EVIDENCE

Standing Committee on Justice and Human Rights NUMBER 105 1st SESSION 42nd PARLIAMENT Tuesday, September 18, 2018 Le mardi 18 septembre 2018 Standing Committee on Justice and Human Rights CANADA [Recorded by Electronic Apparatus] EVIDENCE September 18, 2018 Committee Edited Evidence * Table of Contents * Number 105 (Official Version) Official Report * Table of Contents * Number 105 (Official Version) Témoignages * Table des matières * Numéro 105 (Version officielle) 105 18 09 2018 2018/09/18 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 PUBLIC PART ONLY -

PARTIE PUBLIQUE SEULEMENT

(1530) [ English ]

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

We're going to call this meeting of the Standing Committee on Justice and Human Rights to order as we continue our study of Bill C-75 ,

an act to amend the Criminal Code, the Youth Criminal Justice Act and other acts and to make consequential amendments to other acts. Today, we are joined by the Criminal Lawyers' Association, represented by Mr. Michael Lacy, president, and Mrs. Apple Newton-Smith, vice-president. Legal Aid Ontario is represented by David Field, president and chief executive officer, and Mr. Marcus Pratt, director of policy and strategic research. Welcome. It's a pleasure to have you all here. On the telephone, we have Mr. Philip J. Star, who is a criminal defence attorney at Pink Star Barro. Mr. Star, welcome to the committee.

Mr. Philip J. Star (Criminal Defence Lawyer, Pink Star Barro, As an Individual) :

Thank you very much.

The Chair :

As agreed, we are going to turn to you first, Mr. Star. You have eight to 10 minutes, so please go ahead. We will then have the other groups, and then take questions.

Mr. Philip J. Star :

Thank you very much. This is my first time having the pleasure of appearing before this committee. I have to give some comments on or insight into at least some of the legislated changes contemplated by Bill C-75 . As a general prelude, I operate a general practice, but most of my work is as a criminal defence lawyer, mainly in small towns in rural Nova Scotia.

One would surmise that even though the Criminal Code and the other related statutes that we all deal with are national and apply or should apply uniformly throughout the country, there clearly are differences in the manner in which the criminal laws are adjudicated upon. I am certain that other criminal defence lawyers here will echo my comments, not only from province to province, but even in different regions in each province.

The reason I referred to this is that part of the bill allows for the exercise of more discretion by Crowns as to the operation of preliminary inquiries, hybridizing more or most of the offences in the Criminal Code, and certain other things. My point today is not to mount an attack on Crown attorneys just because I'm a criminal defence lawyer. Rather, I propose to offer some general comments and some concepts that may have gone by the wayside. I'm certain a lot of this is going to be redundant or repetitive to what my colleagues will say here.

We've all read a lot of literature not only about Bill C-75 , but also about many other suggested bills and amendments to the code, and this could be parliamentarians, legal scholars, newspaper reporters, Crown attorneys, defence lawyers, or members of the public. All this is under what I'll refer to as the rubric of making Canadians feel safer—I've seen the words “public safety” and “national security”.

Obviously we all want that, but I think it's important that we not lose sight of some of the most important concepts of criminal law that we at least used to take for granted, and I hope we still do: namely, the presumption of innocence and the concept of proof beyond a reasonable doubt. I know I'm speaking of a given here, or what's supposed to be a given, but I sometimes wonder, with the utmost respect, with respect to some of the amendments or proposed amendments, whether the pendulum is swinging way too far the other way.

People can never really truly appreciate the safeguards and high standards of our system until they or a loved one is facing a criminal charge. I find it amazing when I am representing a police officer now, or a Crown, or a judge, or a family member of one of those persons, how people start carrying the torch for these safeguards if a family member or a friend is in the unfortunate position of facing a serious criminal charge.

At the risk, once again, of being redundant or repetitive, I'm going to speak briefly about some of the preliminary inquiry amendments and some of the purported reasons or justifications for the reduction or elimination of preliminary inquiries that I respectfully submit are just simply not borne out by the statistics. I won't refer to the statistics specifically. We talk about the number of matters that go to preliminary inquiries and so on. We talk about saving victims or not revictimizing victims by having them testify more than once.

We talk about trial efficiency and efficacy, and the 2016 decision of the Supreme Court in Jordan. In actuality, I submit that Jordan was to a large extent a reaffirmation of what courts have been telling us or trying to tell us for a long time. Paragraph 11(

b) of the charter was enacted in excess of 36 years ago, in April 1982. It was not meant to be mere window dressing, so the actors or participants—i.e., the Crown, the defence, the police and the judges—have been told to get their act together. The preliminary inquiry serves a unique and instrumental purpose in the system, not just for the defence but—it's important and I'm going to emphasize this—for the Crown. It allows both the Crown and the defence to test witnesses as to their actual observations and recollection of events that happened in the past.

It permits both the Crown and the defence to identify often crucial issues that may not otherwise be noticed in the disclosure: i.e., the RCMP reports, statements and so on provided by the parties.

(1535) It allows both the Crown and the defence to see not only what somebody says in a written statement, but how they say it: the nuances, the body motions and the inflection of the voices. To use a blatant example, if someone is asked if they consented to sexual relations, a transcript might show them saying, “No”, when it's either “No!” or “Um...no.” On paper, they look the same. These are but small examples of just how much benefit can be provided not only to the defence or the accused but also to the Crown.

In my experience, preliminary inquiries result not only in a committal to trial, but often in a weeding out of cases that should not be proceeded with, either by having the Crown withdraw the charges or, certainly more so, by having a resolution of charges after both the Crown and the defence have had an opportunity to have a true view—one might say, a dry run—as to what the case consists of. They're incredibly helpful, not only to the accused, but to the Crown and ultimately to our system, by cutting down on delays and costs, at least in my experience, not just in rural Nova Scotia, but in a lot of other areas.

I'm in Halifax virtually every week, and I find the same up there. I'm just coincidentally involved in two very serious cases, one of which, last week, was dangerous driving causing death. A day-long preliminary inquiry probably saved us a trial of a week and a half because the case was resolved. I realize you can't look at one case and use that as the cornerstone, but I think it's important to highlight that, because I'm certain all of us could speak from similar examples in our experience. A lot of this has already been addressed by Parliament by reducing the time in preliminary inquiries by enacting

section 540 and related sections of the code. The Jordan timelines, I note, allow for another year for indictable offences. There are other things here, but at the end, what I have left is certainly the most crucial aspect of what I propose to comment on today. I prefaced my remarks earlier by referring to the hallmarks, the cornerstones, if you will, of our criminal justice system: the presumption of innocence and the concept of proof beyond a reasonable doubt.

In my view, removing a procedural safeguard such as preliminary inquiries will almost certainly lead, at least indirectly if not directly, to more wrongful convictions. Canada, in my respectful view, has a criminal justice system that, although not perfect, is likely among the best, if not the best, on this planet. Having said that, we have skeletons in our closets, the Donald Marshall Juniors of Nova Scotia and the Guy Paul Morins, to name but two people who have gone into infamy because of serving lengthy periods of incarceration for crimes they did not commit. That time cannot be given back to them.

This is irreparable. The system was not good previously. I look at the rape shield laws, where there was an open season on alleged victims before, and the pendulum swings. I think it's important to remember that the pendulum should not swing too far the other way. We should not allow legislation to be passed that could have the direct effect of leading to more, perhaps many more, Donald Marshall Juniors.

There's a mention of the need for robust initiatives, transparency and a culture shift by all, but we should not and cannot erode, undermine or sacrifice these benchmarks of our criminal justice system at the altar of public safety and\or national security. Thank you very much.

(1540) The Chair :

Thank you very much, Mr. Star, and thank you for delivering your testimony in a more difficult way than is normally the case. It's hard to see your audience and still speak, but you did it very effectively. Thank you. We'll now move to the Criminal Lawyers' Association. I'll turn it over to you, Mr. Lacy.

Mr. Michael Lacy (President, Criminal Lawyers' Association) :

Thank you, Mr. Chair and honourable members. We're glad to be here and to be invited to speak to the work of this very important committee. Really, we appear today on behalf of the 1,400 members who are part of our organization, which includes criminal defence lawyers and also academics in Ontario and otherwise. We hope to persuade you to consider making recommendations to amend the bill as it currently exists and to also consider suggesting that aspects of the bill not be passed at all.

By way of introduction, we have been critical of the bill, but there are many aspects of the bill that we think are laudable and heading in the right direction, aspects that you've heard about from other witnesses, such as amending the proposed bail provisions; the concept of judicial referral hearings; giving the discretion to judges not to impose the victim fine surcharge; increased case management powers; and, finally, bringing criminal justice into the century that we practice in by taking advantage of video conferencing.

Obviously, these are all positive things that will assist in the orderly, timely administration of criminal justice throughout Canada, but there are aspects of the bill that we find particularly troubling. We have outlined those submissions in the paper we've provided you in advance. Many other people will speak to many of the things we've outlined, but today, in the brief time we have, the 10 minutes before we are asked specific questions, we would like to talk about the proposed jury selection amendments.

Again, we want to acknowledge at the outset that the government's acknowledgement of the potential problems in the jury selection process and the goal to bring more fairness and transparency to the process are laudable. Eliminating discrimination in the jury selection process and ensuring that jurors are truly representative of the community where the crimes are alleged to have occurred is a goal that we wholeheartedly support.

The goal of addressing systemic racism or discriminatory practices within the jury selection is similarly shared by our members, but unfortunately, as we look at the means that have been chosen, they fall far short of what's required and, if adopted, will not actually assist in addressing the problems. We view ourselves as significant stakeholders in the administration of criminal justice.

We believe that, like all significant stakeholders, we have a responsibility to ensure that community members who become jurors decide the case fairly, objectively and without prejudice, bias or favour for either party, whether it's the accused or the Crown prosecuting the case. The race, gender, nationality, socio-economic status or other descriptor of either the accused person or the victim of crime has no role to play in terms of what the result in a criminal case should be. Discrimination or improper stereotyping has no place in the courtroom or in jury deliberations, or in the way in which juries are chosen.

The way in which jurors are chosen not only has to be substantively fair, but it has to appear to be fair. The appearance of fairness with respect to the jury selection process is very important. This includes having a diverse pool from which the jury can be chosen. Recent high-profile cases have raised questions about whether the current procedure, including the use of peremptory challenges, meets that standard, particularly in relation to the appearance of fairness. We don't need to name the cases that get named all the time with respect to this issue, but let's just be clear.

No one was entitled to have a biased juror. No one was entitled to have a biased jury in favour of the accused or in favour of the Crown. That is no doubt the impetus for this really significant change. When the minister came and spoke to you most recently, she described this as a significant, substantive change to the law, and we agree. The difficulty is that in terms of eliminating the peremptory challenges without some of the other proposed ways that academics and practitioners are telling you to consider, changing the jury selection process will not help the system.

It will not lead to diversity and in fact will leave us without the opportunity to protect our clients, who are most often racialized, indigenous or other marginalized people. These are the bulk of the people who come into conflict with the criminal justice system.

