EVIDENCE

Standing Committee on Justice and Human Rights NUMBER 107 1st SESSION 42nd PARLIAMENT Monday, September 24, 2018 Le lundi 24 septembre 2018 Standing Committee on Justice and Human Rights CANADA [Recorded by Electronic Apparatus] EVIDENCE September 24, 2018 Committee Edited Evidence * Table of Contents * Number 107 (Official Version) Official Report * Table of Contents * Number 107 (Official Version) Témoignages * Table des matières * Numéro 107 (Version officielle) 107 24 09 2018 2018/09/24 15:30:00 House Of Commons Comité permanent de la justice et des droits de la personne Standing Committee on Justice and Human Rights JUST Chair Mr. Anthony Housefather 1 42

(1530) [ English ]

The Chair (Mr. Anthony Housefather (Mount Royal, Lib.)) :

I call the meeting to order. Good afternoon, everyone. Welcome to this regular meeting of the Standing Committee on Justice and Human Rights. I would like to welcome Mr. Clement to our committee, as it is his first meeting. It's a pleasure to have you.

Hon. Tony Clement (Parry Sound—Muskoka, CPC) :

It's a pleasure to be here, Chair.

The Chair :

Thank you. Murray, do you mind if we first move that Tony be a vice-chair? It should take about one minute.

Mr. Murray Rankin (Victoria, NDP) :

I think that's a great idea, Chair.

The Chair :

Perfect. Mr. MacKenzie, can I have a motion for the vice-chair?

Mr. Dave MacKenzie (Oxford, CPC) :

I move that the Honourable Tony Clement be named a vice-chair of this committee.

The Chair :

The motion is to make Tony Clement the first vice-chair. Do I have any other motions? Not hearing any, is it the pleasure of the committee to accept Mr. Clement as the first vice-chair? (Motion agreed to)

Mr. Colin Fraser (West Nova, Lib.) :

Congratulations.

Hon. Tony Clement :

Thank you.

The Chair :

Mr. Clement, it is a pleasure to have you as our first vice-chair.

Hon. Tony Clement :

Thank you, Mr. Chair.

The Chair :

It is also a pleasure to now turn the meeting over to Mr. Rankin's motion. Mr. Rankin properly gave a notice of motion on a study on the notwithstanding clause. Mr. Rankin, the floor is yours to move the motion and to speak to it.

Mr. Murray Rankin :

Thanks very much, Chair. Thanks for your support in getting this before members in a timely way. Welcome, Tony Clement, to our committee. This motion is before everyone. You will have received it. I sent a letter out on September 13, and then formally entered the motion on September 14. It calls on the committee to undertake a study—nothing more, nothing less—into the potential for the routine use of

section 33, or the so-called notwithstanding clause of the Constitution Act, 1982. I've asked that constitutional experts and Attorneys General come to this committee to participate in a true dialogue about the nature of this clause under our Constitution and how Canadians should agree to deploy it in the future. At the outset, Chair, I have four points to make about the motion. First, I emphasize that this is not about a particular premier or event.

The reason for the motion is that it now appears that some political leaders in our country may believe that the so-called notwithstanding clause can be used in a repeated and routine way, rather than as a tool of last resort to be reserved for very serious public policy matters. I believe that the founders of the charter intended it to be used sparingly, as Alberta Premier Peter Lougheed told his legislature in 1981. Second, I recognize and acknowledge from the outset that the notwithstanding clause is an integral part of the charter.

History will show that in 1981, it was inserted at the instigation of Premier Lougheed, and affirmed by B.C. Premier Bennett, as a compromise, in order that the rest of the charter could be enacted. It was truly the price of admission. I get that. I accept that it is every bit as much a part of the charter as other provisions that are better known and more frequently used. Third, I'm not now arguing that this important debate needs to take place immediately. I understand that we are conducting a very important study of Bill C-75 right now.

I also know that we're intending to study discrimination on the basis of HIV/AIDS. There are many other reasons of timing that may argue against proceeding right away with this study. I get that. I'm perfectly content to delay this conversation until later. All that I'm seeking is a clear commitment from this committee that we will undertake the study. Today all I want is a vote on this matter so that we have it on the record as to whether we are prepared to move forward or not.

Lastly, I believe there is no better forum for a critical conversation like this to take place than the justice and human rights committee. Colleagues, I can't imagine a more important justice and human rights issue than the potential erosion, indeed trivialization, of our Charter of Rights and Freedoms. Members, what is my motion about, and what is it not about? This is not a partisan issue. It goes to the very basis of the constitutional arrangements that Canadians entered into in 1982, some 36 years ago.

My motion concerns the possibility of any senior government—federal, provincial, territorial—routinely invoking

section 33 of the Constitution Act. As all members of this committee know, when a government invokes

section 33, it passes a bill that suspends, for five years, a court decision relating to key charter rights. The notwithstanding clause overrules freedom of expression, freedom of religion, freedom of conscience, and freedom of association. It also deals with legal rights, like the right to life, liberty and security of the person, which was the foundation of a woman's right to choose. That was upheld in the Supreme Court of Canada, of course, in the Morgentaler case, and it was upheld more recently in the right to medical assistance in dying. It can override search and seizure rights and equality rights.

There are many decisions of Canadian courts that have made a difference to the LGBTQ2 community, from equality rights to same-sex couples in social benefits, from Nesbit and Egan all the way to same-sex marriage. These gains could be eroded at any time by a provincial or federal government. Indeed, the record will show, for example, that Alberta Premier Ralph Klein contemplated the use of this clause to override aspects of the same-sex marriage debate in his province. I reiterate that my motion may have been prompted by, but is not about, a particular decision made in a particular province.

The context of my motion, of course, is well known: the decision by a premier in Ontario, for the first time in that province's history, to use the notwithstanding clause to deal with a dispute between the City of Toronto and the Province. People may perhaps differ as to whether this kind of situation was what the framers of the charter intended with the notwithstanding clause. As members know, the Ontario Court of Appeal made it unnecessary in this instance for the Ontario government to invoke the notwithstanding clause. Again, that particular case is not in issue.

However, it was a statement by the Premier that he would routinely and repeatedly use the notwithstanding clause that has caused constitutional lawyers across Canada such grave concern. The Ontario Premier's statement to use it repeatedly has been condemned by most constitutional lawyers and equality-seeking groups across Canada. I don't know about you, Mr. Chairman, but I have been inundated by calls from prominent constitutional lawyers.

I'd refer members to YouTube to see, for example, two colloquiums—one at the University of Ottawa, another at the University of Toronto—that were prompted by recent events and the fear that the Charter of Rights will be eroded. (1535) [ Translation ] The possibility of systematic recourse to the notwithstanding clause, and the erosion of the Canadian Constitution are extremely troubling for the generation of lawyers like myself who grew up and practised at the time when Canada adopted the Charter.

I believe that over the last 36 years since it came into effect, the Charter was used only 15 times, and by only three Canadian legislatures. This bears witness to the fact that its exceptional use was the express intent of the provincial premiers and the Prime Minister of Canada at the inception of the Charter in 1982. It was meant to be a measure of last resort. The fact that it was only used 15 times in 36 years in only three legislative assemblies attests to that reality. Both Prime Minister Chrétien and premiers Romanow and Davis, as well as the Honourable R.

Roy McMurtry, energetically contended that that was not the intention at the outset. They knew, since they were there. It is not sufficient to simply express one's disappointment to see the Premier of Ontario use clause 33 to systematically request that judicial decisions in connection with our constitutional rights be annulled, or simply to declare that we have to defend our Constitution. Former Prime Minister Martin swore to never use the notwithstanding clause in connection with federal laws. Former Prime Minister Mulroney is also firmly opposed to the use of this provision.

Could the committee recommend to the federal government that it respect the clear commitment made by two prime ministers, one from the Liberal party and the other from the Conservative party? [ English ] Let me be clear. Some have stated that the only two ways to address this issue are to either open up the Constitution and make an amendment to limit the inappropriate use of

section 33, or to invoke something that most of us think is a constitutional dead letter, the so-called disallowance power. I want nothing to do with either of those options. I hope I've made that clear. The reason for my motion is to see if experts and Attorneys General can generate other options. For example, is it now a “convention”—that is, part of our unwritten Constitution—that since the resort to

section 33 has been so infrequent, and since the politicians who brought the charter to us have all confirmed the original intent, perhaps there is already a convention to that effect? Alternatively, perhaps Canadian leaders of goodwill could commit to limit its use, as I believe the framers of the charter intended. Mr. Chair, I don't have all the answers. I don't pretend to. That is why I believe this committee is the appropriate place to show leadership and to try to come up with answers using the best expertise available to us. In conclusion, thank you for your indulgence.

I would ask that each of you consider this motion for what it is: an opportunity to begin an open-minded discussion with constitutional experts and others who may wish to join us, so that we might learn from them and evaluate options that could be employed to protect all Canadians' charter rights from the routine and systematic use of the notwithstanding clause. I look forward to a vote today on this critically important issue.

The Chair :

Thank you very much. Go ahead, Mr. Clement.

Hon. Tony Clement :

Thank you, Chair. Thank you for your remarks, Mr. Rankin. I don't have any prepared remarks, but I do have some thoughts about this motion. I take as the basis for the request your very well-expressed belief that this issue is important to study. I may or may not agree with a little context that you've woven into the discussion, but I think the basis of the motion is to have a study about the use of

section 33. There are many disadvantages to being older. One of the advantages, however, is that I remember 1982. I was a sentient human being at the time, just starting law school in 1983. The debate, of course, was captivating the country. It was a genuine debate. I remember many voices that wanted to ensure that Parliament and/or legislatures had an option to voice public opinion or to defend rights that they felt needed defending.

One of the most articulate members of this was an NDP premier, Premier Blakeney, who wanted the notwithstanding clause, as I recall, to ensure that workers' rights would have the benefit of protection of a legislature. I remember, from the other side of the coin, Sterling Lyon, who is no longer with us, who did express, on behalf of the people of Manitoba, the belief that there were times when the legislature still had to be supreme in those cases. Those voices were there, as well as some of the other voices that we've heard in recent weeks, about their

interpretation of why the notwithstanding clause was present in the final draft of the Canadian Constitution and the charter. There's also, of course, the evidence of legislatures using the notwithstanding clause. Of course the Government of Quebec, as part of their protest on the charter, regularly invoked the notwithstanding clause for many bills over a period of years, I recall—I stand to be corrected on that—to express their disagreement with how the Constitution was repatriated.

