Proceedings of the Standing Senate Committee on
Legal and Constitutional Affairs
Issue No. 61 - Evidence - May 9, 2019
OTTAWA, Thursday, May 9, 2019
The Standing Senate Committee on Legal and Constitutional Affairs, to which was referred 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, met this day at 10:30 a.m. to consider this bill.
Senator Serge Joyal (Chair) in the chair.
The Chair: Honourable senators, welcome to this hearing, in which we will continue to hear the testimony of experts invited by the Standing Senate Committee on Legal and Constitutional Affairs, in the context of its study of Bill C-75, an act which amends the Criminal Code—
— Youth Criminal Justice Act and other related Acts.
We are privileged this morning to welcome from The Evangelical Fellowship of Canada, Julia Beazley, Director, and from Indigenous Bar Association, Katherine Hensel, Barrister and Solicitor. It is a pleasure to see you at our table this morning, Ms. Beazley.
It is a pleasure and an honour to have both of you at our table this morning to present your views in relation to Bill C-75.
Via video conference, we welcome Mr. Ghyslain Vallières, from the Service de police de Longueuil, the Longueuil police department. Mr. Vallières is a Prevention Police Officer, with the MOBILIS Project; this is a special project conducted by the City of Longueuil to combat human trafficking. He is joined by Ms. Joëlle Safadi, Psychosocial Coordinator, MOBILIS Project. Welcome.
First I would like to invite Ms. Beazley and Ms. Hensel to take the floor. Afterwards we will hear Mr. Vallières.
Julia Beazley, Director, Public Policy, The Evangelical Fellowship of Canada: Good morning and thank you, Mr. Chair and members of the committee, for the opportunity to participate in this study of changes to the Criminal Code.
The Evangelical Fellowship of Canada is the national association of evangelical Christians in Canada. Since 1964, the EFC has provided a national forum for Canada’s four million evangelicals and a constructive voice for biblical principles in life and society.
We are concerned with the hybridization of a number of Criminal Code offences in Bill C-75, offences that for us engage biblical principles that teach respect for human dignity, care for the vulnerable and freedom of religion, principles that are also reflected in Canadian life and society.
Criminal laws give expression to the norms that undergird society. They express and reinforce the basic commitments that bind society together. It is often said that the law is a teacher.
We must carefully consider the implications of changes made to the code. The categorization of a criminal offence tends to indicate the seriousness of the conduct it addresses. Hybridization suggests that an offence can now be considered less of a violation of human dignity, less of a threat to society and social cohesion, and less harmful to the vulnerable among us.
We understand that one of the objectives of hybridizing offences is to reduce delays in the criminal justice system, but our goal should be to deliver justice in a timely way, in a way that’s responsive to the public interest, to the needs of victims and to the community generally.
We submit that to hybridize some of the offences proposed in this bill would send both the wrong message and negatively impact the administration of justice. Serious offences must continue to be treated as such.
We recommend that subsection 176(1), which deals with obstructing or violence to officiating clergy, not be hybridized. Religious officials carrying out their religious duties are representative of the broader community of faith. Offences against religious officials and people who worship are unique in character and motivation. They reverberate throughout the community and touch every member.
We must carefully consider the message sent if obstruction of violence to clergy were hybridized, particularly in a time of increasing incidents and attacks against religious communities and officials. Hate crimes against religion accounted for more than 40 per cent of all hate crimes in Canada in 2017, an increase of 83 per cent over the previous year.
We think of the horrific attack on Muslims at prayer in Quebec City in 2017. This past March there were attacks against Catholic priests who were performing their duties in Montreal and Edmonton. These things point to a trend. Given the seriousness of this trend, we should be strengthening protection, not weakening it, even if the offences have not been used very often to date.
Human trafficking and sexual exploitation constitute a grave violation of human rights. The gravity of these offences must be consistently reflected in our laws and policies.
In Canada, it is mainly Canadian women and girls who are being trafficked into the commercial sex trade. Some 95 per cent of all trafficking charges laid in Canada in the last 12 years were domestic and primarily involved sexual exploitation. Some 95 per cent of victims are female, 72 per cent are under the age of 25, and one in four victims is under 18. We want to significantly reduce this exploitation, to deter and discourage it by all means possible, not open the door to fewer consequences for those who exploit.
We recommend that subsection 279.02(1) on material benefit and subsection 279.03(1) on withholding or destruction of documents that relate to adult victims should not be hybridized.
Exploited adults are often exploited children who have turned 18. Victims who become adults in the eyes of the law can already feel left behind by a system that offers them fewer supports and services and treats the crimes committed against them as less serious.
Further, given the nature of control traffickers exert over victims, one impediment to successful prosecution of trafficking offences is that victims are often afraid to testify. They fear retribution from their trafficker who may do minimum time in prison before being back out on the streets.
We submit that allowing trafficking-related offences to proceed summarily with fewer penalties does not take seriously the very real safety concerns of victims or encourage them to come forward. Nor does it consider the disproportionate impact of the changes on Indigenous and marginalized victims.
Next, subsection 286.2(1) on material benefit from sexual services should not be hybridized. This provision is aimed at and applied to persons who are benefiting from the sale of someone else’s sexual services. Our laws aim to prevent exploitation. By targeting the demand for paid sex that fuels sex trafficking, they are a critical tool in the fight against sexual exploitation.
Lastly, the bill proposed hybridizing section 210 on keeping a common bawdy house. The justice committee went further by repealing the bawdy house provisions and the definition of common bawdy house. We recognize and respect that application of this provision has a complicated and difficult history, particularly as it has affected the LGBTQ community, and that the government wants to remedy the history. However, we suggest that this is not the appropriate remedy.
Our singular interest in this provision is that it can be a tool to address the ownership and operation of facilities like brothels, body rub parlours or holistic centres in which individuals are frequently held, kept and exploited for sexual services. Law enforcement, service providers and certainly survivors confirm that trafficking is rampant in these facilities.
We recommend that this tool not be removed from the Criminal Code but be sharpened significantly to clearly apply to places in which one individual or a few individuals are controlling or managing others in exploitive relationships and benefiting materially from their exploitation.
We have specific recommendations in our written brief that you can refer to once it’s translated.
The Chair: Thank you very much, Ms. Beazley, for your contribution. Your brief was circulated before the meeting this morning.
Welcome again, Ms. Hensel.
The floor is yours.
Katherine Hensel, Barrister and Solicitor, Indigenous Bar Association: Good morning and thank you, everyone, for inviting the Indigenous Bar Association and me on its behalf to appear before this committee.
It will come as no surprise to members of the committee that from the perspective of the Indigenous Bar Association it has been a very difficult 18 months or Indigenous people in terms of our relationship with Canadian criminal justice.
The Indigenous Bar Association is comprised of legal scholars, advocates and law students across the country. We note that Indigenous lawyers play a unique role within the justice system and as observers of the justice system. We engage with a fundamentally colonial system instead of rituals and protocols. We do so voluntarily, unlike most Indigenous peoples in Canadian courtrooms.
Many of us consider ourselves bound and accountable to our own people’s laws and to their well-being, but we are also, again voluntarily, officers of the court and bound to uphold the integrity and values of the Canadian system and Canadian laws. We can and do attempt to hold that system to its own standards of fairness and acuity. We try to ensure that it functions to deliver justice and to protect Indigenous people whether as victims, complainants, accused, offenders or witnesses.
Again, we note that the last year has been very difficult for Indigenous people in terms of our ability to maintain confidence in Canada’s criminal justice system. In particular, we note that the police investigations, legal processes and verdicts in the Gerald Stanley and Raymond Cormier trials reveal to us that the criminal justice system, as it currently functions, utterly fails to serve the interests of Indigenous people in Canada, including whether it protects our personal life, liberty and security of person, and whether it deters or renders offenders accountable when we are the victims of violence up to and including lethal violence.
At the same time, it will come as no surprise to this committee that from the IBA’s perspective, and it’s not controversial, Indigenous people continue to languish in at times cruel and inhuman conditions when we are accused or convicted of offences. Our people populate the prison and solitary confinement cells in this country at exponentially higher rates than non-Indigenous Canadians.
Indigenous lawyers observe these phenomena and, despite our best efforts, cannot help but conclude that we serve at times a system that is fundamentally at odds with the well-being and protection of our people and our children.
We note that Bill C-75 seeks to address in a somewhat piecemeal fashion several components of the criminal justice system where discrimination and otherwise inequitable functions and consequences render Canadian courts unfair and unsafe for Indigenous people.
The IBA supports those measures while noting they are necessary but insufficient conditions for the remediation of Canadian justice. In particular, we note and support the amendments with respect to bail, to the abolishment of peremptory challenges and other systemic remedies within the jury selection system, and to human trafficking.
