)(b) of the challenge for cause provisions.
That being said, Bill is noble in its spirit. It already contemplates modifying paragraph 638(1)(c) to narrow the exception. It wants people who have gone to jail but who have served only one year of jail to be eligible for jury duty, thus changing it, obviously, from the one year that it currently is to two years.
Parliament wants people with criminal records to be involved. It wants to give these people a voice, but remember what I said about this interplay between the provinces and the federal government. Unfortunately, Parliament's intention to have people with a criminal record who have served one year in an institution, for example, is going to be frustrated by the fact that almost every province excludes people with a criminal record, for much lower reasons.
In Ontario, if you've been convicted of an offence that was prosecutable by indictment, that leads to automatic exclusion. Those are easy areas for the government to come into and create a basis whereby it says that across the country you can only be excluded for this reason.
Justice Iacobucci, in his report, actually appreciated the interplay between the two levels of government. He made a recommendation that I submit you can adopt and take one small step further. I'm suggesting that section 626 of the Criminal Code say that nobody in Canada—or no citizen—is subject to exclusion from jury duty merely because of a criminal record, or simply say that the criminal record exclusion should parallel that of the federal government. They did that with respect to provinces that were excluding spouses of doctors or other people who were otherwise ineligible.
I appreciate that I am almost at the end of my time. I have two other areas that I want to briefly address. Most importantly, I want to speak about challenge for cause in section 640 of the Criminal Code. This is a small provision that has otherwise been tucked away in this omnibus provision, and perhaps not many people have even spoken about it, but this is a criminal law provision that has existed almost in its exact form since 1892. Jurors who are either unsworn or sworn have been entrusted to decide if a challenge for cause is true.
This is also important in terms of giving citizens a voice and encouraging citizen involvement. Jurors pick themselves. When they ultimately determine that a juror can sit on a jury, the jury that ends up sitting is a reflection of the choices of the litigants and the jurors themselves. This piece of legislation proposes to have judges completely overhaul that situation and be the sole people to make that determination. There's no evidence that there was ever a problem with this challenge for cause procedure. There's no evidence that this is going to actually provide any form of meaningful solution or that it will even expedite matters at all.
In my most respectful submission, there is no good reason to interfere with the challenge for cause procedures. They fulfill a very important role in terms of ensuring for a defendant—for whom the right to trial by jury exists—that the body is an independent, impartial and representative one. I would most respectfully submit that this idea to change the challenge for cause procedures is totally unsubstantiated and without merit. It should be eliminated unless there's some reason offered in terms of continuing on with section 640 being modified.
Finally, l want to say something about peremptory challenges. As a jury lawyer, I'm somebody who is often in a situation where I'm facing unrepresentative jury pools or jury panels. There are many situations. Most recently, I ran a four-week judge and jury trial where my client was an Ethiopian Muslim, and his co-accused was a Muslim. There were not many blacks or Muslims on Ottawa's jury panel, I assure you. We had to exercise, almost to the full extent of our abilities, the challenge for cause and the peremptory challenges in order to get the 12th juror, who was the only visibly racialized juror.
I say that because peremptory challenges are important to protect the rights of the accused. Often what seems to be lost in all of this conversation is that trial by jury is a benefit that exists for the accused person. There are two reports that have been cited by the ministry of the Attorney General, when this legislation was tabled, seeking to justify this legislation. As a lawyer, however, I always like to look at the actual source. I commend to you to look at the Manitoba inquiry report, which is being cited as the basis for this removal.
In 1991, it was suggested that these peremptory challenges should be eradicated because of the discrimination that they allowed. At the time, however, it also made an additional recommendation. The additional recommendation was to change the way in which juries are selected so that there could be some greater questioning of potential jurors. You can't just nitpick, and I respectfully ask this committee to consider that.
If you are going to go so far as eliminating peremptory challenges, I would say that Justice Iacobucci, when he studied this in 2013, came to a non-partisan, determined and decided conclusion that it was good to keep them but to provide some oversight by way of something akin to an American-style Batson challenge.
I'm sure I've exceeded my time at this point, but I'm happy to answer any and all questions with respect to jury selection or anything else.
I thank you kindly.
Thank you very much. It's my turn.
I want to say thank you to all three of you for your excellent presentations and your great briefs. I want to, in fact, help drill down on a couple of recommendations that, understandably, you didn't have a chance to get to.
I would first like to say, to the Canadian Bar Association, that page one of your executive summary has quite a succinct summary of where you stand. You say, “other proposals, including those to curtail preliminary inquiries and introduce 'routine police evidence' by way of affidavit, would exacerbate, rather than alleviate, court delays, while simultaneously sacrificing important procedural protections”. I thought that was a very good summary.
In fact, to you, Ms. Pentz, your anecdote about preliminary inquiries in the province of Nova Scotia was precisely what Mr. Star, a defence lawyer in Nova Scotia, said to us yesterday. I thought that was very helpful.
As I said, I would like to talk about things that you didn't have a chance to talk to. The Canadian Bar Association has given us 17 recommendations. I'd like to talk about number 15, in which you recommend that the choking and so-called supermax penalties be deleted from Bill . You say those are, “particularly unnecessary”. I wonder if you could elaborate.
Over the last decade there have been multiple studies conducted on the bail process and pretrial detention. Their conclusions have virtually all been in one direction, that bail is in urgent need of attention. As such, the government should be applauded for proposing legislative reform. Indeed, any attempts to fix our broken bail system are a good thing, and the current legislative proposal targets several of the key concerns. My worry is simply that they address the symptoms rather than the underlying causes of the problem. As such, they are unlikely to fix what might reasonably be seen as a genuine crisis.
In my eyes, here is what I think has happened. Our current state of bail is the product of the adoption over the last 20 or 30 years of a risk-averse mentality, which has slowly permeated the entire bail system, ultimately redefining the very notion of what it is that we are trying to accomplish.
In 1971, bail was envisioned as a summary procedure to expeditiously determine the liberty of the accused until trial and ensure, above all, his or her attendance in court. Within our current risk society we have for all intents and purposes abandoned this primary grounds of detention and elevated the secondary grounds as the principal focus in determining whether an accused should be released. The principal role of the bail process has become one of limiting to the greatest extent possible any risk to public safety that accused persons might represent.
However, given that we have yet to perfect a means of distinguishing with complete reliability those who will in fact offend once released on bail, our heightened concern with risk management has translated in practice into a strong reluctance on the part of all criminal justice players to exercise discretion to release.
Release decisions are now conceptualized in terms of being either right, the accused doesn't commit a criminal offence while on release, or wrong, the accused commits a crime while in the community, rather than simply the best decision made at the time with the information available. Decisions about release are now seen as a product of a particular individual who, in the case of a tragic incident, will be personally held responsible.
Not surprisingly, the principal decision-makers in the bail process have chosen to play it safe by either opposing bail, passing along the decision to someone else, or eventually releasing the accused, albeit with multiple constraints.
At the front line, police are laying a greater number of charges despite declining overall and violent crime rates. Further, they are detaining a greater number of cases for a bail hearing. Once in court, the bail process is taking longer, with a greater number of adjournments, a greater degree of case processing, and ultimately requiring a greater number of days spent in remand awaiting a determination of bail.
Of those eventually granted bail, more onerous forms of release are being preferred and a greater number of conditions are being imposed, often with the need of a surety. Not surprisingly, a greater number of accused persons are violating bail conditions, predominantly committing acts that would ordinarily constitute non-criminal behaviour rather than new substantive offences, and the police are laying a greater number of administration of justice charges in response.
With reverse onus provisions for accused persons who have violated a court order while on bail, the likelihood of being granted bail a second time is significantly reduced. Even in those rarer cases in which the accused is re-released on bail, additional and even more onerous conditions are often imposed, further enhancing the likelihood of another return to bail court on a breach. With the accumulation of an even lengthier criminal record, the likelihood of being granted bail for a future offence, even for a minor crime, is further reduced. We've effectively enhanced the proverbial revolving door of the criminal justice system, this time with individuals who began the process still presumed innocent.
Don't misunderstand my position. I'm not suggesting that no one should be detained until trial. On the contrary, detention is in many cases the appropriate response in order to ensure that an accused will appear in court or provide public or individual safety.
My point is that we're presently defaulting to detention, or at least delayed release, rather than ensuring that we're putting the right people in prison while quickly releasing those for whom we simply worry about reinvolvement without any substantial basis, or those whose risk will not substantially affect public safety. In brief, we've lost the correct balance between the rights of still-innocent people and the rights of the community at large. The cost of our current risk-averse practices are not trivial. Fiscally, the enormous financial costs of operating an increasing number of bail courts rival only those of housing all of these accused in pretrial detention for longer periods of time.
Institutionally, the effective management of this population has become a serious challenge for remand centres, particularly with regard to prison overcrowding and the corresponding risk of prison disturbances. Administratively, their increasing numbers and lengthy processing times have significantly contributed to widespread court delay issues. For the individuals accused, even short periods in remand have devastating effects, limiting their ability to defend themselves, maintain employment, provide for family dependents, etc. Morally, a greater number of people being held in custody before rather than after being found guilty is clearly problematic.
