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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
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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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Richard Fowler
View Richard Fowler Profile
Richard Fowler
2018-09-24 16:42
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Well, you know, I wasn't there, but I've read a lot about it. As far as I know, I've seen no data on who was stood aside, who was indigenous. I've heard no evidence about how many indigenous people were on the array, which is the panel of people from which the jury is selected. Also, I strongly believe that we should not do fundamental criminal law reform based on anecdotes. We should do it based on research and reliably gathered data.
Let me just ask you this rhetorical question, because we know about the Boushie case. Let me ask you this question.
A client is charged with sexual assault. We have gotten rid of peremptory challenges, so the Crown has no ability to decide who is on the jury; I have no ability to decide on the jury. By chance—because that's what it will be—12 men are selected. It's a high-profile sexual assault case, there are 12 men on the jury, and my client is acquitted. What do you think the outcry is going to be?
I can tell you that with peremptory challenges in place, there would be women on that jury. We utilize peremptory challenges because those of us who do jury trials—and many lawyers don't—believe that a representative jury in terms of age, occupation, and gender is the best way to have a cohesive group of 12 people sitting in that room deliberating about our client's fate.
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View Murray Rankin Profile
NDP (BC)
View Murray Rankin Profile
2018-09-24 16:44
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I understand, and we would have a longer debate that time doesn't permit here, but the Criminal Lawyers' Association, for example, has suggested that there be a stand-alone section that allows a judge at the end of the day to eyeball that jury to see if it is representative of the community. If that section were in place, I think we would probably avoid an all-male jury.
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Richard Fowler
View Richard Fowler Profile
Richard Fowler
2018-09-24 16:44
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I agree with you, and as best as I know, New Zealand is the one jurisdiction that has that.
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Richard Fowler
View Richard Fowler Profile
Richard Fowler
2018-09-24 16:44
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They have that ability to say to everybody, “This jury is just not representative. You have been misusing your peremptory challenges. We're going to get rid of the jury, and we're going to start again."
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View Randy Boissonnault Profile
Lib. (AB)
Thank you, Mr. Chair, and thank you to all of the guests for being here today.
To give you some context, I come at this not from a legal point of view but from that of a business consultant, an NGO director. It's not from the deep steeping in the law that all of you have, with over 100 years of representation at the bar and what have you.
I want to share some stats with you. I come from a province that is part of the country and has 55% of the indigenous population of Canada. Twenty-five per cent of the youth in my city are indigenous, and we will have the absolute largest concentration of indigenous peoples anywhere in the country by 2025. Indigenous peoples are overrepresented in the criminal justice system, yet under-represented on juries. We're 27 years from the Sherratt decision, which made it clear that peremptory challenges can help make it more representative but can also harm representation.
I take you at your word, Mr. Fowler, that you're one of the good ones and that you don't use peremptory challenges to exclude people, but we have lots of anecdotal evidence that it occurs.
I want to start with Ms. Sullivan. How do we get to this goal of more representative juries if we keep peremptory challenges and practitioners are able to abuse them? I'd like comments from all of you on what Nova Scotia does. Instead of using property ownership as a means to select juries, it uses the health care system. If you take a look at how we're selecting our juries, it's like where we were before women's suffrage for voting.
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View Randy Boissonnault Profile
Lib. (AB)
The justice system evolves, according to Mr. Clement, but maybe we could help move the evolution along a little bit.
I'd like comments on those two points.
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Rosellen Sullivan
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Rosellen Sullivan
2018-09-24 16:50
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I agree. I think that in Newfoundland as well they use the health care system, and Labrador in particular would involve these issues. I've just recently done a jury trial in Labrador. It was the panel itself that was problematic in that case. Even though they did use the health care system, many of the reserves were so far away from the judicial centre that even getting there was a problem, so a lot of people were exempt on the basis of undue hardship and were never participants in the system at all.
I think you need to improve those sorts of things—for example, by making sure everyone is accessible. People do want to serve on juries.
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Rosellen Sullivan
View Rosellen Sullivan Profile
Rosellen Sullivan
2018-09-24 16:51
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Widen the pool and make it easier for people to come. In Newfoundland, geographically, this is a big issue.