I note you will be hearing from Jonathan Rudin from Aboriginal Legal Services. We endorse and adopt his submissions with respect to the amendments as well as the comments of Commissioner Buller yesterday.
The Chair: Thank you very much, Ms. Hensel.
So, on behalf of the Service de police de Longueuil, we will now hear Mr. Ghyslain Vallières, who works with the MOBILIS Project.
I expect that you will have the opportunity to present the project to us. As I said, Mr. Vallières is joined by Ms. Joëlle Safadi, who is the psychologist responsible for coordinating the project.
Mr. Vallières, we’re ready to hear your presentation.
Ghyslain Vallières, Prevention Police Officer, MOBILIS Project, Service de police de Longueuil: Thank you very much. On behalf of the chief of the Service de police de l’agglomération de Longueuil, Mr. Fady Dagher, we thank you for having given us this opportunity to speak today. We will focus more particularly on clause 386 of Bill C-75.
Since 2007, the Service de police de Longueuil has proactively fought sexual exploitation and human trafficking on its territory. The project was created in 2008 and has gone on till today. We are now in the third phase. The first phase was to identify the minor girls or young women who were the alleged victims of sexual exploitation, and to bring before the courts the pimps who abused and exploited them. During the second phase, from 2011 to 2014, we reviewed all of our primary and secondary school prevention programs. The third phase allowed us, quite recently, to obtain financial assistance from the federal government. Now, in the wake of the Bedford ruling, we are fighting the victimization of young women.
My colleague, Ms. Safadi, is an expert, a psychosocial practitioner and the coordinator of the project. She can speak to you in more detail about the victims. For my part, I will focus on the police aspect of the investigations.
Since 2007, with our partners, we determined that 300 to 400 women were likely being sexually exploited on our territory. That is a very conservative figure, and we want to emphasize that point. Over the past nine months, we managed to identify approximately 120 young women and minors who are being exploited or at risk of exploitation, and about 40 pimps who are suspected of criminal activity on the territory, exploiting and abusing those victims.
It’s important to us to give you the statistics we obtained through research going back to 2016. With regard to the victims whom we met between 2007 and 2016, our criminal intelligence analysis bureau clearly identified the two main reasons that prevent victims from wanting to undertake a judicial process to accuse their pimp and others who may have abused them: first, a lack of trust in the entire justice system, in police officers, social services and the judicial system as such. Secondly, there is sometimes too long a delay between the moment when they want to submit a complaint and the moment when investigators are available to meet with them. The perception of the victims is that they are left on their own to deal with things.
The issue with that delay, for the investigators, is that they have to prepare all of the evidence. With respect to this provision, and particularly as regards human trafficking and sexual exploitation, the justice system is largely weighted in favour of those who make a living from these crimes. We have to engage in a long surveillance process that can go on for months, if not years. Everything mostly depends on the testimony of a fragile victim who must go through a reconstruction process. My colleague will address that point more closely.
I have been on the MOBILIS project since 2007. I designed the second and third phases of the project. Unfortunately, we realized we don’t have a provision that is strong enough to help the victims develop more trust in our department and our police organizations. We work with people from Edmonton, Halifax, the RCMP, as well as with the provincial police forces, that of Ontario, notably. I can confirm that this opinion is shared by all of the police forces in Canada.
On the Statistics Canada portal, there are some very important statistics for June 2018.
The most important statistic is that 60 per cent of the charges laid in court ended in a stay of proceedings or a withdrawal of charges. At that time, in 2016, thanks to researchers such as Mr. Farrell and others, since the most serious offence in a case corresponds to the most serious decision, it was determined that these results could be due to the challenges involved in obtaining the evidence to prove the guilt of the alleged perpetrator, and in obtaining a guilty verdict in human trafficking cases. Because it is so difficult to prosecute offenders on human trafficking charges, prosecutors often choose to lay charges for related or lesser offences. Various authors are often quoted, such as Leary, McCrae, Kaye, Hastie, and again, Farrell. This is directly in keeping with our conclusion regarding the south shore of Montreal, which is that there is a failure in this regard. That is why we believe that the two provisions in clause 386 regarding the reversal of the burden of proof, which is mainly the responsibility of the accused, and concurrent sentences, are major and vital elements. If we want to eliminate the cancer of sexual exploitation, which has been even more concerning over the past five years as it now affects a new cohort of victims, that is to say young, adventurous women that come from families like mine or yours, financially comfortable and stable families... these young women nevertheless fall into the trap of sexual exploitation, and we have to have all of the necessary tools to protect them. Consequently, the SPAL — Service de police de Longueuil — subscribes to the principles in clause 386 and wishes to see it implemented as quickly as possible, so that we can be equipped to deal with sexual exploitation, which creates thousands of victims, both minor and of age, in Canada every year. Thank you.
The Chair: Thank you, Mr. Vallières. Ms. Safadi, can you quickly summarize your presentation, which is complementary to Mr. Vallières’, since we have limited time, and the questions that the honourable senators will put to you will allow you to complete your presentation. Could you summarize the gist of your message in a few minutes?
Joëlle Safadi, Psychosocial Coordinator, MOBILIS Project, Service de police de Longueuil: To support my colleagues’ presentation, I would say that it is imperative that the burden of proof really be placed on the pimps and the other important people in the war against sexual exploitation, that is to say the clients, who generate the networks of pimps, who, for their part, sacrifice and break human lives, those of the victims. Still today, the burden of proof lies on the shoulders of those victims, who are enormously mistrustful of the legal system, including police officers, and who are reluctant to press charges, because they do not feel supported in their distress and the psychological and physical injuries they have suffered; most of all because they feel trapped in a process where they have to testify again, when a few minutes later the criminals will testify in their turn and will continue to harass them all through the complaint process — they will either harass them personally, or threaten their family or peers. The burden should not lie on their shoulders, as this then causes them to be “revictimized”. They are made even more fragile, they are destabilized, whereas socially speaking, what is desirable is that all professional groups involved be in a position to support them so that they can recover, rebuild themselves and repossess their essential selves. That is what I had to say.
The Chair: Thank you very much, Ms. Safadi. I will invite the deputy chair of the committee, Senator Boisvenu, to open the discussion.
Senator Boisvenu: I want to welcome our guests this morning, in particular the Service de police de Longueuil, whom I congratulate. I have been following your project for close to ten years now. Since I live in the Montérégie, I quite understand the efforts you have made to get the immoral pimps out of circulation. I met with a group from the Maison des Jeunes who told me that there were more than a hundred girls of 12, 13 and 14 who were being preyed on by pimps, which I find beyond abominable. In 2015, we adopted Bill C-452, which placed the burden of proof on the pimps, who had to prove that they were not living from the avails of that industry. We introduced the notion of actionable offences, but since 2015 that bill has been on the government’s back burner, even though some other versions have come forward since. What is even worse is that with that bill, consecutive sentences were to be adopted by decree later. If that has not happened since 2015, how can we expect it to happen immediately after the passage of this bill? Legally speaking, do the legal tools you have in hand at present give the advantage to the sex industry and the young pimps? At present, what are the gaps in the Criminal Code that mean that you cannot arrest those young people?
On the Island of Montreal, there are 600 active pimps, and 2,000 women, of which 40 per cent are girls subjected to prostitution. I find it abominable that four years have gone by and Bill C-452 has not been implemented.
Mr. Vallières: If we are talking about the number of victims we have officially identified on our territories of Laval, Longueuil and Montreal, or greater Montreal — which is the sexual exploitation base in Quebec — the figures we have, which are conservative — 300 to 400 victims on the south shore, for instance — are out of proportion with the number of pimps that wind up behind bars at the end of an investigation. The investigations are very difficult to conduct, they are costly, and clause 386 would allow for a reversal of the burden of proof, which does perturb an important principle of the Canadian justice system, the notion of being innocent until proven guilty. However, we don’t want to bring to justice individuals whom we simply suspect are sexual exploiters. To answer your question about gaps in the Criminal Code, I would say that it is so difficult to establish proof of what goes on behind closed doors that it is too difficult for us. Everything winds up depending on the testimony of the victims. But those victims are scared; they are still living under the yoke of the pimps, even after they have been arrested. We need concrete, solid evidence, but some of the evidentiary elements also have to be in the pimp’s court. “How could you have lived for a year in an apartment where there are known victims of sexual exploitation and say that you were not involved, when you most surely heard noises, sounds, or saw certain things?” They hide behind silence and wait for us to present our evidence, which is very difficult for us to present. That burden of proof has to be reversed.
Ms. Safadi: Senator Boisvenu, your concerns are dead on, and they are also ours, quite significantly so. The pimps are very much aware of the low probability of conviction, and they are even more aware of all of the profit they can generate on the backs of the victims, since it is hard to gather evidence against them. They are very aware of the low risks they are running with their criminal acts, to the detriment of these human lives.