Even in terms of public safety it's—ironically—difficult to argue that we're better protected. Violent crime has been declining since the early 1990s. A non-trivial proportion of accused sent to bail court have committed minor, non-violent offences or have simply breached a bail condition for non-criminal behaviour. Further, most research shows that federal offenders on conditional release are very unlikely to commit new offences, much less violent offences. There is no reason to believe that those released on bail would be any different.
In terms of remedies, solutions will need to be transformational. Our current bail system is a result of a particular mentality, driven largely by a climate of risk aversion and risk management. The problems are both endemic and systemic in nature. In fact, they are feeding off of each other in what amounts to a vicious circle. What is needed is an approach that will break this feedback model by challenging the underlying mentality. Here lie my concerns about the proposed legislation. In my mind, they can be loosely characterized as tinkering with the current bail system, and are synonymous with other recent and even large-scale efforts to reduce the remand population.
These initiatives have shown some success, but the magnitude of improvement has been small and, in some cases, short-lived. To bring about systemic change, a different mindset is needed that will force all key players to reconceptualize bail as it was originally intended.
Let me use the legislative proposal to expand police discretion as an example. I applaud that attempt to reduce the number of cases detained by police. In Ontario, almost half of all criminal cases start in bail court. Notably, only 30% of them have any violent charges. This is a serious problem, and any reduction in the strain on bail court would be positive. The challenge is to change the culture of police decision-making. My concerns are twofold.
First, I'm not convinced that police will regularly use this expanded discretion, given that there continues to be no real attempts to reduce individual or institutional risk if the case goes south. I see little that will encourage, if not force, police to behave differently from the past.
Second, even if police decide to release, I worry that they will impose multiple conditions to minimize their own risk. Given that the conditions at their disposal are very broad and most accused will accept anything to avoid prison, and particularly with no lawyer present to counsel them at this point, I also worry that the latter approach will not always be reflected. With many, potentially very onerous conditions, breaches will still be the norm and the vicious circle continues.
Both police responses strike me as completely understandable within our current risk culture as no one wants to be caught holding the proverbial hot potato. Until we address the cause rather than the symptoms of our broken bail, current legislative changes, at least as they are presently crafted, may simply not be enough.
In 1997 there were about 3,800 youths serving custodial sentences in Canada. By 2015 this was down to about 500. There are lessons to be learned from the changes in Canada's youth justice system that have relevance for the areas of Bill that you've asked us to speak about—namely, bail and the administration of justice charges.
In the mid-1990s, it was broadly accepted that we incarcerated too many youths, but it took us 20 years to get to where we are now. The goal in part was to screen minor cases out of the court system. It meant that the courts and youth corrections could deal more effectively with the more serious cases.
I suggest that one of the goals of the proposed changes in bail and administration of justice charges contained in the bill is to be more selective in the manner in which we deal with cases.
How did we do this with youths? First, there was a broad and growing consensus in this case about what the system should be all about. Second, the consensus was reinforced by legislative changes. Third, the legislative language in youth justice changed from what might be called “aspirational” provisions, where the intent was clear but the decision-maker was not required to change. It shifted toward what might be called “operational” directions, where more firm guidance was given. Fourth, governments reinforced the importance of changes in the legislation by instituting educational processes that ensured that people knew that a real change in approach was required—in other words, that the behaviour on the part of those in the criminal justice system had to change in order to comply with the intent of the change in law.
My concern regarding the proposals in Bill on bail and administration of justice offences is not that I don't agree with what I believe are its goals. It is that I don't think these goals will be achieved.
As you probably know, we have not been as successful in controlling the use of pretrial detention for youths as we have been with sentencing. The original restrictions in the Youth Criminal Justice Act on the use of pretrial detention were not as directive as the restrictions on the use of sentenced custody. Even though the legislation relating to pretrial detention for youths was improved in 2012, no apparent change in the decision-making process actually occurred. The law changed, but practice did not. In 2003 about 41% of the youths in custodial facilities were in pretrial detention. By 2015 this had increased to 56%.
Let's turn now to the proposed changes in the handling of administration of justice charges and bail. I read the proposed changes to section 16 of the Criminal Code with one question in mind: Will it be necessary for anyone to change what they're currently doing as a result of these changes?
Obviously, there are some sensible principles. It is useful to state clearly that primary consideration should be given to the release of the accused at the earliest reasonable opportunity and so on. But such a statement is not dramatically different from the current provisions. What in this legislation will force or at least strongly encourage police officers, Crowns or judicial officials to change the manner in which they determine what constitutes best practices?
I say this in the context that the police officer is encouraged to place conditions on an accused person that are reasonable to prevent the continuation or repetition of the offence or the commission of any other offence. This would seem to encourage extra conditions that are likely to lead to something discouraged in the legislation—namely, additional administration of justice charges when extra conditions are not followed. At the moment, the arrest and bail laws are complex and do not give clear direction.
My reading of the Supreme Court's decision in Antic was that the justices simply restated, in plain language, what the Criminal Code says. Plain language is good, but subsequent court decisions suggest that it may not be sufficient.
Proposed section 493.2 says that a judge or justice shall give attention to the circumstances of aboriginal accused and other vulnerable or overrepresented accused people. Later, in proposed changes to section 515, restraint is again mentioned. Clearly, the idea is that all people, especially indigenous and other disadvantaged accused, should be beneficiaries of restraint. Why not require that reasons be given for escalating the restrictiveness of release orders beyond a simple undertaking without conditions?
Similarly, if it is deemed necessary to impose conditions or a surety, why not require reasons? For indigenous and other disadvantaged people, why not require those suggesting or imposing the conditions to indicate why such conditions are both necessary and possible for the person to follow? In other words, if you want to focus the decision-maker's mind, say so. Require justifications for restrictions on freedom.
There's another problem, however. The Criminal Code, as amended in Bill , would be giving directly contradictory messages. On the one hand, legislation would state that innocent people should not be imprisoned unless there is good reason to do so. However, at the same time, the list of the so-called “reverse onus” offences is being expanded in the bill.
When the current bail laws were put in place in the early 1970s, there were no reverse onus offences. The expansion of the list since the mid-1970s has been gradual, and I would suggest, without empirical evidence of the need for change. Most, if not all, of the reverse onus offences are ones that you would expect courts to take very seriously anyway. The problem in expanding the list, especially at this point, is that the message is clear. A decision to detain is the preferred and safest choice in the short run for those concerned about risk, notwithstanding sections such as the proposed statements concerning restraint.
These two areas of the Criminal Code—administration of justice charges and bail—clearly need attention. My most important worry about the current set of proposals is that they won't be effective in creating the intended changes.
I'll finish with some statistics that illustrate the importance of this issue.
In Ontario, in the year ending this past June, 46% of the 208,000 cases that were completed in Ontario's provincial courts started their court lives in bail court. As Professor Webster has just pointed out, bail cases are not necessarily all serious cases. In fact, only 31% of these bail cases involved crimes against the person.
Another indication that these cases are not necessarily serious is that 40,000 of these bail cases, or 42% of them, in the end had all charges withdrawn or stayed at or before trial. How serious could these cases have been if all charges are withdrawn or stayed?
I'm not confident the changes in Bill will make much of a dent in those numbers. I hope I'm wrong.
I've been asked here to comment on Bill and the amendments related to bail and administration of justice offences, or failing to comply. Much of my research over the past decade has been around the Youth Criminal Justice Act and issues around bail and bail release conditions.
With respect to the amendments focused on the YCJA and bail within Bill , the focus appears to be both on conditions placed on youths and on responses when a youth fails to comply with such conditions. Similar to my colleagues here, I think both issues desperately need to be addressed, and I applaud any efforts to try to address these problems.
The research tends to find that there are numerous broad-ranging conditions placed on youths, and many times those conditions appear to be crafted with broad social welfare aims that go far beyond the purpose of release conditions. Girls may be especially likely to be subject to such conditions.
The use of these broad welfare or treatment-based conditions is problematic for a variety of reasons, one of which is that the accused is legally innocent at this stage and very little is known about him or her, so however well intended these broad therapeutically focused conditions are, they're unlikely to achieve their desired goals and can actually do more harm in a variety of ways, one of which is setting the youth up for failing to comply. Not surprisingly, the more conditions placed on a youth and the longer the youth is subject to them, the more likely failing to comply charges will occur.
The thrust of the amendments within the YCJA is in the right direction. Bill aims to prohibit the imposition of bail conditions as a substitute for mental health or other social welfare measures. Bill also attempts to remind justices that bail conditions can be imposed only if it's necessary to ensure court attendance or for public safety, or if the condition is reasonable having regard for the circumstances of offending behaviour, or if the young person will reasonably be able to comply with such a condition. Bill also attempts to address responses to failing to comply with conditions, such that various alternatives to charging have been presented within proposed section 4.1.
