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Results: 1 - 15 of 195
Emilie Taman
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Emilie Taman
2018-09-26 15:47
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Thank you, Mr. Chair.
My name is Emilie Taman. I'm a lawyer with expertise in criminal law. I have worked as legal counsel at the Supreme Court of Canada, as a federal prosecutor at the Public Prosecution Service of Canada for eight years, and for the last two years I have been teaching criminal law and advanced evidence to students at the University of Ottawa's common law section of the faculty of law.
I want to open by saying I cannot agree more with Professor Parkes in particular in her assessment of the need for comprehensive criminal justice reform.
My personal view is that re-establishment of a federal law reform commission is something that should be very seriously considered and pursued by this Parliament. I have a written brief that will make it to you shortly, but I did circulate a chart, which is in both official languages. I likewise have three main concerns when it comes to the reclassification of offences and the so-called hybridization of offences in Bill C-75.
I think it's important, though, that the members of this committee understand the consequences of a summary conviction versus indictable offences and the various discretionary choices conferred on both the Crown and the accused depending on the nature of the offence. I'm going to take most of my time today on that. I would, of course, very much echo the concerns in relation to access to justice by virtue of the raising of the ceiling for summary conviction offences by default to two years. Also I am very skeptical about whether this hybridization will have the desired impact of enhancing efficiency or expediency in the criminal justice process.
I would just put on my law teacher hat here and ask you to turn your attention briefly to what's noted as appendix A, which is an appendix to my brief, which you don't yet have. It attempts in a very clumsy way, given my lack of expertise with any kind of graphic design, to explain a little bit about the consequences of hybridization.
Essentially in the Criminal Code you have, generally speaking, three kinds of offences. You have what we would refer to as straight summary conviction offences. Those are statutory offences that can proceed only by way of summary conviction. On the other hand, you have what we would call straight indictable offences. Those would be statutory indictable offences. Then there are a large number of offences that we refer to as hybrid offences. Those are offences that can proceed either by way of summary conviction or indictably. The question as to which of the two ways hybrid offences will proceed is really all about the exercise of prosecutorial discretion. Early in the proceedings when it comes to hybrid offences, the Crown is asked to elect whether the matter will proceed summarily or by indictment. You see that with the green arrows in the chart, which are my attempt to show you the Crown's elective options.
Summary conviction offences all proceed in provincial court. If it's a straight summary offence, it goes to provincial court. If it's a hybrid offence in relation to which the Crown has elected to proceed summarily, it likewise can go only into the provincial court and the accused has no election in that regard.
On the other hand, in straight indictable offences or hybrid offences in relation to which the Crown has elected to proceed by indictment, the accused as a general rule can make one of three elections. The accused may elect to have his or her trial proceed in provincial court with a judge alone, because there are no juries in provincial court, or the accused can elect to have his or her trial in superior court presided over by a judge alone. The third option is that the trial can proceed in superior court with a judge and jury.
There are two statutory exceptions to the accused election set out in sections 553 and 469 of the code. Those are very limited exceptions. Certain enumerated offences do fall within the absolute jurisdiction of one court or the other. What I want to highlight here is the impact that hybridizing a large number—136 straight indictable offences—will have in particular when it comes to the accused's right to elect to be tried by jury.
As it stands with these 136 offences, because they are straight indictable, the choice lies wholly with the accused. I really want to underscore that it is common for accused to elect to be tried in provincial court. I wasn't, unfortunately, able to find the exact numbers on that, but I just want to make sure this committee understands that it is not presently the case that all indictable offences proceed in superior court. In fact, a significant number proceed by trial in provincial court.
By taking these 136 offences and making them hybrid, the Crown will now have a very important role to play in relation to the question of whether an accused can exercise his right to a trial by jury. If the Crown should elect at the outset to proceed summarily, the accused loses the ability to elect to have a trial by jury. This is something—again I don't know if this is an intended consequence or if it's an unintended consequence—that I do think is significant. I want to make sure that the committee fully understands that.
I am very concerned any time we take discretion away from a judge and put it in the hands of the Crown. Likewise, here we're taking a choice from the accused and at the outset conferring that decision on the Crown as to whether the accused will even be legally able to elect to be tried by a jury. The exercise of prosecutorial discretion is almost completely lacking in transparency and is not subject to review except at the very high bar of abuse of process.