Mr. Vallières: Please be assured that police officers, investigators and specialized surveillance teams have all of the expertise, means and the capability required to carry out this type of exercise. The problem arises when we must submit the evidence to the prosecutor. It is too difficult to get past the “beyond a reasonable doubt” concept. On the basis of proven facts, we would be able to convince the judges that we have enough evidence to lay charges against the offenders who engage in human trafficking. But then we run into trouble and cannot achieve our ultimate goal.
Senator Dupuis: My question is for Mr. Hensel, Mr. Vallières and Ms. Safadi.
What struck me in both your statements, Mr. Hensel, is that you pointed out the fact that we are dealing with piecemeal changes to the Criminal Code, but they are not enough, because they do not take into account the particular discrimination indigenous people face in the justice system. In other words, there is systemic discrimination that is not being taken into account.
Mr. Vallières and Ms. Safadi, you say that according to your experience, the victims will not denounce their abusers because they lack trust in the justice system as a whole. It seems to me that there is a very good reason for that, since in 60 per cent of cases, charges are withdrawn, or proceedings are stayed. In other words, why should a victim trust a system where in 6 cases out of 10, nothing will ensue? The person will be abandoned to her own devices and left to deal with the problem alone.
I was struck by something else, and my question is for you, Ms. Safadi. You said that we need the support of all professional bodies involved. In other words, all of the system, which is not only the police, Crown prosecutors and the courts. I’m talking about systemic discrimination because there are aspects that are not taken into account to oblige all of the professionals, from the moment when people are victims of human trafficking, to support the victims until the end of the process and even beyond that. That is what I mean by systemic discrimination.
Is it your opinion that although it improves certain things, the wording of Bill C-75 does not recognize that human trafficking includes the trafficking of women and girls — you told us about the youngest ones — which now also includes girls from wealthy backgrounds? Do you see a problem with the fact that the current wording is neutral, as though there were no discrimination issues against women or against indigenous people in the current system?
Ms. Hensel: It’s clear that some of the amendments contemplated in the bill are intended to address actual and real circumstances predominantly faced by Indigenous women and men.
I agree with the senator’s observation that there’s no positive language even in some of the backgrounders put out by Parliament that promote the remedial nature of several of the provisions with respect to Indigenous peoples.
As well, a lot more could be done within the bill, as Aboriginal Legal Services will be noting and as Professor Kent Roach has noted it in the past. You will have heard from Commissioner Buller that it could more proactively and constructively embrace the specific circumstances of Indigenous people.
What is expressed in the bill will function if individual actors exercise discretion. Discretion is built into every component, from police investigation through to judicial functioning and all the professionals who interact with agents in the system at every step, in the meantime. Changing that is a societal and intergenerational project.
More positive language within this bill, and every bill that seeks to address the circumstances of Indigenous people, would be helpful in promoting societal change as leadership on the part of the legislature and Parliament. However, at this point it’s important that the amendments be enacted because the harm is ongoing. It’s acute and it has to be fixed sooner rather than later.
While I urge the committee to turn its mind to positive, proactive language, potentially in the source of the bill and going forward, changing the perspective and approach of all elements of Canadian society, its leadership, its legislators and its judiciary is a much larger task.
The Chair: It could certainly be an observation that we would want to append to our reflection in relation to this bill. As you said, at each step of the process it has to be reflective of the Indigenous reality in a language that shows there is sensitivity to the issue we want to address systematically, if I can express it that way.
Your question was also to Mr. Vallières.
Mr. Vallières, Senator Dupuis was looking for some details in response to the question she asked.
Mr. Vallières: I’m going to be brief because I want to leave some time for my colleague. You referred to the fact that 6 out of 10 women see that the charges are withdrawn. If I may, senator, you have to understand that those are only the cases that made it to the judge, that made it to court. You can’t imagine the number of cases that don’t even get as far as the office of the Crown prosecutor, because the police officers know in advance that they will not be able to convince the prosecutor, who in turn will not be able to convince the court, which sees a lot of taxpayers’ money being spent on a case that will ultimately probably not be heard.
What we are saying is that the offences are there. There are thousands of victims in Quebec alone. We have the staff, the potential and the capability. The only thing missing for us at present is the strength of a provision like clause 386 in Bill C-75, which reverses the burden of proof. Let’s stop generating ever more badly injured victims of sexual exploitation and let’s protect them. Let’s protect all of our neighbourhoods, because over the past five years, we have seen sexual exploitation — we have to tell you — in all of our neighbourhoods, both the disadvantaged ones and the wealthy ones.
Over the past five years, this type of crime has been on the increase and we all have to deal with it today. If we wait several more years, I don’t know how bad this scourge will have gotten in secondary schools, public or private. Everyone has the potential to be a victim — all you need is to be a girl or woman. They are being recruited at the age of 12.
Ms. Safadi: Let’s stop making victims. To strengthen our positions and to answer your question, senator, regarding the reversal of the burden of proof, when I was talking about the network of professionals who are there to support victims earlier, what I meant to say is that systemic change must happen quickly. That is desirable.
Before victims are saddled with the burden of proof, while they feel constantly threatened and psychologically and physically distressed, professionals on the ground must be allowed to help them, both in terms of physical or psychological health and in terms of substance addiction, safe housing and support. They may need to be given some space to reclaim their own identity with the help of those professionals. Let’s give them a break with the burden of proof, which rests solely on their shoulders right now for the sake of procedures that will not go all the way to indicting those criminals who are destroying their lives.
The Chair: Thank you. Obviously, I am always looking at the clock. We have other panels of witnesses, honourable senators. I would ask for your usual collaboration, so that we can continue.
Senator McIntyre: Thank you for your presentations. I have two questions for the Service de police de Longueuil.
We heard from representatives of the Canadian Association of Chiefs of Police last week. They told us they were extremely worried about the reclassification of offences.
They said this reclassification will greatly affect their collection of DNA samples in the National DNA Data Bank, as an offender who has been charged may be ordered to provide a DNA sample, while that will no longer be the case if the Crown decides to proceed summarily, since those offences will no longer be eligible for DNA collection.
They also said that, out of the 118 reclassified offences, 74 will be affected. Where do you stand on this?
Mr. Vallières: That is indeed a challenge that will make us lose a lot of ground in terms of our capacity to proceed effectively. Using DNA, we can not only identify an individual, but also classify them in a register that would enable us to connect that individual to other victims in the future, whether they preceded their arrest or were identified after their indictment. We would lose a lot of ground, but it is important to understand that not only the police is concerned, but also all Canadian citizens and their safety. This affects everyone around you, Senator McIntyre. As a father of three young girls, I am worried that this may jeopardize their safety. Others have surely provided more details than me. Police chiefs from across Canada have told you this, and I can say that, on the ground, this is a concern, and it has been a steady topic of conversation over the past few months. We are very concerned about this change coming to pass.
Senator McIntyre: My second question is about human trafficking and the reclassification of provisions relating to material benefits and the destruction of documents, subsections 297.02(1) and 279.03(1).
We know that people who are engaged in human trafficking get their hands on important documents, including the passport, which they keep with them.
I would like to know what you think about the reclassification of those two specific provisions, but also about the major risk that, owing to that reclassification, an increasing number of organized crime members will end up in provincial prisons rather than in federal penitentiaries.
Mr. Vallières: I admit that this is a very specific area in which I have no expertise. That’s unfortunate because, had I known about the question beforehand, I would have certainly been able to answer you. What we are seeing has to do with erotic massage parlours. We have noted very significant migration over the past 10 years. The face of those massage parlours is strongly represented by Asian women. Many of those women do not have papers. We cannot know how they entered the country. Following the Haiti crises in the 2000s, we had a strong proportion of young minor girls without papers, and it was difficult to find those documents.
In the few cases where we were able to complete our investigation, the pimps were the ones holding that sword of Damocles over the head of those individuals, who are newcomers. Pimps use their papers to force them to sell themselves sexually and to exploit them. That is what is referred to as a debt of death, where they continue to ask for money for housing, food and drug consumption, and they constantly threaten to burn their papers and turn them in. That creates an additional challenge for our police officers in convincing those victims to trust them, despite the fact that they have no papers. I know that does not specifically answer your question, and I apologize again, but passports are a very important issue and a key manipulation tool for newcomers.
In Ontario, we see a lot of Scandinavian women who entered Canada and are still without papers when they are caught. However, they must have entered the country with papers. Where are they? They are in pimps’ hands.
Senator Pratte: My question is for Ms. Beazley and Ms. Hensel.
I am trying to weigh the impact on sentences of both hybridization and the fact that the maximum sentence for summary offences will go from six months to two years minus a day.