This is all in the right direction, but again, similar to what both Professors Webster and Doob have said, I fear this may not achieve much change in practice. Learning from the successes of the YCJA, we see that for change to occur, as Professor Doob has mentioned, there needs to be education and training around the changes, and the changes need to be operational or directive, rather than somewhat vague aspirational goals. For local on-the-ground practices to change, people need to know about the changes and understand the intent of them.
Part of the reason why the YCJA has been so successful in selectively using court and custody was undoubtedly due in part to the fact that it was an entirely new piece of legislation. A new act signalled new practices. In effect, it forced a new mindset. In addition, there was considerable education with considerable training for those administering the law years before the act came into force. This was likely indispensable not only in ensuring broad buy-in for the act. It also likely helped ensure operational support from those on the ground administering the law. The same needs to be done here, or nothing is likely to change.
Moreover, although it's all in the right direction, the amendments are still somewhat vague, with little directive guidance. Again, learning from the success of the YCJA, the greatest successes have been linked to the sections that have the clearest operational directives, rather than aspirational goals. Assuming, for example, that police and Crowns already believe they're engaging in best practices and pursuing charges for failing to comply only when necessary, it's not clear if the proposed alternatives to charging within proposed section 4.1 will be enough to change those current practices, especially if there's little by way of education or training about the changes and the intent of them.
Similar issues arise with respect to the imposition of conditions. It's not clear if the proposed amendments related to the imposition of release conditions will lead to greater restraint. There's actually very little guidance or direction.
In this case the entry point for much of what has been happening with respect to release conditions is through the Criminal Code and the ability to add on any other reasonable conditions as the justice considers desirable. It's not entirely clear how the proposed YCJA amendment—with yet another statement that conditions be reasonable, having regard for offending behaviour—will reduce the number or range of conditions placed on young people. If there is a desire to restrain the imposition of conditions placed on youths, then Bill should probably directly address that.
Moreover, I share the same concerns as my colleagues with respect to the expanded police discretion. It's a question mark if they use it, but if they do, it may well lead to an increase in the use of conditions, the very thing that at another level there's an attempt to restrain.
I suppose my points are then threefold. First, if there's any hope of changing release conditions there has to be education and training. Do not think that if you pass law everything will necessarily change to fall in line with what Parliament intends. Second, if the desire is for restraint in the number and range of conditions placed on youths, then that should be directly addressed, rather than additional aspirations to be reasonable. If expanded police powers to impose conditions are provided for, they may actually be used. Building in more procedures around responding to “failing to comply” offences seems to me to be focusing a little more on the symptom of the problem rather than the problem itself, and that's the use of conditions.
Finally, as Professor Doob has mentioned, the limits put on bail conditions are much more specific for youths than that for adults. If putting on broad-ranging sometimes intrusive therapeutically based conditions is seen as inappropriate with respect to youths, I question why that's not also the same for adults. If it's important for justices to consider whether a youth can actually comply with a condition that's going to be imposed, why is that not also relevant for adults?
Similar issues exist in the adult system, but the problems are profoundly more difficult since the Criminal Code legislation is far less directive than the YCJA and, indeed, more ambivalent and at times, as Professor Doob has pointed out, contradictory with respect to bail.
There are very valid arguments that, again, following the YCJA example, it may be time to completely rewrite adult bail laws. That may necessitate the change in mindset and practice more so than the continued tinkering with amendments. Perhaps it's time to rethink what we want to accomplish with the use of conditions and engage with the evidence to date on the impact and collateral consequences of these conditions, but more generally you might want to learn from the success of the YCJA, which suggests if you really want to see change you need to be directive and you need to educate those administering the law about the change.
We are reconvening with our third panel of the day.
It gives me great pleasure to welcome to this panel Ms. Nicole Myers, who is a doctor in the Department of Sociology, Queen's University. Welcome.
We also have Ms. Rebecca Bromwich, director, conflict resolution program, Department of Law and Legal Studies at Carleton. Welcome.
From the Society of United Professionals, we have Mr. Garrett Zehr, external relations committee member, and Ms. Kendall Yamagishi, external relations committee member. Welcome to you both.
We also have the pleasure of moving Stephanie Heyens, senior criminal litigator, York Region, Legal Aid Ontario, into this panel from the fourth panel because she has a flight she needs to catch.
We'll hear from all four, we'll do a round of questions, then we'll get to our next panel.
I am sorry that we are late. It couldn't be helped unfortunately, with votes, but we're pleased to finally begin.
Ms. Myers, you're first.
Thank you, Mr. Chair and fellow committee members, for inviting me to speak to you today about the bail provisions as well as about shifting the process for administration of justice offences.
As we've heard from other people before, but I will reiterate, since 2005 in this country, we have had more people in pretrial detention than in sentenced custody in our provincial and territorial institutions. The rate at which we've held people in pretrial detention has more than tripled in the past 30 years. If we look at the overall proportion of those who are in custody across Canada federally and provincially, 37% of that population is in remand. However, looking only at those in provincial institutions, you'll see that this climbs to almost 59%. That means 59% of people in our provincial jails tonight have not been convicted of a criminal offence.
In an effort to understand this problem, I have been studying the bail system in Canada since 2005. I have spent hundreds of days observing bail court, watching thousands of bail appearances happen. I've done this mostly in Ontario; however, I have collected data across the country. I've also examined completed case files and conducted interviews with people who have gone through the bail process as accused persons, as well as people who have acted as sureties. I've also interviewed members of the defence bar, Crown attorneys, Justices of the Peace, judges, and representatives of community agencies that are involved in the bail process. It's from this position that I offer my comments today on the proposed changes.
I'd like to start by saying that I do agree with the comments that were made by my colleagues in the previous session, Professor Doob, Professor Webster, and Professor Sprott. Today I'm going to focus my comments on three different parts. One is around codifying the principle of restraint and the use of sureties, restraint and imposition of conditions of release, and creating a new process dealing with charges against the administration of justice.
Before I lead into those comments, a bit of background is required. It's important that we recognize that most accused people are ultimately released on bail. Most of the accused people who are released are released with the consent of the Crown attorney, meaning this is not the result of a contested show cause hearing. The Crown is consenting to the accused's release. However, that release is rarely unconditional. In Ontario, 76% of people released on bail require a surety in order to be released. This practice is not consistent across the country. Indeed, Ontario is a bit of an anomaly in the frequency with which it is relied on as a form of release.
Surety requirements can lead to a variety of delays in the bail process as it can take some time to find somebody who is deemed appropriate and is also willing to come to court and to take on this particular role. A surety requirement may be especially problematic for marginalized folks who may not have someone who can come forward in this role. The surety requirement may also delay the bail decision. It takes more appearances and more nights in remand, and may ultimately result in an individual being detained if they have been unable to find an appropriate individual.
Sureties are also generally required to be physically present in court. This is so they can hear the allegations. They may be called up to the stand to give evidence at a bail hearing, but they may also be questioned during a consent release.
I encourage and support the codification of restraint and the ladder principle and encourage a restrained use of sureties. That said, I do have some concerns, not only with the continued use of sureties but also with the lack of structuring around that discretion about making this kind of decision, as well as with other kinds of conditions of release. I'll come back to that in a moment.
With regard to other kinds of conditions of release—not supervision in terms of sureties—we don't really know how well these conditions of release attenuate risk. Some likely do, but we do know that there are some problems with the number of conditions that are routinely imposed. Some of them may be problematic on their face; some may be difficult to comply with, especially for extended periods of time; and some conditions may be setting the accused up to fail.
Each condition of release creates a new criminal offence, increasing the risk that this accused person might be brought back into the bail process. On average in my work, I have seen 7.8 conditions of release imposed on accused people, and that has ranged from as low as one. I have never seen anyone released unconditionally. I've also seen an individual who had 34 separate conditions imposed on their release order. That means 34 new criminal offences for that particular individual.
The most frequently imposed conditions are to be amenable to the rules and discipline of the home, not to possess weapons, to reside with your surety, not to contact the victim or witness, to observe boundaries or no-go zones, to attend treatment or counselling, to abstain from the consumption of drugs or alcohol, and to abide by curfew or house arrest. Not all of these conditions are problematic. Some, however, are.
Even if the conditions are not problematic as an individual, they may be as a collective. We may be packaging a group of conditions that are incredibly onerous, restrictive, and difficult to comply with for an extended period.
In my work, I've seen that a great deal of conditions have no clear or logical connection to the allegations or the grounds on which the accused may otherwise be detained.
We also know that the more conditions that are imposed and the longer an accused is subject to them, the more likely it is that the accused will be charged with failing to comply. An average time of case completion is around four months. This is a long period of time to be subject to a variety of conditions.
I again here support the codification of restraint in the imposition of conditions, but I would suggest that more needs to be done about structuring discretion on how conditions are going to be imposed.
I would suggest that there should be a clear and rational connection between the condition and the allegations or grounds for detention. We should also be thinking about people's reasonable ability to comply with those conditions for the duration that they're subject to them.