(1545) The unfortunate reality is that although racialized and indigenous persons are overrepresented in the criminal justice system as accused persons, their communities are unrepresented in the jury pool from which the jurors are chosen to decide a case. In communities with large indigenous populations, there are often very few indigenous people who ultimately come before the court as part of the jury pool from which 12 men and women from the community are chosen to decide a case. Even in large urban centres like Toronto, the pool of eligible jurors does not reflect the diverse Toronto urban community.

There are many reasons for this, some of which can be dealt with through legislative action that is missing in the proposed bill. First, although this is not within the purview of Parliament, the way in which people are summoned for jury duty—which is left to the provincial governments and has been done by relying on property tax assessment rolls or on other areas—leads to a situation in which a case does not actually draw the representative, diverse community wanted in the jury pool.

Historically, this leads to the exclusion of people like renters, boarders, and low-income people—people who might be considered to be on the margins of society but who nonetheless reflect our communities. It also leads to the exclusion of indigenous jurors. You have many submissions before you from groups that speak to this issue, not simply from the Criminal Lawyers' Association. One of the problems is that the pool from which juries are chosen is not diverse.

Second, which this committee knows particularly well, is the failure on the part of provincial governments to compensate jurors properly for their time in court. It was the subject of a report that this committee released in May. One of the recommendations you made is important with respect to this issue. Just imagine how this plays out in practice. People get excused from the jury pool on the basis of financial hardship. Anyone living day to day in Toronto, Ottawa, Saskatoon or in more rural communities who cannot afford to take time off work to serve on a jury pool is going to be excused, and so should they be.

You don't expect people to go into financial ruin to serve on the jury pool. What does that leave you with? It leaves you with some unionized people whose unions are smart enough to negotiate compensation. It leaves you with a lot of retirees. It leaves you with very wealthy people. You're not drawing a representative sample in terms of the eligible people who can in fact serve on a jury.

When it comes to dealing with the issue of peremptory challenges, the collective experience of our members is that when an accused person is a different race or colour or looks different from most of us in this room, who are white, it's important that potential jurors be asked questions to determine whether there are racial stereotypes or biases that will affect the way they will adjudicate the evidence vis-à-vis our clients. This is normally done through a challenge for cause process. You have all the background information on this.

Jurors are basically asked one or two questions so that someone can decide—some other two people who are chosen from the jury pool—whether they display bias such that they should be removed from the jury. As a consequence of the lack of diversity in the jury pool, peremptory challenges are used each and every day by responsible criminal defence lawyers in this country to try to get deeper into the jury pool in the face of having lack of diversity on the jury.

When you're looking out at a room of 200 people and your client is a young black man from the city of Toronto, and you see five, six or 10 people who, by the time those with financial hardship are weeded out, are actually eligible to sit on the jury, you're trying to find someone diverse on that jury. As I said, we're not interested in bias or partiality. What we're looking for is to have someone in the room who is representative of the actual community. That's the way our members are using peremptory challenges.

It's the only tool we have in our tool kit to get deeper into the jury pool to try to improve the diversity of the jury. Sometimes people can get through a challenge for cause—for reasons that are difficult to explain—even if they do display signs of bias. I know the new legislation will give a judge the power to control the challenge for cause, but again, peremptory challenges allow a lawyer to try to shape the jury in such a way that actually encourages diversity.

(1550) There are three things this committee should consider: First, it should consider providing a more robust statutory challenge for cause, based on evidence. This means taking an evidence-based approach to determining how the jury is chosen and asking modest questions of the jurors to determine whether or not they display potential bias. Second, it should consider inviting submissions from the parties. Professor Roach, whose submission you have before you, speaks to this issue as well, and I know you're going to hear from other academics on this issue.

There seems to be a myth being perpetuated that the practitioners are at odds with the academics on the issue of jury diversity or on the issue of peremptory challenges. We all want the same result. It's how you get there, at the end of the day. Third, it should consider forcing the provincial government to create mechanisms to have representative jury pools.

Because of the division of powers, the only way to do that is with the proposed amendment that we suggested for subsection 629(4), which would be a new provision that would allow for a challenge for cause based on the lack of representation in terms of the jury pool that's been assembled. If the provincial governments won't act, then this government needs to act. It needs to create a challenge for cause process and provide compensation for those jurors. Your recommendations were welcome before, and they will be welcome again, but let's go further.

Let's suggest transfer payments to the provinces so they can compensate people, or do whatever is needed. With all these very smart people running our collective governments, perhaps we can compensate people so that the poor, the marginalized and the racialized are not excluded. We have a lot to say about the legislation otherwise, but I do appreciate this opportunity to speak to you directly about the jury issue. Thank you very much.

The Chair :

Thank you very much. We'll move to Legal Aid Ontario now.

Mr. David Field (President and Chief Executive Officer, Legal Aid Ontario) :

Thank you for the opportunity to appear before this committee again. Legal Aid Ontario, LAO, is Canada's largest legal aid plan, and a significant funder and provider of services in every level of criminal court in Ontario. We have a pressing interest in the federal government's criminal justice reform initiatives. LAO's submissions on Bill C-75 reflect our position and views, both as a funder focused on making the most cost-effective use of public funds, and as an access to justice organization dedicated to addressing the legal needs of our low-income and frequently highly vulnerable clients.

LAO has a particular interest in the bill's amendments aimed at addressing bail and remand issues. LAO would like to see a

section added to Bill C-75 that ensures that the bail process outlined in the R. v. Tunney decision becomes the baseline procedure for bail. The bifurcated process requires the justice to consider the appropriate release after submissions by the defence counsel and the Crown before moving on to the suitability of a surety.

This simple change of procedure makes the bail process faster and fairer, and the Criminal Code needs to be amended to reflect the Tunney decision and recognize that without direct procedural reform in bail court the new amendments will fall short of making the necessary changes to fix the bail process. LAO supports many of the expanded police powers in Bill C-75 , as they aim to address police concerns that may be preventing them from exercising their authority to release.

LAO agrees with Justice Gary Trotter and others, who have made the point that expanding the powers of the police to impose conditions must be approached with caution so that the very reforms aimed at alleviating pressure in the justice system do not have the unintended consequences of adding even more people into the system. A particular concern about expansion of police discretionary powers is the potential for disproportionate and discriminatory impact on particular groups.

For these reasons, LAO recommends modest amendments to proposed subsection 501(3) of the bill, consistent with the principles of restraint and the goal that conditions can be reasonably complied with so the police are not given the authority to impose the following two types of conditions, which we believe are overly broad, unnecessary and likely to increase rather than decrease the number of remand detentions: conditions aimed at preventing the future commission of unnamed future offences, and curfews attached to residential conditions of release, in particular the requirement that a person present themselves at the entrance of their residence on request, which is a condition that is used sparingly even by justices, and when used is too often breached for innocuous reasons, resulting in further charges and detention orders.

Bill C-75 as drafted restricts the availability of preliminary inquiries to offences punishable by life imprisonment, which we've heard concerns about already. On its face, this would appear to be a cost-saving and delay-reducing reform, as it eliminates a step in the process. However, LAO's own experience and research conducted by prominent criminologists indicate that this is a more complicated issue that should be approached cautiously. LAO is not convinced that this proposed amendment will reduce court system delays or costs. In fact, it may produce the opposite effect.

There appears to be no evidence suggesting that preliminary inquiries are a major cause of delay in the system. At the same time, there is evidence that preliminary inquiries serve as a screening function that enables more matters to be resolved without the necessity of a trial. LAO's own data suggests that preliminary inquiries play an effective role in screening out charges and reducing the number of cases that proceed to trial. We looked at internal data related to cases funded through our big case management program between 2004 and 2014.

Over this 10-year period, preliminary inquiries were held in 491 cases of 1,034 LAO-funded cases that did not involve life sentences; 75% of those cases did not result in setting a trial, providing a clear suggestion of the value of preliminary inquiries in reducing cost and delay. We believe that there is a strong case to be made for rethinking this proposed amendment. Therefore, LAO recommends removing the restriction on the availability of preliminary inquires to offences punishable by life.

At the very least, we believe there needs to be a process for requesting access to a preliminary inquiry on a case-by-case basis. Another potential way to reduce some of the negative impacts of removing the preliminary inquiry screening function may be to broaden the scope of discovery to encompass some of the screening aspects of this process. LAO also strongly recommends further study on the issue. LAO has significant concerns with increasing the maximum sentence for all

summary conviction offences to two years less a day. This would open the door to harsher sentences for lesser offences. It would broaden the serious immigration consequences of a criminal conviction by rendering non-citizens potentially inadmissible to Canada or subject to deportation on the basis of a minor conviction.

(1555) It would also preclude law students and paralegals from assisting persons charged with minor offences. For LAO, and other legal aid plans, this proposed amendment would restrict our ability to meet our mandate by providing cost-effective access to justice for many low-income people who cannot afford a lawyer. Students and paralegals help legal aid plans to assist people who are facing

summary charges that are serious enough to give them a criminal record and mar future employment or other life prospects, but are not likely to result in jail time. Where the liberty test is not met, a person will be ineligible for a legal aid certificate in Ontario. As the committee knows, there are also stringent financial thresholds for certificate eligibility. Based on research, including our own independent analysis of eligibility and coverage, we know that those caught in this access to justice gap are statistically more likely to be women, members of a racialized community and indigenous persons.

The overrepresentation of indigenous and racialized persons in the justice system is a matter of record, and is of concern to both LAO and the federal government. Given their limited resources and restrictive coverage guidelines, LAO and other legal aid plans rely on services provided by students and paralegals to help fill the serious access to justice gap. It is simply a fact that if the doors are closed to us by Bill C-75 , more low-income and disadvantaged people will be representing themselves, thus contributing to, rather than alleviating, justice system delay.

It is also likely that more will inappropriately be guilty, and may also be exposed to harsher sentences, thus growing the population of persons enmeshed in the criminal justice system as a result of a minor charge. LAO recommends that subsection 802(1) be amended to ensure that law students and paralegals continue to be able to provide legal services to persons charged with minor criminal offences.

This may be accomplished by either identifying specific exceptions, making it clear that these are offences to which agents like law students and paralegals may continue to provide services, or identifying serious offences where agents may not provide services, leaving it open for agents to represent individuals for the remainder of

summary offences. In closing, I would again like to thank the committee for the opportunity to provide our input. I would also like to mention that Stephanie Heyens, a senior litigator at Legal Aid Ontario, is presenting to the committee on the bill's amendments to the police affidavit evidence. LAO fully supports her brief. Thank you very much.

(1600) The Chair :

Thank you very much. I will now move to questions. Mr. Cooper, go ahead.

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

Thank you, Mr. Chair. Thank you to the witnesses for their helpful testimony. Mr. Star, you made reference to the limitation on preliminary inquiries and stated that, with limiting the scope of preliminary inquiries, there is a risk that individuals who are charged may end up being wrongfully convicted. Would you similarly agree that limiting preliminary inquiries may, in fact, make it more difficult to successfully prosecute guilty individuals? In other words, it's more difficult to achieve justice all around.