I am advised by a Saskatchewan parliamentarian that the notwithstanding clause was deployed by the legislature of Saskatchewan just three weeks ago. There wasn't much of a hullabaloo about that. There's been a little more hullabaloo about another provincial legislature. All of which is to say, Mr. Chair, that I think it is appropriate for us to have such a study and to hear from experts from the academic world, as well as some who perhaps were witnesses at the time of the patriation of the Constitution.

It might be of good use to have this committee record those views in an environment that I hope would be devoid of political grandstanding, so that we could get to the root of the issues and have that discussion in a respectful way and generate some light rather than just heat. I'm inclined to support the motion. As I say, I don't want to be on the record agreeing with everything that Mr. Rankin has said in his introduction, but when I look at the essence of the motion, I can sign on to it.

(1540) The Chair :

Does anyone else want to intervene? Go ahead, Ms. Khalid.

Ms. Iqra Khalid (Mississauga—Erin Mills, Lib.) :

Thank you, Chair. In the past three years sitting on this committee, I've really looked up to Mr. Rankin and the wealth of knowledge he has bestowed upon us. I genuinely believe in all the issues you've raised. I think it is a very legitimate concern for us to have, but I'm not sure if this committee is the right place for that debate to occur. We have been very much looking at concrete ways to impact our laws, concrete recommendations that we can provide to the government. We've had some really great reports and studies over the past three years. I'm not sure if we can fit this into our agenda in the next year.

We have 10 months in which we have really heavy, substantial legislation to get through. We have that human trafficking study report to finalize. We have a number of things on our agenda already. I really want to work on this issue. We know in the future we'd be happy to work with Mr. Rankin and our government to see how we can look at this issue in a substantial way, but I don't think this committee is the right place for it.

(1545) The Chair :

Go ahead, Mr. Rankin.

Mr. Murray Rankin :

First of all, I really appreciate your support for this idea, and I hope my reference to the specifics that led Canadians to be so concerned doesn't detract from my commitment to make this a non-partisan issue. You have my word on that. I think it's too important for that. Your reference to workers' rights is important. As you know, the Supreme Court has confirmed that collective bargaining is a constitutional right. That happened since Saskatchewan talked about it, and the fact that Saskatchewan has used it recently is no surprise. It's one of those legislatures that has used it in the past.

Since this was the first time in Ontario it was being used, given that Ontario is the largest province and the biggest media market, it's no wonder we all took notice. Ms. Khalid, I appreciate your generous words. I really mean it. I can only reiterate that there is nothing more important than this, in my humble opinion. If not here, where? I thought of the Council of the Federation, but the federal government isn't part of that. I thought of universities. We've already had colloquiums galore: just look at YouTube. It's a big deal out there in Canada, and I can't think of a better place.

I just suggested, as you know, five meetings. For goodness' sake, we're going until nine o'clock tonight. We're going until nine o'clock other nights. We've gone until nine o'clock frequently. I think Canadians have a right to expect us to take up our responsibilities and do this, for the simple reason that all we're asking for is a study, and I'm prepared to defer it until much later in the timetable. I seriously cannot think of anywhere else this can be done, where we can have witnesses come, perhaps as Mr.

Clement suggested, those who were there and the current Attorneys General, to have one of the dialogues Canadians are so famous for, just to have a turnout, roll up our sleeves and see if we can find ways to agree that its appropriate use is "thus and so" and not "this and that". That's all I want. It would really be a shame if—given that we have 10 months or so left—we can't find a few nights or days to talk about this. I think Canadians would be very disappointed if we did not.

Mr. Randy Boissonnault (Edmonton Centre, Lib.) :

Thanks, Mr. Chair, and thank you, Mr. Rankin, for putting this motion forward. I think it's fair to say that in our human trafficking study, we got to know each other better, and I think we were both talking about how we can do more for the federation and make sure that it stays strong. I had the opportunity when I was in Victoria for ParlAmericas to meet with a dear friend, a professor, almost a second father, J. Peter Meekison, who was a deputy minister to Premier Lougheed during the time of the repatriation of the Constitution.

He is the man responsible for creating the Victoria amending formula in the Constitution. We talked about the notwithstanding clause, how it was intended to be used, and why it was part of the negotiation around the repatriation of the Constitution. I appreciate the sentiment of your motion and what you'd like us to see. At the same time, as a government member, I see our work pushing legislation, listening to witnesses, and making sure that we get done what needs to get done on behalf of the government for the next 10 months. I think Mr. Clement is right.

There wasn't much ballyhoo about Saskatchewan using the notwithstanding clause. It hasn't been applied here in Ontario, because of the stay of the decision. I appreciate your mentioning the study on HIV overcriminalization, because that's a study I've put on the Order Paper, and I'm going to be agreeing with Ms. Khalid that we need to keep moving. We're going to have more legislation come to this committee, and that is how I'll be voting.

The Chair :

Mr. Cooper is next.

Mr. Michael Cooper (St. Albert—Edmonton, CPC) :

Thank you, Mr. Chair. I strongly associate my sentiments with the words expressed by Mr. Clement, and I have to say, Mr. Rankin, that we did have an opportunity to discuss the motion. At the outset, I was a little bit skeptical, but I think you've made it clear in your comments to me and to the committee that the intent of the motion is to have a dispassionate study whereby we can bring in constitutional experts, people who were around in 1982, and have a good study of an issue of significant importance to all Canadians. I have to say that I am quite disappointed with the sentiments expressed by Ms.

Khalid and Mr. Boissonnault as the basis for opposing this, I think, timely motion. In fact, over the last three years that I've had an opportunity to serve on this committee, I can't think of a single instance when we were not able to reach a consensus on any of the many issues we studied. Indeed, the only time that we were unable to reach consensus was on a motion I brought forward a number of months ago related to the crisis that we face caused by the Minister of Justice's failure to fill judicial vacancies.

That was the one time when the government voted against studying an issue, and it was obviously because they don't want to talk about this minister's failure when it comes to filling judicial vacancies in a timely manner. Mr. Rankin has not imposed a hard and fast date. The motion is simply to give the green light, and hopefully, as a committee that has generally worked collaboratively on this matter, we can find time to see whether we can

schedule it in. Hopefully, there will be time between now and June to do it.

(1550) Mr. Arif Virani (Parkdale—High Park, Lib.) :

Perhaps I could just respond to that briefly, Mr. Chair, since this issue has been raised by Mr. Cooper. I think the record should reflect that this minister has appointed 212 people to the bench, 100 people in each of the last two years. That's more than any minister of justice in Canadian history, including every minister of justice who served in the previous government. It takes time to implement a balanced, merit-based process that includes things like lived experience, gender, race, persons with disabilities, and indigenous representation on the bench.

Those clearly weren't priorities for the previous government. We know why those are priorities for our government. We will not apologize or listen to that response. It is criticism that is completely unmerited and unfounded.

The Chair :

Thank you. Coming back to the notwithstanding clause, I just wanted to intervene for a second, if I may, colleagues. Being a member of a community that was impacted by the notwithstanding clause in 1989 as a teenager, seeing how it impacted the members of my community, and seeing how it made many people feel very uncomfortable that their language was banished from public view after a Supreme Court decision and after a promise in an election that bilingual signs would be permitted, I certainly understand the consternation of people when this clause is used.

I certainly speak for myself and, I think, for most Liberal members of this committee when we say that we don't support the use of the notwithstanding clause. We certainly share your concerns, Mr. Rankin, about the indiscriminate use of the notwithstanding clause. That is a given. I do believe that the urgency of the issue is somewhat abated by the decision of the Ontario Court of Appeal to stay the Toronto decision.

I think that there probably needs to be some cooling-off period to make sure that when we talk about this issue dispassionately, we understand that it won't be related to one government in one part of the country on one specific decision. Based on all that I've heard, we currently have a study on Bill C-75 that we're doing, and we're shortly going to get the divorce legislation, Bill C-78 . We also have to conclude our study on human trafficking, and we have the study from Mr. Boissonneault on the decriminalization of HIV.

Because I think government members are willing to discuss this with you and see how we can work with you on this, my thought is that perhaps we don't need to vote today; we can bring this back at a later date. Should you wish to vote today, there's no problem. We can still try to find solutions in the future and bring this issue back if there isn't agreement. We always try to find agreement. I don't think today there is one, but maybe at some point in the future there will be. Go ahead, Mr. Rankin.

Mr. Murray Rankin :

Thank you. I think it's precisely thanks to you, Chair, that we've had—as Mr. Cooper pointed out—very harmonious relations on this committee. We very rarely have had the kind of dissension that occurs on so many of the other committees. I salute you for that. I made clear in my remarks, I hope, that I wasn't suggesting that there was a sense of urgency now. I was simply saying that we should do it at some point on our timetable. To not agree to do this, I think, is quite surprising. I committed to recognition through Mr.

Boissonneault's important motion that it would be something that I would treat with the respect it deserves and put on the timetable as quickly as we can. I point out, though, that we're not just dealing with legislation on this committee. I can remember a study on legal aid as just one of many examples that, frankly, had nothing to do with legislation. I do want to vote today, Mr. Chairman. I think we need to let Canadians know where we stand on this issue. If there's a better place, I'm open to it. I do not accept that we don't have time. I simply find that a specious argument, with respect.

I just want to get on the record whether we're prepared to do this work. Many people have come to me and asked, “If not you, who?” I believe they need an answer, so I would respectfully ask for that vote to occur.

(1555) The Chair :

You have every right to have a vote on your motion. I was simply suggesting that, again, there may be other ways to tackle it than the type of study proposed. Even if there's a vote today, it doesn't mean that we won't find some other means to handle it. Is there any other discussion on the motion? Not hearing any, may I call a vote? Is that okay with you, Mr. Rankin? Mr. Rankin has made a motion. All those in favour of the motion? (Motion negatived [See Minutes of Proceedings])

The Chair: I thank you again, colleagues, for the way that you handled this. I very much appreciate the cordiality that occurs even when there is disagreement in this committee. Because we have multiple votes tonight that will prolong our meeting, I also was wondering, colleagues, since we're a little bit early, if we might call the panel up that was here at four o'clock so that we can start a little bit early. If so, may I call the witnesses for the four o'clock panel up, please, all four of you. I very much appreciate your forbearance in sitting through this with us.

If you have speaking notes, please, if you wouldn't mind, provide them to the clerk. Thank you. I promise there can be multiple handshaking at the end of the panel. I just want to make sure we try to get two panels through before we leave for the vote. The best we can do, we will do. It is a great pleasure to resume our study of Bill C-75 and be joined by this illustrious panel that we have today. It is a pleasure to welcome as an individual Ms. Laurelly Dale, who is a criminal defence counsel for Dale Law Professional Corporation. Welcome, Ms. Dale.