To this end, in terms of the use of sureties as well as conditions, I think more needs to be done to guide the discretion of the decision-makers: of the police in deciding to hold someone for a bail hearing; of the Crown and the judicial officer in deciding to release, consent-release, or after a show cause; and about the kinds of conditions that are going to be imposed.
If we're really interested in shifting bail practice, we have to start with the police as the gatekeepers to the court process. More needs to be done to figure out how we can encourage police to exercise their powers of release and also to ensure that any conditions police are imposing are also reasonable.
I'd also suggest that some thresholds should be established that might help guide the decision to release or to impose conditions. For example, we might want to think about this: if it's unlikely that an individual would be sentenced to a term of custody, perhaps that individual should not be detained at the front end of the process.
With regard to the release decision, if possible, we should be making this decision faster, with fewer restrictions placed on the accused.
Again, most people are ultimately released. The faster we make that decision, the less time people will spend in pretrial detention with the negative consequences that come from that. We can also improve the efficiency of the court by not having the same people coming back over and over again before a bail decision is made. I would encourage you to consider structuring the discretion more closely to the proposed amendments to the YCJA and how conditions for youth are going to be considered.
I'll shift lastly to responding to the administration of justice offences. As you've already heard, despite overall declining crime rates and declining violent crime rates, charges against the administration of justice have been steadily increasing over time. Our criminal justice system expends considerable resources in policing, in incarcerating, and in processing these kinds of charges in court.
We have to remember that bail conditions largely criminalize behaviour that outside of the bail order is not a crime. By this I mean, for example, talking to a particular individual, coming home after a certain time, or consuming alcohol.
Sometimes conditions that are imposed are clearly and closely related to concerns around public safety. However, this is not always the case. Restraint in the imposition of conditions is the starting place; it is what is most important if we want to see significant change.
My concern is that what we're doing with the judicial referral hearing is suddenly a parallel process that may end up reproducing the very challenges and problems that we are currently seeing.
As it stands, it's unclear how and when the police are to make the decision to charge somebody versus send that person forward for a hearing, and the circumstances in which a judicial referral hearing cannot be used are so broad as to impact the meaningfulness of this new process.
Here again, I would invite you to look at what's being proposed for youth for those who are then found not guilty or have the charges withdrawn around failing to comply, and look back at what that has meant in terms of their case processing.
The way bail is currently operating is an important problem that must be addressed. What is being proposed is a cautious start, and in some ways it does little more than codify what was there in R. v. Antic. I would say that those are important things—this codification—and I've made a number of recommendations in my brief for areas that I think should be considered to avoid creating the very difficulties that this bill is trying to address.
I think we need to step back, think very carefully about what we are trying to achieve in the bail process, and work towards shifting practices. The problems with bail are not new, and over time a culture has developed in the bail court. This culture is risk-averse; it is a nervousness or reluctance to be the one to make the release decision. Providing additional structure or guidance on how these discretionary decisions are to be made may inspire a shift in current practices and help promote consistency in decision-making. However, clear guidance and education will be required if we're going to shift the way that bail has been being decided in the last number of years.
Honourable members of this committee, I want to begin not with numbers, but by reading an excerpt from a letter to the editor published in the Moncton Times & Transcript on November 2 of the year 2005. It reads:
||Dear Editor: I’m writing this letter because I believe the community should know. I’m currently at the New Brunswick Youth Centre serving a rather long sentence for petty crimes. When the judge sentenced me, the community went way to go! One less troublemaker on the streets. Do they not realize this place makes youth worse not better? Since I have been here, I’ve become a more angry person. I have learned way more about how to commit crimes and not get caught…
That letter was written by Ashley Smith, who less than two years later died at Grand Valley Prison by self-strangulation in a death that was later ruled a homicide by the inquest verdict in 2013.
I start with her voice because she can't bring it to you. She was in custody as a youth for primarily administration of justice offences. That's what kept her in prison. That's what kept her in youth facilities, and that's what led, on her 18th birthday, to the transfer application being made to bring her into adult corrections custody, at which time she entered as maximum security.
As you may recall, the index offence that brought her into custody was throwing apples at a postal worker, but through the journey of the correctional process in the youth system, she got over 800 disciplinary infractions that would not necessarily have constituted crimes had she not been in custody. One example is failing to return a hairbrush in a timely fashion. As a result of these 800 disciplinary infractions, she ended up with over 150 convictions for administration of justice-related offences.
I'm here to support in principle provisions that simplify processes in order to prevent the continuation of these kinds of administration of justice offences being disproportionately levied, particularly against marginalized, vulnerable girls, as Professors Doob's and Sprott's 2009 book, Justice for Girls?, has articulated statistically.
The case of Ashley Smith has been brought to national attention because it has become associated with issues of mental health in custody and with issues of solitary confinement. In my own Ph.D. research, I contend that the missing piece of what the public has failed to appreciate in that case and failed to understand is that the foundation of the bridge between throwing apples at a postal worker and dying in adult prison is laid by these administration of justice offences.
Accordingly, the idea of codifying the principle of restraint for release and bail decisions, proposed section 493.1, which is in the legislation for your consideration, is something I would support. I support the idea of requiring special consideration for indigenous people, and I note also that “vulnerable groups” is worded expansively there, and I like that. Ashley Smith was not an indigenous person, but she was vulnerable. She was a child in care. She was in social services custody and rendered vulnerable as a result.
I support the alternate process for dealing with some alleged breaches of bail, and I'm particularly interested in and support the creation of the proposed section 4.1 of the Youth Criminal Justice Act that allows, where there's a failure to comply, to deem extrajudicial measures to be adequate.
This legislative proposal that you're considering, I agree, is not perfect. I agree that it is tinkering; however, I don't think that's a reason to not do it. I think this is today's step right now, and I think broader and greater systemic change is necessary, but in the spirit of making bail and making administration of justice offences fairer and simpler, this is exactly one of the things that needs to happen as a result of the death of Ashley Smith.
Thank you very much for the opportunity to speak to you today on behalf of our union, the Society of United Professionals, which represents more than 350 legal aid lawyers in Ontario.
Garrett and I are both duty counsel criminal defence lawyers. Today we hope to bring you our perspective as lawyers who work every day on the front lines for vulnerable and low-income accused persons.
We have decided to focus our submissions on police and judicial releases, as well as offences against the administration of justice. I'll begin by talking about the over-imposition of release conditions and how we believe that Bill could actually exacerbate this problem.
Section 11(e) of the charter guarantees the right to reasonable bail, and the Supreme Court of Canada has said that a key component of this right includes the conditions of release. Jurisprudence has established that there must be a nexus between the allegations and the conditions and that conditions should not be punitive, since everyone on bail is presumed innocent. We must keep in mind that individuals who are presumed innocent are often on these conditions for many months, if not years, while they wait for trial.
I'd like to recount a story that Garrett told me about one of his clients. This young man was released by the police and put on a curfew despite the fact that he didn't have a record and the allegations actually took place during the day. He was subsequently arrested for breaching the curfew condition and brought to court. With the assistance of duty counsel advocating on his behalf and the oversight of a trained justice, this arguably unconstitutional condition of a curfew was removed, but not until after he was forced to spend an extra night in jail and face a new charge for breaching his bail. Clients will agree to almost anything to get out of custody. In moments of desperation, I've literally had clients say to me, “Miss, I will do anything you ask me to; just please, I need to get out.”
Unfortunately, the relationship between the police and our communities is often one of a gross power imbalance. Our clients are people with brain injuries, addictions issues, mental health issues, and developmental disabilities, which means they bump into the law more than others do.
Within the law of bail, jurisprudence has developed that constrains the ability of the court to impose unreasonable and inappropriate conditions, but this bill, as it reads now, moves away from those standards. It allows police to impose conditions that could not be lawfully imposed by a judge or justice of the peace according to current jurisprudence. What’s worse is that police can impose these conditions without the same scrutiny that the courts are subjected to. There’s no lawyer standing beside you when an officer is typing up the undertaking they are going to hand to you to sign.
Police can already release a person on an undertaking, and they should be doing more of this. The proposed changes in Bill don't give police expanded release powers that they don't already have. They already have this power. Bill C-75, however, expands the power to impose additional conditions.
Our concerns about the over-imposition of conditions also extend to elements of Bill that deal with bail in the courtroom. As I mentioned previously, Supreme Court of Canada case law makes it clear that terms of release may “only be imposed to the extent that they are necessary to address concerns related to the statutory criteria for detention and to ensure that the accused is released.”
As Bill reads now, it appears the courts may no longer be limited by this principle when the accused person is facing a reverse onus situation. In our line of work, reverse onus is not a rare occurrence. It occurs, for example, when my client, who was out on bail for stealing a case of beer, is charged again with entering the same liquor store, thereby breaching his bail conditions. Bill C-75 states that when an accused is released on a reverse onus bail, “the new release order may include any additional conditions described in subsections (4) to (4.2) that the justice considers desirable.” This makes what the justice considers desirable the new legal standard. This, of course, is a far cry from the current standard in the jurisprudence, which is “only to be imposed to the extent they are necessary”.