I say that because when our committee was in Edmonton, we heard from a Crown prosecutor who prosecuted one of the few successfully prosecuted human trafficking cases in Canada. She told the committee that without a preliminary inquiry, it would have been very doubtful that she would have achieved a conviction in an egregious case involving gross violations of workers, because witnesses were disappearing, etc. However, she was able to get them in and use that evidence, ultimately, in securing a conviction.

Mr. Philip J. Star :

It's a good point. I do concur with that. I've indicated that I've been involved with a fair number of cases in which the preliminary inquiries help the Crown much more than myself by pointing out weaknesses that they're able to rectify. It has often arisen, both very recently and a number of years ago, that witnesses, as you say, are either not available or deceased. We actually had two tragic cases here in the last 18 months or so in which the alleged victim had committed suicide. One person had been subjected to a preliminary inquiry by testifying; the other one had not.

The case of the one who had not testified went by the wayside. For the one who had testified, the Crown successfully applied to the court to have his testimony—it was a male alleged victim—successfully admitted before the Supreme Court judge and jury. I agree that it can help prosecute guilty persons. We are all hopeful that the safeguards are there, not just for the accused persons but for the system. I agree with you that having this enhances the system from both sides.

Mr. Michael Cooper :

Thank you for that. I take the point of the witnesses, the general concern about limiting preliminary inquiries. The government has set two streams, one involving cases where the maximum sentence is life, which would be eligible for a preliminary inquiry, and the other involving the rest of the cases, which would not. Do you see any logic in that? It certainly seems like the government is impliedly concurring that there is value to preliminary inquiries, from the fact that they're maintaining at least some. Why is there this separation between cases with life sentences and everything else?

Mr. Philip J. Star :

That's a very good question. I can't answer that. All I can say is that we all know that most of the offences in the code do not have a maximum life sentence, so we're very much limited. One can certainly impliedly reach the conclusion you just did. Further than that, I cannot say. I agree wholeheartedly with your suggestion there. I can't understand why the next step down from life imprisonment is 14 years. Why that particular benchmark was used, I cannot say.

(1605) Mr. Marcus Pratt (Director, Policy and Strategic Research, Legal Aid Ontario) :

I think the question suggests further study. There does seem to be an element of arbitrariness, albeit a bright line, between when a prelim will be available and when it won't. There are a lot of offences that might require a prelim where it will be lost. Arguably, there are some cases for which a prelim might not be as valuable. I think further study on when a prelim is effective, in all aspects and in terms of learning about the Crown's case and screening out weak cases, would be useful. We can draw that line as to when a prelim is required and when it isn't.

Mr. Michael Cooper :

How much time do I have, Chair?

The Chair :

You have another minute and 20 seconds.

Mr. Michael Cooper :

The whole reason for this bill is the Jordan decision. Do you see limiting preliminary inquiries as having any impact on Jordan, to the degree that the Supreme Court factored it in as a procedural step in setting the 30-month timeline?

Mr. Marcus Pratt :

I think the data shows that it will have very little impact, if any. There are very few cases in the Ontario Court of Justice that involve prelims, relatively speaking. While it sounds like we're going to cut out 87% of preliminary inquiries, which sounds impressive, the reality is that there are very few cases and little court time taken up with preliminary inquiries. Preliminary inquiries are relatively short, on the whole. I think Professor Webster noted that they were on average one or two days. They are not what we stereotypically think of as two or three weeks.

They're short in duration and don't take up a lot of court time. In my view, eliminating them will have no impact on reaching the Jordan timelines.

Mrs. Apple Newton-Smith (Vice-President, Criminal Lawyers' Association) :

For the Criminal Lawyers' Association, we are urging that this amendment not be adopted. If you look at our submissions, and as you see in the statistics, 86% of cases that have preliminary inquiries are resolved following that preliminary inquiry. I think that's a very important statistic to bear in mind. Preliminary inquiries don't just provide a gatekeeper function, although that is how they are traditionally described, to weed out cases that ought not to proceed to trial because there isn't evidence. They also provide a case management function.

Those cases that do continue on to trial are managed much better because the preliminary inquiry circumscribes the issues much better. Therefore, witnesses don't necessarily need to be called again at the trial. The case management function of the preliminary inquiry is a very important thing to bear in mind when talking about taking away the preliminary inquiry.

Mr. Michael Lacy :

I'll add to the member's question. The criminal process is about enhancing the truth-seeking function. That's part of what the criminal trial is about. The way in which the government has said it is going to abolish preliminary inquiries, for all but those cases where life imprisonment is at play, acknowledges implicitly that there is a value served by the preliminary inquiry in terms of the truth-seeking function.

If you're going to approach this issue from a principled perspective, our association has suggested that if you're going to make substantive, significant changes, then at the very least you should propose an amendment that would allow either the prosecutor, the Crown, or the defence to apply to the court for leave to require a preliminary inquiry—for the very reason that the honourable member has raised the question—since in some cases where life is not engaged, the truth-seeking function of the criminal process will benefit from one or the other, or both, of the parties having the opportunity to have a preliminary inquiry, in a focused way, that is managed through the case management powers of the court.

The Chair :

Thank you very much. Ms. Khalid, go ahead.

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

Thank you, Chair. Thank you to the witnesses for their testimony today. Mr. Lacy, you spoke at length about the proposed jury selection process, and about getting rid of peremptory challenges in Bill C-75 . Yesterday we heard from an indigenous organization that spoke in favour of getting rid of the peremptory challenges, but you outlined that it would not have the impact that we want it to have here in terms of diversifying the jury selection. I'm not sure if you had the chance to go over what their arguments and reasoning were.

(1610) Mr. Michael Lacy :

I did. We're talking about Jonathan Rudin's submissions to this committee, in which he fully endorses the recommendations of Professor Roach.

This is about how each organization may choose different ways to express the point, but if you reflect on our submissions and reflect on Professor Roach's submissions, all of which were adopted by Aboriginal Legal Services, you'll see that we are all talking about the same thing—that a stand-alone elimination of peremptory challenges combined with the one other change, which is allowing a judge to determine the challenge for cause, will not result in actual diversification of the jurors who are chosen to decide a case.

In that respect, there is actually no conflict among the positions taken by our organization, by Aboriginal Legal Services and by Professor Roach.

Ms. Iqra Khalid :

Thank you. As a recommendation in terms of amending the bill, you also mentioned taking an evidence-based approach to jury selection, with regard to asking questions or bringing in testimony, etc. Can you talk about that a little more? Also, can you talk about whether or not that would delay the whole process? That is something that is already a concern in our justice system.

Mr. Michael Lacy :

It is very much an anecdotal exercise when you ask us to reflect on what happens. As it stands now, this is what you know about potential jurors absent a challenge for cause: you know their name, in most cases; you know the city where they reside and perhaps their municipal address; and in some cases you know their occupation. That is it. You know nothing else about the person. The way it is now, by its very nature the peremptory challenge forces you to rely on stereotypes about people, whether they are socio-economic stereotypes or gender stereotypes, based on a particular case.

In this regard, we agree with Professor Roach that there is a way in which you can have limited questioning of the jurors in a challenge process that allows you to find out a little more about this person who is going to be sworn in as a judge to decide whether or not someone has committed a criminal offence. In the United States, as Professor Roach and other academics have pointed out, the system has gone a bit awry. It has led to lengthy proceedings and jury-vetting procedures, but it need not do that.

One of my colleagues, who does a lot of work with respect to aboriginal communities, was telling me about an inquest he was recently involved in, in the province of Saskatchewan. The coroner was able to allow limited questioning of the jurors and was allowed to draw a jury—a differently constituted jury, obviously, for that purpose—that included representative people from the indigenous community and also from the rest of the community.

He was reflecting on the experience and, knowing that I was coming here today, he said that when you allow a little bit of inquiry and you control it through judicial management—in that case, the coroner was managing it—you get a much better appreciation for the particular biases, whether they're known biases or implicit biases, that might be affecting not the willingness of the person to decide the case fairly, but their ability to do so. We do support an evidence-based approach in that regard.

Ms. Iqra Khalid :

Would giving extensive discretion to counsel on either side to pick and choose which jurors are being selected perpetuate an unfairness and lead to people selecting a jury based on which way it would lean, for a favourable outcome for whichever counsel?

Mr. Michael Lacy :

No. The proposal would be to allow some limited questions, and then allow submissions to the trial judge as to why a particular person's questions display a bias or not. With the new proposal, you're going to be doing that for challenge for cause, but challenge for cause is currently practically limited to race-based challenges or publicity challenges. It doesn't allow you to deal with other potential biases that may be affecting the ability of the jury to decide a case fairly and objectively, which is what all the stakeholders want and what the community wants.

(1615) Ms. Iqra Khalid :

Thank you. Do I have more time?

The Chair :

You have five more seconds.

Ms. Iqra Khalid :

Goodness. I wanted to talk a bit about the reverse onus in bail. We heard yesterday about intimate partner violence and the notion that having the reverse onus for previous offenders would stop women from coming forward with the charges anyway. It would be a big step back on pushing the needle forward on gender-based violence and bringing these people to justice. Do you have any feedback on that?

Mr. Marcus Pratt :

We don't have a specific position on that issue. Certainly, while we commend the government for its work in the area of bail, there are still some areas that need work, one of them being the increasing use of reverse onus provisions. That seems to work against the principle of restraint that animates much of the bail amendments. The issue around intimate domestic violence is difficult. To be frank, we haven't turned our minds specifically to that issue, though we are concerned about the increase in reverse onus provisions.

Ms. Iqra Khalid :

Thank you.

The Chair :

Thank you, Ms. Khalid. Mr. Rankin, go ahead.

Mr. Murray Rankin (Victoria, NDP) :

Thanks to all the witnesses for being here. I have very little time, so I would like to start, please, with the Criminal Lawyers' Association. You really focused in on the jury representation issue but didn't do justice to the excellent points you made elsewhere in your brief. There are three points I want to get on the record and see if you want to elaborate on any of them. The first involves preliminary inquiry reform. You are against what's in this bill. Second, your position on increasing the maximum sentences to two years less a day for all

summary convictions—clause 319—is that you're against those changes. Third, on the routine police evidence, clause 278, you point out that, in your judgment, this clause is unnecessary. I want to make sure that's on the record.

Mr. Michael Lacy :

I'm going to let my colleague speak to the first and third matter. It is on the record that this is our position, but I will allow my colleague to expand on it a bit.

Mrs. Apple Newton-Smith :

I'll start with the routine police evidence, because we've talked a bit about preliminary inquiries. We are against the admission of what is called routine police evidence by way of affidavit. We strongly urge this committee not to adopt that amendment. We understand and acknowledge that there are certain areas of evidence that do not necessarily always require the calling of witnesses. Issues relating to continuity, or the issues that are captured in proposed paragraph 657.01(7)(b), "analysing, preserving or otherwise handling evidence", relate to a category of evidence for which you rarely require witnesses.

As far as the amendments are aimed at trying to streamline and be mindful of time constraints and efficiencies, we don't take issue with that. What we take issue with is the question of what is being called routine police evidence, which covers so much. In our respectful submission, it has no place in the Criminal Code. Quite simply, it would put an onus on the accused to demonstrate why the Crown has to prove its case. That's really a reversal of the burden of proof, so I think it's important for us to put this on the record.