Ms. Laurelly Dale (Criminal Defense Counsel, Dale Law Professional Corporation, As an Individual) :

Thank you.

The Chair :

We have Mr. Michael Spratt, who is a criminal lawyer at Abergel Goldstein and Partners. Welcome, Mr. Spratt.

Mr. Michael Spratt (Criminal Lawyer, Abergel Goldstein and Partners, As an Individual) :

Thank you.

The Chair :

As well, we have the Canadian Council of Criminal Defence Lawyers, represented by Mr. Richard Fowler and Ms. Rosellen Sullivan. Welcome.

Ms. Rosellen Sullivan (Canadian Council of Criminal Defence Lawyers) :

Thank you.

The Chair :

We're going to go in the order of the agenda, if that's okay with you, which means your eight minutes will go in that order. I won't cut you off until 10 minutes, but if you could stick to eight, that would be amazing. We're going to start with Ms. Dale.

Ms. Laurelly Dale :

Good afternoon. I'm grateful for the opportunity to be before the committee today. My name is Laurelly Dale. I am a criminal defence counsel of over 11 years. I share an office in downtown Toronto with the reputable John Rosen, and I also have an office in northwestern Ontario, in Kenora. I am first and foremost an officer of the court. My views today are in response to your invitation to offer my opinion on a fragment of Bill C-75 that would eliminate preliminary hearings. Extensive consultation with lawyers is necessary to shape our pending laws.

As defence counsel, I am but one player in the larger administration of justice. I submit to you that there is a disconnect between reducing delay by eliminating preliminary inquiries. The administration of justice would be obstructed by this removal. It is not a debate between Crown versus defence strategies. I am also a member of the Criminal Lawyers' Association, and I adopt and support their position on this. It's not my intent to reiterate their position. I'm here today to provide you four reasons justifying my position. First, disposing of preliminary hearings will not save time.

This will have the reverse effect, by causing further delay in court. We're well aware of the Supreme Court of Canada decision in Jordan declaring a specific presumptive ceiling of 30 months with or without a preliminary inquiry. The objective of Jordan is to preserve the

section 11(

b) charter right to be tried within a reasonable time. It was not to use this case as a weapon that will harm the administration of justice. The claims that this will reduce court delays are false. Only 3% of cases utilize preliminary hearings. The majority of the cases that did proceed to preliminary hearing were resolved in provincial court. Two major studies have concluded that preliminary inquiries do not contribute substantially to the problem of court delay. Preliminary hearings facilitate the resolution of potentially lengthy and expensive trials in superior court.

They are often used instead of rather than in addition to trials. They expedite the administration of justice. It is far easier and quicker to get a two- to four-day prelim, as opposed to a one- to two-week trial in superior court. Recently I've had two matters proceed to prelim that ultimately saved the court from having two very expensive jury trials in the superior court. The first was a consent issue in a sex assault case. We proceeded to prelim. My client was able to truly appreciate the evidence against him in a way that watching video statements cannot.

Midway through the day, my client reviewed his position and decided to plead guilty. The complainant left knowing that she would no longer be needed to testify in that matter. In the second, after day one of the prelim, the Crown was made aware of weaknesses in their case. The preliminary inquiry revealed a complete lack of evidence for the charges, resulting in a withdrawal. None of those results could have been attained in the same time frame had we proceeded directly to the superior court.

Preliminary inquiries help formulate accurate trial estimates and deal with front-end applications, discovery issues, and motions. I ask you to look at the youth criminal justice system. This is an example of an existing system that doesn't have preliminary inquiries except in rare circumstances. There are still delays in the youth system. I had a youth client who was charged with aggravated assault. The complainant was a child of eight months. The charges were very serious. The child suffered a cerebral hemorrhage that caused permanent damage.

Young offenders are not permitted a preliminary hearing except if charged with murder or as an adult or if proceeded with as an adult. This case is an example of one for which we needed a preliminary hearing. There were major causation issues. The Crown did not produce an expert report, but still wanted to proceed. There was limited medical evidence. In order to fully answer and defend the charge against him, my client required numerous third party records. The

section 11(

b) time was running out through no fault of the defence. We scheduled the trial not knowing how many experts there would be or if there would be charter issues. We received medical records through third party records application.

(1600) From those, we needed further child and family services records to begin the process of organizing our own expert. Evidence substantiating this could be obtained through the testimony of the mother's child, through the trial that would be adjourned mid-testimony to proceed with a third party records application. This is getting very much into the weeds, but it's establishing a real point that from there, transcripts would be ordered and another third party records application scheduled. We'd hear the schedule, wait 60 days to produce the records and another 90 to organize our expert.

The trial would resume many months later. This would be our world if we eliminated preliminary hearings in the adult system. This is not how justice was intended to be administered. The second justification is that both players, defence and Crown, already have tools that can be used to bypass the preliminary hearing. Deciding to have a preliminary hearing requires a case-by-case analysis. We must not assume that they are to be utilized by defence as a delay tactic or to earn higher fees per file. As defence counsel, I am often waiving preliminary hearings for a number of reasons.

Sometimes it's because of the offence and jurisdiction, other times my client's in custody, or sometimes it's because of the strength of the Crown's case. I was counsel involved in a large drug project in Toronto. Multiple accused were involved. We had a five-day prelim scheduled for November, and in a rare move the Crown preferred the indictment. This is a tool that they have. The authorization of the Attorney General is required; however, the Crown has used this tool to now force this matter to skip over prelim right into the superior courts.

The third justification is that Bill C-75 prioritizes false hope of efficiency over trial fairness.

Section 7 of the charter guarantees both substantive and procedural safeguards to those accused of a crime. It is important to remember that preliminary inquiries are only available to those facing indictable offences, lengthy prison sentences and significant consequences if convicted. This extra step adds a layer of protection against wrongful convictions of the most serious crimes. I was raised in northwestern Ontario. My paternal grandmother was Métis. My office in Kenora covers a substantial territory in the north. We participate in circuit court.

Each week, roughly, we attend remote aboriginal reservations by squishing into cigar planes and crossing our fingers in the hopes that we land through the fog and ice sometimes. It is well known, sadly, that aboriginal peoples are overrepresented in our justice system. In my office located in Kenora, they represent over 90% of my criminal clients. It is they who will suffer the consequences of this amendment. Adding further delays means they will spend longer in pretrial custody. Removing a safeguard means they will be the most likely to be wrongfully convicted.

Bill C-75 did not consider how this would impact the most vulnerable group. My fourth and last point is that eliminating preliminary hearings ignores the root causes of delay. I'm not here to provide you with an exhaustive list. However, substantive research has established that delay is caused by mandatory minimum jail sentences, disclosure practices, and self-represented litigants. In conclusion, eliminating preliminary hearings will impede the administration of justice. Discretion is stripped away at the provincial level.

Lengthy and expensive superior court trials will become the norm, causing a demand for resources that our system cannot fulfill. There is no data to support Bill C-75 . My experience and the available data suggests that eliminating them will, in fact, cause significant delay. Bill C-75 represents an illogical response to court delay. The public could lose confidence in our administration of justice if our accused are stripped of their ability to make full answer in defence, and court delays inevitably will still exist despite the elimination of preliminary hearings.

Subject to any questions, those are my submissions.

(1605) The Chair :

Thank you very much, Ms. Dale. Mr. Spratt is next.

Mr. Michael Spratt :

Thank you. It's always an honour and pleasure to appear before this committee. I have submitted a brief. It's nine pages, so I don't intend to go over that in detail. You have that information. I think you will find that my friends and I are perhaps in violent agreement on some of these issues. The preliminary inquiry is really a long-standing feature of the Canadian criminal justice system and it's a procedural safeguard.

It's available only for those individuals who are charged with some of the most serious offences to ensure that there is sufficient evidence so that they will proceed and face the jeopardy of a trial. In addition to that primary screening function, the preliminary inquiry also confers a number of other incidental benefits that promote efficient operation of the justice system, enhance the fairness of the justice system and also increase the quality of justice that we have in our courts.

As my friend said, preliminary inquiries occupy only a very small time in provincial court dockets, but they do deliver huge savings to the system. Preliminary inquiries deliver these efficiencies in a number of different ways. They focus the issues to be litigated at trial. They identify evidentiary landmines that can arise in the middle of a trial, and they also ensure that parties have a sufficient and detailed knowledge of the evidence and that can assist in resolving matters that don't need to go to trial in the first place.

Importantly, preliminary inquiries increase the fairness of our trial system by allowing both the Crown and the defence to probe the strengths and weaknesses of a case to evaluate the reliability and credibility of witnesses and, importantly, they also act in many cases to preserve and memorialize evidence at an early stage. Many times a preliminary inquiry has allowed the Crown to introduce evidence at trial of witnesses who have absconded, who find themselves in custody, who have recanted their statements, or who have become deceased while awaiting trial.

The government offers two justifications for the preliminary inquiry limitations in this bill. One is efficiency and one is to reduce the burden on witnesses and complainants. My friend is right: There is a delay problem in our courts, but preliminary inquiries are not the cause of that delay. In fact, the focus on efficiency doesn't just ignore the questions of fairness that I raised but it also ignores the available evidence and experience that we have in dealing with how preliminary inquiries can actually expedite the procedures. I'm not going to go over the evidence with you.

I have cited some of that in my brief. It does show that preliminary inquiries are decreasing in frequency, that preliminary inquiries specifically looking at Jordan issues don't disproportionately cause those issues that we see in Jordan about cases being stayed. But there isn't a wealth of evidence here. The proponents of this bill have not put forward exactly when preliminary inquiries occur, how many cases resolve after a preliminary inquiry, or how many court hours are saved. That's the type of evidence that I think we would like to see before changes are made.

That's the evidence-based policy-making that I think we deserve in the criminal justice system. I think it's safe to say that preliminary inquiries aren't a common occurrence, but they are something that has been studied to some extent. Of course you will be familiar with the 2017 report of the Senate Standing Committee on Legal and Constitutional Affairs that found that there wasn't consensus amongst the witnesses they heard about whether preliminary inquiries should be eliminated. There wasn't a consensus among those witnesses about whether they should be restricted.

Indeed, that committee said that there wasn't a consensus even amongst the provinces about what should be done with preliminary inquiries. When you look at the preliminary inquiry, what we do know and what I as a practitioner am here to tell you is that they are an ideal way to actually bring efficiencies to the justice system. As I said, they can identify issues. These are invaluable tools to ensure that a charter issue or an issue about search and seizure isn't just discovered in the middle of evidence at a trial.