While the amendment may not have intended to deviate from the standard of necessity, the language must be written in a way that does not invite an overly broad application of conditions. We've outlined some of our proposed amendments in our written submissions.
When it comes to reverse onus on domestic charges, we join the Barbra Schlifer Commemorative Clinic. In their submissions, staff expressed their concerns about the consequences this might have on female accused. I should note that Barbra Schlifer Commemorative Clinic is a clinic that provides services to women who themselves are survivors of domestic violence.
Domestic violence is about power and control. It therefore becomes dangerous to craft legislation around assumptions about who has power and control without accounting for who can leverage the power of the state.
We need to consider the over-prosecution of women whose voices are often forgotten: racialized women, indigenous women, those who are not in heterosexual relationships. As duty counsel, we frequently see women who are charged with domestic assault. Many of them are themselves survivors of domestic abuse.
I personally have had dealings with a female accused person whose abusive partner charged her as a means of psychological control. In shifting the onus onto the accused to justify why she should not be detained by the state, we're only exacerbating the power imbalance that she faces. While the reverse onus provision only applies when the accused has been previously convicted of an offence related to intimate partner violence, in our experience, unfortunately, self-represented false guilty pleas are common. There are many women who have convictions for domestic assaults from relationships in which they were not those in a position of power.
Courts are already required to consider an accused person's criminal record, including past convictions for domestic assaults and the surrounding circumstances, when making a determination about bail, namely through the consideration of the secondary ground of detention. However, expanding the reverse onus provision is overly broad and inconsistent with the presumption of innocence. The burden should always lie on the state to deny a person's liberty. Rather than expanding the reversal of onus on the accused, we advocate for further reduction of the reverse onus provision.
The reverse onus provisions have particularly punitive effects on our clients, who often, due to disabilities and other vulnerabilities, incur frequent charges for minor offences and for drug possession for the purpose of trafficking for reasons that we have expanded on in our written submission.
I'll turn it over now to my colleague.
For the final part of our submissions, we'd like to address the proposed regime to deal with the offences of the administration of justice, particularly when there's no harm involved in those offences.
Now, as I believe this committee has heard, these types of offences do play a considerable role in clogging up the courts. I know this committee heard earlier this week from Jonathan Rudin of Aboriginal Legal Services, who specifically talked about the grossly disproportionate impact that these kinds of charges have on indigenous persons. I've seen this from my own experience. I would also add that I have seen how these kinds of charges can also have a disproportionate impact on other vulnerable communities as well, particularly those which are over-surveilled by the police.
As Bill currently reads, it's left to the police officer's discretion as to whether a criminal charge is laid for an offence against the administration of justice or if the alleged breach will be referred to a judicial referral hearing. Unfortunately, in our experience, and again what we see on a day-to-day basis, is that oftentimes police officers aren't showing a lot of restraint when it comes to laying charges. Obviously this isn't always the case, but this is something that we see.
I want to give one example of what I think highlights our concerns about charges related to the administration of justice offences when there is no harm involved.
Fairly recently, there was an individual in our bail courts who was arrested for breaching a curfew condition a few weeks prior to that. Now, this was despite the fact that the substantive charge that he was out on bail for had already been withdrawn, and when he was arrested he was no longer even on those bail conditions. He was held in custody overnight as a result and brought to court the next day, and ultimately missed a day's work because of this.
I'd like to read to you Justice Iacobucci's comments, a really profound quote in R. v. Hall, which says:
|| Liberty lost is never regained and can never be fully compensated for; therefore, where the potential exists for the loss of freedom for even a day, we, as a free and democratic society, must place the highest emphasis on ensuring that our system of justice minimizes the chances of an unwarranted denial of liberty.
In conclusion, we submit that administration of justice offences that don't cause harm shouldn't be prosecuted at all. The police should use their discretion in these circumstances to either take no action or, as is proposed in the legislation, to issue an appearance notice for that individual to appear at a judicial referral hearing.
I'd be happy to answer any questions.
Thank you for inviting me.
I'm here to present my concerns with clause 278 of Bill . You might recall that clause 278 of the bill seeks to add a new section to the Criminal Code of Canada, which would be section 657.01. It would allow for the admission as evidence at any criminal proceeding, including trials, of what is defined within that proposed section as “routine police evidence”. That would be done via an officer's sworn statement. The section therefore seeks to replace the direct in-court testimony of a police officer with an affidavit or a solemn declaration.
Legal Aid and I do not support the enactment of this amendment. It defines “routine police evidence” far too broadly. As a consequence, it will abrogate on many fundamental rights of due process that are protected under sections 7 and 11 of the Charter of Rights and Freedoms. We believe it will create more delay in criminal cases coming to trial, not less.
Finally, we also believe that the section is unnecessary because the common law and the Criminal Code already have procedures to excuse police officer testimony in appropriate situations.
In our contention, “routine police evidence” is defined far too broadly. The phrase evokes images of uncontroversial activities such as serving subpoenas on witnesses or Canada Evidence Act notices on accused persons, but instead, the proposed section includes a definition that has included things like “observations”, “identifying or arresting” accused persons and the “gathering” of physical evidence. These activities may be everyday routine for police officers, but for an accused these activities of course go to the core of the case against them, and these police observations and the evidence gathered by police are often the only evidence of guilt.
Even more problematic is the fact that the legislation allows for this definition of routine police evidence to remain open, and therefore courts will be able to add additional police officer conduct to an already overly broad list. Because this definition is so broad, clause 278 will breach many fundamental due process rights. Some may argue that the practical effect of filing a sworn statement of a police officer is to provide evidence identical to what they would provide in court in direct testimony, but that's just not true. A sworn statement can be drafted over many days while memories falter and change.
Moreover, direct testimony in open court allows a trier of facts to assess the credibility and reliability of the allegations partially by observing the witness's demeanour and body language while testifying. The Court of Appeal for Ontario has just revisited this issue of observing demeanour evidence. Denying that tool to judges and juries could very well lead to an increasing number of appeals being filed, and maybe even to wrongful convictions.
This result is bad enough, but when I picture how a trial will proceed upon the filing of a police officer's solemn declaration, I see consequences that pierce the very heart of due process and fundamental rights for accused persons. The first practical effect of this proposed section is that the sworn statement of the police officer will be admitted for the truth of its contents. Consequently, the trial judge must begin her analysis of the Crown's case presuming that the contents of the sworn declaration are true. Absent any obvious internal inconsistencies, a judge would have to begin with this basis that there's no reason to question the allegations.
Where the contents of that affidavit, that sworn statement, contain evidence of guilt, the defendant must defend herself against this unchallenged sworn document. This reverses the burden of proof from the Crown to the defendant. No longer is the accused innocent before guilty, but guilty and now having to prove their innocence. Reversing the onus at a criminal trial is not a minor infringement of an accused's rights. It's a core principle of our criminal justice system that if a person is alleged to have committed a criminal act that could put them in jail, it's the Crown's onus to prove it.
Also, because a defence lawyer cannot cross-examine a piece of paper, meeting this burden becomes unfair. Questioning witnesses in cross-examination often erodes their credibility or reliability sufficiently to raise a reasonable doubt, therefore creating an acquittal. Cross-examination is the first and best tool for contesting an allegation, and it exposes something approaching an objective truth. It's the manifestation of our fundamental right to confront one's accuser. It's why we refer to the common law as “adversarial”. Limiting cross-examination for any purpose must be acknowledged as a fundamental shift that favours the Crown while prejudicing the accused. I think that at its core this is what clause 278 in the bill seeks to do. It seeks to abrogate that fundamental right to cross-examine.
Because clause 278 replaces the testimony of police officers with a sworn declaration that's presumed to be true, the only way for the accused to defend herself will be to call her own witnesses, and often the only witness other than the officer is the accused herself. This, therefore, means that she loses her right to silence. She's forced onto the stand. The right to silence, of course, is another fundamental right of our due process, and no person should ever be forced to respond to a bald assertion unless it's withstood challenge by cross examination or unless the accused chooses to.
Finally, where the defence seeks to contest the Crown motion to have a police officer's evidence admitted at trial via sworn declaration, the defence will have to disclose defence evidence. That evidence must be included in the application materials filed with the judge and with the Crown. In this way, the proposed legislation runs contrary to the golden thread of criminal law that says that the defence has no obligation to disclose its evidence unless and until the Crown has posed its case.
Moreover, it's not hard to imagine—and this isn't meant to impute any bad faith—that once the prosecution is alerted to potential weaknesses in their police officer's testimony, they are going to move to shore up those weaknesses. That's going to lead to further investigation, which triggers more disclosure obligations on the Crown and, therefore, further delay in coming to trial.