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Rosellen Sullivan
View Rosellen Sullivan Profile
Rosellen Sullivan
2018-09-24 16:51
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If you make it so that people can come, so that it's not a hardship for them to get there, then people are willing to serve on juries and the pool is more representative.
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View Randy Boissonnault Profile
Lib. (AB)
What else can we do to make juries more representative and keep peremptory challenges?
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Rosellen Sullivan
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Rosellen Sullivan
2018-09-24 16:52
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In my experience, people haven't tried to manipulate the process in that way.
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Richard Fowler
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Richard Fowler
2018-09-24 16:52
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I agree. It's the provincial jury acts that dictate, to a large extent, how big the array is. You can pay jurors more because it's inconvenient.
When it comes to indigenous people, we have to recognize a fundamental.... They have a mistrust of the criminal justice system for obvious reasons, all the reasons you've stated. How do we encourage them to trust the system enough to want to participate on a jury?
I've selected juries in B.C. and the Yukon. The Yukon uses health records, so many more first nations people come. They all say they don't want to sit. Many people try to find reasons not to be on the jury. It would be partly through education and encouraging indigenous people to understand that they have much to gain by being on a jury.
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View Randy Boissonnault Profile
Lib. (AB)
Mr. Spratt, I have a question for you and Ms. Dale in terms of other ways to speed up the criminal justice system, as well as on keeping peremptory challenges and preliminary inquiries.
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Michael Spratt
View Michael Spratt Profile
Michael Spratt
2018-09-24 16:55
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Before I answer that, could I just add one more thing to the jury issue?
The issue is, indeed, the representative sample. Beyond that, it's about who can actually have the privilege if you actually have the representative sample. Take national child care. Every single mother who I've had on a jury wants out, and it's not enough to throw a few bucks; it's national child care that supports people to serve on juries and participate fully, as one prong.
To speed up a trial, there are a few things. I think the preliminary inquiry speeds up trials now, so I think we have to foster that, but if you want to speed up trials, get me more judges, get me more courtrooms. I'm ready to go to trial tomorrow on a number of charges, especially if my client is in custody. The reason we have to wait eight months or 12 months isn't because of disclosure issues—I can solve those in the meantime—it's because the first date that the court offers me is six months or 12 months, and in Ottawa you wait six months or 12 months, and when you get to trial, there are three other cases set in that court.
Just today I had a matter set, and luckily one of my associates was able to take the matter. It was a short trial, but she wasn't able to actually start that trial until about 3 p.m., because she was waiting for a court.
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View Randy Boissonnault Profile
Lib. (AB)
Thank you.
What steps would you take to make sure that we have a more representative jury pool?
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Lisa Silver
View Lisa Silver Profile
Lisa Silver
2018-09-24 17:38
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At least when I think about the situation that has been going on in two cases that we have had in Canada, I believe that the Crown can make a motion before the judge and that the judge could be responding to the fact that the jury that's been chosen is not representative or that it's biased.
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View Randy Boissonnault Profile
Lib. (AB)
Thank you.
Mr. Brown, do you have any recommendations for us for a more representative jury pool?
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Daniel Brown
View Daniel Brown Profile
Daniel Brown
2018-09-24 17:38
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One of the things that you touch upon is that many racialized and aboriginal people are overrepresented in the justice system, which means that they leave the justice system with criminal records in record numbers. One of the things that bars a person from sitting on a jury is a conviction for an indictable offence. It may be that the government needs to take a look at whether or not we want to exclude the types of people who are overrepresented in the justice system and keep them excluded from participating on juries and from participating in the justice system because of this perhaps out-of-date rule that exists that keeps them off the juries in the first place.
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View Randy Boissonnault Profile
Lib. (AB)
Do you like the idea of health cards being the way that we select jury pools?
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Daniel Brown
View Daniel Brown Profile
Daniel Brown
2018-09-24 17:39
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What I don't like is the idea that we would use property rolls as a way to select juries, because again, there is inherent bias in the way that people end up on the rolls or off the rolls. I think there has to be a better way. It seems, though, that one of the better ways to do it is to assess people by their health cards. It's certainly one of the many solutions, as well as identifying the problem that simply choosing people who are not property holders excludes a group of people from entering the pool in the first place.