Ms. Beazley, you seem to believe that hybridization will lead to lighter sentences, or at least that is the message that will be sent to Canadians.
Ms. Hensel, you mentioned Mr. Rudin’s testimony this afternoon, and he seems to believe that crowns will insist on those higher penalties, that judges will impose those higher penalties, and that one of the justifications for the higher penalties will be that it reflects the will of Parliament.
I see two different views as to the impact of both of these parallel changes. Would you elaborate on your views, please?
Ms. Beazley: One thing that strikes me about this legislation is that it is doing so much with so many significant changes that have significant implications for different groups of people when it comes to different offences.
It can cut both ways. There are some offences for which it is entirely inappropriate to hybridize because of all the reasons you’ve heard from law enforcement that deals with these offences every day. There are others that may be disproportionately affecting other groups where we need to look at whether it’s appropriate to hybridize them and whether that maximum sentence or increased penalty is appropriate because of representation and all these other questions.
What concerns me so much is that 118 offences are hybridized wholesale. They’re doing the same thing to all of them. We need to take a little more time to look carefully at each offence, what the implications might be, and decide what is the best way to move forward.
In our view law enforcement can confirm the worry when it comes to trafficking offences, but my sense is that the burden of proof is difficult. To get those charges and to proceed with those convictions is already challenging. The default in a lot of cases will be to proceed summarily, which is not what we want. We want to discourage this behaviour. We want to take away the profitability.
Somebody was talking about putting into force the provisions of Bill C-452. We want to hit them on their bottom line. The other provision is being able to seize the proceeds of crime and take away how lucrative this profession is.
I know there’s no time, but it feels like there needs to be time to look carefully at all of these different offences and what the implications are.
Ms. Hensel: I agree with Ms. Beazley. Again, it does cut both ways. Indigenous girls and women are, as you know, grossly disproportionately impacted by human trafficking, with potentially a lesser impact on Indigenous accused with respect to the hybridization of the particular offence.
Across the board for Indigenous offenders, despite all measures, Criminal Code provisions, numerous missions of inquiries and Supreme Court of Canada decisions, we see the sentences imposed on Indigenous offenders when they are found guilty or when they plead guilty tend to go toward the maximum.
In any field, insofar as there’s any parliamentary push or opening to move toward two years less a day, that will disproportionately affect Indigenous offenders. We know that despite all efforts.
It behooves Parliament at some point to go through and parse all of these offences with respect to disproportionate impacts. Otherwise, the provisions may be susceptible to challenge on the bases that other maximum sentences or other sentencing initiatives have been challenged successfully in many cases.
Many elements of this bill, as you have heard and you will hear, cuts both ways, including with respect to domestic violence and trafficking, for Indigenous people. For anything that pushes sentences higher or may have that effect, this committee and Parliament needs listen carefully to those who are flagging those offences and provisions.
The Chair: Ms. Hensel, would you suggest that in fact amendments to the Criminal Code, as vast and numerous as the ones we have, should have been submitted for an Indigenous impact analysis and made public, so that we know exactly what we’re going to be reaching as a result?
Ms. Hensel: Yes, particularly where the Criminal Code has such a disproportionate and deleterious effect on Indigenous people. We know that, yes.
Senator Pratte: Very briefly, I would ask you to comment on the reasoning of the government. They say that these changes will have no effect on sentences and will only give discretion to the prosecutors to proceed in a summary way if they believe it’s a minor example of a serious crime.
Ms. Hensel: Where that were true, I refer to my earlier comments about discrimination that occurs wherever discretion is embedded in the system and wherever institutionally and structurally the code and Parliament rely on individual actors to exercise their discretion in a fair and non-discriminatory manner.
Ms. Beazley: I would add, as Ms. Hensel said, that we know Indigenous women and girls are vastly overrepresented in the commercial sex trade, particularly when we’re talking about trafficking.
There was a Senate study on Indigenous women as victims who found, when Indigenous women were victims of violent crime, that their offenders tended to serve lesser sentences. This will have a disproportionate effect we’re talking about if we reduce the sentencing.
As I said, and I will keep saying it, we want to do everything we can to deter and to discourage others from exploiting people. It sounds silly to say. It sends the wrong message, but the law is a teacher and the Criminal Code has a role to play in educating us about what is and is not acceptable in society. There are certain offences where we need to be careful about we’re saying if we say this can now be treated as a lesser offence.
Senator Dalphond: What I learned from the testimony of the folks from the Service de police de Longueuil is that the hybrid offences proposed in the bill would not have an impact on the number of complaints or investigations. However, my understanding is that you think the most important thing is the reverse onus for exploitation and trafficking in persons offences. That is better than telling offenders that they are facing life imprisonment or even the noose.
The reality is that convictions are not the end of the process. Very few people enter the process. Very few cases go to court and, of those that do, very few result in convictions. The message that can be sent to society is not to tell criminals that they are facing 20 years in prison, it is to put on the front page that such and such a criminal is in prison. Even if it is only for 10 years, there’s a strong message. All other cases do not send a message, because they disappear into the system. They never make it to the end.
If I understand you correctly, clause 386, by implementing the reverse onus is really the best solution to the problem, not telling the person that they will face prison for 20 years for the offence.
Mr. Vallières: Yes, because if you take all the charges that have led to a conviction in Canada over the past seven or eight years, you will find that this figure is the same as the number of victims we have identified on the south shore alone. If I may give you an analogy, it would be to say that, we do not actually have a problem of sexual exploitation in Canada, since we only have a few hundred accused per year who are convicted. In fact, in greater Montreal alone, we are able to identify thousands of pimps living off the exploitation of women.
To this day, in 2019, and I have not been here for 20 years, I can see that we are in the same place, that is, we are not able to convict those criminals. I am talking to you as an individual. If you’re asking me if it’s the number of years spent behind bars that’s most important right now rather than reversing the onus, I think reversing the burden of proof becomes paramount, because at least we can identify the individual as a convicted criminal. A subsequent sentence, if the offender commits an act after his sentence, will be even higher and conditions will follow, and we will be able to follow him through all stages of the rehabilitation prison system. Let’s not forget that, if he is in the rehabilitation system, we will at least have an opening to encourage him to reflect on his current lifestyle.
Ms. Safadi: In that sense, it provides even more tools to work with them, to prevent them from acting with impunity.
Senator Dalphond: Thank you.
Senator Dyck: Thank you to our witnesses this morning. My questions will be for Ms. Hensel from the Indigenous Bar Association.
First, Senator Joyal was asking about whether there should have been an Indigenous lens applied to this bill. Should that lens have also included the interaction with women so that it would actually look at the special place of significance when you’re an Indigenous woman, which is different from that of an Indigenous man?
Ms. Hensel: Yes, both the global lens with respect to Indigenous peoples and with respect to Indigenous women are both crucial, given the unique and distinct experience of Indigenous women in the criminal justice system as complainants, as victims, as accused and as offenders.
Senator Dyck: That leads me to a supplementary question. Oftentimes people will lump Indigenous women together with other minority women. Would it be your opinion that they are unique, that they are distinct from other minority women?
Ms. Hensel: Absolutely. In terms of our history of colonization and the tragic legacy of residential schools, the discrimination we experience in the criminal justice system is distinct. Demographically, there is no other group of women experiencing the same impact of victimization, violence, criminalization and incarceration. There’s no other group nationally, anyway.
Senator Dyck: You also said that you agreed with the recommendations that Chief Commissioner Buller put on the record, and I want to ask you about family member violence.
Would you say that the bill should be amended to include family member violence in addition to intimate partner violence?
Ms. Hensel: Yes. Given the experience of Indigenous peoples, the legacy of residential schools and the conditions in many of our families and communities, inter-family and intra-family violence is an acute consideration.
Senator Dyck: Commissioner Buller also said that she believed there should be an aggravating factor in sentencing when the victim is an Indigenous woman or a member of the other categories.
Where would you see that aggravating factor going within the Criminal Code?
Ms. Hensel: In many ways it is putting it in the same category as a hate crime and as a manifestation of discrimination. It would serve to accentuate for potential offenders and for Canadian society at large that the bull’s eye we have on our backs and foreheads as daughters, mothers and ourselves, as we walk around in Canadian society, will not be tolerated.
I don’t want to go so far as to say it is open season, but obviously remedial measures are necessary because the perception is that offenders will not be held accountable when they subject us to predation and violence, including lethal violence.
Senator Batters: Ms. Hensel, first of all, I want to clarify something I might have heard incorrectly. Did you have a brief today that you provided to our committee, or was it that maybe I misheard and you were actually relying on Mr. Rudin’s brief?
Ms. Hensel: I provided speaking notes shortly before my appearance today. We’re not relying on but adopting and endorsing Mr. Rudin’s notes.