This begins to explain why the proposed section will require more time for criminal cases to get to trial, not less. The section creates an additional motion for the Crown and defence to litigate, and to admit this foreign statement of a police officer at trial, the party seeking its admission, generally the Crown, must file and argue that motion. This motion will have to be argued before the trial can even be scheduled, because if you don't know how many witnesses are testifying, you don't know how much time to set aside for the trial.
For unrepresented accused, the proposed section will result in even more trial delay. In any case involving an unrepresented accused, the trial judge bears the responsibility of ensuring that the accused understands the effect of admitting documentary evidence. The section will require that judges grant adjournments to unrepresented accused so they can find counsel; consult with counsel; decide how admitting this document, this sworn affidavit; will impact their particular case, and then how to proceed. Wrongful convictions are likely to result, and certainly the number of appeals is likely to rise too.
Finally, proposed section 657.01 is unnecessary. The common law and the Criminal Code both contain trial procedure that allows police officers to be excused from testifying in appropriate circumstances. Before or even during a trial, defence makes admissions of fact that would otherwise have been proven via witness testimony. Defence and Crown also can sometimes agree to admit certain facts as true in an agreed statement of facts, which is drafted and filed at trial, and these types of admissions aren't limited to routine police evidence. It can include any evidence that both parties agree is uncontroversial.
In addition, part XVIII.1 of the Criminal Code consists entirely of case management legislation, which can be invoked by pretrial judges to streamline trials and to manage the scheduling process when there are complicated or very contentious proceedings.
In conclusion, clause 278 of Bill will harm the criminal process more than it helps. Its application will carve away at fundamental due process rights as guaranteed by the Charter of Rights and Freedoms while causing further delay when law already exists that allows for the waiver of uncontroversial police evidence.
Legal Aid and I therefore recommend that clause 278 be entirely excised from Bill .
First, thank you. I'm gratified.
I think it's quite obvious, and that's the trouble. I think all of this is obvious.
The right to silence is something that's protected in Canada still under section 7. There is no requirement, as we know from certain recent cases, for an accused to take the stand. The reason for that, of course, is that a good cross-examination often undermines the allegation sufficiently that there is no need for the person to do so. It's like if somebody accuses you of something ridiculous. Why should you have to respond to it unless there is some veracity that's being contested?
If a piece of paper—a sworn piece of paper, but still, a piece of paper—is put forward, and the judge is forced.... This is what bothers me. It's admitted “for the truth of its contents”. There are certain things put into evidence at a trial that aren't for the truth of their contents. It may just be for the narrative, as often happens, for people to understand the sequence of events or something, but when a piece of paper goes in for the truth of its contents, that means the judge is forced to look at the piece of paper and look at the allegations. Unless there is something obviously contradictory inside, they have to begin their analysis of guilt or innocence from “this is true”.
That may be okay for “I served him a notice” or something, but when it's “I saw him do this illegal act”, then how else do you defend yourself? You can't cross-examine a paper.
Thank you very much, Mr. Chair.
My name is Brian Gover, and I'm the president of The Advocates' Society. As you've just heard, Mr. Dave Mollica joins me. He is our director of policy and practice.
Thank you for the opportunity to make oral submissions to your committee on Bill . The Advocates' Society has also provided written submissions to complement today's oral presentation.
The Advocates' Society was established in 1963 as a non-profit association for litigators. We have approximately 6,000 members across Canada who make submissions to governments and other entities on matters that affect access to justice, the administration of justice, and the practice of law by advocates. This is part of our mandate.
The membership of our society includes Crown prosecutors and members of the criminal defence bar, so the submissions I make this evening reflect the diverse and considered views of our membership.
The Advocates' Society applauds the government for its willingness to implement reforms with a view to enhancing efficiency within our criminal justice system. The system is, as the stated in her remarks to the House of Commons on May 24, "under significant strain". This strain is felt by all those who are part of the justice system, including judges, lawyers, litigants, witnesses, and particularly indigenous people and marginalized Canadians living with mental illnesses and addiction who are overrepresented in the criminal justice system, both as victims and as accused persons.
However, The Advocates' Society has concerns about certain mechanisms that Bill proposes to use to implement these reforms, as they could result in a compromise of the rights of victims and accused persons. In our written submissions, we have highlighted the areas where The Advocates' Society urges the committee to further scrutinize the provisions in Bill C-75. Today I will focus my presentation on two key areas. One is the elimination of peremptory jury challenges and the other is the acceptance of routine police evidence in writing.
With respect to the elimination of peremptory jury challenges, The Advocates' Society is concerned that Bill 's proposal to eliminate the peremptory challenge is not the product of careful study or extensive consultation. The Advocates' Society recommends further study and stakeholder input on other possibilities for reform before any measures are taken.
The peremptory challenge provides a mechanism to both the defence and the prosecution to help ensure an impartial and representative jury. It also gives the accused person a certain measure of control over the selection of the triers of fact who will determine his or her fate in a criminal proceeding. The criminal defence bar overwhelmingly believes that the peremptory challenge is a vital tool in protecting the fair trial rights of an accused person, particularly where that person is indigenous or a person of colour. The defence can exercise peremptory challenges to attempt to secure a jury that is more representative of the Canadian population.
The stated rationale in the minister's charter statement for eliminating peremptory challenges is that either the Crown or the defence can use them in a discriminatory way. The possibility that peremptory challenges may be abused should not be used as a rationale for their elimination. Given that peremptory challenges do serve a useful social function, the focus ought to be on reform rather than abolition.
If the concern is with the discriminatory use of the peremptory challenge, then it is the discriminatory use that ought to be eliminated, not the peremptory challenge itself. The few courts in Canada to have considered these issues have held that the Crown's discriminatory use of peremptory challenges violates subsection 11(d) and section 15 of the Canadian Charter of Rights and Freedoms and deprives the accused of the right to a representative jury.
In the United States, when counsel believe that their adversary has used a peremptory challenge for a discriminatory purpose, they can mount what is termed a Batson challenge—based on a 1986 decision of the Supreme Court of the United States in Batson v. Kentucky—and ask that the judge demand a racially neutral reason for having exercised the peremptory challenge. If the judge finds that the objecting party has made a first impression or prima facie case, the burden then shifts to the party exercising the peremptory challenge to justify its use.
The mere existence of the Batson process has been shown to have a chilling effect on discriminatory conduct in the United States in jury selection. The Advocates' Society recommends further study and consultation with stakeholders on the use and utility of the peremptory challenge. Alternatively, our society recommends adopting a Batson-type procedure in Canada instead of abolishing the peremptory challenge.
The second area is with respect to proposed amendments to the provisions of the Criminal Code dealing with what is termed “routine police evidence” in writing. The Advocates' Society has concerns that these provisions will not enhance efficiency, will infringe on the rights of the accused, and may be constitutionally vulnerable. The Advocates' Society recommends that these proposed provisions be removed in their entirety from Bill .
The breadth of the definition of “routine police evidence” is such that the vast majority of evidence that is provided by police officers in criminal trials would be admissible in writing. This would effectively rob accused persons of their opportunity to test the credibility and reliability of Crown witnesses through cross-examination, which has been uniformly heralded as a central aspect of our Canadian criminal justice system and a constitutionally protected entitlement for those who stand accused of criminal offences.
Cross-examination allows defence counsel to examine potential frailties or inconsistencies in police evidence and determine whether disclosure has been fully made. Uncovering issues with regard to Crown evidence can assist in reducing wrongful convictions. Large-scale restrictions on the accused's right to cross-examine the Crown's witnesses will not necessarily make for a criminal justice system that is more efficient while still fair. We know of no empirical data to support such a claim. It must remain the responsibility of the trial judge in enforcing the rules of criminal procedure and evidence to manage trials such that cross-examination that is abusive, redundant or irrelevant does not take up court time.
In combination with the proposal to eliminate preliminary inquiries in all but the most serious cases, admitting Crown evidence in this fashion would pose a potentially insurmountable hurdle to making full answer and defence. In addition, putting the onus on the accused person to justify their request for the Crown's evidence to be presented orally would likely require the accused to reveal aspects of their defence to the Crown. This may interfere with the accused's constitutionally enshrined right to remain silent in the face of a criminal allegation. The Advocates' Society recommends that clause 278 and other proposed sections dealing with routine police evidence be removed in their entirety from Bill .
Thank you, Mr. Chair and members of the committee, for giving The Advocates' Society the opportunity to make submissions this evening. We would be pleased to answer any questions your committee members may have.
Thank you for the opportunity to address the committee on proposed Bill , and in particular on the preliminary hearing. This is the first time I have appeared before the committee, and it's a pleasure to be here.
I have practised as a criminal defence lawyer with Walter Fox & Associates for over a decade. I chose the field of criminal defence in part because of my background, being born in Iran and having lived under an oppressive regime.
I'm focusing my submission on the preliminary hearing, and I'm very happy to do so because I believe the preliminary hearing provides an essential procedural protection for all accused, but in particular for those who are marginalized, for the accused who can't afford a lawyer, for the accused who may have mental or addiction issues, and also for those who are overrepresented in our criminal justice system, including indigenous people.