I want to be clear in saying that this does not give rise to a technical breach of paragraph 11(f) of the Charter of Rights and Freedoms, which is the constitutionally protected right to trial by jury, because paragraph 11(f) is only triggered in the context of offences punishable by five years or more. In hybridizing these offences—offences that currently, as Professor Parkes noted, have statutory maximums of two, five, or 10 years—when the Crown elects to proceed summarily, by virtue of the new default maximum for summary conviction offences being raised to two years, the constitutional right will not, technically, be engaged. But it is the case that, for someone charged before this bill and someone charged after this bill with the same offence in the same circumstances, one of those accused will have the right to elect to be tried by judge and jury, and the other, in the case where the Crown elects to proceed summarily, will no longer be able to exercise that, at least, statutory right. It is an important consequence I want to highlight.
One other thing I want to briefly note about the impact of raising the statutory ceiling, the maximum penalty for summary conviction offences from six months to two years, is that it's important to understand that, as things stand, it is not the case that all summary conviction offences are punishable by a maximum of six months. That is the statutory default, but there are a number of offences, including assault causing bodily harm and sexual assault, for which, even where the Crown proceeds summarily, there is a statutory maximum of 18 months.
The effect of that, and I just want to build on what my colleagues from the student legal aid clinics were noting, is that currently, students and other agents—and it should be noted that a significant number of agents are neither law students nor articling students but paralegals and others—are currently authorized to defend persons charged with offences carrying a maximum punishment of up to six months, that is, not all summary conviction offences. That's why I would be concerned about attempting to address this, I think, unintended consequence of the bill by simply saying that agents can do all summary conviction offences.
The effect of proceeding that way would significantly expand the offences that can be defended by students and agents, and I think there are concerns there. As far as remedies for that go, I would certainly be more on the side of Legal Aid Ontario's submission to have a schedule of offences that would be excluded from agent representation.
I've made some other points in my brief, which will be forwarded to you, but I'll leave it there for now. Thank you.
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View Ron McKinnon Profile
Lib. (BC)
You mentioned that an accused loses the right to elect trial by jury if the Crown elects to proceed summarily. On the other hand, the jeopardy the accused faces is far less. Jeopardy would be no more than two years less a day. Is losing the right to a jury for an offence that is two years less a day really a serious concern?
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Emilie Taman
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Emilie Taman
2018-09-26 16:29
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From the perspective of accused people, it is serious. That's why I tried to be clear in highlighting that it would not necessarily violate the charter for the reasons you explained. The charter sets the bar at five years to reflect that level of jeopardy. The reality is that there are people who are charged today with offences that are indictable, carrying statutory maximums of 10 years who have jury trials and are ultimately sentenced to less than five years.
One of the concerns I have is this kind of subtle chipping away. If we take away the preliminary inquiry and if we take away the statutory right to a jury trial, I'm very concerned about trying to give effect to the 11(b) rights of the accused in exchange for a bunch of other procedural protections. While it may be the case that no single measure violates the charter in its own right, I do have concerns about the constitutionality when taken comprehensively with abolishing the preliminary inquiry for all of these offences, along with the way we select juries and other things in their totality.
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View Murray Rankin Profile
NDP (BC)
View Murray Rankin Profile
2018-09-26 16:32
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Thanks to all of the witnesses—so many witnesses, so little time.
I want to first, if I may, just do a shout-out to Professor Parkes, whom I won't have time to ask a question of. Congratulations on your editorial in The Globe and Mail yesterday on the impact of mandatory minimum sentences, particularly on indigenous people. It was great, and thank you for introducing the term “sentence creep” to our vocabulary.
Ms. Cirillo, I just want to say, as a proud alumnus of the Downtown Legal Services, I know first-hand the important work that you people do. Thank you for doing it and for shining a light on what, I agree with all of you, is an unintended consequence of Bill C-75, that's to say, essentially shutting you out of the provincial court where you do such great work.
In a moment, I'll come back to you with solutions I'd like to get your take on, but I want to remind people of the quote I took from your excellent submission:
The unintended consequence of Bill C-75 would further exacerbate the access to justice issues facing Ontario criminal courts. SLASS clinics have worked for decades representing individuals charged with criminal summary offences, providing effective and efficient representation for those who would otherwise find themselves unrepresented in the criminal justice system. This bill will put an abrupt end to this legacy.
I couldn't have put it better than that.