In a sexual assault case, if there is an issue about third party records or about prior sexual history, that those issues don't raise their head in the middle of a trial, causing adjournment in the superior court or, more likely in the case of a jury trial, endangering the whole trial itself. You can't adjourn a jury trial to litigate those issues, but we can identify them early through a preliminary inquiry. I take it, and I'm going to assume, that this committee is aware of Dr. Webster's study. I know it has been cited in a number of different briefs.

That's a very valuable resource that supports some of the anecdotal evidence that you will hear from us today.

(1610) There are two issues that I think haven't been discussed. The first is in relation to the preliminary inquiry as an important judicial screening function. What this bill will do in a large number of cases is download that discretion, that function, into the hands of Crown attorneys, which of course isn't reviewable and can cause some issues. That shift in judicial discretion was the topic of some negative critique by the Supreme Court in the Nur case.

Second, with respect to delay issues, when we look at Jordan, the Supreme Court specifically considered the 30-month Jordan time period for a two-stage proceeding. That's a proceeding that has a preliminary inquiry. I don't think there's much justification for that 30 months if we turn these cases into a one-stage proceeding. That's an issue that's currently before the Court of Appeal for Ontario. By eliminating the preliminary inquiry, we could be in a much bigger Jordan issue, above and beyond the efficiencies that preliminary inquiries can bring.

I do want to speak about the discovery function in my last few minutes. I know proponents of limiting the preliminary inquiries say that since the advent of the charter, since Stinchcombe, the defence has a wealth of disclosure. That's true; we do. That disclosure often tells us the who, the what, the where, and the when, but quite often that disclosure doesn't tell us the why. Police officers don't always record that in their notes. That disclosure doesn't tell us issues about reliability or credibility that can only be apparent through testimony.

I can tell you that just today in the Ottawa Superior Court of Justice, I was in pretrial for a matter that had a one-day preliminary inquiry. It would have been a two-week trial, but that case was resolved because those questions of “why?” were answered, and it caused the parties to come together. Lastly, I want to say that in my brief I've set out some possible amendments that can be made to formalize a discovery procedure or perhaps require a more robust justification on the defence of the party seeking a preliminary inquiry. I want to dispel some misinformation that's out there.

The Minister of Justice , in the House of Commons, said that some procedures already exist to cure some of the problems about this discovery function. She said that there would remain the flexibility in existing processes such as out-of-court discoveries that have been implemented in some provinces already, such as in Ontario and Quebec. I can tell you that's not really true. In Ontario there is no formal out-of-court discovery process for criminal procedures. It can be done with consent of the Crown informally, but there's no formal mechanism for that.

That means, if this committee is going to rely on that procedure as a safeguard to alleviate some of the concerns, it's not uniform across Canada, and it certainly isn't available in all cases in a regulated way in Ontario. Preliminary inquiries and unnecessary preliminary inquiries have already been curtailed through the use of

section 540 of the Criminal Code that allows the Crown to adduce written evidence and statements as evidence. That has reduced some burdens on people testifying. Of course we have the requirement that the requesting party, which is usually the defence, comply with

section 536.4 and 536.5 of the Criminal Code about notice of issues and notice of witnesses it would like to hear from. Perhaps amendments can made to make those slightly more robust, but those current controls have addressed some of the issues that have already been raised. I'm very concerned that we're sacrificing fairness for the sake of efficiency, and we're not really going to gain the efficiency that's sought at the end of the day.

(1615) The Chair :

Thank you very much. We'll move to the Canadian Council of Criminal Defence Lawyers.

Mr. Richard Fowler (Canadian Council of Criminal Defence Lawyers) :

Thank you very much, Mr. Chair and honourable members of the committee. This is my third appearance before this committee, and it's an honour to be back again today. My colleague and I are here from the left coast and the right coast—I'll leave it to you to decide which is the left and which is the right. We know a lot less about what happens in the middle. I want to start by saying that we echo and support the comments you have already heard. The strength of our agreement as defence counsel shows what we've learned from many years of experience. Combined, my colleague and I have over 44 years of experience.

I myself have conducted over 500 trials, of which more than 50 have been murder cases. I've conducted preliminary inquiries when necessary. I want to start by also saying we're here today to talk about the preliminary inquiry, but there are other parts of this bill that we have significant concerns with. I will just say, as an aside, that the abolition of peremptory challenges is a huge mistake. I've selected over 100 juries, and I've never seen it misused. It's necessary. Let's go back to preliminary inquiries. I'm convinced they're an essential tool for an efficient, fair and reliable justice system.

I also have seen no data that in any way suggests a justification for their abolition. In fact, the bill itself is inconsistent because it preserves preliminary inquiries for offences where there's a potential for life imprisonment, but that's also arbitrary—in the case of robbery, for example. Abolishing preliminary inquiries is short-sighted and will lead to far greater problems than many will anticipate. I'll give you an example. I was counsel for an accused charged with historical sex offences. There were five complainants. The offences dated back to 1959, covering a time period to 1992.

We elected trial by Supreme Court judge alone, and requested a preliminary inquiry. One was scheduled. Shortly before the preliminary inquiry was due to start, Crown counsel preferred an indictment and we went straight to the Supreme Court. The trial took over two years to complete. Why? Unbeknownst to either the Crown or the defence, there were a number of

section 276 issues—that is, prior sexual history—as well as at least two, maybe three, third party records applications. You can imagine that in historical sexual offence cases, you're very likely to have applications related to third party records. There was also a severance application. We were successful on all of those applications. In other words, they all had merit. They led to the trial having to be adjourned three or four times. Of course, rescheduling a trial that's been adjourned is very difficult. It's also, ironically, very inconvenient for complainants. They start their testimony; they've started a cross-examination; evidence comes to light that requires a

section 276 ruling; we have to adjourn, and then they have to come back. In my respectful submission to you, they should not and must not be abolished. They need to be improved. For example, provincial court judges at a preliminary inquiry have almost no powers. The test for committal is very low. We need to give judges at preliminary inquiries more powers, such as the jurisdiction to order disclosure. It's often self-evident to everybody in the courtroom that the defence is entitled to this disclosure, but we have to wait till we get to the Supreme Court for an order to receive it.

Judges need the power to hear third party record applications and to rule on prior sexual history. In other words, we should give them the powers to adjudicate on matters prior to getting to the Supreme Court for trial. Let's utilize the preliminary inquiry to make sure that when we get to trial in the Supreme Court, the trial occurs efficiently, without interruption and without unnecessary motions. It's the lack of power in the “preliminary inquiry justice”, as it's defined in the code, that gives rise to concerns that in some cases they seem to be a waste of time.

(1620) We need to make them better, not abolish them. Thank you.

Ms. Rosellen Sullivan :

Good afternoon. I'm Rosellen Sullivan, and I'm here from Newfoundland. I'm going to say that's the right coast.

Some hon. members: Oh, oh!

Ms. Rosellen Sullivan: I think that goes without saying, actually. I don't want to repeat what my colleagues have said. Again, we all agree that we all agree, which I think is important. I do want to speak about my experience in Newfoundland, which I believe probably had less than a 3% Jordan issue, even when Jordan was an issue. My concern, of course, is whether the decision itself has rectified many of the issues that led to Jordan in the first place, and I don't think there's any empirical data to suggest that.

Particularly, I would suggest, from my neck of the woods, that a lot of the delay issues have mostly to do with disclosure, as opposed to the preliminary inquiry. That's particularly true in large CDSA cases and in a lot of cases that have a lot of forensic analysis and forensic disclosure, which are pretty commonplace these days. Oftentimes that's the reason that cases are being delayed. In fact, I would submit that some of the other proposed amendments are going to have consequences in terms of delay.

Again, I know we're here to talk about the preliminary inquiry, but if you look at peremptory challenges, I would submit that those are going to be causing delay, because they're going to lead to more challenge for cause applications. The other example that comes to my mind is police officers reading in evidence, which is going to lead to an extra step along the way of defence counsel bringing applications to cross-examine on that. In terms of whether or not the system has already addressed Jordan issues, I can tell you that it is commonplace now in Newfoundland for all the issues to addressed on the record.

Waivers are explicitly asked for. Reasons for postponements are explicitly put on the record, so that they're clear and articulated. I would go beyond what my friend has said in terms of giving the preliminary inquiry judge more power. I would also suggest that one of the things that could be contemplated is raising the threshold for committal. A scintilla of evidence is actually pretty low. So many times the judge will say, “I can't weigh credibility issues.

I can't decide those things.” If the threshold were higher and those issues could be dealt with, I think it would be a lot more effective and even go beyond being able to pare off the cases that don't go to trial. I know anecdotally we've all told you, but I can tell you that in the last two preliminary inquiries that I've had, in one of them the Crown pulled the charge after the prelim because the witnesses were clearly very inconsistent with their statements. With the other one, the strength of the case against my client was so obvious that we ended up making a deal.

I would think that the prelims are more effective in terms of streamlining cases. Subject to any questions you might have, those would be my comments.

(1625) The Chair :

Thank you very much to all the witnesses. The Conservatives have the first question.

Hon. Tony Clement :

Thank you to the panellists for taking time to be here with us as we study the bill. I want to get a couple of elaborations from a couple of the individuals. Ms. Dale, you talked about the false hope of efficiency when it comes to eliminating preliminary inquiries. In your view, and maybe this is to Mr. Spratt as well, are there jurisdictions you're aware of that could buttress the case you're making? Has there been any evidence—maybe even to Mr. Fowler or Ms. Sullivan—from other jurisdictions that should be a warning to our jurisdiction on this issue?

Mr. Michael Spratt :

I certainly don't have that sort of evidence on the tip of my fingers. My experiences are more anecdotal. I know that this committee in the past has heard from Dr. Doob and Dr. Webster, and they might be in a better position to provide some supplementary information about the statistics.

Hon. Tony Clement :

But in terms of the experience of your practice—that's where you do have some expertise obviously, because you're there on the ground where these cases are being considered—you're not concerned that it's contributing to the challenge that is being faced in the wake of the Jordan decision.

Mr. Michael Spratt :

No, quite the opposite. I can say that preliminary inquiries are rarely set. I rarely set them. When they are set, even for very complicated matters such as second degree and first degree murders, they have been very constrained and very focused, especially lately, and I can say without a doubt that every hour I spend in a preliminary inquiry saves tenfold hours at the door of the superior court.