I want to briefly touch on the statistics that we do have. We know that between 2015 and 2016, only 3% of the total number of charges that were before the court had preliminary hearings, and we also know that in the same years, of the charges that had preliminary hearings, only 7% went over the presumptive ceiling.
There are also statistics that indicate cases that have preliminary hearings are much more likely to get results in the Ontario courts rather than being taken to the Superior Court for a trial, and as someone who spends quite a lot of time in both the Ontario Court of Justice and the Superior Court of Justice, I can attest to the fact that the resources in the Superior Court of Justice are extremely limited and that anything that the government does to ensure that cases do not unnecessarily go up to the Superior Court I think would be extremely beneficial.
These are the statistics we do have, but there are also information and statistics that we don't have. To the best of my knowledge, there are no statistical studies that show that eliminating the preliminary hearing for certain offences would lead to speedier trials, thus protecting the accused's right to be tried within a reasonable time. We don't have these statistics, and if the government is seeking to eliminate a very important procedural protection, my recommendation for the government and for this committee would be that the government should at least invest the time and the resources on those empirical studies to ensure that the desired result is going to be achieved if we get rid of those procedural protections.
I would also recommend that the results of those studies be shared with the public.
I want to focus the rest of my submission on the impact of the elimination of the preliminary hearing on the marginalized groups. I think that's very important and I know that's a concern for the . The charter statement for Bill clearly says that the bill seeks to address the overrepresentation of particular groups within the justice system, including indigenous persons and those with mental illness issues and addictions, and I would add another group: the group that doesn't have the economic resources to hire and retain lawyers.
Let's talk about how eliminating the preliminary hearing would negatively affect these individuals.
One of the areas, I believe, would be the use of private investigators. Eliminating the preliminary hearing would lead to a wider use of private investigators by the defence, and I'll give you an example. There are cases where we as the defence need to find out something about the background of a complainant or a witness. That type of information is not the kind of information that would be disclosed by the Crown. We would explore that during the preliminary hearing, but if we don't have a preliminary hearing, defence would hire private investigators to obtain that information.
That puts at a disadvantage individuals who in the first place are not able to hire a lawyer and who can't hire an investigator. If they don't have a preliminary hearing, they're seriously disadvantaged compared to individuals who do have the resources to hire lawyers and private investigators.
Another issue, of course, is the disclosure issue, and yes, the Crown has an obligation to disclose material—very true—but there's a real distinction between disclosure and organized disclosure. When I first start practising, we used to get huge stacks of paper disclosure, and everything was just stapled together. I would have to pull everything apart, review everything, and then see what goes where and what's important, what's peripheral and what's missing.
In recent years, things have changed, and now we've moved away from paper and toward disc disclosure. We obtain discs, and then we have to use a computer to upload the disc, print the disclosure, and then go through that entire process of reviewing the disclosure.
That's all well and good for me. I am a trained lawyer. That's what I do. It's a different story, however, for those accused who can't afford to hire lawyers. These are people with no legal education and often no formal education. Some of them suffer from addiction issues or mental health issues that may impact their ability to function properly, but they're expected to go through this disclosure and figure out what's what, and what case they're facing.
The benefit that the preliminary hearing provides for these individuals is that the Crown will organize the evidence against an accused at the preliminary hearing. The witnesses will testify in a sort of logical and organized manner, and the accused who doesn't have a lawyer is able to see for himself or herself what case he or she is facing.
Another advantage is that the preliminary hearing provides the accused with the opportunity to sit in a real courtroom and see how things function as well as the opportunity to be able to cross-examine witnesses, so that the first time this person goes to court, it is not at the Superior Court, where they're facing trial and their freedom is at risk. Not having this opportunity, I would submit to you, would put unrepresented individuals and marginalized groups at a very great disadvantage.
I know that there is some criticism of preliminary hearings, and one of the criticisms is that preliminary hearings function as sort of discovery hearings and that not much happens during these hearings. I don't agree with that, and I've set out what my ideas are about the preliminary hearing in my brief. My recommendation is that if the government is concerned about that issue, there could be more legislation to sort of bolster the preliminary hearing. You could broaden the jurisdiction of preliminary hearing judges, for example, to allow them to order the Crown to provide disclosure. Currently, they're not able to do that.
We can broaden the jurisdiction of the preliminary hearing judges to allow them to hear charter applications. That becomes very important when the only evidence there is against an accused has been obtained as a result of a charter violation, so if we can eliminate that evidence at the preliminary stage, then it doesn't go to trial, where we would get the same result eventually.
The last thing I would recommend would be the exit pretrials. Right now they are done sort of informally, but I find it extremely useful when a preliminary hearing judge sort of sets out the strengths and the weaknesses of the case so that both the Crown and the defence are able to make an informed decision on whether they want to move on to trial or not.
Finally, I want to leave you with one thought. Efficiency in the justice system is important, but it's not the most important thing. You never hear about delays and inefficiencies under dictatorship regimes. People are arrested, tried in five-minute trials behind closed doors, imprisoned, and executed very efficiently in a very speedy manner.
We live in Canada, however, in a constitutional democracy, and I think that both we as citizens and also our elected government need to ensure that an accused has a fair trial and a fair fighting chance within the criminal justice system when defending themselves against a state with infinite resources.
Thank you to all the members of the committee for having me here again. It's always a pleasure and an honour to appear before you.
I'm going to be limiting my submissions this evening to the issue of preliminary inquiries. We know that Bill endeavours to make a number of wide, sweeping amendments to the Criminal Code, and most of those amendments are being made in an effort to hopefully modernize the justice system and to help curb delay and to conform with the presumptive ceilings as established by Jordan. I certainly applaud those efforts.
As the committee is also well aware, the purpose of preliminary inquiries is to evaluate and test the strength of the Crown's case, not to make any binding determinations with respect to guilt. They are currently available for all indictable offences.
Bill seeks to restrict the availability of these inquiries to offences committed by adults that are punishable by life imprisonment. It also seeks to strengthen the judge's powers with respect to limiting the range of issues that can be explored and the witnesses that can be called. It's important to note that the Criminal Code, under section 537, already allows a judge to have general powers to regulate the preliminary inquiry process, but of course this bill seeks to make those much stronger.
The guiding rationale behind this appears to be squarely in line with attempts to curb delay. Now, we know that when a person does decide to go ahead with a preliminary inquiry, the matter will take significantly longer to conclude and is likely to use more judicial resources. That is supported by statistics from Statistics Canada, as well as The Canadian Bar Association, and I've provided footnotes for those statistics in my brief, which has been provided to members of the committee in advance. It's also available online.
While it is true that it does take longer, the same studies have also revealed that very few people actually ever elect to undergo this process. The vast majority of people who are charged with criminal offices do not engage in a preliminary inquiry, and depending on the statistics that we're looking at, the frequency of these inquiries is between about 2.8% and 5% of all criminal matters, which is minute. There are also statistics to support that the prevalence of these inquiries is rapidly and steadily declining over the years. There are all kinds of explanations or theories about why that is, but more likely than not it's because of heightened disclosure requirements following the Stinchcombe decision.
That doesn't mean that preliminary inquiries are irrelevant. It doesn't mean that they should be done away with in the interests of curbing delay either. In fact, because they're so rarely used, the delay that we're seeing in our criminal justice system cannot be attributed, in my view, to preliminary inquiries; doing away with them will create perhaps some decrease in delay, but it could be negligible at best.
There's evidence to also suggest that doing away with preliminary inquiries can or may actually contribute to delay, because preliminary inquiries are very helpful at streamlining criminal proceedings, and when they are used, they're helpful to defence counsel, to Crown counsel, and to an accused person.
Preliminary inquiries are useful are the discovery of witnesses, both civilian witnesses and police witnesses, and that's extremely useful for defence counsel and for an accused person who doesn't have the benefit of interacting with these witnesses prior to trial and doing pretrial interviews.
They're also useful in uncovering potential charter issues that can be argued at trial. They're useful in eliminating weak charges and in fostering resolution discussions that are more meaningful. They're also extremely useful at ensuring that trial issues are focused and witnesses that perhaps don't need to be called aren't called at trial. For the Crown, a preliminary inquiry may reveal insurmountable weaknesses or challenges in their case that may ultimately lead them to either withdraw the charge or stay the charge or to engage again in more meaningful resolution discussions. For defence, it can reveal the gravity of the evidence against the accused person and it may elicit an early guilty plea, which can be taken as a mitigating circumstance in sentencing, which of course is to the benefit of your client.
They're also a very useful tool for people who are unrepresented. As my friend Ms. Hassan has mentioned, not all people can afford the benefit of a lawyer. The preliminary inquiry allows a person who's unrepresented to interact with the criminal justice system in a meaningful way without having any jeopardy with respect to their liberty. It allows them to familiarize themselves with evidentiary rules and procedures and it allows them to appreciate the evidence in the case against them and make an informed decision about what they should do—proceed to trial or perhaps enter a plea.