Senator Batters: The speaker’s notes were what you said.
Ms. Hensel: Yes, with a few other comments at the end.
Senator Batters: I look forward to getting that later. You said your organization supports the bail provisions in Bill C-75, but I am wondering what you think about the requirement of Bill C-75 that the reverse onus of intimate partner violence would need to be just where it’s a repeat offender.
Do you agree with that, or do you think the repeat offender portion should be removed?
Ms. Hensel: We endorse the amendments as drafted. The difficulty with any carceral provisions, anything that will result in the incarceration of Indigenous people, is that it will have a far more intrusive effect and a broader impact than on non-Indigenous people.
While it is crucial that intimate partner violence be prevented, and that’s the point of bail, it’s not addressed because these are still technically innocent people at the bail stage. Bail is about prevention of further violence. To weigh it, at the same time, charging and investigations will literally capture many people who do not or may not belong in jail.
The bill reaches a balance in terms of imposing the reverse onus only with respect to repeat offences. I hear you, senator, with respect to first offences. The next step could be grave and the risks are high. The risks are also high of unnecessary counterproductive and actively harmful incarceration, including Indigenous women in intimate partnerships.
Senator Batters: I want to give the individual from Service de Police de Longueuil a chance to let me know a bit about the consecutive sentencing provision in Bill C-75, particularly dealing with human trafficking.
As I was saying yesterday to one of our witnesses, I don’t think someone who human traffics one person should get a discount when there are five victims involved. Perhaps you could speak a bit about that particular aspect.
Mr. Vallières: Yes, this is one of the major issues we mentioned in the notes that I am sure you have. Consecutive sentencing must be included in the new bill. Three weeks ago, during an operation, we caught a pimp in our nets once again. His sentence was such that, at the end of the legal process, he served only a few months in prison and then came out again. The girls he had exploited were still in youth centres and he was able to get them back.
In our operations, we often find this combination of offences — possession of firearms, drug trafficking and sexual exploitation — for which consecutive sentences would be desirable.
Then, a person would stay behind bars longer. In my opinion, this makes good sense, since the person has abused his victims for years. It is normal that the person should be deprived of his freedom for the acts he has committed. However, that is not currently happening.
While offenders are in prison, and Ms. Safadi can confirm this, parallel services will be provided to assist the victims while they rebuild themselves. In cases like this, we are talking about years of rebuilding. It is not right that young victims cannot have the time they need to rebuild after being destroyed by these individuals, who may regain their freedom, in some cases, after only a few months.
The case that happened three weeks ago was about a young woman who was sold for $2,000, the same price as an animal. When you look at how commonplace this has all become, it is beyond troubling. This must be dealt with as a matter of urgency.
Ms. Safadi: I would like to add a comment to what Mr. Vallières said. It is essential for victims to feel protected, not constantly threatened because so-and-so is now out of prison to destroy human lives once again.
The Chair: Thank you very much.
Senator Lankin: Thank you very much. I appreciate all of your presentations and have lots of questions. I am going to address this one to Ms. Hensel and to our two guests from the police service, whoever wants to respond.
Ms. Hensel, on the issue of reverse onus on issues of intimate violence, I understand the point you have raised. I note that the brief of Mr. Rudin from the Aboriginal Legal Services, or ALS, actually takes a position opposite to yours. There is a balance, and I think the different opinions strike that balance.
It leads me to the initiative I have been pursuing around the phenomenon of dual charging that happens in cases of primary aggressors counter alleging violence and the direction taken by policy in many police forces. Many of us thought at first that it was positive to always lay charges, but it has led to an increase. Although Justice has informed us that the first report on this trend was with respect to Aboriginal women at least 15 years old, it has extended to other groups though, as you say, most particularly Aboriginal women.
Do you have a comment on that trend? I am considering asking colleagues to consider an observation that would call for an impact assessment or impact analysis of the changes in policy.
To our colleagues who have joined us from the Montreal area, I would appreciate any advice you can give us on this issue. I have been told that the dual charging phenomenon is not really an issue in Quebec, whereas I can certainly tell you that we are hearing from large urban centres in other parts of Canada and from remote communities that it is growing. There is considerably less access to a whole range of services whether policing or legal support, et cetera. It has certainly always been known for Aboriginal women, but for women of colour and newcomer women, it is now a growing phenomenon.
Could you comment on it?
Ms. Hensel: I agree that an observation would be warranted under the circumstances. We certainly see on the ground, in our communities and in some places dual charging having a disproportionate impact on Indigenous women.
For the lion’s share of cases involving intimate partner violence, I would add that for many, but not all, there are more effective measures than incarceration to intervene and prevent further harm and to create long-lasting change within relationships, within families, within communities and within society.
From my review of submissions to previous committees on the same bill, I see that there are references to intimate partners, the Indigenous-specific PAR program for Indigenous men, and other culturally grounded and specific measures that will actually address the underlying causes as opposed to incarceration, a short-term fix that is virtually always temporary. As opposed to influenced or informed measures, other more effective, culturally grounded, rehabilitative measures for all families affected and consumed by violence would be more effective than mere incarceration, which is obviously necessary in many cases in the short term.
The Chair: Thank you, Ms. Hensel. Mr. Vallières, can you conclude, please? Our next panel of witnesses has now arrived.
Mr. Vallières: Senator, what we have seen over the past 10 years is that the support of our partners in the community is clear, not only for women but also for the men who are struggling with this problem. This cuts down the number of charges.
The problem of dual charging does not really happen in our territory, thanks to the availability of a large number of services. I agree with Ms. Hensel that, in the end, we must be aware that, when we enter these people’s homes, they have their own values, and we must adapt professionally. No one is above the law, of course. On the other hand, actions are caused by something and we always have to work in advance, to prevent problems.
For newcomers, we have a process in place whereby we meet with spouses. We explain the legal process and the impacts of job loss, especially on privacy. We also explain to them that it is socially unacceptable to physically attack one’s spouse and that everyone, man and woman alike, is equal and has rights.
We certainly present women with the rights and services available to them. When they enter a workplace, those items are often repeated. This may explain why, in major centres such as Montreal, Longueuil, Laval and Quebec City, we do not have the same problems of dual charging as those you have identified.
The Chair: Thank you very much, Mr. Vallières.
It’s my privilege to thank you very much, Ms. Beazley and Ms. Hensel. You understand the preoccupation of the majority of senators with regard to the plight of Aboriginal women and girls in relation to the Criminal Code.
Mr. Vallières, Ms. Safadi, thank you for contributing to our deliberations this morning. Your comments have been very helpful to us in understanding the bill, and the observations and comments we would like to attach.
Thank you all for your contributions.
Our next panel is now in the room.
Honourable senators, we are continuing 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 certain Acts. We are pleased to welcome first of all, as an individual, Fady Mansour.
Good morning. Mr. Mansour is a criminal lawyer. We also have, appearing as individuals, by video conferencing, Don Stuart, Professor, Faculty of Law, Queen’s University; and David A. Bird, Retired Counsel, Department of Justice Canada; and from the Defence Counsel Association of Ottawa, Michael A. Johnston, Barrister-at-Law.
It is a pleasure to see you again, Mr. Bird. I am happy to realize that there is always a future after a brilliant career with the justice department.
Fady Mansour, Criminal Lawyer, as an individual: Thank you for inviting me to speak today. I am a criminal defence lawyer in private practice in Ottawa. I have also practised in Alberta and the Northwest Territories. I will concentrate my comments on the amendments to preliminary inquiries.
The goals of the bill are ones that everyone can agree with. They are to further the interests of justice and to assist in the orderly and efficient administration of criminal justice. Rather than further these goals, the elimination of preliminary inquiries will do the opposite. It will cause further delays and more matters will be subject to stays of proceedings due to section 11(b) applications. Trials will have to be fragmented and the process will be harder, not easier, on witnesses and complainants.
I’ll start with that point. Preliminary inquiries generally are shorter and less intrusive than trials. The reason is that the issues at preliminary inquiries are much shorter compared to those at trial. In addition, the prosecution has the ability to put in much of their case by section 540 of the Criminal Code that allows them to put in the case by way of paper format, rather than requiring the witness or complainant to testify in chief.
In essence, not only are the issues themselves narrower, but when the witnesses testify generally the option is available that they only be cross-examined and don’t have to testify in chief.
After the preliminary inquiries, often both sides have had the opportunity to see the most vital issues examined and usually a resolution arises. If not of the entire case, at the very least we can come to an agreement on some of the issues of trial, or some of the charges are dropped or plead to. By eliminating preliminary inquiries, you eliminate all of those advantages.