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Michael Johnston
View Michael Johnston Profile
Michael Johnston
2018-09-19 15:41
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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 C-75 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 C-75 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 C-75'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 C-75 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 C-75 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 C-75 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 C-75 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.
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Michael Johnston
View Michael Johnston Profile
Michael Johnston
2018-09-19 15:49
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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.
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View Dave MacKenzie Profile
CPC (ON)
View Dave MacKenzie Profile
2018-09-19 15:51
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Thank you, Mr. Chair.
Thank you to the panel for being here today. I found all of your opening remarks remarkable because they hit the nail on the head for most of what we've been hearing during the last few days.
Mr. Johnston, you mentioned one issue, one trial that turned out to be controversial perhaps because of the jury pool. We also recognize that it was not a long time ago. To make the massive changes that we're trying to make, you're right that it does take a whole lot more research and looking into fixing the problem rather than addressing it in a quick manner.
I think that's where your comments are coming from. Would I be right in that? You believe it needs to be changed, but we need to spend some time to do it.
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Michael Johnston
View Michael Johnston Profile
Michael Johnston
2018-09-19 15:52
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We absolutely need to calibrate the system at all times. A system such as our trial-by-jury system requires modernization. It requires analysis to ensure that it's achieving what it's supposed to achieve. But of course we need a better understanding of it. It has been since 1980 when the Law Reform Commission made a comprehensive study of this.
We need a non-partisan understanding of trial-by-jury because, while trial-by-jury exists in our democracy, it isn't informed by democratic decisions. It's not subject to, let say, public opinion. In fact, it's supposed to guard against the exact opposite. Therefore, I very much agree with you. We need a non-partisan understanding of the system before we start pulling planks away.
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View Dave MacKenzie Profile
CPC (ON)
View Dave MacKenzie Profile
2018-09-19 15:53
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Sometimes common sense seems to be lacking and it's more important that we do things in a hurry in this place. I think you're absolutely right. We need to take our time and do it right as opposed to making wholesale changes in a hurry.
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View Murray Rankin Profile
NDP (BC)
View Murray Rankin Profile
2018-09-19 16:08
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Thank you.
Mr. Johnston, you were passionate about trying to expand the jury pool and we heard a lot about that yesterday as well, regarding the representativeness issue. Yesterday, we heard a suggestion that health cards are preferable to property rolls because, by definition, those that don't own property wouldn't be brought in. Today, you've suggested that criminal record holders should be added to the list in order to expand the pool, thereby adding 10% of the population, which is quite remarkable. We also heard yesterday that permanent residents ought to be included, as they have a sufficient connection to the community to be included.
Would you agree with those other suggestions?
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Michael Johnston
View Michael Johnston Profile
Michael Johnston
2018-09-19 16:09
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I would agree with the other suggestions. I know that some people talk, for example, about increasing juror participation by allowing jurors to volunteer, as opposed to mandating them by way of subpoenas or juror notices.
That being said, there are many ways that we could create or encourage greater juror participation and I would adopt all of those.
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View Murray Rankin Profile
NDP (BC)
View Murray Rankin Profile
2018-09-19 16:09
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I only have 30 seconds.
On challenges for cause, section 640, you're very clear. We've had it since 1892. Essentially, you're saying that if it ain't broke, don't fix it. However, we've heard a lot of people, although you're not one of them, who say we ought to agree with the bill and abolish peremptory challenges. Yesterday, Professor Roach said that if we remove peremptory challenges, maybe we need to beef up challenges for cause. If we chose that route, would you agree?
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Michael Johnston
View Michael Johnston Profile
Michael Johnston
2018-09-19 16:10
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I would not agree because peremptory challenges provide an accused person with the ability to challenge the fairness of what is transpiring. We know that the jury pool and panels are constituted by the provincial governments. They are randomly constituted and they ought to be randomly constituted. The accused has to have some say in who ultimately ends up in the pool. Just by looking at the individuals, there could be any number of reasons why someone can feel it proper to challenge a person peremptorily.