Ms. Taman, if I could, I want to ask you a few questions. Thank you for the chart you gave us. I wish we had it when we started this little odyssey a few weeks ago.
In respect of the hybridization issue, you talked about the 136 indictable offences being hybridized, and you made an argument that I don't think had ever been made to our committee before. You said that part of the bill is the potential to significantly limit the accused's existing statutory right to elect to be tried by judge and jury and the effective shifting of this choice from the accused to the Crown. I don't think we've heard that before.
Well, if I may, so what? I understand the accused would lose that choice, but isn't it arguably in his or her best interest to go to a trial with a lower maximum penalty? If the person were to be tried by a jury in a higher court, they would likely be gambling on a harsher penalty. Is that a fair comment?
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Emilie Taman
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Emilie Taman
2018-09-26 16:34
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The decision that an accused has to make when deciding whether or not to avail him- or herself of a jury trial is a complex one. There are a number of factors that have to be considered, especially in terms of the nature of the factual issues at play, because the jury is a trier of fact and not of law. As I said previously, just because it's a jury trial or just because it proceeds indictably and has a higher maximum doesn't mean the accused is in jeopardy of getting that higher maximum, depending on the circumstances of the offence.
It is a consideration that an accused would have to make, but the difficulty is that in this case it will now be the Crown that's making that decision in the first instance. So, yes, when the Crown elects to proceed summarily, the accused is exposed to a lower maximum penalty, that is true, but I think there are likely a number of accused who would prefer to have the jury trial and be exposed to the higher sentence, depending on the circumstances and the issues that are at play in their case.
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View Arif Virani Profile
Lib. (ON)
View Arif Virani Profile
2018-09-26 19:28
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I have another brief question on the racialized communities. We've heard a lot about those communities, but not a lot of direct evidence.
One thing that was clear from Mr. Rudin's testimony was that ending the peremptory challenge model we've had for so many years would ensure better diversity of jurors and benefit the indigenous accused who are so overrepresented in our system.
Do you agree with that submission? Does that also apply to other racialized groups such as black Canadians in the system?
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Deepa Mattoo
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Deepa Mattoo
2018-09-26 19:28
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Yes, I think we agree with that particular provision. That's why we didn't address it. That would definitely help.
When we say “racialized” we are using the term in an all-encompassing way, which includes the indigenous population as well as black Canadians.
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View Anthony Housefather Profile
Lib. (QC)
View Anthony Housefather Profile
2018-09-26 19:44
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Thank you. That's very powerful.
I have one short question for you, Ms. Hendel, before my time runs out. You didn't get into peremptory challenges. What is your feeling as a prosecutor about the value of peremptory challenges? Would you agree with getting rid of them, or do you think they're valuable and should be retained?
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Ursula Hendel
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Ursula Hendel
2018-09-26 19:44
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There isn't unanimity in the membership on this issue. I think it's a tricky one.
To the extent that there's research out there, I think it does support the concern that peremptory challenges are often used in a discriminatory way. I think there's reason to be concerned. When I think about when I've used my peremptory challenges, it's very difficult for me to articulate why it was I felt uncomfortable with a person. He glowered, maybe...? How would you explain that?
You know, it's really a tricky issue. I think there are folks on both sides, prosecutor and defence counsel, who feel it's valuable, but I don't know that any of us are really able to articulate why.
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Rick Woodburn
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Rick Woodburn
2018-09-25 18:24
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Good evening, everybody.
Listen, I know it's going to spread around that I may have a flight. I'm not worried about that. The important thing here is that we get this right, so don't hold back on the questions.
I'm Rick Woodburn, the president of the Canadian Association of Crown Counsel. We represent approximately 7,500 Crown counsel across the country, from the 10 provinces and the federal government. This is both Crown attorneys and Crown counsel, so a wide variety of input came into our submissions.
I didn't file a brief. However, we have limited submissions that we'll make, and we'll take questions, of course, as need be.
Thank you to the panel for inviting us. I appreciate that. Some of our comments may go against the grain a bit. I don't want to disparage anybody, the drafters of legislation or anybody who worked diligently on this, but we would like to delve into it a bit.
Our role isn't going to be to endorse or go against the bill itself, but we want to give you the pros and cons, give you some information about what, on the ground, prosecutors and Crown counsel are saying about this particular bill.
Between Crown counsel, of course, we're not universally in agreement with all the sections either. There are viewpoints from both sides, and I hope to get some of that out today, at least to give you the information so that you can perhaps go back and when you think about amendments and about the different sections, some of these things will help in terms of knowing what's going on, on the ground.