With respect to fragmented trials, a particular problem is that once a preliminary inquiry occurs one of the functions is that we discover the need for pretrial motions with respect to third party records applications, section 276 applications and section 278 applications.
What happens post-preliminary inquiry is that the application is scheduled prior to the trial. The pretrial motion is heard and the trial can commence in one block. If all we have is the trial, what will invariably happen is that witnesses will say things which give rise to the need for these applications.
The trial will be adjourned. We will have to get the complainant to the witness counsel and get new dates with counsel seized as well as a certain trial judge seized. Everything becomes delayed, sometimes for a year or more, for pretrial applications to be heard. The accused wants a speedy trial, and the complainant doesn’t want their evidence broken up for a year or a year and a half and have to come back again.
Another issue is that this will likely cause serious delays in the provincial courts. When we elect to have a preliminary inquiry, the matter proceeds in Superior Court. If those are eliminated, I suspect most elections by the accused will be to remain at provincial court. The reason is that provincial courts are specialized courts. The judge hearing the matter only hears criminal cases. You don’t have to bring forward something called trite law or law that is well established because your judge has heard that same case a hundred times. Also, you can usually get a quicker trial date.
The effect is that we are to shift all of those cases back into the provincial court, a court that can’t handle that many lengthy trials. They are usually the ones that will have a prelim anyway, which will take something more than a day or two. Usually it will take one week, two weeks or three weeks.
Very recently that worry was stated by Justice Boxall in a decision he released on March 19, 2019. That was an 11(b) decision where the accused was asking that his charges be stayed because it took too long to get to trial. In that decision, in paragraph 186, he stated:
I note that the elimination of preliminary hearings in sexual assault cases will likely result in even more of these cases being tried in provincial court going forward.
That really sums up my previous two points. First, you will have a specialized court which is where most accused will elect. Second, if this happens, you will have the pretrial motions adjourning that provincial court trial halfway through. The remainder of those dates are now lost because no one else was scheduled to proceed on those days. You have to adjourn for another year or a year and a half before the trial continues, and you have serious issues with section 11(b) concerns for the accused and for the complainant.
This is one of the most significant changes to our criminal justice system. Although the goals were lofty, my concern is that the consequences have not been well thought out. This will have ripple effects. My colleagues and I agree that very likely the goals will not be met, but you will exacerbate the problems you are trying to fix.
Michael A. Johnston, Barrister-at-Law, Defence Counsel Association of Ottawa: The history of liberty has largely been a history of observing procedural safeguards. Pre-emptory challenges have been a procedural safeguard for the accused since at least 1305. The use of rotating triers to determine the truth of a challenge significantly predates Confederation.
Both of these procedures are important to ensure that the accused has confidence in the independence and impartiality of the petit jury who will determine their fate. Eliminating these safeguards removes the small but important and manifest role the accused has in selecting their jury, but it will also infect their confidence in the fairness of the proceedings.
Trial by jury is an important check or balance on the government. The Law Reform Commission of this country described it as a bulwark against the oppressive machinations of the state. By removing procedures that exist as a check or balance on the actions of the state, you are undermining the very spirit of this institution that has matured over a thousand years. I am not suggesting that trial by jury as it is currently instituted is perfect, but it requires a non-partisan, evidence-based understanding before we presume to simply change it. Our concern is that Bill C-75 seeks to remove these important procedural safeguards without such a study.
I respectfully submit that criminal procedure is too important and too nuanced to be subjected to simply the vicissitudes and partisanship of the political process. We need evidence-based law reform.
The last time important peremptory challenges were studied by the Law Reform Commission, which you will find on page 8 of my brief submitted to the House of Commons, it found the importance of peremptory challenges lie in the appearance of justice being done, giving the accused some small say in determining who the jury will be.
The Supreme Court of Canada, in Regina v. Sherrattin 1991, the same year the Report of the Aboriginal Justice Inquiry of Manitoba was released recommending the elimination of peremptory challenges spoke about at least three benefits, according to the Supreme Court of Canada, to the peremptory challenge.
I want to pause to say that there is the potential for discriminatory use of peremptory challenges. That is one vice, but what about all the virtues? You don’t throw the baby out with the bathwater. Can’t we find some way to preserve the benefits and mitigate the damages? That is exactly why I would respectfully submit that the Honourable Frank Iacobucci, when he studied this matter in 2013 of First Nations representations on Ontario juries, did not recommend their eradication with the greatest of respect. You will see at tab 1 of the book of authorities I submitted what recommendation 15 really says.
Specifically, the Ministry of the Attorney General discussed with the implementation committee the advisability of recommending to the Attorney General of Canada an amendment to the Criminal Code that would prevent the use of peremptory challenges to discriminate against First Nations people serving on juries. He then goes on to reference the U.S. practice which is what is called a Batson challenge.
Importantly, that is not what the Honourable Frank Iacobucci recommended. He does, in fairness, cite the Manitoba inquiry report of 1991, but I want to draw to the Senate Committee’s attention that the report has to be understood contextually. That was written in 1991 when the Crown still had the power to stand by jurors. The Crown had the power to stand by 48 jurors in 1991 and have four peremptory challenges. If you are going back and citing that report as somehow supporting this bill, I am sorry, but that is cutting and pasting in a certain way that isn’t actually appropriate.
Significantly, with the greatest respect to Commissioner Sinclair, as he then was, he appreciated how peremptory challenges informed the challenge for cause procedure. You can’t just take this away and not understand that you are upsetting this other balance. That is why, if you eliminate peremptory challenges, he suggested that you overhaul the challenge for cause procedure such that you would have something more akin to an American-style voir dire where you are questioning each juror. That will obviously increase the amount of time in the selection of juries.
I am not fundamentally opposed to it. However, if you are trying to quote Commissioner Sinclair in 1991 as somehow being supportive of what is happening in Bill C-75, which is taking the peremptory challenges and doing nothing significant or substantive in terms of challenge for cause, I would suggest to you that is problematic.
Importantly, there is a suggestion to change the challenge for cause, but it is not substantive. It is procedural and it is fundamentally problematic because the use of rotating triers to determine the truth of challenge, as I said, is an important procedural protection that ensures that a jury remains independent from the government. One the fundamentals of trial by jury is in ensuring the jury that is ultimately assembled stands independent from the government so that it is an independent fact-finding body.
I slightly deviated and perhaps I am already out of time, but I wanted to draw to the committee’s attention that according to the Supreme Court of Canada there are three benefits to peremptory challenges if an accused does not have enough information to engage a challenge for cause but feels they ought to be excluded.
Here is a real world example. When I pick a jury, I stand there with my client and the client is required to look at the person who will potentially try their case, veniremen or, as people refer to them, prospective jurors. Jurors or veniremen look at the accused, and the accused look at the veniremen. A lot of times these people will not even look my client in the face. If, before any evidence has been called, a person won’t even look your client in the face, your client will have a sense that perhaps they won’t get a fair trial from that juror. A peremptory challenge then gives them the opportunity to remove in that circumstance. The Supreme Court has recognized that.
Peremptory challenges can also, in certain circumstances, produce a more representative jury, depending upon the nature of the community and the accused. The Supreme Court has said that is a fact. Senator Sinclair, on May 1 in discussing this matter, perhaps found that was not necessarily something that occurs, but the Supreme Court says as much in 1991. It also says the challenges of this nature heighten the accused’s perception that he has the benefit of a fairly selected tribunal.
These are pretty important things that protect people’s procedural rights. I would also add the fact that peremptory challenges are safeguards for the challenge for cause procedure itself. This is recognized as far back by authorities as eminent as Blackstone who said:
Because, upon challenges for cause shown, if the reasons assigned prove insufficient to set aside the juror, perhaps the bare questioning his indifference may sometimes provoke resentment, to prevent all ill consequences from which the prisoner is still at liberty, if he pleases, peremptorily to set him aside.
The Chair: I invite you to conclude, Mr. Johnston.
Mr. Johnston: I have submitted a written brief. Since that time I’ve tried to attach 10 different appendices responsive to some of the issues I’ve seen discussed in the Senate and the House of Commons. I would hope very much to be able to discuss any or all of those things, and I am honoured to be here.
Don Stuart, Professor, Faculty of Law, Queen’s University, as an individual: I wish, on behalf of about 50 law professors, we were here talking about setting up a permanent law reform commission for Canada, or a special commission to radically simplify the Criminal Code to reflect how we design our unique constitutional standards of thought and how that does not often work with all the antiquated provisions in the Criminal Code. That is not what we are here for. The last person who made that pitch was Senator Flynn in the Clark government, and his government didn’t last long enough to get the action going.