Mr. Murray Rankin :

On the preliminary inquiry point, you also take issue with what we've heard the government say. The justice lawyers say we can get rid of preliminary inquiries because the world has changed in terms of Crown disclosure obligations, from Stinchcombe and on. Therefore, we really don't need preliminary inquiries; they're archaic. What's your response? In your brief, you speak about Stinchcombe maybe not being a sufficient reason for this. I'd like to hear you speak further.

Mrs. Apple Newton-Smith :

Absolutely. It is our position that Stinchcombe doesn't end that. The discovery function of the preliminary inquiry doesn't end with what's contained in the police brief of disclosure, which is usually just witness statements. The preliminary inquiry is a forum where counsel can explore, for example, potential charter issues or motions that may be raised at trial. You can use the preliminary inquiry for that. You won't be able to answer those questions just by looking at the disclosure. It requires some exploration of witnesses, particularly police witnesses, if you're talking about charter motions.

Through the process of the preliminary inquiry, counsel may realize that maybe they don't need to bring that charter motion at trial.

(1620) Mr. Murray Rankin :

It actually can be time-saving.

Ms. Apple Newton-Smith :

Exactly.

Mr. Murray Rankin :

I think the same point was made by Mr. Star in the anecdote he gave about a day-long preliminary inquiry that saved lots of time down the road. Your reference to Professor Webster's material I think is also helpful in that regard. In the interest of time, I want to go back to your issues on the jury selection process. You have an elegantly simple suggestion in terms of giving the judge the opportunity, by adding subsection 629(4) to simply allow either party to challenge the jury panel on the ground of unrepresentativeness, as found by successive studies and judicial inquiries. You said two things.

You said this would allow the prosecutor or the accused to make that motion and the judge to have that overriding discretion, but then you also said that you wanted to make the statutory challenges for cause provision more robust. Exactly how could you do that? Would you amend the challenge for cause sections? If so, how would you do that to make sure it wasn't abused?

Mr. Michael Lacy :

You would have to legislatively amend the provisions, because the common law now creates a very limited regime, as I've talked about. You would have to amend the Criminal Code to allow a judge to engage in a challenge for cause process to question potential jurors about issues related to bias. To some extent, judges do this through some initial screening in their opening remarks, talking about whether they know anyone associated with the case, that kind of thing. We certainly do it when we have high-publicity cases, when we want to make sure no one has formed an opinion about the case.

There are, however, certain types of cases where people have strong opinions about whether or not people are likely guilty or probably guilty, likely innocent or probably innocent, and these situations would not now be caught by the normal challenge for cause provisions. I'm not trying to invite more work and study. Sometimes I think, frankly, we spend too much time studying and looking at these things. Action is certainly required, but sometimes a simple solution to a complicated problem, like just eliminating the peremptory challenges, doesn't actually solve the complicated problem.

Mr. Murray Rankin :

You have no specific suggestions as to how we would amend the sections of the challenge for cause provisions, even though you just remarked that we need to do so if we were to get rid of the peremptory challenge.

Mr. Michael Lacy :

I would look for guidance in the suggestions of Professor Roach, where he details it in his brief, and we certainly would adopt that as well.

Mr. Murray Rankin :

Okay, good. Thank you.

The Chair :

Thank you. We're going to go to Mr. Fraser.

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

Thank you very much, Mr. Chair, and my thanks to everybody for being here today. I want to start with the Criminal Lawyers' Association. Mr. Lacy, I read your brief and I didn't see anything in there about the hybridization of offences. Please forgive me if you have already mentioned that. Can you tell the committee about the Criminal Lawyers' Association's position on the hybridization of offences, whether you see that as something that will assist in addressing delays by giving the Crown more flexibility to choose the best procedure, perhaps in a more simplified way? In your answer, could you also discuss whether you see this impacting the range of sentences available when proceeding by

summary conviction rather than by an indictable offence?

Mr. Michael Lacy :

Somewhat ironically, when you hybridize the offences and eliminate the preliminary inquiry, you have exactly the same procedure for both cases, except as it relates to the jury aspect of the case. It would only be in those cases where a sentence of five years or more is available. We think Crowns in our province and across the country are asked to exercise their discretion in hybridization as a concept.

We support the idea of giving the Crown the option of proceeding summarily versus by indictment in a broader range of offences, because there are collateral consequences in terms of the ability to obtain what's now called a record suspension, for example, which is affected by whether they proceed by

summary conviction or by indictment. You heard from a witness yesterday from the CCLA who suggested the need for consequential amendments to the immigration statutes as well, which I think is a very important point that this committee needs to consider seriously. Our greater concern, though, is the increase on the maximum penalty for

summary conviction offences—increasing that to two years less a day. There are other witnesses who are going to speak to that. The Law Society of Ontario has raised concerns about that, as has Legal Aid. We do believe that's going to be an access to justice issue and that it would be a mistake to allow paralegals or law students to represent people facing charges of two years less a day. Right now we have a dual system of super

summary offences, 18 months versus six months, and we think that system works.

(1625) Mr. Colin Fraser :

Thank you very much for that answer. Mr. Star, perhaps I could turn to you. Thanks for joining us today. I'll just pick up on the point that Mr. Lacy made. We've heard at the committee that the result of changing the maximum sentences for some of these new

summary conviction offences, or hybrids that could be chosen to go

summary, is that the six months maximum won't allow law students, agents, or paralegals to appear in court. Can you speak to your experience in the importance of the court having articling students and law students appearing in court on behalf of people?

Mr. Philip J. Star :

Just speaking from my own experience, it's a significant access to justice issue, at least in my area. In southwest Nova Scotia but throughout most of Nova Scotia, not just rural towns but in the city, we see so many self-reps nowadays. I think if that was permitted without the amendment to allow the law students or articling students to appear, it would create many more problems, or it would enhance or increase the problems we're dealing with here with respect to access to justice. It's a buzzword here in Nova Scotia. It's a buzzword across Canada.

We've all heard the former Chief Justice McLachlin speaking about access to justice. I don't think we want to do anything to deter that. I know one of the big concerns, of course, is the experience and the lack of experience of law students and articling clerks, but they're monitored by both the law society and their principals, and I fully support their being able to appear in limited circumstances.

Mr. Colin Fraser :

Thank you. Mr. Star, just sticking with you and your answer, based on your experience, we talked a minute ago about routine police evidence in this bill as proposed. Basically, the reason for that would be purportedly to expedite routine police evidence that could go in without the right of cross-examination automatically. Can you talk about your experience in dealing with Crown attorneys and how oftentimes things relatively simple, such as continuity of evidence, goes in by admission?

Mr. Philip J. Star :

With respect, Mr. Fraser, the word “routine” makes me squirm. What is routine? We've all been involved in situations in which we're asked to admit continuity, as an example, in blood samples, drug cases, and so on. Coincidentally, I had a case last week that involved alleged abuse on a senior in a seniors' home by a worker there. We got there and the Crown had asked me to admit continuity of a bib that this alleged victim was wearing. I said, “Before I can admit it, you have to provide me with the evidence surrounding it,” so I never did.

I realize, as indicated by a previous witness, that this is very much anecdotal, but we got to trial and came to find out that the original bib had disappeared. The one that they presented to the court they got that morning, some 18 months after the incident, so we were asked to admit to stuff without any indication in the disclosure or otherwise. It's a very slippery slope to get involved with. I'm not saying it can't be allowed in very limited circumstances. For instance, in regard to the serving of certificates, we already have those provisions in there.

I don't think it increases the time involved very much, and I'm very concerned about allowing that to be spread too far.

Mr. Colin Fraser :

Thank you.

The Chair :

Thank you very much. Thank you to the witnesses. Because of the fact that we have panels that are going subsequently one to the other very quickly today, we can only do one round of questions. However, your testimony was enormously helpful. Thank you, and in particular, of course, thank you to Mr. Star for joining us by phone. We ask that the next panel please come forward. We're going to recess briefly, but let's try to change very quickly so that we can get the next panel done in time.

(1625) (1630) The Chair :

We will resume. It is a great pleasure to have our second panel with us today. From the Association for Canadian Clinical Legal Education, we have Ms. Jillian Rogin, who is an assistant professor; and from the Canadian Alliance for Sex Work Law Reform, we have Ms. Kara Gillies, a regular at this committee by this point. Welcome. We're going to go in that order, if that's okay, starting with Ms. Rogin.

Prof. Jillian Rogin (Assistant Professor, Association for Canadian Clinical Legal Education) :

Thank you. My name is Jillian Rogin and I am an assistant professor in the faculty of law at the University of Windsor. I'm so honoured to be here today on behalf of the Association for Canadian Clinical Legal Education, or ACCLE. I just want to take a moment to acknowledge that the land we're currently on is unceded territory belonging to the Algonquin Anishinabe people, and I'm really thankful for being allowed to be here today. In addition to being an assistant professor and appearing on behalf of ACCLE, I'm also a criminal defence lawyer.

Relevant to what we're going to talk about, I've worked as a duty counsel lawyer in the provincial courts. I was also a reviewing lawyer at a legal clinic in Windsor, Community Legal Aid, so I have experience in the provincial courts representing marginalized people. To start out, ACCLE commends the intent of Bill C-75 insofar as it aims to reduce inefficiencies in criminal matters and it focuses on reducing over-incarceration of indigenous people and other marginalized people, but I want to focus on aspects of the bill and the proposed amendments that might undermine those laudable goals.

Specifically, I'll be looking at the reclassification of offences and the impacts of that reclassification scheme both on law students and on the clients that legal clinics serve across Canada. The increase in the maximum penalty, the proposed amendment to subsection 787(1), of course precludes law student representation, articling student representation, and representation by paralegals. All three will be precluded entirely from representing anyone any longer in any criminal matter in the provincial courts. This is of course because there's no corollary amendment to

section 802.1 of the code. To be frank, there is no stated rationale that I can find for this dramatic and drastic change to the legal landscape in Canada. There's no data I can point to that shows there is any difficulty with law student representation of people charged with minor criminal offences, and it's not clear what the legislative purpose is of eradicating that form of representation for marginalized people. What we do know is that this eradication of law student representation will cause an access to justice crisis across this country. Legal clinics across Canada that for decades have been representing clients in

summary conviction matters will suddenly come to a halt, and accused people will not have much-needed access to legal representation to answer to the criminal charges they're facing. As it currently stands,

section 802.1, as you all know, allows for the provinces to enact orders in council. I'm going to speak briefly about why, in my respectful submission on behalf of ACCLE, that is not an appropriate or adequate response to the difficulty of the proposed amendments. Firstly, it's a piecemeal approach, so it means that provinces may or may not act. You may have a situation where there are some provinces that act and some that don't. There's no obligation on any province to do so.

Secondly, which is most alarming to me, even if the provinces act, it's very unlikely that they will do so in a manner that's timely, to prevent a gap in representation. If Bill C-75 were enacted tomorrow and passed into law the day after or on the day, we would have to attend court and make applications to get off the record for the current clients we have. That would have to happen all over Canada. We would not be able to appear in court except to get off the record.