The first thing we'd like to look at is the bail reform, and particularly the change from sections 523 and 524 to the new section 523.1.
My understanding of proposed section 523.1, which would be inserted just before section 524 and takes up that entire section, is that we're not eliminating, from what I can see, section 523. Therefore, there's still that opportunity for a Crown to make an application to have somebody's bail revoked. In the Crowns' submission, what this extra layer does is just tack on, in some aspects, another administrative hearing to charges of breaches, and so forth. When we look at it, it actually is repetitive in a lot of senses. We all agree that we're trying to prevent delay here, and having a repetitive section in the Criminal Code won't necessarily help us.
Here's what I mean.
When we look at section 523 as it is right now, the Crown has the discretion to do everything that proposed section 523.1 says. We can withdraw the charge, we can ask that the bail be revoked, and so forth. We can already do that. Proposed section 523.1 presupposes that the Crowns aren't looking at the charges when they first come in and assessing the strength of the Crown's case, but we are. As Crown attorneys, it's important for us to ensure that these charges, these breaches of bail, are sufficiently looked after. In our submission, it's just another layer that is not needed in reality, because the Crowns are already doing their jobs and vetting through this.
The other thing that is interesting about administration of justice charges, or breaches, is that there seems to be a lot of talk about the number of breaches that are in the system and how they're clogging it up. I can tell you from the ground, they don't clog up the system. They don't take that much time. A breach of a court order takes very little time to prove, even if it goes to trial—and that's rare. Keep in the back of your mind that these charges aren't clogging up the system. There are lots in the system, but they're not clogging the system.
The other thing to remember about these charges is, when somebody breaches their court orders, it's important for everybody to realize that this is a cornerstone of our bail system: Somebody has been released on bail, they're supposed to be following conditions and they don't, so they're arrested and brought in. There has to be a penalty to this. My understanding of proposed section 523.1 is that actually, if it plays out, it looks to be more of a slap on the wrist. Believe me, the criminals will realize fairly quickly if there's this extra layer and they can use it, and there will be more people breaching their court orders.
That's a little about the bail reform. Of course, we'll be open to questions later about that.
When we look at preliminary inquiries, we see a lot has been said. I've heard some of the testimony and read some of the briefs. It's very controversial about eliminating preliminary inquiries for non-life sentences.
Once again, Crown attorneys have voiced opinions on both sides of this, and I'd kind of like to give you the pros and cons a little bit about that. First, among the pros to getting rid of them, one of the obvious and most glaring concerns sexual assault victims. Of course, having sexual assault victims testify twice, even a witness here has stated, re-victimizes them, and I've seen it first-hand. Eliminating that will perhaps encourage people to come forward in sexual assault trials. They know they will only have to testify once. Of course when we talk about testifying, that also includes children.
For some reason the bill doesn't include aggravated sexual assaults. In those cases, of course, there's a right to a preliminary inquiry.
There are some issues from a Crown's perspective with regard to preliminary inquiries as they stand right now. Part of it is the so-called focus hearings, and that's where Crown and defence go before the court and we tend to focus the issues at trial. What we're finding more often than not is that they're not getting focused. We end up running what's called mini-trials and we're put to the test to prove our case under the Shepherd test of course. The focus hearings you hear about in the Criminal Code don't necessarily work the same way that they're being explained to you.
The other part is putting forward our case by paper or putting in the witness statements and so forth. Different jurisdictions do this different ways, but what I'm hearing is that in most jurisdictions the courts aren't allowing and defence aren't agreeing to the Crown simply putting in a paper preliminary inquiry. Different jurisdictions do it differently, but we're finding that it's not really the case there. When we're looking at eliminating preliminary inquiries, we see some of the issues that are attached and, I guess, the pro side of it.
The con side of it is, of course, that it doesn't give an opportunity for the parties—not only the Crown but the defence—to analyze the case, see the witnesses, see how the evidence actually comes out. It also doesn't allow for the Crown and defence to come to some sort of resolution after the preliminary inquiry. Those are some of the things that are missing when you're talking about that.
There are some pros and cons, and we've heard some of those already, but I think it's important to keep those in mind.