More importantly, there is a residual ability for prejudice to surface during the challenge for cause process. As potential jurors are being challenged and they're being asked if they're racist.... These are situations in which people who may not have been acrimonious to your cause or your opponents cause actually develop that level of prejudice. It would provide an opportunity to use a peremptory challenge in a proper way.
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View Rob Nicholson Profile
CPC (ON)
View Rob Nicholson Profile
2018-09-19 16:20
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Just one subquestion, with respect to getting rid of the peremptory challenges, you think this will hurt, ultimately, indigenous and racialized people. Is that your stand?
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Tony Paisana
View Tony Paisana Profile
Tony Paisana
2018-09-19 16:20
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It is. It is our view that racialized accused can use the peremptory challenge to create a more representative jury. We appreciate the position that has been taken on the other side of things, but I do want to mention one thing. This debate, quite rightly, has focused on the overrepresentation of indigenous people in the system and under-representation on juries. However, peremptory challenges have a far more practical application in some cases.
The one anecdote I can think of is the example I had in a recent jury selection, where I had an accused who was facing a charge where the defence was going to be reasonable alternative inference, a fairly complicated instruction for a jury, where you have to explain circumstantial evidence and the difference between speculation and inference. I was concerned that jury members who were not that proficient in English would not be able to understand the instruction that well, and that it may harm the truth-seeking function. Even though I had a racialized accused, I was using the peremptory challenge to pick off some people who showed that they did not have a very strong grasp of the English language, even though they were of the same race as my client, because I expected that they would not be able to understand the instruction to the extent that I would hope they would. These sorts of considerations are sometimes being lost in the analysis.
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Brian Gover
View Brian Gover Profile
Brian Gover
2018-09-19 19:40
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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 C-75. 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 Minister of Justice 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 C-75 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 C-75'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 C-75.
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 C-75.
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.
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Geoffrey Cowper
View Geoffrey Cowper Profile
Geoffrey Cowper
2018-09-19 20:05
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Thank you, Mr. Chair, and members of the committee.
Thank you for the opportunity to address Bill C-75. 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.
Thank you.
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View Murray Rankin Profile
NDP (BC)
View Murray Rankin Profile
2018-09-19 20:28
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Thank you, everyone.
I don't want to be accused of discriminating against Toronto, so I want to speak to Mr. Gover. It's nice to see you, Mr. Gover.
I understand very clearly that you and The Advocates' Society favour peremptory challenges. You've suggested that if we're going to change it, we need to do further studies and consultation. In the alternative argument, you said we should take a look at the Batson v. Kentucky procedure that the United States has implemented, which allows for addressing discrimination and so on. What would that look like? Would that look like more challenges for cause?
Mr. Cowper has said that if we were to do that, there would be this waterbed effect, that we might end up with more delay as we do more challenges for cause. Could you elaborate on how that would look? We've had some witnesses say we should give the courts the discretion to look at the representivity—if that is such a word—on the jury and decide whether that's fair. That's what we've heard others suggest. How exactly would you line up?
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Brian Gover
View Brian Gover Profile
Brian Gover
2018-09-19 20:29
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It would be done on a juror-by-juror basis, with the exercise of the peremptory challenge, and it would be where the objecting party, either the Crown or the defence, feels that the jury is no longer being representative, that discriminatory use underlies the exercise of the peremptory challenge. That's where the exercise would be engaged.
I don't see it taking very much time in jury selection, Mr. Rankin. This is the kind of thing, in my experience, that would take a trial judge something like five to 10 minutes at the outside to decide in making a determination about whether there has been prima facie or first impression of discriminatory use.
Overall, I think this is going to be time-efficient because of the alternative raised by Mr. Cowper.
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Geoffrey Cowper
View Geoffrey Cowper Profile
Geoffrey Cowper
2018-09-19 20:30
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It might be helpful to know—I did speak to American colleagues on this—that the Batson procedure actually rarely produces lengthy additions to process. The challenges for cause process in the United States can produce weeks and weeks of delay. I spoke to one fellow who said they had to have questionnaires distributed to 1,200 people—one jury—last year in Seattle. Therefore, in terms of risks, challenges for cause are a greater risk for adding time and delay than is the Batson procedure.