Thirdly, on that point, in a sense—and I say this with respect—it's misguided to suggest that the antidote to the massive decrease in the provision of legal services can derive from the provinces enacting orders in council. Respectfully, the question should be, why are we taking away the current law student representation that has been in effect for three decades? Of course, it's a very drastic change. We know also that this can't be justified by efficiency. It's not more efficient to have more people in the provincial courts who are unrepresented, with no legal representation.

We know that not only are unrepresented litigants at a disadvantage, but they tend to clog an already clogged system, and the purpose of the bill is to address delays. We know, as I referenced in our brief, that unrepresented indigenous people disproportionately plead guilty when charged with an offence. The lack of representation is an incentivizing force of guilty pleas, and that should be alarming for all of us, especially with the stated intention of the bill. This access to justice crisis is a crisis not just for clients who are facing those criminal charges, but also for law student education.

Exposure to working with marginalized people facing criminal charges, exposure to the community organizing that has been a hallmark of clinics for decades, exposure to the promotion of social justice issues and—perhaps most important to me as a mentor and as somebody who had wonderful mentors—the opportunity to work really closely under the direct supervision of a criminal defence lawyer is a foundational experience of law school education. In my opinion, it's crucially important, particularly in criminal law. It is a crucial part of that clinic experience.

(1635) The evisceration of law student, articling student, and paralegal representation has constitutional dimensions, and it may impact fair trial concerns pursuant to

section 11(

d) and

section 7, and perhaps

section 15, depending on who is being denied representation, and in what circumstances. In terms of our clients, I'm going to address the increase in the maximum penalty. It has been stated that this is not a change in sentencing ranges; however, it is a direct intent to raise the maximum penalty for

summary conviction offences. The idea that it's not going to have an impact on sentencing ranges, in my respectful view, is misguided. I'm speaking from that experience of being in the provincial courts, being in the plea court when you have a client who has 1,000 convictions for theft under. They go before the judge and the Crown is asking for 30 days and the judge says, “I'm done with you, six months”, because that's the maximum. The idea that's not going to happen and isn't justifiable with legal principles is, respectfully, perhaps misguided.

In terms of court efficiencies, we know that the proposed changes are not going to alleviate delays in the lower courts, in the provincial courts. There's nothing to suggest that's the case. The provincial courts are already overburdened. Many lower courts across Canada are facing crisis levels of criminal cases passing through, as I've noted in our brief. Provincial courts currently, in a recent Statistics Canada report, are seized with 99.6% of all criminal cases in Canada, the superior courts secure 0.4%.

In that sense, it's very difficult to imagine, in terms of the hybridization of offences, how the choice to proceed summarily is going to create further efficiencies for the Crown or for the criminal justice process. I'll turn now to the recommendations that ACCLE is putting forward. We're boldly asking that the proposed amendment to subsection 787(1) not be made at this point, not with a more thorough charter analysis of the proposed amendment having regard to who it might most impact. This includes perhaps looking for further ways to reduce court delays that do not disproportionately impact marginalized people.

Alternatively, we're asking that if this does go through, then an amendment be made to subsection 802.1 that allows for the continuation of law student representation. Thank you.

(1640) The Chair :

Thank you very much. Ms. Gillies.

Ms. Kara Gillies (Canadian Alliance for Sex Work Law Reform) :

Thank you so much. Good afternoon and thank you for the opportunity to address you today. The Canadian Alliance for Sex Work Law Reform is a coalition of 28 sex worker and allied organizations from across the country advocating for law reform that advances the rights and safety of people who sell or trade sex. Our member groups have expertise regarding the impact of criminal law on the lives and well-being of sex workers, so it's on those grounds that we submit our response to Bill C-75 .

I'm going to be really frank and say that we are very disappointed and frustrated that the Criminal Code provisions targeting sex workers and their personal and work relations are not slated for repeal or meaningfully addressed in Bill C-75 . The Liberal and NDP parties of Canada voiced staunch opposition to the Protection of Communities and Exploited Persons Act, or PCEPA, when it was introduced. In 2015, the justice minister declared that she was “definitely...committed to reviewing the prostitution laws”, yet this review has stalled. This isn't just a matter of principle or a matter of promises unkept.

Each day that passes, sex workers' rights, safety and dignity are violated through the individual and collective impact of laws prohibiting the communication for, purchase of, material benefit from, procuring of and advertising of commercial sexual services. We are past the time for review, and we need action. We believe that excluding the repeal of PCEPA from Bill C-75 was a gross missed opportunity, given the overall alignment of many the bill's principles and elements with those of sex work law reform. First, Bill C-75 rightly repeals several Criminal Code provisions ruled unconstitutional by Canadian courts.

In 2013, the Supreme Court found in Bedford that several criminal prostitution laws caused harms that violated sex workers' charter right to security of the person. The subsequent Criminal Code provisions enacted by PCEPA replicate these harms, and their constitutionality is similarly impugned. Second, Bill C-75 rightly repeals the offences of anal intercourse and abortion that targeted sexual or reproductive activities and autonomy and that disproportionately impacted LGBTQ2S communities and women respectively.

Prohibitions on sex work activities similarly undermine the rights to liberty, autonomy and security of the person and disproportionately impact women, indigenous and migrant communities, and other marginalized groups. Third, Bill C-75 correctly proposes to attend to the discriminatory treatment and overrepresentation of indigenous and marginalized peoples in the criminal justice system. Sex workers and/or personal and labour relations reflect the diversity and inequality of social locations in Canadian society.

For many, sex work prohibitions represent the criminalization of their poverty and perpetuate the over-policing and over-incarceration of indigenous and black peoples. Sex work laws continue to be employed and enforced in a racist and colonial manner. Indigenous women are over-policed and under-protected. Asian migrant workers are targeted for investigation and deportation, and young black men who happen to be boyfriends or associates of sex work workers are labelled and prosecuted as pimps.

We recognize that most of the PCEPA laws have been absented from Bill C-75 and thus cannot be repealed or otherwise altered through committee amendments. We note, however, that clause 111 reclassifies the material benefit offence as a hybrid offence and that clause 112 amends the sentencing provisions of the advertising offence. Because these two offences are addressed within the bill, if it's a procedural possibility, we strongly urge amending the bill to repeal these Criminal Code provisions in their entirety. By criminalizing the act of materially benefiting from another party's sex work,

section 286.2 restricts sex workers' capacity to engage in supportive work relationships that enhance our safety and improve our work conditions. In fact, this provision reproduces the harms of the prior “living on the avails” offence that was struck down by Bedford for violating our

section 7 charter rights. Any proposition that the listed exceptions to the offence satisfy Bedford are false. All but one simply codifies jurisprudence that predates the Supreme Court's decision. Then there are exceptions to the exceptions, which further repress sex workers' autonomy and security. For example, paragraph 286.2(5)(

e) prohibits a liability exception in the context of a commercial enterprise. This captures all escort agencies, massage parlours and any other sex work business that creates safe, structured indoor work environments. While we appreciate that the exceptions may allow a worker to hire, say, a bodyguard or a receptionist, we are mindful that only a tiny number of highly privileged workers have the resources to do so. Instead, many of us seek out parlours and escort agencies because they offer services such as screening, secure venues and advertising without the upfront costs and overhead of independent work.

(1645) It is often the most marginalized and under-resourced workers, such as indigenous, poor, or migrant workers, who benefit from working for someone else. However, these same laws that prevent sex workers from ensuring our safety and rights are upheld, because we work for businesses, do so, ironically, because they effectively preclude us from accessing basic labour, occupational health and safety, or human rights protection. To make it worse, material benefits arising from the context of a commercial enterprise is considered an aggregating factor upon sentencing.

As with the former “living on the avails” provision, the material benefit sanction imposes an evidentiary presumption on anyone who lives with or is in the habitual company of a sex worker. In addition to reinforcing the false assumption that people, particularly women, who sell or trade sex can't be legitimate objects of affection, the threat of presumed criminality disrupts the security and autonomy of our personal relationships. I will make a final comment on the material benefits offence.

Although when we discuss it we typically describe it as benefiting from another party's sex work, the provision itself does not specify a third party benefit. Under the letter of the law, sex workers are ourselves captured in the material benefits provision. We are only granted immunity from prosecution via

section 286.5. This is a clear illustration that PCEPA does indeed continue to construct those of us who sell or trade sex as criminal. We therefore recommend that clause 111 of Bill C-75 be amended to call for the repeal of the material benefits provision, as a first step towards a more comprehensive sex work law reform. Next I'm going to turn to Criminal Code

section 286.4, which prohibits advertising paid sexual services. As with the prohibitions on communicating and purchasing, this provision undermines the safety benefits that sex workers derive from openly communicating terms and conditions with their clients, and establishing boundaries in advance of in-person contact. Prohibiting advertising creates significant barriers to working indoors, which the evidentiary record in Bedford demonstrates is much safer than working on the street. Since the enactment of the advertising provision, many websites and newspapers will no longer publicize sex worker services.

Those that do have often discontinued their virtual lounges that allowed workers to share safety and other valuable information with each other. With these points in mind, we recommend that clause 112 of the bill be amended to call for the repeal of the Criminal Code

section 286.4. Continuing with the Criminal Code provisions addressed in the bill, we want to reiterate our opposition to Bill C-38 and Bill C-452 , which is now incorporated into clause 389 of Bill C-75 . Bill C-452 introduced an evidentiary presumption that living with or being in the habitual company of an alleged trafficking victim is proof that the accused exercised control, direction or influence over the alleged victim's movements for the purposes of exploitation.

Given the ongoing conflation of third party involvement with sex work and trafficking, we are concerned that, as with the reverse onus provision for material benefit, this presumption will further alienate sex workers from police and social services, as we continue to actively avoid implicating our colleagues and loved ones as traffickers. We do support the bill's removal of consecutive mandatory minimum sentences for trafficking offences. However, like others who have responded to Bill C-75 , we are perplexed as to why mandatory minimums have not been repealed across the board.

Other Criminal Code offences that are insufficiently addressed in the bill are the bawdy house, indecent acts and vagrancy sections. These have traditionally been used to condemn individuals and communities based on their sexual activities, relationships and identities, including people who sell or trade sex. The Prime Minister 's 2017 apology to LGBTQ2S people should be buttressed by the repeal of these sanctions. The alliance doesn't have a current position on the bill's Criminal Code amendments regarding intimate partner violence.

However, we will note that intimate partner violence impacts our communities, not simply because sex-working women, like other women, experience intimate partner violence, but also because such instances of violence are often mislabelled and prosecuted as materially benefiting, procuring and trafficking. If criminal sanctions related to intimate partner violence were used instead of third party sex worker trafficking laws, where appropriate, we might be able to express support. However, we're concerned that they would be used as add-ons.

Additionally, we have potential concerns about increased sentences and reverse onus bail provisions, because we know only too well the effect of heightened criminalization and its disproportionate impact on the most marginalized among us. However, we have no specific recommendations on these points. Finally, on a general note, we are concerned that elements of Bill C-75 will impede access to justice and fair treatment for people in and associated with the sex trade who come in conflict with the law for any reason, and who are further marginalized by their social or structural locations.