By the way, we made a pitch to the Minister of Justice two years ago and we got nowhere. We’re here partly because of the 2017 committee report, Delaying Justice Is Denying Justice. This committee should be proud of itself for influencing the government to produce a government bill to reflect and operationalize the notion that the Supreme Court of Canada said there was a culture of complacency when it gets to delay in the criminal justice system. You were also responsible for wanting to cut back on preliminary inquiries, a and this is reflected in the bill.
Our major position today is quite pragmatic. I am not in agreement with all aspects of the bill. I suspect we all have reason to differ, but there is so much good in the bill that it’s important to actually pass this law before Parliament prorogues and not have all this good work spent in the Department of Justice and the Senate disappear.
I would urge the committee and the senators not to nitpick on different aspects. Some of the problems in the bill will be addressed by independent judges who have to accept a provision that doesn’t work, and there is always the Charter response.
I want to briefly comment on five things. First, downloading 115 indictable offences to make them hybrid is a way of downloading to the provincial court. I really support that. For the reason briefly mentioned by our previous speakers, there’s a special commitment to the criminal justice system in that court. I am familiar with more than 300 provincial court judges in Ontario. They’re very fine jurists. I only wish we had listened to Ian Scott many years ago who said that if we’re interested in justice, we should settle for one specialized criminal court and amalgamate the federal court with the provincial court. He was pilloried by Superior Court judges and certain lawyers and didn’t get anywhere with that. It’s a shame.
Another part I wanted to point to next is that I support the bail provisions. We have known for a very long time that we detain prior to trial many more people than we detain after trial, and there are systemic problems. The provisions in this bill are quite complex and some are perhaps controversial, but they fit into the pattern of Supreme Court cases like Antic, which is to say that even if you’re going to release somebody, you should use the least restrictive ability. Recently the Myers decision said that when you review denial of bail, it should be quick. Those are all consistent with the Supreme Court.
In terms of jury selection, this point is much more controversial. The clear idea is to abolish peremptory challenges because we don’t want the situation where any lawyer, on either one side or the other, manages to stop an Indigenous person from being a member of the jury and never has to justify that position.
The solution in the bill is to go with challenges for cause. I think there are real problems in this particular area because they’ve given all the power now to judges.
This means that everything will be challenged for cause. Challenges for cause at the moment are restricted to race and pretrial publicity, not gender and not representation of jury. This is now all left to the judges to somehow fix. There’s a provision which talks about how judges can stand aside a juror if there are public confidence reasons. That’s far too vague, but I suspect this will result in litigation by judges who are much wiser than I am in terms of how to run a proper jury trial, and it will go through the system and be changed.
My fourth point is one of the advantages of passing Bill C-75 is to reintroduce victim surcharges. There’s a provision in here that would produce a discretionary version. It’s very important for us all to remember that in the Boudreault case the Supreme Court of Canada, through Justice Martin, very powerfully said that mandatory victim surcharges were unconstitutional. Here we have a version that’s discretionary.
In the Boudreault case they say they were aware of this bill. They said that they are not going to pass it at this stage. Whether it meets new constitutional standards, it talks about the need for proportionality. I think that’s a very important provision. After all, victim surcharges are there to provide money for victim services. If we have a fair, discretionary system that doesn’t discriminate against people who are unbelievably poor or otherwise disadvantaged, it’s a good idea, and we should add that.
My last point is about the thing that academics now call zombie laws. Those are the laws that are declared unconstitutional by the courts but are still sitting in the Criminal Code. Recent bills got rid of most of them. However, the one they have not got rid of is murder in sections 229(c) and 230. We are all aware there have been trials in murder cases which had to be reordered for new trial because the presiding judge didn’t know these provisions had been struck out 30 years ago.
There’s a lot of good in this bill, and I hope the Senate moves quickly to get it passed before Parliament takes off for the summer.
David A. Bird, Retired Counsel, Department of Justice Canada, as an individual: When I appeared before this committee on November 2, 2016, I presented the case for taking DNA automatically on conviction now and ultimately to the taking of DNA, along with fingerprints and mugshots, at the time of arrest.
I was pleased that my testimony was used to support a recommendation by the committee in its final report to Parliament on June 20, 2017, to expand the taking of DNA.
Recommendation 24 reads:
The committee recommends that the Minister of Justice introduce legislation to amend the Criminal Code to allow for the immediate and automatic collection of a DNA sample from any adult who has been convicted in Canada of a designated offence as defined in section 487.04 of the Criminal Code.
On November 15, 2017, the government provided your committee with its response to the final report. Unfortunately, the government’s response did not address recommendation 24 or even mention DNA.
As with previous recommendations to Parliament to make legislative changes to expand the use of DNA in June 2009, by the House of Commons Standing Committee on Public Safety and National Security, and in June 2010, by the Senate Standing Committee on Legal and Constitutional Affairs, my fear was that the government would once again decide to do nothing.
What I did not anticipate is that the government would actually propose legislation that would make the National DNA Data Bank less effective at assisting law enforcement to solve crimes.
I am referring to the proposal in Bill C-75 to hybridize over 100 offences that are punishable by 10 years or less on indictment. To understand why this proposal will have a negative effect on the National DNA Data Bank, it is necessary to understand how complicated the system in Canada is.
The DNA Identification Act creates and regulates the National DNA Data Bank. The National DNA Data Bank has two main indices, the Crime Scene Index from DNA profiles derived from designated offence crime scenes and the Convicted Offenders Index, the DNA profiles derived from some persons convicted of designated offences.
The National DNA Data Bank compares Crime Scene Index profiles to Convicted Offender Index profiles, and Crime Scene Index profiles to other Crime Scene Index profiles. First, it can report whether there is no match. The National DNA Data Bank has not assisted the investigation except if the police had their eye on someone whose DNA they knew was in the Convicted Offender Index. That offender is eliminated as a suspect when the crime scene sample does not match their DNA.
Second, in the case of a match to a convicted offender, the identifying information is provided to police who can then focus their investigation. Often a match to the Convicted Offender Index provides vital information to solve a case. On many occasions the case is cold and the police have no other leads.
Third, if there is a possible match, the profiles are compared and the Convicted Offender Index profile cannot be excluded as matching the crime scene DNA due largely to things like mixtures, the DNA was degraded at the crime scene or contaminated.
The effectiveness of the National DNA Data Bank and all similar international DNA data banks depends on the number of profiles in the Convicted Offender Index and the Crime Scene Index profiles being uploaded. Clearly, the more profiles that are in the indices, the more likely it is that there will be a match. It is the Criminal Code that determines who can be required on conviction to provide a sample for analysis and the resulting DNA profile be uploaded to the Convicted Offender Index.
The Criminal Code restricts the courts to making DNA orders only to offenders who have been convicted of the designated offences listed in section 487.04. However, not everyone who commits a designated offence is subject to DNA sampling. The designated offences are divided into four categories.
First, for mandatory primary offences, 40 of the most serious offences of murder, aggravated assault and sexual assault, the court must make the order.
Second is presumptive primary offence. There are 39 serious offences of terrorism, criminal organization offences, hostage taking and break and enter a dwelling. The court must make the order unless the offender convinces the court that the impact on their privacy and security of the person is grossly disproportionate to the public interest in the protection of society and the proper administration of justice.
Third is listed secondary offences. There are 14 hybrid offences, including assault, criminal harassment and uttering threats. The court may make the order on application by the prosecutor, taking into account the offender’s criminal record, the nature and circumstances of the offence, and the impact on the person’s privacy and security.
Fourth, there are generic secondary offences. There are 200 or so offences under the Criminal Code, Controlled Drugs and Substances Act and the Cannabis Act that are punishable by five years or more on indictment. The judge has the same discretion not to make the order for a listed secondary offence, but the Crown must have proceeded by indictment.
The Canadian system appears to me to be the most complex system in the world for taking DNA and comparatively reduces the number of offenders who are sampled. Most countries and individual American states began with a list of most serious offences where taking a DNA sample was mandatory and expanded that list to include all persons convicted of felonies, which are roughly the same as our indictable offences.
The Chair: Perhaps you could come to your conclusion, Mr. Bird, unfortunately.
Mr. Bird: I will try to skip to the point.
The Chair: You can go directly to Bill C-75. We know the sections of the bill that have impact on DNA samples, so it is a zero in on that one.
Mr. Bird: I will try to finish quickly.
The major problem that limits the use of the Convicted Offender Index is that the Crown must proceed by the indictment. The problem will be aggravated by Bill C-75. It is the aim of the bill to encourage prosecutors to proceed summarily, and I have little doubt that in most cases that is how they will proceed. The procedure is simpler and in most cases the Crown will not be seeking a sentence in excess of the new maximum of two years less a day. Every time a prosecutor decides to proceed summarily, he or she will lose the opportunity to apply for a DNA order.