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Michael Lacy
View Michael Lacy Profile
Michael Lacy
2018-09-18 15:41
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Thank you, Mr. Chair and honourable members. We're glad to be here and to be invited to speak to the work of this very important committee.
Really, we appear today on behalf of the 1,400 members who are part of our organization, which includes criminal defence lawyers and also academics in Ontario and otherwise. We hope to persuade you to consider making recommendations to amend the bill as it currently exists and to also consider suggesting that aspects of the bill not be passed at all.
By way of introduction, we have been critical of the bill, but there are many aspects of the bill that we think are laudable and heading in the right direction, aspects that you've heard about from other witnesses, such as amending the proposed bail provisions; the concept of judicial referral hearings; giving the discretion to judges not to impose the victim fine surcharge; increased case management powers; and, finally, bringing criminal justice into the century that we practice in by taking advantage of video conferencing. Obviously, these are all positive things that will assist in the orderly, timely administration of criminal justice throughout Canada, but there are aspects of the bill that we find particularly troubling.
We have outlined those submissions in the paper we've provided you in advance. Many other people will speak to many of the things we've outlined, but today, in the brief time we have, the 10 minutes before we are asked specific questions, we would like to talk about the proposed jury selection amendments.
Again, we want to acknowledge at the outset that the government's acknowledgement of the potential problems in the jury selection process and the goal to bring more fairness and transparency to the process are laudable. Eliminating discrimination in the jury selection process and ensuring that jurors are truly representative of the community where the crimes are alleged to have occurred is a goal that we wholeheartedly support.
The goal of addressing systemic racism or discriminatory practices within the jury selection is similarly shared by our members, but unfortunately, as we look at the means that have been chosen, they fall far short of what's required and, if adopted, will not actually assist in addressing the problems.
We view ourselves as significant stakeholders in the administration of criminal justice. We believe that, like all significant stakeholders, we have a responsibility to ensure that community members who become jurors decide the case fairly, objectively and without prejudice, bias or favour for either party, whether it's the accused or the Crown prosecuting the case.
The race, gender, nationality, socio-economic status or other descriptor of either the accused person or the victim of crime has no role to play in terms of what the result in a criminal case should be. Discrimination or improper stereotyping has no place in the courtroom or in jury deliberations, or in the way in which juries are chosen.
The way in which jurors are chosen not only has to be substantively fair, but it has to appear to be fair. The appearance of fairness with respect to the jury selection process is very important. This includes having a diverse pool from which the jury can be chosen.
Recent high-profile cases have raised questions about whether the current procedure, including the use of peremptory challenges, meets that standard, particularly in relation to the appearance of fairness. We don't need to name the cases that get named all the time with respect to this issue, but let's just be clear. No one was entitled to have a biased juror. No one was entitled to have a biased jury in favour of the accused or in favour of the Crown.
That is no doubt the impetus for this really significant change. When the minister came and spoke to you most recently, she described this as a significant, substantive change to the law, and we agree. The difficulty is that in terms of eliminating the peremptory challenges without some of the other proposed ways that academics and practitioners are telling you to consider, changing the jury selection process will not help the system. It will not lead to diversity and in fact will leave us without the opportunity to protect our clients, who are most often racialized, indigenous or other marginalized people. These are the bulk of the people who come into conflict with the criminal justice system.
The unfortunate reality is that although racialized and indigenous persons are overrepresented in the criminal justice system as accused persons, their communities are unrepresented in the jury pool from which the jurors are chosen to decide a case. In communities with large indigenous populations, there are often very few indigenous people who ultimately come before the court as part of the jury pool from which 12 men and women from the community are chosen to decide a case. Even in large urban centres like Toronto, the pool of eligible jurors does not reflect the diverse Toronto urban community.
There are many reasons for this, some of which can be dealt with through legislative action that is missing in the proposed bill.
First, although this is not within the purview of Parliament, the way in which people are summoned for jury duty—which is left to the provincial governments and has been done by relying on property tax assessment rolls or on other areas—leads to a situation in which a case does not actually draw the representative, diverse community wanted in the jury pool. Historically, this leads to the exclusion of people like renters, boarders, and low-income people—people who might be considered to be on the margins of society but who nonetheless reflect our communities. It also leads to the exclusion of indigenous jurors. You have many submissions before you from groups that speak to this issue, not simply from the Criminal Lawyers' Association. One of the problems is that the pool from which juries are chosen is not diverse.