(1650) Increasing the maximum sentence for

summary convictions risks the continued over-incarceration of marginalized peoples, both through the increased maximum sentence itself and by restricting access to agent representations. Permitting the written admission of routine police evidence risks undermining trial fairness by complicating defence access to cross-examinations that can expose cases of police error, impropriety or actual abuse, and which are especially vital to protect the rights of indigenous and black defendants. Those are our thoughts and concerns. Thank you for taking the time to hear them.

The Chair :

Thank you both so much for your testimony. Committee members, as we know, the bells will start at about 5:15. I'll ask everybody to keep it to six minutes for your questions, and if we get them to six minutes, we should get through this round just as the bells are starting. Mr. Cooper, please go ahead.

Mr. Michael Cooper :

Thank you, Mr. Chair. Thank you to Ms. Rogin and Ms. Gillies. Ms. Rogin, my question is to you. Bill C-75 , in terms of the hybridization of offences, is premised upon the idea that less serious cases will be processed more quickly at the provincial court level, but as you noted, 99.6% of criminal cases in Canada, according to Statistics Canada, are heard before provincial courts. It's very difficult to see, as you point out, how that's going to reduce backlog and create greater efficiencies. It seems like a wholesale downloading of cases onto already overburdened provincial courts.

From the standpoint of Jordan, as you know, there is a 30-month timeline for matters before superior courts between the laying of charges and the conclusion of a trial versus 18 months in provincial court before delay is deemed presumptively unreasonable. Is there not the risk that rather than reducing delay that, in fact, you're going to add to the delay and see even more cases thrown out of court, not less?

Prof. Jillian Rogin :

That is our position, yes. It's an overburdening coupled with a decrease in legal representation, and I don't think that those two things can be separated in many ways. You're talking about further matters that are going to be going to the provincial courts at the same time as people will have less access to being able to assert their rights. Another aspect of hybridization that I'm not sure has been raised before is that this means, by virtue of

section 34(1) of the

Interpretation Act, all hybrid offences are deemed indictable until the Crown elects. That means that

section 524 proceedings can be triggered upon a greater number of offenses—524 being the

section that can cancel a person's bail—and that a greater number of cases will be a reverse onus in bail proceedings pursuant to

section 515(6). Therefore, there are corollary consequences to the hybridization of criminal offences, and, absolutely, it's very difficult to imagine further overburdening of the provincial courts in my view and in my experience both as duty counsel and in the legal clinic system.

(1655) Mr. Michael Cooper :

Thank you for that. I want to move on to the issue of

section 802.1, and the fact that as a result of increasing the maximums for a whole host of

summary conviction offenses from six months up, that this is going to preclude law students and paralegals from acting on behalf of criminal defendants. You had suggested an amendment, which is to amend

section 802.1 to provide that law or articling students under the supervision of a lawyer could represent these criminal defendants, but what about paralegals? That was a question that I posed, and the Law Society of Ontario said it won't work because you're going to leave out paralegals. What's your response to that?

Prof. Jillian Rogin :

First, I want to thank you for the question, and I want to clarify our position. I only mentioned some of our recommendations today, but in our brief, as you may see, we're asking for further consultation with legal clinics and the clients who access legal clinics before any amendment is made with respect to 787(1). In the alternative, if 787(1) is going to go ahead, we are asking that allowance be made for agents—paralegals, students, law students, articling students—to appear.

Mr. Michael Cooper :

What would that amendment look like?

Prof. Jillian Rogin :

Despite subsections 800(2) and 802(2), a defendant may not appear or cross-examine or examine witnesses by agent if he or she is liable, upon

summary conviction, to imprisonment of a term of no more than two years less a day.

Mr. Michael Cooper :

They'd just increase it from six months to two years less a day.

Prof. Jillian Rogin :

Yes.

Mr. Michael Cooper :

You don't see any issues with that.

Prof. Jillian Rogin :

Yes, there are issues with that. The issues with that are vast, which is why we want consultation. My colleague mentioned

summary conviction offenses and the two years less a day maximum penalty. He referenced them as minor criminal offences. Respectfully, with two years less a day there will no longer be any minor criminal offences. We're asking for consultation because we want a national conversation across Canada among lawyers, law clinics, law students and the lawyers who supervise them about what's appropriate for student and agent representation. We're asking for

section 802.1 as an alternative because it's the second best choice. Maybe we can try to have those conversations province by province. That's less ideal than having a national conversation about what law students should be appearing on and what they shouldn't. Right now, as the code currently exists, there are limits to what law students can appear on.

Mr. Michael Cooper :

I asked the Law Society of Ontario yesterday. They didn't have numbers. Do you have any idea of the scope of the number of law students, articling students and paralegals in the province of Ontario who are currently acting on criminal matters?

Prof. Jillian Rogin :

No, we don't have exact numbers. We do know there are seven law student clinics in Ontario that represent marginalized clients in criminal law matters. The number of students per clinic would vary, but it could be likely hundreds.

The Chair :

Thank you very much. Mr. McKinnon.

Mr. Ron McKinnon (Coquitlam—Port Coquitlam, Lib.) :

Thank you, Chair. I'd like to talk more about the super

summary offences. We've heard a number of panels speak of these and they seem to be generally considered a problem. In particular, you're mainly concerned about paralegals and regulated agents and so forth. Do you see it as possible and reasonable to amend

section 802.1 to accommodate those kinds of people to be able to represent people in these offences that have a higher maximum?

Prof. Jillian Rogin :

I'm not sure I understand the question. If clause 787(1) becomes law then there will be no super

summary offences.

(1700) Mr. Ron McKinnon :

Sorry. I meant, in terms of the offences that would become two years less a day and the fact that there would be no more six-month offences, is it possible to amend

section 802.1, which I understand provides for regulated agents to represent clients in certain cases? Can that be modified to accommodate cases with minimums of two years less a day instead of six months?

Prof. Jillian Rogin :

We are asking for this as the alternative, if clause 787(1) is going to be passed and the maximum penalty will be raised.

Mr. Ron McKinnon :

What sort of amendment would you propose for that?

Prof. Jillian Rogin :

We would ask that the same exception for law students that currently exists in

section 802.1 be carved out for penalties of two years less a day.

Mr. Ron McKinnon :

The previous panel suggested that this wouldn't be a good idea, that law students should not be representing people in that situation. Would you agree with that?

Prof. Jillian Rogin :

ACCLE's position is that we need to have a national conversation about that. Legal clinics, law students and the reviewing lawyers need to be involved. Perhaps the courts need to be involved. Historically, conversations about what law students are able to do involve many parties. Unfortunately this hasn't happened. The legal clinics in Canada have not been part of any consultation with respect to what law students should be able to do. That's one of the many reasons we're asking for further charter review and further consultation before any changes are made to the current classification scheme in terms of maximum penalties and law students' ability to appear.

Mr. Ron McKinnon :

That was my next question. Absent that consultation and conversation, do you suggest that all of the existing six-month offences remain as such and that there remain a distinction between those offences and the super

summary offences?

Prof. Jillian Rogin :

Yes, and we're particularly concerned, as many people have said, about the immigration consequences of any change to the maximum penalty beyond six months, and about the other issues I've already spoken to.

Mr. Ron McKinnon :

Right. Those are my questions.

The Chair :

Thank you very much, Mr. McKinnon. Mr. Rankin.

Mr. Murray Rankin :

Thanks to both of you for coming. I want to start, if I may, with you, Ms. Rogin. I'm interested in the number of non-represented people who are in the provincial courts. I don't know if I saw it in your brief, but as of a couple of years ago in my province of British Columbia, 21% of all criminal accused had no lawyer. They were unrepresented in provincial court. Do you have any idea how many people currently are unrepresented? What impact would this

section have on a person's ability to get representation if paralegals and articling students are not allowed?

Prof. Jillian Rogin :

We don't have the numbers. We don't have data in terms of how many people are currently represented by students, paralegals or articling students, but in our brief, we do note that self-represented litigants are not a small group. In the 2015-16 Canadian statistics on adult criminal court processing times, it was reported that 24% of charges in the adult criminal provincial courts in Nova Scotia, New Brunswick, Quebec, Ontario, Saskatchewan and British Columbia were against an unrepresented person.

Mr. Murray Rankin :

When you spoke just now—it's not in your brief as such—you decried the lack of data on the effect of removing this right of law students, paralegals and articling students to participate, and you used words like “crisis”. You said it will create a crisis and you don't know what the legislative purpose for eradicating law student representation would be. Those are your words. Did it occur to you that this might have been entirely inadvertent, that this may have been an unintended consequence? Having lack of data may simply suggest that the government had no idea, had not thought through the consequences of this particular reform. Is that not a possible hypothesis?

Prof. Jillian Rogin :

I think that's a distinct possibility and all the more reason to engage in further consultation before taking such a drastic step.

Mr. Murray Rankin :

In your brief on page four, you say, “Curtailing law student representation will also result in further court delays and further burdens on the provincial courts. It is widely understood that unrepresented litigants cause court delays and that the legal system as a whole works more efficiently when people come to court with legal representation.” In your clinical experience, is it often the judges who are the most anxious to have people represented? Is this because of the delays and sometimes the judge having to bend over backwards when people have no representation? Does this actually make it harder for the judicial system to work?

(1705) Prof. Jillian Rogin :

It makes it very difficult. In my experience, it's actually the Crowns and the judges who are vying for people to come and assist, and I speak directly from my experience as duty counsel. I was often paged into a courtroom where a trial was going on to see if I could assist. Of course, it wouldn't have been appropriate for me to do so, but it happened repeatedly, so much that you could tell there was a craving for representation. It's very awkward for the judge and for the Crown to try to go through any proceedings, a trial, a bail hearing or otherwise, without someone representing an accused person's interests.

Mr. Murray Rankin :

You had something else in your brief at page four that was even more disturbing, I think. You said that, "Research shows that self-represented litigants spend more court resources and time, face repeated barriers in understanding court procedures, make more mistakes"—and here's the punchline—"and as a 2002 study corroborated, sometimes plead guilty to minor offences just to get it over with." Can you think of other measures in Bill C-75 that might incentivize pleading guilty to get it over with, measures that might disadvantage those without proper legal counsel?

Prof. Jillian Rogin :

In my experience, whether they are in custody or out of custody, people plead guilty to deal with the stress of attending court, whether it's because of a denial of bail, of having to attend the remand court over and over again, or of having to miss work to come and attend, which certainly disadvantages all involved. There is a serious problem with incentivizing guilty pleas in our courtrooms across the country.

Mr. Murray Rankin :

Given they would have what we used to call a criminal record and given the impact on employment, on immigration, on renting an apartment, all those things—

Prof. Jillian Rogin :

Family law implications.

Mr. Murray Rankin :

—family law, immigration—I think you've really addressed something that's very disturbing, and I thank you for doing so. Those are my points.

The Chair :

Thank you very much, Mr. Rankin. Mr. Boissonnault.

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

Thank you, Mr. Chair, and thanks very much to both of you for your testimony. Ms. Gillies, how would the repeal of bawdy house laws positively affect the people you serve: sex workers and their loved ones?