Hon. Tony Clement :

Have you seen many cases of abuse of the preliminary inquiry in your practice?

Mr. Michael Spratt :

I haven't, and part of the reason I haven't seen that sort of abuse is that for the very serious charges that are set for preliminary inquiry, many of my clients are in custody, and one of their big issues is that they don't want to delay their trials, and getting court time can be a delay. That's why I don't see any defence counsel setting preliminary inquiries to delay matters, setting preliminary inquiries to obstruct matters, or setting preliminary inquiries that deal with repetitive, needless, or useless questioning.

Mr. Richard Fowler :

I'll just echo what my friend has said. Abusing the preliminary inquiry, has it ever happened? Of course it has—let's be honest—but is it used routinely to cause delay? No, because judges have the powers now, with the focus hearing, to require counsel to come before them and to ask them, “Well, what are you going to do with this court time I'm giving you? What witnesses are being called? How much time is each witness going to take? What are the issues at the preliminary inquiry?” They're very streamlined.

Most of the preliminary inquiries I've done have been on murder cases, and often they take no more than three or four days, even if the trial is going to take a month or two. We focus on issues for which the preliminary inquiry is going to provide sort of value for money in a very real sense. You also have to be aware that preliminary inquiries are very helpful to the Crown. In fact—not to let too many secrets out here—I often waive a preliminary inquiry because I know it's going to be more helpful to the Crown than it is to me.

They are tremendously valuable, then, and until you get down there and look at a case and prepare it for court and know what trials are like, it's hard to appreciate how helpful they are, but they really are.

(1630) Mr. Michael Spratt :

If I could just add this very briefly, in terms of just the practicality of scheduling a preliminary inquiry, I can't walk into court and say that I want to set a date for a preliminary inquiry and they'll just hand out that court time. In virtually every jurisdiction, you need to have a judicial pretrial with a judge to actually obtain the court time, so there's a front-end limit on wasting court time or scheduling time that may not be used appropriately.

Hon. Tony Clement :

Well, you don't want to gain a reputation in the system of abusing that privilege either, as a defence counsel.

Mr. Michael Spratt :

Quite right, and I don't want to waste my time or my client's time either.

The Chair :

You have another minute, Mr. Clement.

Hon. Tony Clement :

Okay. Mr. Fowler, in terms of how things happen in practice, there's a constant evolution of criminal justice and the proceedings. Are you finding that your conclusion is that defence counsel, through that evolution, have come to a position now where the preliminary inquiry is used in an expert way, not for dilatory tactics, and that's where the evolution of that practice has come?

Mr. Richard Fowler :

I would very much agree with that. I think they are used by defence counsel only when necessary. I think you made a very important point: Nobody wants to develop a reputation for wasting court time. It's so much of an issue now. Court time is so precious. Everybody talks about it from the moment a file comes in and you first appear in court. Short of being dishonest to the court, the next worst reputation you could develop is for wasting court time. There's just absolutely no advantage to it. That culture has changed completely. Even if it really ever existed, it doesn't exist in people's minds anymore.

Hon. Tony Clement :

Thank you.

The Chair :

Thank you very much. Mr. Fraser is next.

Mr. Colin Fraser :

Thank you very much. Thank you all very much for being here. I appreciate your presentations and your thoughtful comments on this. Mr. Spratt, you spoke anecdotally, and that's what you folks can provide us with today. I recognize there doesn't seem to be a lot of data on this, but in your experience how often are preliminary inquiries waived after they've been set? Could you also comment on how long it takes when you do set one? If they're being waived close to the time that they're supposed to be scheduled, then that court time is being wasted.

Mr. Michael Spratt :

I haven't set a preliminary inquiry and then waived it at a later date in recent recollection. I'm sure I have at some point, but that's not a common occurrence. That's because court time is so precious. When we're talking about the root causes of delay—why does it take so long, in some cases, for matters to be heard?—part of the answer, I think, is disclosure, and part of the answer is the legal aid process, but most of it is getting court time. That's the longest delay. I have clients in custody who I think should have a preliminary inquiry.

It could focus the issue and it may be beneficial to them, but they still don't want to set up a preliminary inquiry because it will delay them. It's very rare that a preliminary inquiry will be set and then waived. Even when it is, at least in Ottawa we're double- and triple-booking our courtrooms, so if a preliminary inquiry is set and then waived, at least in this jurisdiction, there is a trial to fill in that time.

Mr. Colin Fraser :

You talked a little about a discovery process for criminal proceedings not being available, or not having a mechanism to request one, although I suppose it happens informally. Do you see a way for our system to develop better case management practices and have discovery-type proceedings that happen outside court to save time?

Mr. Michael Spratt :

I think so, and especially with such a low standard for committal, I prefer the discovery process. It can be arranged much more quickly and be done much more flexibly. I don't have to stand up when I ask questions. I don't even have to wear a suit. There are lots of advantages to that discovery process, but I think if we're going to rely on it, it has to be a uniform, legislatively based process, because different jurisdictions have different rules, and I don't want to be dependent on the discretion of a Crown about whether they're going to agree or disagree to that process.

(1635) Mr. Colin Fraser :

Do you see that answering most of the concerns here today? It narrows the issues. You obviously have an ability to test some of the evidence. You get to determine whether there are disclosure issues that still need to be fulfilled and these sorts of things.

Mr. Michael Spratt :

It would satisfy a lot of my concerns. I don't think it would necessarily apply in all cases, because there still is that screening function. As a practitioner, even though that committal threshold is so low, I've done lots of cases where committal hasn't been ordered on all counts or at all. I wouldn't want to lose that, but in 90% to 95% of the cases that I think should go to a preliminary inquiry, I would be satisfied with a discovery procedure.

Mr. Colin Fraser :

If you were to set a preliminary inquiry in Ottawa today, how long are we talking to get there?

Mr. Michael Spratt :

If we're looking at a day or two in custody, we might be looking at four to eight months, and out of custody we could be looking at over a year to get that court time. The other thing about the discovery process is that we don't need judges. That can be done in the absence of judicial intervention for the most part.

Mr. Colin Fraser :

Mr. Fowler, you talked a little about case management issues. Do you see a way to have case management and discovery to get around the necessity of having a preliminary inquiry?

Mr. Richard Fowler :

I'm cautious about the discovery process because, from having sat in many different courtrooms on many different days, there's something about the formality of the process, the taking of the oath and the judge being present, that really instills in people's minds that they have to be truthful. We cannot underestimate it. The informality of a discovery process doesn't answer that fundamental issue, which is the pressure to tell the truth. It doesn't deliver the message that we're serious about this now.

In case management, there's such a variety of jurisdictions with their own different needs and resource availabilities. I think centralizing case management in the Criminal Code, other than the Criminal Code conferring that power on provinces and judges, is the answer. The chief judges in the particular provinces or territories are the best ones to be able to determine how best to use case management, given the resources they have and given the fluctuation in cases, the fluctuation in the number of judges, and all those things.

Mr. Colin Fraser :

Ms. Dale, I'm just curious: You talked about how preliminary inquiry leads to new information or each side seeing what evidence may be proffered at trial actually leads to resolutions more often. Can you give us some anecdotal information on how often matters resolve once a preliminary inquiry has taken place?

Ms. Laurelly Dale :

I can indicate that the last two out of three preliminary inquiries I've conducted in the past year have been resolved at the provincial court level. This is consistent with—and I know it's been referenced—the Webster and Bebbington study of 2013. It found, particularly in Ontario, that there were twice as many cases with preliminary inquiries that did resolve at that provincial level. When I am scheduling preliminary inquiry.... We all have to go through the judicial pretrial process.

We sort of have to fight for our time estimates and show why we need the preliminary inquiry, because they're not just granted upon request. A lot of various kinds of information and coordination need to happen before they are scheduled. At the back of everyone's mind, Crown and defence, is whether or not this will result in a resolution at the provincial level, rather than having to escalate to the higher level of court.

Mr. Colin Fraser :

If I can just ask very quickly, when a matter is set for preliminary inquiry, how often does it happen that it gets waived or done away with by the person re-electing and pleading out, once it's been set?

(1640) Ms. Laurelly Dale :

Do you mean in terms of waiving the preliminary inquiry?

Mr. Colin Fraser :

Well, you would have no need for the preliminary inquiry, because six months down the road you don't need it anymore, because you have re-elected and the person has been pled out.

Ms. Laurelly Dale :

I would share my friend's comments. I can't recall recently doing that. It would be a very odd occurrence. Generally, when a preliminary inquiry is scheduled, it's for a very focused purpose. Although it's referred to as a dress rehearsal of the trial, that's a bit of a generous description, because the Crown isn't required to provide all of their witnesses and evidence. Generally, the parties agree on which witnesses they want to hear from, and it's very focused.

The Chair :

Thank you.

Mr. Colin Fraser :

Thank you. I'm sure I'm over my time.

The Chair :

Go ahead, Mr. Rankin.

Mr. Murray Rankin :

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.

Mr. Richard Fowler :

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.

Mr. Murray Rankin :

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.

Mr. Richard Fowler :

I agree with you, and as best as I know, New Zealand is the one jurisdiction that has that.

Mr. Murray Rankin :

All right. Thank you.

Mr. Richard Fowler :

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."

(1645) Mr. Murray Rankin :

Thank you, Mr. Fowler. Ms. Dale, I just want to re-emphasize one of your initial anecdotes, because we've heard so frequently that the problem with preliminary inquiries for women in the case of sexual assault cases is that they are retraumatized by having to do it twice. I thought your suggestion was really powerful in the case that you were involved in where the accused was led to plead guilty and therefore the trial never happened. I want to thank you for giving us that illustration. You also talked about delays and about a number of reasons that were given for delays.

You suggested that mandatory minimum sentences was an important one, as well as self-represented litigants. Could you expand on that?

Ms. Laurelly Dale :

As I noted, the research isn't exhaustive on that point. Particularly with regard to the self-represented litigants, I do know that there have been a number of studies to support the position that there should be more legal aid funding in the criminal justice system because it has been determined that self-represented litigants do add to court delays. There's a reason we went to law school. We have this experience. It is a very complicated process, and having self-represented litigants who are trying to navigate it on their own causes significant delays in the system.

The mandatory minimum sentences reflect a lack of discretion with respect to the sentences that are imposed. Therefore, more of a need is created to determine the strengths and weaknesses at every available opportunity and for the clients to make full answer in defence, because if they are facing a mandatory minimum sentence, those consequences are extremely significant. Then, of course—

Mr. Murray Rankin :

Then there would be more trial time because people have nothing but a mandatory large sentence to face—

Ms. Laurelly Dale :

Yes.