Second, which this committee knows particularly well, is the failure on the part of provincial governments to compensate jurors properly for their time in court. It was the subject of a report that this committee released in May. One of the recommendations you made is important with respect to this issue.
Just imagine how this plays out in practice. People get excused from the jury pool on the basis of financial hardship. Anyone living day to day in Toronto, Ottawa, Saskatoon or in more rural communities who cannot afford to take time off work to serve on a jury pool is going to be excused, and so should they be. You don't expect people to go into financial ruin to serve on the jury pool. What does that leave you with? It leaves you with some unionized people whose unions are smart enough to negotiate compensation. It leaves you with a lot of retirees. It leaves you with very wealthy people. You're not drawing a representative sample in terms of the eligible people who can in fact serve on a jury.
When it comes to dealing with the issue of peremptory challenges, the collective experience of our members is that when an accused person is a different race or colour or looks different from most of us in this room, who are white, it's important that potential jurors be asked questions to determine whether there are racial stereotypes or biases that will affect the way they will adjudicate the evidence vis-à-vis our clients. This is normally done through a challenge for cause process. You have all the background information on this. Jurors are basically asked one or two questions so that someone can decide—some other two people who are chosen from the jury pool—whether they display bias such that they should be removed from the jury.
As a consequence of the lack of diversity in the jury pool, peremptory challenges are used each and every day by responsible criminal defence lawyers in this country to try to get deeper into the jury pool in the face of having lack of diversity on the jury. When you're looking out at a room of 200 people and your client is a young black man from the city of Toronto, and you see five, six or 10 people who, by the time those with financial hardship are weeded out, are actually eligible to sit on the jury, you're trying to find someone diverse on that jury.
As I said, we're not interested in bias or partiality. What we're looking for is to have someone in the room who is representative of the actual community. That's the way our members are using peremptory challenges. It's the only tool we have in our tool kit to get deeper into the jury pool to try to improve the diversity of the jury. Sometimes people can get through a challenge for cause—for reasons that are difficult to explain—even if they do display signs of bias. I know the new legislation will give a judge the power to control the challenge for cause, but again, peremptory challenges allow a lawyer to try to shape the jury in such a way that actually encourages diversity.
There are three things this committee should consider:
First, it should consider providing a more robust statutory challenge for cause, based on evidence. This means taking an evidence-based approach to determining how the jury is chosen and asking modest questions of the jurors to determine whether or not they display potential bias.
Second, it should consider inviting submissions from the parties. Professor Roach, whose submission you have before you, speaks to this issue as well, and I know you're going to hear from other academics on this issue. There seems to be a myth being perpetuated that the practitioners are at odds with the academics on the issue of jury diversity or on the issue of peremptory challenges. We all want the same result. It's how you get there, at the end of the day.
Third, it should consider forcing the provincial government to create mechanisms to have representative jury pools. Because of the division of powers, the only way to do that is with the proposed amendment that we suggested for subsection 629(4), which would be a new provision that would allow for a challenge for cause based on the lack of representation in terms of the jury pool that's been assembled.
If the provincial governments won't act, then this government needs to act. It needs to create a challenge for cause process and provide compensation for those jurors. Your recommendations were welcome before, and they will be welcome again, but let's go further. Let's suggest transfer payments to the provinces so they can compensate people, or do whatever is needed. With all these very smart people running our collective governments, perhaps we can compensate people so that the poor, the marginalized and the racialized are not excluded.
We have a lot to say about the legislation otherwise, but I do appreciate this opportunity to speak to you directly about the jury issue.
Thank you very much.
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View Iqra Khalid Profile
Lib. (ON)
Thank you, Chair.
Thank you to the witnesses for their testimony today.
Mr. Lacy, you spoke at length about the proposed jury selection process, and about getting rid of peremptory challenges in Bill C-75. Yesterday we heard from an indigenous organization that spoke in favour of getting rid of the peremptory challenges, but you outlined that it would not have the impact that we want it to have here in terms of diversifying the jury selection.