Ms. Kara Gillies :

I will start by saying that we don't have data on whether the revised bawdy house law specific to the practice of acts of indecency has been used specifically against sex workers for sex work activities. Certainly, the legal analysis we've received suggests that, yes indeed, the bawdy house law could continue to be used to target sex work activities, although if that were to happen we would refer back to the Bedford case, which determined that the bawdy house law, at least specific to prostitution, interfered with and violated our charter right to security of the person.

We are also aware there are people within our sex-working community who are gay men or men who have sex with men and who continue to be targeted under the bawdy house legislation.

Mr. Randy Boissonnault :

For you, then, it's both a security of the person argument re Bedford and an “archaic piece of legislation” argument that comes from the LGBTQ2 community.

Ms. Kara Gillies :

One hundred per cent.

Mr. Randy Boissonnault :

Okay. We heard yesterday from Mr. Rudin that the reverse onus provision doesn't target but disadvantages indigenous women who get caught up in a charge from a male counterpart who says, “She started it”. There's an original charge that then leads to a conviction and, the next time, an even longer sentence. In your world, does this affect non-indigenous people as well in terms of the reverse onus provision?

Ms. Kara Gillies :

Again, I can't say that we have any hard statistics on that; however, anecdotally, yes. I would also say that as a coalition of 28 organizations across the country whose focus is primarily on sex work-related matters, we haven't yet carved out the opportunity to robustly discuss intimate partner violence and the impact of the bill thereon. That said, as a community of folks who are criminalized—and the people around us are highly criminalized—we are very suspicious of and very reluctant to get on board with reverse onus provisions.

Certainly, with the old “living on the avails” provision, and now with the material benefits provision, we see that reverse onus undermines the relationships at play. There certainly are charter implications. While we certainly acknowledge that intimate partner violence is a serious widespread concern, we're not at the point of having a position on whether or not reverse onus or harsher sentences would actually have a meaningful impact.

(1710) Mr. Randy Boissonnault :

Your answer leads me to my next question. You've put your finger on it. It's a highly criminalized community, and there's a crossover between the LGBTQ2 community and the indigenous population who are employed in and making their decision to be in the sex work trade. Do the administration of justice provisions in Bill C-75 help speed up the wheels of justice, in your alliance's analysis?

Ms. Kara Gillies :

We haven't done an analysis of that. What I can say is that we're in favour of the general principle of restraint in regard to bail. For a concrete example, at this point in time, it's not uncommon for people who are charged with sex work offences to get bail conditions that restrict them from going into the areas where they were working and where they were charged, but sometimes that's where they live as well, or where they access health care and social services. Beyond that, again, as a huge coalition across Canada, we haven't been able to get into the nitty-gritty of such a large bill.

Mr. Randy Boissonnault :

Thank you very much. Mr. Chair, I was very quiet during Mr. Cooper's testimony. I would appreciate it if we would have that kind of respect during questions of the witnesses. It's systematic and it's not appropriate. Ms. Rogin, what do you think about administration of justice offences?

Prof. Jillian Rogin :

That's a broad question—

Mr. Randy Boissonnault :

In Bill C-75 , do you like where we're going?

Prof. Jillian Rogin :

I have a number of thoughts on administration of justice charges. We commend Parliament's efforts to try to come up with a solution to what really can only be called a bail “crisis” in Canada. However, it's our position that there is a broadening of police discretion here that already exists without the option of a referral hearing. My colleagues have written about—and I think are here making submissions about—the risk-averse culture that pervades the bail process.

This allows a police officer to defer the decision to release or to lay a charge to somebody else, and that feeds into what the heart of the problem is. The police have always had the discretion to not lay a charge and they should use that discretion—and in many cases, they do. The concern here is that very same concern we have with existing police discretion, which is, who benefits most from the use of that discretion and who is hurt by it the most? That fundamentally doesn't change with Bill C-75 and the use of the referral hearing.

Mr. Randy Boissonnault :

Thank you. Thank you, Mr. Chair.

The Chair :

Thank you. Ladies, we are very lucky, because we brought that in just one minute before the bells are supposed to ring. I want to thank both of you for sharing your testimony with our committee. You were very helpful in terms of speaking to the points raised. Thank you so much. We'll recess this meeting until after the vote. I'll ask everyone to come back as quickly as possible after we vote. We have three more panels.

(1710) (1820) The Chair :

We are reconvening this session of the Standing Committee on Justice and Human Rights. It is a great pleasure to welcome our two witnesses from Toronto, who are testifying by video conference. We're joined by Mr. Brent Kettles, who is counsel from the Crown law office-civil, Ministry of the Attorney General of Ontario. We also have Mr. Kent Roach, Prichard-Wilson chair in law and public policy at the University of Toronto. Welcome. Thank you so much for your patience in terms of that vote; it happens all the time. We really appreciate your staying around. Each of you has up to 10 minutes to speak and then we're going to ask you a round of questions. Mr. Kettles, you're up first.

Mr. Brent Kettles (Counsel, Crown Law Office - Civil, Ministry of the Attorney General of Ontario, As an Individual) :

Thank you, Chair, and thank you for the opportunity to make a submission on Bill C-75 . I am Crown counsel at Ontario's Ministry of the Attorney General, but it's important that I make clear I'm appearing in my personal capacity, and that my views don't represent the Government of Ontario or Ontario's attorney general. The focus of my submission is on

section 271, which is the proposal to eliminate peremptory challenges from the Criminal Code. I'm supportive of the amendment. My view is basically summed up in three points. I will try not to make them very long. First, peremptory challenges undermine both the representativeness and impartiality of Canadian criminal juries. Second, peremptory challenges undermine the public confidence in the administration of justice, and third, peremptory challenges can invite mischief associated with jury vetting in some cases.

My first point is that the requirements of having representative and impartial juries are crucial elements to ensure both the fair trial rights of an accused person as well as ensuring that the conscience of the community is represented in adjudicating on acceptable conduct. When I say representativeness, of course, I don't mean there has to be a statistically perfect cross-section, or that every possible group and demographic subgroup in society has to be represented on a jury. However, juries are really only representative if they are randomly selected from a reasonably representative segment of the population.

Similarly, impartiality is achieved both by excluding people who are not indifferent as to the outcome in a criminal case, but it's reinforced by what sometimes is referred to in the case law as the diffused impartiality that happens when you have a representative and diverse range of viewpoints on a criminal jury. It's my view that peremptory challenges undermine both of these goals. They certainly don't further either one.

When we're looking at representativeness, when you have peremptory challenges, you're getting further and further away from the ideal of random selection, and instead of having random selection, what you actually do is introduce an element of selection bias, where you're replacing the random selection with assumptions about behaviour that are based primarily on stereotypical assumptions, and no real information about how perspective jurors might behave.

When you're looking at impartiality in the context of peremptory challenges, instead of excluding people on a good faith or rational basis that they are not impartial about the outcome, what ends up happening is that both Crown and defence counsel are invited to attempt to secure a strategic advantage in the litigation to which they are not really entitled. No one is entitled to a favourable jury, only one that's impartial.

It would be my view that if there is a realistic prospect, and a rational reason why a juror might be incapable of being impartial, then the remedy for that lies in having a challenge for cause that's established on evidence and ruled on by a trier of fact. Moving to my second point, having peremptory challenges cannot help but lower the public confidence in the administration of justice when members of the public and perspective jurors watch perspective jurors excluded on the basis of no reason, on the basis of no evidence, and without any information.

When those exclusions are based basically on the gut feeling of who is likely to be sympathetic to one side or the other, then that doesn't give the public or perspective jurors a feeling that jury selection is happening in a way that is fair and impartial, and also represents the community. Of course, it can't help but create an assumption that the juror who has been challenged, again usually on the basis of no evidence and for no reasons given, is in some way incapable or incompetent to have been selected or to be impartial in the case.

(1825) My third and final point is simply that the existence of the challenge for cause mechanism invites a mischief in the form of jury vetting. Jury vetting is the process of finding out information about prospective jurors for the purpose of finding or divining their attitudes, beliefs and preferences with a view, potentially, to exercising a peremptory challenge to exclude them. The case law is full of cases where this has been done, both on permissible and more impermissible bases.

My overall point is that the peremptory challenge creates an incentive for both the Crown and for defence counsel to try to find out information about jurors' backgrounds. Many prospective jurors would be alarmed if they knew what Crown or defence counsel were trying to find, and it can, in some cases, be a violation of their privacy. Just to sum it up, it's my view that the existence of the peremptory challenge mechanism invites abuse by creating a perverse incentive. That's my submission. Thank you.

The Chair :

Thank you very much. It's much appreciated. Mr. Roach, the floor is yours.

Professor Kent Roach (Prichard and Wilson Chair in Law and Public Policy, University of Toronto, As an Individual) :

Thank you very much, Mr. Chair. Thank you to the committee. I start from the proposition that in 1999, the Supreme Court told us there was a crisis in our justice system when 12% of prisoners were indigenous. The most recent statistics, which are reflected in my brief, suggest that 28% to 30% of custody admissions are indigenous people: 50% of youth and 42% of women. Not only is this overrepresentation, but the murder rate of indigenous people is six times that of other homicide victims.

The most serious crimes, those crimes that are most likely to be tried by juries, disproportionately involve indigenous people as accused and victims. I've been commenting on and writing a book on the Gerald Stanley case as well as the Peter Khill case. Juries are here to stay. They are a symbol of the community that we are, and they are a symbol of the community we want to be. In this vein, I agree with Mr. Kettles that we should abolish peremptory challenges, which were used to exclude five visibly indigenous jurors in Gerald Stanley's case, but we need to do more. We need to do much more.

To that end, I will propose five amendments for the committee to consider. The first is to amend

section 629 of the Criminal Code, which is essentially unchanged since 1892, to allow the prosecutor or the Crown to challenge the composition of the panel of prospective jurors, not only on the grounds of partiality, fraud or wilful misconduct, but also, I would propose, on the grounds of significant under-representation of aboriginal people or other disadvantaged groups that are overrepresented in the criminal justice system. You've heard from the Criminal Lawyers' Association. They also propose a somewhat similar amendment to

section 629. Although we don't agree on peremptory challenges, we agree on this issue. This would essentially set a higher standard in the Criminal Code than the Supreme Court had in the 2015 case of Kokopenace. It's well within Parliament's prerogative to set higher standards than the minimum standards that the Supreme Court sets. I would suggest that the Stanley case especially shows us the significant under-representation of indigenous people on our Canadian juries when they are so overrepresented among both accused and victims.

The language there picks up on other parts of Bill C-75 , which makes specific reference to indigenous people and other disadvantaged groups that are overrepresented in the criminal justice system. This is not about a perfectly proportionate jury or jury panel that represents all, every personal characteristic, but it's about the people most affected by the criminal justice system. Second, I would amend the disqualification of jurors, which in Bill C-75 would move from only forever permanently disqualifying those sentenced to two years' imprisonment. Right now it's one year.

To me, I think that, for an otherwise qualified juror, it should not matter whether they had been sentenced to any time of imprisonment. Michael Johnston has also submitted a brief to you, and I'm in agreement with it in that respect. This is in responding to concerns that some defence lawyers have raised about the abolition of peremptory challenges, that they will make our juries less diverse. I take those concerns seriously. I think one way to address that is to allow permanent residents of Canada to serve as jurors. You don't have to be a Canadian citizen to be a lawyer.