Mr. Murray Rankin :

—and, therefore, there's no incentive to take the time-saving measures.

Ms. Laurelly Dale :

Exactly, and the consequences are severe, reflecting penitentiary-length sentences, and of course that's a significant consideration.

Mr. Murray Rankin :

I was also impressed with your reference to the disproportionate impact on indigenous people. Mr. Spratt, if I could—

The Chair :

I just want to warn you that your time has elapsed. If you have a short question for Mr. Spratt, then try to be....

Mr. Murray Rankin :

I don't know how long it will take.

The Chair :

If it's going to be that long....

Mr. Murray Rankin :

I'll just ask it anyway.

The Chair :

Sure.

Mr. Murray Rankin :

You did talk about the who, what, where, and when that the Stinchcombe information gives you. You also said “why”. You said the preliminary inquiry often allows the important question of “why” to be addressed and provides context that cannot be teased out of paper disclosure. My question is, how come? Elaborate on why the "why" would be more relevant, then.

Mr. Michael Spratt :

Perhaps I'll use the example of a police officer who engages in a search. The officer will always say what he did and where he found it, but the subjective motivations of the police officer—what he was thinking, why he thought certain aspects of his observations were important, and how those related to what he did—are often not recorded in notes, especially dealing with those important charter issues.

Mr. Murray Rankin :

Thank you.

The Chair :

That was an excellent succinct answer. Thank you. Mr. Boissonnault is next.

Mr. Randy Boissonnault :

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.

(1650) Mr. Richard Fowler :

Yes.

Mr. Randy Boissonnault :

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.

Ms. Rosellen Sullivan :

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.

Mr. Randy Boissonnault :

You mean widen the pool.

Ms. Rosellen Sullivan :

Widen the pool and make it easier for people to come. In Newfoundland, geographically, this is a big issue.

Mr. Randy Boissonnault :

Of course.

Ms. Rosellen Sullivan :

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.

Mr. Randy Boissonnault :

What else can we do to make juries more representative and keep peremptory challenges?

Ms. Rosellen Sullivan :

In my experience, people haven't tried to manipulate the process in that way.

Mr. Randy Boissonnault :

I appreciate that. Mr. Fowler, would you comment first on that? Then I have a question for you on another matter.

Mr. Richard Fowler :

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.

Mr. Randy Boissonnault :

We have the same issue in the LGBTQ2 community and in racialized communities, particularly the black community, which rightly feels it is overrepresented in the criminal justice system, yet under-represented on the juries. I wanted to go to your point, Mr. Fowler. You started to go down the path of some reforms that could happen on preliminary inquiries. How would those or other recommended modifications to the system speed up the criminal justice system?

Mr. Richard Fowler :

As it stands, because of a decision from the Supreme Court of Canada called Mills, provincial court judges sitting as preliminary inquiry judges do not have the same jurisdiction they would have if they were trial judges. You have the same individual, with the same level of experience and education, but because it's a preliminary inquiry rather than a trial, they can't do many of the things, or almost all of the things, they could do if they were trial judges.

They can't make orders for disclosure and they can't rule on third party record applications or make rulings in respect of prior sexual history applications. If we could broaden the jurisdiction of the provincial court judge at a preliminary inquiry, we could take many of these applications in the preliminary inquiry. They are simply being delayed and can only be heard at the Supreme Court trial. It would make the preliminary inquiries much better at gathering the information and resolving many of the questions so that the trial doesn't have to duplicate some of that.

Mr. Randy Boissonnault :

I haven't seen your brief, but if you could share with us some of those recommendations, I would certainly deliberate on that with my colleagues.

Mr. Richard Fowler :

Thank you.

Mr. Randy Boissonnault :

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.

(1655) Mr. Michael Spratt :

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.

Mr. Randy Boissonnault :

With the time remaining before the chair intervenes, do you share Mr. Spratt's concern, Ms. Dale, that if we remove preliminary inquiries, the 30 months will go down to 24 under Jordan?

Mr. Michael Spratt :

It's 18.

Ms. Laurelly Dale :

I'm sorry; can you repeat the question?

Mr. Randy Boissonnault :

If we get rid of preliminary investigations do you think the court will, over time, shorten the amount of time we have in Jordan?

Ms. Laurelly Dale :

I share his concerns that the Jordan clock and the evaluation in that respect will change the landscape.

Mr. Randy Boissonnault :

Thank you.

The Chair :

Thank you very much. This is a fascinating panel and we could do multiple rounds, but unfortunately, given the number of panels today, I've got to cut it short here. I want to thank each and every one of you very much; you've been very helpful to the committee. I'm going to call a short recess for one minute to change panels. I'd ask the next panel to please come up, because we have a vote and I want to get at least the speaking parts done before we have to leave for the vote.

(1655) (1700) The Chair :

We will resume. I invite everyone to please take their seats. I know that there's lot's to do, but I want to make sure that the meeting gets on track and we get the benefit of the time with all of our witnesses that we can. We're joined today, for our second panel...and I have to correct myself. As Mr. Clement pointed out to me, I had the wrong hour for the vote. The panel that will be interrupted is actually our next panel, not this one, so fortunately, for you guys, there's going to be continuity and you won't have to wait in between your statements and our questions. We're joined today by Ms.

Lisa Silver, who is assistant professor in the faculty of law at the University of Calgary. Welcome.

Ms. Lisa Silver (Assistant Professor, Faculty of Law, University of Calgary, As an Individual) :

Thank you.

The Chair :

We have Mr. Daniel Brown, who is from Daniel Brown Law. Welcome.

Mr. Daniel Brown (Lawyer, Daniel Brown Law, As an Individual) :

Thank you.

The Chair :

From the Canadian Association of Chiefs of Police, we're joined by Mr. Howard Chow, deputy chief constable of the Vancouver Police Department.

Mr. Howard Chow (Deputy Chief Constable, Vancouver Police Department, Canadian Association of Chiefs of Police) :

Thank you.

The Chair :

We have Ms. Rachel Huntsman, legal counsel of the Royal Newfoundland Constabulary. Welcome.

Ms. Rachel Huntsman (Legal Counsel, Royal Newfoundland Constabulary, Canadian Association of Chiefs of Police) :

Thank you.

The Chair :

We're going to go in the order of the agenda. We're going to start with Ms. Silver.

Ms. Lisa Silver :

Thank you very much. Mr. Chair and honourable members of the standing committee, thank you for giving me this opportunity to comment on the proposed amendments to the preliminary inquiry sections of the Criminal Code. It is a privilege to be here to speak about an issue that carries the weight of historical discourse and has engaged far greater minds than mine. The question of abolishing the preliminary inquiry has echoed through these halls and the courts of our nations and has indeed engaged the public's interest as well. How do I come to speak to this matter?

I am by trade a criminal defence lawyer, and I've been so from my early days of law school in the mid-1980s. I've conducted preliminary inquiries, I've argued about them as appellate counsel, and I've written about them now as a law professor. Indeed, I've been rather vocal about the preliminary inquiry and these proposed changes. I hope my brief and this opening statement will shed some light on why I believe the preliminary inquiry, albeit in perhaps a different structural format, is worth saving. I will open with a personal story.

It's a story I often repeat to my students when asked which case most significantly impacted me in my early career. The day after being called to the bar in 1989, I received a case from one of the lawyers sharing space with the law firm with which I was employed. The preliminary inquiry was only two days away. The client, who was detained in custody, was charged with an attempted break and enter with the intent to commit an indictable offence.

The maximum punishment for the full offence—because it involved a dwelling house—would have been life imprisonment, but as an attempt, it was punishable by 14 years, still a serious term of imprisonment. As an aside, under the new proposed amendments, such a preliminary inquiry would not be possible. It was a rather pathetic and all too familiar story. The client was found loitering in front of a house on the sidewalks of Rosedale—this was in Toronto—holding a pointy and frayed stick. He appeared to be intoxicated.

The police were called, and upon investigation of the nearby home, it appeared that the front door lock was freshly scratched with bits of paint that appeared to be derived from his pointed stick. Appearances, however, may be deceiving. Upon review of the file, I recommended to the client that we argue against committal at the preliminary inquiry. Needless to say, the judge agreed, and the client was discharged and immediately released. The preliminary inquiry changed my client's life. It gave him hope. In fact, he ended up straightening out.

He went back to school and became a youth worker in a young offender facility. I received a postcard from him when he ultimately went to Bosnia as part of the UN peacekeeping tour. I wanted to share this story with you. I know I was asked here based on my academic credentials and writing in this area, but to me there is no clearer evidence of the importance of the preliminary inquiry as a tool for good than this particular story.

On the less emotional side of the equation, I'm certain you've already heard last week and today—I was listening—many good reasons demonstrating why the preliminary inquiry in its present format must be retained. My brief also outlines the historical significance of the preliminary inquiry as an essential protective shield against the power of the state. It's more than procedural. We keep calling it a procedural matter, but it's more than that. It lies at the heart of the criminal justice system because, in my view, it is linked with the presumption of innocence and fair trial concepts.

The preliminary inquiry calibrates the scales of justice in accordance with those fundamental principles and provides meaningful judicial oversight. The power of the preliminary inquiry, as I've already alluded to, cannot be taken for granted or underestimated. I know there are questions regarding where the evidence comes from as to whether preliminary inquiries do cause delay, but certainly they do take court resources that are finite. We are, as has already discussed, having a crisis, so to speak, in our court system, as evidenced by those Jordan and Cody decisions.

(1705) In fact, as you've already heard, one of the suggestions from the Senate committee on that crisis recommended the termination or limitation of the preliminary inquiry. Bill C-75 has a more tempered vision of the Senate recommendation, but it still goes too far. The amendments do not provide the protection promised by the full operation of preliminary inquiries, and as outlined in my brief on page 5—and I think I have about eight different points there—they don't account for the many other ways the preliminary inquiry assists the proper functioning of the criminal justice system.

Keeping in mind all of these competing concerns and considering that we still have to create a solution to the problem that remains with our desire to provide a fair trial, we need a solution that may perhaps recalibrate, yet one that will maintain the scales of justice as writ large in our common law and charter. In my submission, the solution recommended in the amendments does not do this. Instead, this honourable committee should consider a more practical and useful solution. It's a solution that lies within easy reach.