One of the other things is about the peremptory trial challenges, and that's important. I've done probably 50-plus jury trials and been through many challenges for cause, and it will last somewhere in the range of a day to a day and a half for a homicide trial, so it's a lengthy process as it is right now and if you look through the general exemptions, specifics, and then peremptory challenges, and sometimes a challenge for cause depending on how high it is.
I notice in the Bill now, in proposed sections 638 and 640, that while peremptory challenges are eliminated, the challenge for cause section is actually still there. If you look at it under proposed subsection 640(2), you'll see that there is room for defence counsel and Crown to raise issues regarding the impartiality of a juror. “Juror” as it's been interpreted means the jury panel, so when we have a challenge for cause, that's the section that's invoked. If you look at it, the logical end to that is that we're going to have challenges for cause in more cases, which take a great deal of time, so that's one issue.
The other issue, of course, is that ultimately the judge is going to make the final decisions on each juror who's picked.
If you look at how this is going to actually play out in a challenge for cause, some questions are done up between the Crown and defence and decided upon. Each juror is brought in and questioned. How we envision this to unfold is that the jurors are brought in, they're asked the questions, the defence and Crown are given an opportunity to speak to it, and then the judge is going to ultimately make a decision with regard to whether or not that juror is impartial or not, and that continues on until you have your 12 or 14 or 16 jurors, depending on how it goes, which will make it a lot longer process. It can move from a day to two or three days, depending on how long it's going to take.
The way that we see this is that it's very problematic because you've taken one issue and turned it into a bigger issue, in our submission at least, but we can see how it logically comes out.
Of course there are the cases. The Supreme Court of Canada has stated that a judge should and shall stay out of those impartiality hearings, so their making a decision on the impartiality of a juror inserts them right into the picking of the jury itself. The Supreme Court of Canada says that may be unconstitutional, which is where that part of the bill may end up after we run a couple of jury trials. We find that problematic.
How are we doing for time?
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View Anthony Housefather Profile
Lib. (QC)
View Anthony Housefather Profile
2018-09-25 19:02
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Mr. Woodburn, on peremptory challenges, I got your point. What would your feelings be if we, for example, introduced in Canada the Batson test that they have in the United States, where you can't do a peremptory challenge for a discriminatory cause, and if you were to do so, you could be called on it and have to justify your challenge?
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Rick Woodburn
View Rick Woodburn Profile
Rick Woodburn
2018-09-25 19:03
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That's a tough question because in the U.S. the jury system is taken as a whole, so you kind of move through it. Right now, we're inserting things in piecemeal and, in our view, it won't work. The issue that we're having is that we're getting closer to that with this whole notion that challenge-for-cause hearings start to become those in the sense that the questions are put to the juror, and then we argue about the juror and then the judge makes a decision. It's very close to what's happening in the United States right now.
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View Anthony Housefather Profile
Lib. (QC)
View Anthony Housefather Profile
2018-09-25 19:04
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In this case, if you were to use that as a component, you've retained your peremptory challenges, and then it would be up to the other side to say, “Hey, I think you're using them for a discriminatory reason”, and that would possibly in itself limit the number of times that anybody would ever even contemplate doing that, because they could be called out on it.
Would that be a preferable solution to you than stripping them from your repertoire of things that you can do?
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Rick Woodburn
View Rick Woodburn Profile
Rick Woodburn
2018-09-25 19:04
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I can't really comment on that, because it still doesn't make sense in our system, from my point of view. It just doesn't.
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View Murray Rankin Profile
NDP (BC)
View Murray Rankin Profile
2018-09-24 16:41
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Thank you.
I'm going to start with you, Mr. Fowler, because I think you've come the farthest. I want to say something to you, sir. I disagree with you on some things, but in terms of which is the right coast, I think we would agree that of course it's the left coast. I just wanted to put that on the record.
I think the thrust of your remarks was the need to improve and not abolish preliminary inquiries. I think everyone said that. I thought you said that very forcefully.
You did raise parenthetically the whole issue of peremptory challenges. You said that in your experience they were never misused. I think many people who have come here would say that in the Stanley case in Saskatchewan with Colten Boushie, in which there was an indigenous deceased, the lawyer for Mr. Stanley managed to get no indigenous people on the jury. It certainly caused a lot of Canadians who wrote to me great concern.
I appreciate that some people have indicated that they use peremptory challenges precisely to get racialized people onto juries. I'd just like to give you an opportunity to expand on your forceful remarks on peremptory challenges. I ask you whether you don't think that there was a misuse in at least that case.
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