I think a permanent resident of Canada shows enough attachment. Our jury system is designed so that judges educate jurors about the law.

(1830) As Justice Iacobucci discussed, I would also amend

section 638 to allow otherwise qualified volunteer jurors from indigenous communities. Moving on, the third amendment would be to give judges some more guidance and signals from Parliament about the need to screen jurors for racist bias. I propose, in my amendment number three, to amend

section 638(

b) in a way that is frequently done in the Criminal Code to encourage judges to pay special regard to the dangers of discriminatory stereotypes that may apply to aboriginal accused, witnesses and complainants, and those from other groups that are vulnerable to discrimination and to the difficulties of determining whether a prospective juror would act on discriminatory stereotypes. I was counsel in the Williams case in 1998 that allowed the one blunt question. I'm a lot older now. Williams was decided in 1998.

We know a lot more about racist bias, subconscious bias, implicit bias, but judges have been extremely conservative because of their concerns about efficiency and the privacy of jurors. I think Parliament needs to encourage the judiciary to allow more searching challenges for cause. The fourth amendment I would propose is to amend

section 633 where Bill C-75 will add to the judicial power to stand aside jurors, the ability to stand aside a juror to maintain confidence in the administration of justice. I agree with the Criminal Lawyers' Association that this is too vague as it is currently written, and I propose language with special regard to the fair representation of aboriginal people and other groups overrepresented in the justice system.

Again, this would allow judges, as opposed to defence lawyers or Crowns using peremptory challenges, to try to ensure the representativeness of a jury in a more accountable way so we don't have a repeat of something like the Gerald Stanley case where, regardless of what you think of the verdict, the fact that five visibly indigenous people were excluded undermined public confidence for a significant number of the Canadian public. Then finally I'm very happy that the government has recognized the growing problem of false guilty plea wrongful convictions, and is amending

section 606, which applies before a guilty plea is taken, to require the judge to find a factual basis. I think this is a very warranted amendment to the Criminal Code. I praise the government for doing that, but I also think that subsection 606(1.2), which essentially says this is all optional for judges, must be repealed to make meaningful the factual basis requirement as well as the voluntary and knowing requirements for guilty pleas. Thank you very much for your time and attention, and I look forward to your questions.

(1835) The Chair :

Thank you very much for your presentation. We're going to go to questions with Mr. Cooper.

Mr. Michael Cooper :

Thank you, Mr. Chair. I'll be splitting my time with Mr. MacKenzie. Mr. Blaney, do you want to ask questions as well?

[ Translation ]

Hon. Steven Blaney (Bellechasse—Les Etchemins—Lévis, CPC) :

Yes.

[ English ]

Mr. Michael Cooper :

In that case, I'll yield to Mr. MacKenzie.

Mr. Dave MacKenzie :

Thank you. Mr. Roach, you've done a great deal of study on the whole issue, not only on this particular case, but we're looking at the process of the Jordan decision as one of the major things. What do you see in this legislation that by eliminating preliminary hearings will speed up the justice system, or do you believe it will?

Prof. Kent Roach :

Frankly, Mr. MacKenzie, I haven't been able to devote adequate time to study that issue, and that's why I have focused on the jury and the guilty plea issue. I do think it's complex because the Jordan guidelines make allowances for preliminary hearings, but I don't feel I'm in a position to opine strongly on that. I'm sorry if I can't be of any more assistance.

Mr. Dave MacKenzie :

That's fair. Aside from the table here, I did speak to one of the other witnesses. I'm curious to know how we dealt with civil juries. I understand the difference here, but we don't seem to have the complaints about civil juries that we have about criminal ones. Is there something we can learn from that?

Prof. Kent Roach :

Cases such as Stanley or Khill are very emotive issues, so I think that explains it. But we can learn...because in Ontario, following Justice Iacobucci's report, we have used volunteers from indigenous communities to sit on coroners' juries. In Saskatchewan, there is an ability to structure a coroner's jury so that it represents relevant groups. It seems to me we should think about using that in the criminal justice system. I'm not saying we should put people who are partial on the jury. Jury selection, as you know, is a very complex system. But I do think we can learn something from experiments from coroners' juries.

(1840) Mr. Dave MacKenzie :

Mr. Kettles, have you thought about the process of eliminating preliminary hearings?

Mr. Brent Kettles :

I haven't. It's not my normal area of practice, and I agree with Mr. Roach that it's a complex one where you're, in one sense, sort of trading off the existence of the preliminary hearing against any streamlining effect it might have. I'm not aware of any research or literature that would definitively suggest one way or the other that it would save time.

Mr. Dave MacKenzie :

Thank you. Mr. Blaney.

Hon. Steven Blaney :

How long do I have?

[ Translation ]

The Chair :

You have the floor for three minutes.

Hon. Steven Blaney :

Very well. Mr. Roach, Mr. Kettles, [ English ] I feel privileged to be here tonight with experts who have a good reputation and whose intentions are very noble. Mr. Roach, I was listening to your opening remarks. In my understanding, your amendment seems to be oriented toward your concern that there is overrepresentation of natives in prison. Am I correct?

Prof. Kent Roach :

Yes. There's overrepresentation in prison and also among victims.

Hon. Steven Blaney :

Do you feel the justice system is not properly serving those who are accused at this time? Is that why you are bringing those recommendations in that bill?

Prof. Kent Roach :

I'm writing a book about the Stanley case, where the issue is not simply the indigenous accused but the indigenous victim. When I talk about overrepresentation, I talk about overrepresentation both in prison and among victims. The challenge for cause amendments that I have proposed deal with trying to eliminate racist stereotypes, not only with respect to the accused but with respect to witnesses and the complainant.

Hon. Steven Blaney :

In your opening remarks, I didn't hear you mention the word “victims”. Now you refer to the accused and victims. Through your amendment, are you suggesting that the current system we have with juries is biased and that we need to correct this?

Prof. Kent Roach :

Certainly in the situation where there were five otherwise qualified indigenous people who could have served in the Stanley case, in a district where 30% of the adult population is indigenous. We'll never know what went on in the jury room. It's illegal, as you know, Mr. Blaney, to inquire about that. But I don't think there was an appearance of justice in the Stanley case, given the way the jury was selected.

Hon. Steven Blaney :

Okay. You're suggesting that jurors are biased and there's a need for an amendment to correct this. In your comments—and correct me if I'm wrong—you suggested that there be an overrepresentation of natives in the jury for native cases. Is that correct?

Prof. Kent Roach :

Yes. I am suggesting a targeted form of affirmative action. As you know, this is consistent with the Canadian approach to equality. It's even part of the Constitution in subsection 15(2), which contemplates affirmative action. I'm saying that with respect to indigenous people or other people who are overrepresented in the criminal justice system, we need to make sure those groups are represented among the jury pool.

Hon. Steven Blaney :

So if I take, for example, a black person who is convicted of a crime, would you suggest that there be an overrepresentation of black people in the jury so that you would feel that their deliberations would be more accurate? Is that what you're suggesting?

Prof. Kent Roach :

Yes, because we're all influenced by our life experience in drawing inferences from fact. In some ways, the beauty of the jury system is that we all have to listen to each other's perspective before the twelve reach a unanimous verdict. I actually think that we will benefit, and I don't think we would have seen the sort of protest that we saw in Mr. Stanley's case if the jury had been more reflective of the community.

Hon. Steven Blaney :

Mr. Roach, I have an Irish background. Suppose I were convicted of a crime. Should I be with a jury with an overrepresentation of people with an Irish background?

Prof. Kent Roach: No, Mr. Blaney. That's a—

The Chair :

Sorry, Mr. Roach, I'm interrupting you for one second, just to let Mr. Blaney know that this is his last question. He's trying to deal with you in his second language. He keeps saying "convicted"; he means "accused".

(1845) Hon. Steven Blaney :

Yes. Thank you, Mr. Housefather.

Prof. Kent Roach :

Mr. Blaney, to answer your question, Irish people would not fall within my definition because we're not looking for the slippery slope to a perfectly proportionate jury. I'm just saying that, regarding the Supreme Court, everyone recognizes that we have an issue and a problem with regard to indigenous people, so let's deal with that, and let's not fall off the slippery slope.

Hon. Steven Blaney :

Thank you.

The Chair :

Thank you very much. Mr. Fraser, go ahead.

Mr. Colin Fraser :

Thank you very much, Mr. Chair. Thank you, gentlemen, for joining us today. Mr. Kettles, I'd like to start with you. I appreciate the comments you made. You talk about being in favour of eliminating the peremptory challenges. We've heard from some witnesses that peremptory challenges allow the opportunity to actually increase diversity in juries, and in fact they're used for that purpose. Can you comment on your experience and whether you believe that to be something that actually happens, or is this something that doesn't happen very frequently and therefore getting rid of peremptory challenges would actually be the better way to go?

Mr. Brent Kettles :

Sure. The case law that I'm familiar with certainly suggests that peremptory challenges could be used in a given case to increase the diversity of a jury. The way that would work is that if you had an initial array of, say, 30 white male jurors, in theory someone could use some of their peremptory challenges to excuse those jurors in the hope that a more diverse group would come forward. I think the balance of authority in the vast majority of cases demonstrates that it's actually been used in ways that reduce diversity and representativeness.

The case of Colten Boushie and Gerald Stanley is certainly the most recent and, in some ways, the most visibly disappointing and shocking example, but it's certainly not the first time the peremptory challenge power has been used in ways that exclude entire groups or entire segments of Canadian society. It would be my overall view that in some ways, the mischief associated with the peremptory challenges outweighs any possible benefit.

I don't deny that there might be some anecdotal evidence that there are some cases in which it can be used to bolster diversity, but I think those don't outweigh the situations where it has been proven to undermine it.

Mr. Colin Fraser :

Thank you. Mr. Roach, I want to touch on an interesting point you raised in your brief and touched on again, and that's with respect to an amendment allowing permanent residents to serve on juries. I'm from Nova Scotia, and I'm familiar with how they select juries there. Obviously, the administration of justice is up to the provinces, and in selecting their jury pools they take data from the health registration list. I don't know how it works in other provinces, but I believe that some of them may use the voters list, in which case you have to be a Canadian citizen in order to be on the list. Do you see any problems with making the selection of jury pools available to permanent residents?

Prof. Kent Roach :

That's a legitimate point. I think one of the things the committee should consider is making some of these amendments proclaimed in force in a province only when the province has had time to prepare for it. Our jury selection is a very complex system, so a number of the amendments that I make would have implications for the province. I gather that's why the government did not take a more robust approach to reforming the jury. However, if we wait for each province and territory to get on board, it's just never going to happen. We need federal leadership.

One way it can be accommodated is to say that if you use a voters list, as in Alberta and perhaps in Nova Scotia, obviously that's not going to work for a permanent resident, so you would give a kind of transition period, a couple of years for the province to adopt a better, more inclusive jurors list.

Mr. Colin Fraser :

Okay. Do I have a little more time?

The Chair :

You have one more minute.