It can be found in our civil system of justice—you've already heard about it today—in its procedures for civil questioning or discovery. The discovery system for the most

part lies outside of the court. It provides useful evidence for trial. It encourages resolution on the civil side as well. It's available to all superior court civil litigants, and it's predicated on full disclosure. By using that civil system, judicial resources and therefore court resources can be focused in a manner that stays true to the primary committal function of the preliminary inquiry, yet would permit the advancement of those vital ancillary purposes, be it preservation of evidence, building an evidential threshold case for a defence or engaging in resolution discussions.

Where there is a realistic committal issue, a preliminary can be heard by a judge. Where the matter involves one of the other viable purposes for a pretrial questioning, the matter can be heard in a less costly form outside of court in a conference room, where the matter can be recorded for future use at trial. This recommendation provides a viable alternative to the amendments, it balances competing rights, it's mindful of court resources, and it's already in use.

I thank the chair and the other members of this committee for inviting me to make submissions on what is an integral part of our criminal justice system. Thank you.

(1710) The Chair :

Thank you very much. We will now hear Mr. Brown.

Mr. Daniel Brown :

Thank you. Good afternoon, Mr. Chair and honourable members. Thank you for the opportunity to address you all on Bill C-75 . By way of background, I'm a criminal defence lawyer. I practise in Toronto, which is one of the busiest criminal court jurisdictions in all of Canada. Delay is something that is always on the front of mind of all the justice participants in Toronto—the judges, the Crown attorneys, and the defence.

Over the last decade and a half, I've had an opportunity to act as counsel on hundreds of cases, and I hope to speak to you today on my experiences with preliminary inquiries and how they act as ways to preserve efficiency and fairness in the justice system. As I sat here listening to the last panel, and now to Professor Silver speaking at this one, I was worried. I felt like everyone was starting to steal my thunder. However, I actually take comfort in the fact that it seems as though there's a lot of consensus among all of our views.

I take hope from the fact that I share my views with so many different qualified experts. First and foremost, it's important to state again that a preliminary inquiry isn't a one-size-fits-all. It's something that acts and adapts to different types of cases and different types of situations. It's a tool that can be used in a number of different ways. In some cases, as you've heard, a preliminary inquiry acts as an essential screening tool to weed out weak cases before significant time and energy have been allocated to prosecuting them.

When the Crown attorney can't prove that there's some evidence capable of supporting the allegations, some charges or even, as we've heard, the entire case may be dismissed by the preliminary inquiry judge. In addition to reducing the consumption of scarce court time and resources, this screening function can also reduce the amount of time people spend in custody for something they didn't do or something the Crown attorney simply can't prove they did.

As others here have said, it would be a mistake to think that we can simply take the time allocated for a preliminary inquiry and just drop a trial into that time slot. Preliminary inquiries are much more abbreviated hearings for a number of reasons. First of all, judges don't make credibility findings at a preliminary inquiry. They must accept the witnesses' evidence at face value.

Because of this, lawyers often focus the inquiry on questioning the most important witnesses or exploring legal issues they believe will assist them at trial instead of trying to prove to the judge the witness is not credible or reliable. Our Criminal Code also equips prosecutors with tools to dispense with calling non-essential witnesses at a preliminary inquiry as long as that evidence meets the basic threshold of being credible or trustworthy.

This explains why statistics show that most preliminary inquiries are completed in a day or two, because they are focused on discrete issues intended, in some cases, to demonstrate the strength or reveal the weakness of the Crown attorney's case. In contrast, presenting a criminal case at trial is far more complex and may require the scheduling of weeks, if not months, of court time. Because of this, criminal trials often happen many months, if not a year or more, after a preliminary inquiry could have taken place.

It's simply good policy to have a mechanism such as the preliminary inquiry in place to screen out weak cases before significant time and resources are expended for their prosecution. This is especially true if accused individuals are remanded into custody pending the outcome of their criminal matter. Even in cases when some charges aren't dismissed or when the entire case still goes forward to trial, the preliminary inquiry provides an opportunity to have fruitful discussions. As we've heard today, prosecutors may appreciate the significant weaknesses in their case, or as Ms.

Dale spoke about in the last panel, defendants may see that there are no holes in the evidence against them and may opt to plead guilty, bringing an end to a prosecution before trial time is spent on it. Preliminary inquiries foster the resolution of trial matters. It should also be considered whether or not both parties should be required, at the end of a preliminary inquiry, to have a mandatory meeting with the preliminary inquiry judge. We call them exit judicial pretrials.

While they're somewhat rare and certainly not mandatory in Ontario, they can help foster additional resolution discussions because the judge, who's heard the witnesses testifying, can give some additional input that may help broker an agreement between the parties before the matter leaves that courthouse and goes to another venue.

(1715) In addition to screening and a resolution function, preliminary inquiries also play an important discovery function. Now, there are some who will question the value of a preliminary inquiry in light of expanded disclosure obligations placed on the police and Crown. However, it must be said that disclosure can't act as a substitute for the discovery function of a focused preliminary inquiry, because while there is a constitutional right to disclosure, there's not a constitutional guarantee to an exhaustively thorough police investigation.

A police officer may simply interview a witness briefly, scribe their interview into a memo book and lay a criminal charge based solely on that information. There's no legal requirement that requires the officer to seek out other witnesses who may have witnessed the events, to collect social media evidence or text messages or to inquire whether or not there's been collusion between the witnesses. Requiring disclosure as an answer to discovery doesn't do it justice.

More importantly, of course, there's no ability to compel Crown witnesses to speak with the defence prior to a preliminary inquiry or outside of the court system. Defence lawyers who are trying to gain information or access to witnesses have no way of ensuring that they can hear that evidence before a case comes to trial. Preliminary inquiries aren't just a tool for the defence. They can also assist the Crown attorneys, because any witness testimony elicited at a preliminary inquiry can be tendered at trial in the event that a witness later becomes unavailable to testify.

We heard about that a little bit in the last panel. This is especially true of vulnerable witnesses who may be very reluctant to come to court and testify in court, but who have already given their evidence in the preliminary inquiry. That prosecution can be saved by the Crown attorney by tendering the preliminary inquiry evidence, rather than having the case dismissed for a lack of evidence. A preliminary inquiry can also help prepare a Crown witness to testify, and to testify better at a trial by having testified once before at the preliminary inquiry.

There are a number of ways in which preliminary inquiries don't just assist the defence. They assist the Crown attorneys as well. Preliminary inquiries also keep cases on track. They ensure accurately scheduled trials. They prevent late disclosure or late discovery of relevant medical or psychiatric evidence that can derail a trial and lead to lengthy trial adjournments. Studies have shown that lost trial time due to late disclosure is a significant contributor to the delay problem in Canada.

Because of the role preliminary inquiries play in the screening of weak cases—because they foster resolutions and because they prevent trials from going off the rails—it's my experience that preliminary inquiries don't contribute to delay or create inefficiencies in the justice system. The real question to ask is whether eliminating preliminary inquiries for most serious offences enhances fairness by protecting witnesses who may be required to testify twice in a criminal court proceeding.

While there may be some occasions where Crowns wish to protect vulnerable witnesses, our Criminal Code already offers a complete tool box to address those concerns. For example, as we've heard, where it's warranted, the Crown attorney can prefer a direct indictment and send a case immediately to trial without a preliminary inquiry. That can be done on a case-by-case basis. The Crown attorneys also have the ability to tender prior police statements under

section 540 of the Criminal Code to avoid a vulnerable witness having to testify at a preliminary inquiry. Our Criminal Code also contains a host of other provisions to protect vulnerable witnesses when they testify, including the ability to testify by closed-circuit television or from behind a screen, to order a court-appointed lawyer to cross-examine a vulnerable witness where the accused is self-represented, and to offer publication bans to protect the identities of some vulnerable witnesses. Again, all of this can be done on a case-by-case basis.

A flexible approach to preliminary inquiries, one that allows the inquiry to be tailored to the case at hand, will much better meet the objectives of fairness and efficiency and allow both the Crown and defence to benefit from some of the many advantages a preliminary inquiry has to offer. This approach is far superior to a wholesale elimination of the preliminary inquiry for most offences simply to protect vulnerable witnesses where other options already exist within the Criminal Code to achieve that goal.

(1720) I make the following three recommendations to the committee: Number one is to maintain preliminary inquiries for all indictable offences. Number two, as Professor Silver said, is to adopt reforms that allow the preliminary inquiry to be streamlined in appropriate cases without eliminating its appropriate discovery function. That's being mindful of some of the recommendations to amend

section 537 of the Criminal Code to give preliminary inquiry judges more control and more power over the proceedings. Number three is to study more substantial reforms that maintain the discovery function of the preliminary inquiry but offer flexibility, such as requiring permission for the court to hold a preliminary inquiry when it would be in the interests of justice to do so, or legislating for out-of-court discovery in cases where committal to stand trial is not an issue. Thank you for having me. I look forward to your questions.

The Chair :

Thank you very much. Now we'll go to the Canadian Association of Chiefs of Police.

Mr. Howard Chow :

Good afternoon. I'm Deputy Chief Constable Howard Chow of the Vancouver Police Department. I'm joined by Rachel Huntsman, Q.C., legal counsel with the Royal Newfoundland Constabulary. Distinguished members of this committee, on behalf of Chief Constable Adam Palmer, president of the Canadian Association of Chiefs of Police, I'm pleased to be given the opportunity to speak before you today. I should clarify that because of scheduling conflicts last week, we're here to discuss issues with Bill C-75 that are broader than just the preliminary inquiries.

Overall, the CACP supports Bill C-75 and the clear intention by Parliament to modernize the criminal justice system and reduce court delays and judicial proceedings. In the interest of time, my comments will focus on amendments that the CACP views as having a direct impact on police powers and operations. First, I'd like to discuss routine police evidence. This bill would amend the Criminal Code to allow police officers to provide evidence by way of affidavit, eliminating the necessity for them to attend court.

While the CACP supports this amendment, our position is that the current definition is too broad and that a clarification of “routine police evidence” is required. The proposed amendment fails to delineate what type of police evidence would be acceptable, thereby potentially contributing to further inefficiencies through pretrial motions. The next area of concern relates to the judicial referral hearings.

While the CACP supports an option for police to divert an accused away from bail court for administrative justice offences, it is anticipated that the judicial referral hearing process will result in a lack of documentation of these same offences into CPIC. This lack of documentation means that police officers from other jurisdictions will be incapable of accessing the full criminal history of an offender. This is vital information for law enforcement when deciding whether to release a person and under what conditions.