I'm not sure if you had the chance to go over what their arguments and reasoning were.
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Michael Lacy
View Michael Lacy Profile
Michael Lacy
2018-09-18 16:10
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I did. We're talking about Jonathan Rudin's submissions to this committee, in which he fully endorses the recommendations of Professor Roach. This is about how each organization may choose different ways to express the point, but if you reflect on our submissions and reflect on Professor Roach's submissions, all of which were adopted by Aboriginal Legal Services, you'll see that we are all talking about the same thing—that a stand-alone elimination of peremptory challenges combined with the one other change, which is allowing a judge to determine the challenge for cause, will not result in actual diversification of the jurors who are chosen to decide a case.
In that respect, there is actually no conflict among the positions taken by our organization, by Aboriginal Legal Services and by Professor Roach.
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View Iqra Khalid Profile
Lib. (ON)
Thank you.
As a recommendation in terms of amending the bill, you also mentioned taking an evidence-based approach to jury selection, with regard to asking questions or bringing in testimony, etc. Can you talk about that a little more? Also, can you talk about whether or not that would delay the whole process? That is something that is already a concern in our justice system.
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Michael Lacy
View Michael Lacy Profile
Michael Lacy
2018-09-18 16:11
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It is very much an anecdotal exercise when you ask us to reflect on what happens. As it stands now, this is what you know about potential jurors absent a challenge for cause: you know their name, in most cases; you know the city where they reside and perhaps their municipal address; and in some cases you know their occupation. That is it. You know nothing else about the person.
The way it is now, by its very nature the peremptory challenge forces you to rely on stereotypes about people, whether they are socio-economic stereotypes or gender stereotypes, based on a particular case. In this regard, we agree with Professor Roach that there is a way in which you can have limited questioning of the jurors in a challenge process that allows you to find out a little more about this person who is going to be sworn in as a judge to decide whether or not someone has committed a criminal offence.
In the United States, as Professor Roach and other academics have pointed out, the system has gone a bit awry. It has led to lengthy proceedings and jury-vetting procedures, but it need not do that. One of my colleagues, who does a lot of work with respect to aboriginal communities, was telling me about an inquest he was recently involved in, in the province of Saskatchewan. The coroner was able to allow limited questioning of the jurors and was allowed to draw a jury—a differently constituted jury, obviously, for that purpose—that included representative people from the indigenous community and also from the rest of the community. He was reflecting on the experience and, knowing that I was coming here today, he said that when you allow a little bit of inquiry and you control it through judicial management—in that case, the coroner was managing it—you get a much better appreciation for the particular biases, whether they're known biases or implicit biases, that might be affecting not the willingness of the person to decide the case fairly, but their ability to do so.
We do support an evidence-based approach in that regard.
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View Iqra Khalid Profile
Lib. (ON)
Would giving extensive discretion to counsel on either side to pick and choose which jurors are being selected perpetuate an unfairness and lead to people selecting a jury based on which way it would lean, for a favourable outcome for whichever counsel?
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Michael Lacy
View Michael Lacy Profile
Michael Lacy
2018-09-18 16:14
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No. The proposal would be to allow some limited questions, and then allow submissions to the trial judge as to why a particular person's questions display a bias or not. With the new proposal, you're going to be doing that for challenge for cause, but challenge for cause is currently practically limited to race-based challenges or publicity challenges. It doesn't allow you to deal with other potential biases that may be affecting the ability of the jury to decide a case fairly and objectively, which is what all the stakeholders want and what the community wants.
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View Murray Rankin Profile
NDP (BC)
View Murray Rankin Profile
2018-09-18 16:16
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Thanks to all the witnesses for being here. I have very little time, so I would like to start, please, with the Criminal Lawyers' Association.
You really focused in on the jury representation issue but didn't do justice to the excellent points you made elsewhere in your brief. There are three points I want to get on the record and see if you want to elaborate on any of them.
The first involves preliminary inquiry reform. You are against what's in this bill.
Second, your position on increasing the maximum sentences to two years less a day for all summary convictions—clause 319—is that you're against those changes.
Third, on the routine police evidence, clause 278, you point out that, in your judgment, this clause is unnecessary.
I want to make sure that's on the record.
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