In my view, limiting preliminary inquiries in the way that has been suggested in Bill will have a disproportionate impact on these people who are more marginalized and who cannot afford the benefit of a lawyer.
We know that the allegation of a criminal offence is one of the most stigmatizing things that anybody can face. It can significantly limit them in terms of creating new barriers and also compounding already existing barriers. For that reason, accused people do have the right to defend themselves, and it's a charter-protected right to do so under the full ambit of the law.
Procedural protections like these are extremely important; in fact, they're essential. The decision in 2016 in R. v. Catellier was just one recent judgment that recognizes the importance of procedural fairness and the preliminary inquiry process. In that case, it was described as a procedural protection for an accused person.
As a criminal defence lawyer, I do, at the end of the day, have significant concerns about limiting such a valuable exploratory tool that has been made available to people who are accused of criminal activity in this country. I have particular concerns about doing so without the evidentiary basis for it.
Delay in the criminal justice system is, of course, in nobody's best interest. It's not in the interest of the community or the complainant. It's not in the interest of witnesses, and it's not in the interest of the accused person either. They do want to have a final resolution to the matter. If they're detained, they want to ensure they're spending the least time possible in pretrial custody. In order to curb delay and to better deal with this issue of delay and efficiency, I would respectfully suggest that instead of limiting inquiries in this manner, we should adopt a more practical, multi-faceted and nuanced approach to dealing with these issues, such as better practice management.
I've made a list of those suggestions on page 7 of my brief. Some of those, off the top of my head, would be ensuring that counsel is giving more appropriate estimates for trial time and ensuring adequate judicial resources, particularly in remote and growing communities, and so on. I think that these kinds of concrete approaches will ensure that we are combatting that issue of delay while also allowing accused people to have this right to a preliminary inquiry and to have the ability to defend themselves in a proper and adequate manner.
I thank you all for listening to my submission on this. I do look forward to your questions.
Thank you, Mr. Chair, and members of the committee.
Thank you for the opportunity to address Bill . Let me say at the outset that I'm here as a private citizen. I represent no firm or organization. I might be what passes as an outsider in this debate, as may come clear in a moment.
The main reason that it was suggested I come here was that in 2012, I authored a reported called “A Criminal Justice System for the 21st Century”. In that report, I identified what I thought to be a culture of delay in our criminal justice system. That term and the report were referred to by the majority, and the minority, in the Jordan decision as one of the reasons that action is required to reduce delay in our systems.
I also served for the better part of a decade on the board of our legal services society, administrating the defence side of the criminal legal system, and I encountered in a managerial sense the issues of administration from that perspective. Otherwise, I'm not a criminal law practitioner. I have occasionally practised criminal law, but only at a high risk to my clients.
I have a couple of general comments and then I have some specific requirements.
First, I think the most useful thing I can do is to shine a bit of a light on the general enterprise. Delays have a hugely long history in our justice system and in almost every justice system that you can study. If you study this carefully, you see that delay is a chronic, recurring problem and that solutions, almost always, are short and temporary fixes that don't produce enduring benefits for the public good.
The first point I would make is to recognize that an enduring solution here will have to be organized around changes that are legislative in nature but that will have an impact on the culture of our system and systemic changes.
I think one of the problems in this debate is that we strive to avoid delay, which ought not to be our goal. Our goal should not be to avoid disaster. Our goal should be to deliver justice in a timely way that's responsive to the public interest and to the needs of the victim and the community generally. All too often we don't state or pursue those goals in any aspects of our system, and I think we need to achieve that cultural change.
The success of the changes you're considering really depends upon not only the wisdom of the changes you make but also in resourcing the execution of those changes. In history, the number of changes that have been passed legislatively that weren't supported by resources is legion.
Second is to gather data as to what's working and not working. One of the difficulties is that people make changes, and then no one sees what happens and gathers the information about the consequences and then responds appropriately. The latter two are difficult to do in any system, but they are the most important. I will come back to the implications of that for specific proposals.
With respect to the elimination or reduction of preliminary inquiries, for most of the people in this room, this debate started when you were in grade seven. The first time that I participated in a debate about whether preliminary inquiries had any modern utility was in the 1980s, and that dates me a little. However, there was a consensus amongst most of the first ministers of this country in the early 1990s that preliminary inquiries were no longer necessary and needed to be radically reduced.
In my respectful submission, the fact that they originated in their current form over a hundred years ago is not a reason to hold on to them. I think we have to let go of the preliminary inquiries and find better ways to address the goals that they originally sought to address.
If I can take one of my earlier remarks, the whole Stinchcombe reality has changed the context in which preliminary inquiries are conducted. I think we have to recognize that and tell the system it has to find better ways to achieve those goals.
With respect to routine police evidence—and I may well be the dissenter in all of this—if you wander around the provincial courts and you're not a criminal practitioner, there seems to be an enormous amount of time spent on nothing, on things that people ought not to spend time on. Taxpayers who do that will say, “I went on jury duty and wandered around the courthouse. What was happening there?” We need to take hold of this issue. I support the proposal to identify categories of evidence that don't require cross-examination as of right. Judges can be trusted to identify and respond to applications where cross-examination isn't necessary.
Most importantly, it's an opportunity to learn. If we do that, we may learn how to discriminate between areas of evidence that require a conventional approach and those that don't.
I would say two things about peremptory challenges. First, there is a waterbed effect that I'm concerned about with respect to peremptory challenges. It's not sleep, which is probably what you were hoping I was going to suggest you do. If we eliminate peremptory challenges, the challenges for cause become much more popular elsewhere. That has been done in other systems. We know that challenges for cause can increase astronomically, because it has happened in jurisdictions in the United States. Those can end up being much more conducive to delay and loss of efficiency, and I think that's a very legitimate concern.
Let me make a remark you may not have heard from others. It relates to what we know about the jury system in Canada. We have made it a criminal offence to study the jury system, because jurors are not allowed to disclose jury deliberations. There is an ocean of legitimate research in the United States looking into the effectiveness of jurors—how they conduct their work, and when they're good and when they're bad—because research is allowed. As a result of section 649 of the Criminal Code, that's not permitted in Canada.
There have been calls from time to time for its qualification, and I strongly suggest that anybody who cares about the jury system would support an amendment to qualify the prohibition to permit legitimate academic research into the Canadian jury system. That proposal has wandered around the policy halls and really should be taken up and dusted off as part of this debate, in my respectful submission.
I have a comment on administrative offences. I looked at this in some detail in British Columbia, and I would say the astronomical increase in administrative offences justifies doing something differently with them. What to do with them brings up a fair amount of debate, but I would hope that after due consideration, we would think differently about the terms of release and how we supervise them.
My final point is not a legislative one but an observation about a critical question of the success of any package of proposals. If the resources found for this are unequally parcelled out among judges, the Crown, and police officers, and we don't properly resource defence counsel through the legal aid plans in Canada, they will not succeed. I can guarantee that. Legal aid is still the poor sister in these debates and discussions, and in my respectful submission, it can be the source of collaborative and effective partnership in making our system more effective.
I just want to say for the record, Mr. Cowper, that I really appreciate the work you did on the criminal justice system for the 21st century, and all your service to the profession and your leadership on legal aid. Thank you for that.
I also want to give you some hope that this committee has in fact made studies and recommended that section 649 of the Criminal Code be amended. You'll be interested in why. It is to allow for jurors to seek counselling in that rare circumstance where they're traumatized by their duty. If we did that, I think your point would be that it would open the door to allow for more academic studies of jurors under some conditions. Thank you for helping us connect a couple of dots.
I want to say to you, if I may, Ms. Hassan, how powerful I thought your point was about the brutal efficiency of certain regimes versus our constitutional charter rights—our common-law rights. You gave us, as we sit here hour after hour doing this, a sense of the importance of what we're doing. Thanks for that reminder.
Thank you also for doing something I haven't heard other witnesses do, which is to talk about the importance of preliminary inquiries for what you characterized as marginalized groups, such as those with mental health problems and addictions, and also the poor. You made a very powerful point about unrepresented individuals getting boxes of documents or an electronic version thereof and being asked to deal with that.
You also made a point about people who need often to get private investigators, and asked how a poor person could do that with legal aid in the state it is in. Those were very important points, and I want to thank you for making them.
Also, though, in paragraphs 31 and 32 of your recommendations, you had some specific points about how we could broaden the jurisdiction of judges on preliminary inquiries. You spoke to our colleague about that. You talked about disclosure being fixed up a bit more, giving a judge broader discretion on preliminary inquiries, and this intriguing notion of letting the courts grapple with charter issues so as to avoid a subsequent trial where everything gets to be done again, and this time the evidence we saw that couldn't be admissible suddenly causes the case to disappear. Clearly it's going to save a lot of time if we do that.
Would it simply be a question of amending the preliminary inquiry sections to do those two things? Do you have any thoughts about how we might act on your ideas?