As well, in 2008, the offence of failure to appear was added to the list of secondary designated offences. This information was provided to us by the National DNA Data Bank: They indicated they received upwards of 36,220 submissions under this

section of the Criminal Code and that these submissions have yielded 1,157 matches to a DNA profile in a criminal index, including 55 homicides and 107 sexual assaults. The concern is that if an offender undergoes a judicial referral for a failure to appear instead of having a charge laid, there'll be no submission of the offender's DNA. Next, the CACP supports the principle of restraint as it relates to indigenous and vulnerable populations. However, proposed

section 493.2 places considerable onus on a police officer at the time of arrest to try to identify who falls within this classification of offender. A reality of policing is that arrests are often made in the middle of the night, with little known about the person's history and background. The CACP recommends amending the

section to require that a police officer give particular attention to the circumstances of accused persons who appear to be indigenous and/or belong to a vulnerable population. Further, the CACP recommends that a definition of “vulnerable population” be included in Bill C-75 . Factors such as a person's ethnicity, economic status, drug dependency, age, mental health issues, or overall health are difficult to measure and assess out in the field. A clarification of what is defined as a “vulnerable person” would assist the police in meeting the requirements of this section.

I'd like now to address a significant concern for CACP, and that is the hybridization of indictable offences. This amendment will affect 85 Criminal Code offences, including a number of terrorism-related ones. Currently, these are classified as secondary offences under the Criminal Code. If the Crown proceeds by indictment and the offender is convicted of one of these offences, the Crown can request that the offender provide a DNA sample for submission to the National DNA Data Bank; however, if these 85 offences are hybridized and the Crown elects to proceed by

summary conviction, the offence will no longer be deemed a secondary offence and a DNA order cannot be obtained. The submission of DNA samples to the data bank is used by law enforcement to link crime scenes and match offenders to these crime scenes. Removing these indictable offences from potential inclusion into the data bank will have a direct and negative impact on police investigations.

(1725) Again, the numbers that follow were obtained by the data bank, and they demonstrate how submissions of these 85 indictable offences have assisted in matches to profiles for primary and secondary offences. During the period between June 30, 2000, and February 21, 2018, during that 18-year period, the data bank received submissions for 52 of these 85 secondary offences, which resulted in 9,677 submissions to the NDDB.

Of these 52 indictable offences, 22 led to 588 matches being made to a DNA profile in a criminal index, together with 221 matches to primary offences, which included 19 homicides and 24 sexual assaults. We're proposing a solution to this, and that would be to list these 85 indictable offences as secondary or primary offences under

section 487.04 of the Criminal Code, which will permit a DNA order to be made regardless of the Crown's election. The final point I'd like to discuss is the Identification of Criminals Act, subsection 2(1). It provides that a person in lawful custody and charged with or convicted of an indictable offence may be fingerprinted or photographed. Under Bill C-75 , the accused can still be compelled to appear under the terms of an appearance notice or undertaking for identification purposes.

However, the case law has established that the appearance notice has to be confirmed by a judge or a justice before the person is considered to be formally charged with the offence. A person who is under arrest and in lawful custody of the police cannot be fingerprinted or photographed until a charge is laid. The problem lies in the fact that once the Crown has elected to proceed by way of

summary conviction, the offence is no longer deemed an indictable offence and the accused cannot be identified under the Identification of Criminals Act. This means that a significant number of charges will not be entered on CPIC, resulting in out-of-province police officers, Crowns, justices, and judges not knowing if the arrestee or accused has a pending case or a previous conviction. The CACP is recommending that the Identification of Criminals Act be amended to allow for fingerprinting on arrest, with proper safeguards in place to protect the integrity of the process.

CACP is also recommending that the ICA should be amended to allow fingerprinting for all Criminal Code offences, or at the very least to allow fingerprinting notwithstanding the Crown's election. Finally, the CACP supports amendments that pertain to the leveraging of technology for the police community, while encouraging strong leadership and guidance in establishing appropriate standards related to the introduction and implementation of technology.

We are encouraged by the recommended amendments proposed by Bill C-75 ; however, we acknowledge that this will involve considerable training for front-line police officers. Thank you for your time and work on this bill. We'd be happy to take any of your questions. Thank you.

The Chair :

Thank you very much. We'll now move to questions. Mr. Cooper is first.

Mr. Michael Cooper :

Thank you very much, Mr. Chair, and my thanks to the witnesses. I want to discuss a little bit and probe around the issue of the reclassification of offences. However, before I do that, Mr. Chow, you made reference to the

summary hearings related to the administration of justice offences and some of the issues regarding CPIC and the problems with that database and the fact that those problems will be exacerbated by those referral hearings. John Muise, who appeared before our committee last week, proposed that this committee create a mechanism to ensure that judicial referral entries appear on the right side of the criminal record, allowing for use when future decisions to release, refer, or detain are being made by police, courts and parole boards. Is that a recommendation that you would endorse?

(1730) Mr. Howard Chow :

From our perspective, in terms of restraint conditions, opting for the least onerous is a position that we've taken and adopted at CACP. With the hybridization, there are going to be certain offences that will not allow us to capture those individuals in our CPIC data bank. That handcuffs us when offenders go across the country and end up in different jurisdictions where we don't have access to that information, which is crucial information when we're making decisions on whether and under what conditions we're releasing these offenders or holding them.

Mr. Michael Cooper :

Some of the offences that the government is proposing to hybridize are very serious in nature. You pointed, for example, to terrorism-related offences. There's impaired driving causing bodily harm. There's kidnapping a minor. Maybe you could speak to that issue. Another one is with respect to individuals who are subject to long-term supervision orders—very dangerous individuals. Right now, breaches of LTSO constitute an indictable offence. Under Bill C-75 , that would be hybridized. Perhaps you could speak to that.

Mr. Howard Chow :

Clearly there are some very serious offences. There are a number of terrorism-related offences that have fallen within those 85 indictable offences and will now, if the bill goes ahead, be considered hybridized. The downgrading of these offences to a hybridized category also has an impact for our international partners and the message that it sends to them as well. The more detailed submission that we provided will have the stats very well laid out. A big concern that we do have is in relation to the national DNA data bank and our inability to capture or make a submission for a DNA request following conviction.

I think the proof is in the numbers. For those years for which they were able to provide us with statistics, we would not be able to match individuals to a crime scene because we would not have the data or the DNA matches in front of us.

Mr. Michael Cooper :

What would your response be to the Minister's assertion that the hybridization of offences has nothing to do with sentencing? When you take a maximum of 10 years and you make it prosecutable by way of

summary conviction, wherein the maximum would be two years less a day, that clearly has an impact upon sentencing. Wouldn't you agree?

Mr. Howard Chow :

I think...I understand—

Mr. Michael Cooper :

I realize it's not in every case that the maximum is going to be provided, but clearly it has an impact on sentencing when you're going from 10 years to two years less a day.

Mr. Howard Chow :

In respect to that, I understand there are different perspectives and I understand the intent in terms of where they're going. I think that where the challenge is for us. The position of the CACP is that the difficulty will be in capturing that DNA request and putting in that submission. That's where it falls. I know there were other panels that discussed what it's suggesting. The new proposal with Bill C-75 is that there may be fines that are eligible, but those are, again, eligible right now as well. I don't know if I've quite answered your question.

Mr. Michael Cooper :

No. That's fair enough. How much time do I have?

The Chair :

You have another minute.

Mr. Michael Cooper :

I'll go to Professor Silver. You talked about establishing procedures for civil questioning. I understand that this is taking place in the province of Quebec, at least in a limited capacity. The Barreau du Québec spoke to that when they appeared before us last week. Perhaps you could elaborate on what the experience has been in the province of Quebec.

Ms. Lisa Silver :

I don't know what's been going on in Quebec, but I can tell you that it has been used in a limited way in Alberta in restoration hearings when there are proceeds of crime or there's a forfeiture hearing. The cross-examinations on any affidavits that are filed for that have been going through that civil questioning. It has been working. It's also available in the criminal appeal rules, so when you appear before a court, if you have fresh evidence, if you do any of those applications that are by way of an affidavit, that's what's done. You go through the civil questioning rules.

I don't know what the experience is in Quebec, but it's certainly something that is not foreign to the criminal procedure and the criminal process.

(1735) Mr. Michael Cooper :

Thank you.

The Chair :

Thank you. Go ahead, Mr. Boissonnault.

Mr. Randy Boissonnault :

Thank you, Chair, very much. Thank you to all the witnesses appearing today. Dr. Silver, you have presented a great brief. Thank you for getting it to us early. I appreciate it. You live in Alberta.

Ms. Lisa Silver :

I do.

Mr. Randy Boissonnault :

You understand that a large concentration of indigenous people live in the province—

Ms. Lisa Silver :

Yes.

Mr. Randy Boissonnault :

—and they are overrepresented in the criminal justice system.

Ms. Lisa Silver :

Yes.

Mr. Randy Boissonnault :

Also, there is the case for LGBTQ2S people and the case for racialized people, particularly the black community.

Ms. Lisa Silver :

Yes.

Mr. Randy Boissonnault :

I was struck on page 6 of your submission—your recommendations, which I'm going to get to in a minute—but you said in the last paragraph:

Efficiency is not what we want from our justice system. That is not what the Jordan and Cody decisions are all about. Cultural change involves a bundle of values, not a bundle of paper being efficiently pushed about. The goal should be to enhance the criminal justice system while preserving the protections of those whose liberty is at risk.

As one of the non-lawyers at the table, I'm struck by that philosophical but practical recommendation to remind us what the system is for. How does your second recommendation play out? It reads:

For those cases where committal is not in issue, to utilize a modified civil form of discovery procedures, which would permit questioning to occur outside of the court process in a less costly and more efficient atmosphere.

Would that be a less effective way to conduct a preliminary inquiry, without the weight of the justice system to compel people to really be truthful, as we heard from Richard Fowler earlier?

Ms. Lisa Silver :

I do appreciate what he had to say about that, but this is done under oath. It's not as if an oath is not there. In fact, it could be an atmosphere that would be more open for people who are unrepresented or for people from the indigenous communities, who feel oppressed by a courtroom. As I said, it's a matter of balancing, but I believe that it's being used. It's been used successfully in the civil courts and it can still be used successfully in the criminal justice system as well. It requires a culture change. That's all. It requires us to think a little differently.

Mr. Randy Boissonnault :

Thank you. What steps would you take to make sure that we have a more representative jury pool?

Ms. Lisa Silver :

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.

Mr. Randy Boissonnault :

Thank you. Mr. Brown, do you have any recommendations for us for a more representative jury pool?

Mr. Daniel Brown :

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-