I’ve read the brief the Canadian Association of Chiefs of Police provided to the House of Commons Standing Committee on Justice and Human Rights when it considered Bill C-75. I assume they got their numbers from the National DNA Data Bank. The committee may ask government officials how many of those matches to the 588 offences, including 19 homicides and 24 sexual assaults, would have occurred if the Crown could not have proceeded by summary conviction.
The result of these problems is that the Convicted Offender Index is much smaller per capita than the DNA data banks in other countries. I do not have the latest figures, but I believe the United Kingdom has about 10 per cent of the population in its data bank, the United States has about 5 per cent, and we have about 1 per cent. It’s a numbers game. When a crime scene sample is uploaded, the U.K. is 10 times more likely to have a match and the U.S.A. five times as likely to have a match as the National DNA Data Bank. We’re growing at a snail’s pace.
On June 2, I wrote to the Honourable Ralph Goodale, Minister of Public Safety to bring to his attention the inaction of the government. His response on December 13, 2016, was: that his officials continue to examine the options to enhance the use of DNA analysis to support investigations, while respecting legal and privacy considerations and allowing for consultation with the provinces and territories, law enforcement agencies, stakeholders and the public, in order to maintain the highest standard of safety for Canadians.
The Chair: Could you conclude, Mr. Bird? I am looking at the clock, and I have a list of senators who want to question you.
Mr. Bird: Perhaps I could have two minutes.
The Chair: Unfortunately, you have 30 seconds.
Mr. Bird: I urge this committee to consider tabling a bill to make the taking of DNA samples automatic for all designated offences. The brief I provided you with includes some possible amending wording. I am not a legislative drafter, but parliamentary counsel should be able to produce the appropriate amendment. As a Band-Aid to the damage that hybridization will do to the effectiveness of the National DNA Data Bank, I would suggest this committee at least propose an amendment to Bill C-75 to amend, in section 487.04, the definition of secondary designated offence, subsection (a), to add after the words “prosecuted by indictment” the words “summary or summary procedure.” The more complex amendment would list all the new hybridized offences that affect the definition.
Finally, I would respectfully suggest this committee consider adding a parliamentary three-year review to the requirement to assess the impact of Bill C-75 hybridization of offences on the justice system. The committee may also wish to consider adding any comments it feels appropriate.
The Chair: It’s my pleasure now to invite Senator Boisvenu, the deputy chair of the committee, to ask the first question.
Senator Boisvenu: Thank you very much to our guests. Like you, I am looking at the time. We have about 10 minutes left, so I will have to ask just one question.
Mr. Bird, yes, we are concerned that combining a lot of charges may well result in the sampling rate being significantly reduced for those crimes. Which of the new types of charges would affect security the most if they were dropped? Can you identify some of the charges in the bill where sampling should absolutely be maintained?
Mr. Bird: Unfortunately, senator, I don’t have that list in front of me at this moment.
The Chair: Will you provide it, Mr. Bird? We have days ahead before we start clause-by-clause consideration of the bill. If you could provide it to the committee, we’ll make sure it’s circulated to the members.
Mr. Bird: I will do that.
Senator Boisvenu: I will ask my question differently. Do you agree that there should be an amendment to ensure that the offences that will become hybrid after the bill is passed do not escape DNA sampling?
Mr. Bird: Senator, if we put an amendment together, which includes potentially all summary proceedings that would be captured by the generic offences, that would capture it. Otherwise, they will not be caught if they proceed summarily.
Senator Boisvenu: Thank you.
Senator Dupuis: My question is for Mr. Mansour. A number of witnesses we have heard from have said that the criminal justice system is a cumbersome and difficult process for victims who become Crown witnesses, for example, when a sexual assault case goes to trial. You say that eliminating preliminary inquiries will make the process more difficult for victims and witnesses. What do you mean by that?
Mr. Mansour: Of course. It’s for a few reasons.
Sexual assaults are the types of cases where you are most likely to have pretrial motions because there will be records you need to seek. With the newest amendments to the law, there are even more pretrial motions that the defence has to bring before they can bring that evidence. In addition, now the complainant has standing on many of those pretrial motions.
What will happen is this: You do not have the factual foundation or you’re not aware before trial that you need to bring a pretrial motion. You start only with the trial because you don’t have a preliminary inquiry. You become aware of that factual foundation. The matter is now adjourned in the midst of the complainant’s evidence. She has to go and try to find counsel at the last minute. We now have to find new dates consistent with the schedules of counsel and the judge who is now seized of that matter and with court time to hear the pretrial motion, give an opportunity for a decision on our pretrial motion, and then come back to start the trial again. That becomes extremely cumbersome. It does not eliminate anything. It makes it substantially more complicated and moves it to the future.
When you have a preliminary inquiry, all of those issues can be dealt with and scheduled far ahead of time. In many ways it will be quicker to do it that way than to wait until the trial and then have to break everything up in the midst of it.
On the other side, you will be over the 30-month ceiling that Jordan set for section 11(b) applications, which means many of the accused will ask that their charges be stayed, which is something the complainant will also not want. It is completely out of their hands. These applications are brought, things are delayed, and then a subsequent application is brought to stay the proceedings due to delay.
Senator Dupuis: Mr. Johnston, you mentioned the need for a body. You referred to a law reform commission. If I understand correctly, you are suggesting that some kind of system, set up by the government, should be given the mandate to thoroughly review the criminal justice system and the evidence-based system. I think we have very clear evidence of discrimination against women in the current justice system. You say that any law reform body would be useful at this time, as opposed to the bill before us.
I am not saying that we should reject or accept it, but we cannot conduct a targeted operation on a number of specific provisions without thinking more broadly about why we are making those changes.
Mr. Johnston: I was listening to the translation to ensure I comprehended the question properly.
My fundamental position and as I understand the position of many individuals in the justice system writ large is that we should all benefit from something akin to a law reform commission or non-partisan analysis of criminal justice issues.
Of course, politicians and the political system is a good forum for identifying issues. That’s what should happen. Issues should be identified and then should be taken out of the political stream and assessed by non-partisan individuals.
Look at Ireland, for example. I included in one of my tabs that the Irish Law Reform Commission looked at the question of whether peremptory challenges or, as they termed them, challenges without cause ought to be maintained. They looked at every different jurisdiction or the United Kingdom and the United States. They looked at Canada, Australia and New Zealand. They looked at all these different bodies and had their ideas informed by the evidence. They didn’t have their ideas go and inform what evidence should be found.
I very much think that things should be taken out of the political process, most respectfully, because of the partisan nature of politics. We should be making decisions that are important when it comes to criminal justice issues based on constitutional understandings, not where we might stand, respectfully, in terms of political parties.
Senator Dalphond: My first question is about preliminary inquiries.
Maybe Mr. Mansour can answer it. I am sure you’re aware that the number of preliminary inquiries has been going down drastically for the last 20 years after Stinchcombe. Only about 2 per cent or 3 per cent of the cases have preliminary inquiries, but you’re suggesting in another answer you provided that it is used widely in sexual assault cases.
Are you’re saying that it’s used widely in sexual assault cases?
Mr. Mansour: I don’t have the statistics to be able to tell you what types of cases they’re used in more widely. I can give you anecdotal evidence from my perspective and those of my colleagues in the three places I’ve practised. They are more prevalent in sexual assault cases because of the issue I just raised.
There are things that will not come out in Stinchcombe. When we’re talking about Stinchcombe, we’re talking about the interview the police have with the complainant, but there are invariably many more questions someone has for the complainant that could give rise to new issues, or maybe the complainant goes and talks to someone after they’ve spoken with the police. Now there’s another statement that we don’t have, and it’s only discovered either at the trial or if we had a prelim.
That’s when the value comes out. Either we do it at a preliminary inquiry, which may take one or two days and is very focused, or we wait until we have a seven-day trial that will be adjourned because that issue will arise and it will cause more delay.
Senator Dalphond: After these preliminary inquiries, how many cases were not sent to trial?
Mr. Mansour: Again, it’s difficult because we don’t have the study. I couldn’t answer that for you.
Senator Dalphond: In your experience, would half of the cases not go to trial or would they all go to trial, especially sexual assault cases?
Mr. Mansour: Certainly they will not all go to trial. In my experience, one of two things happen. Either the accused sees that the evidence is credible and there is really no reason to go to trial, pleads guilty and does not put the complainant through another seven days, or the Crown sees that their case is on its last legs, that there’s no reasonable prospect of conviction, speaks to the complainant and withdraws the charges.
Senator Dalphond: That is in theory, but I am asking from your experience. In your experience you say this is useful. Based on your experience, how many cases ended up ending there and not exposing the complainant to two steps of testifying instead of one?
Mr. Mansour: Again, it’s difficult for me to answer that question because that would require me to have kept statistics since I started practising in order to tell you it’s X number. I can tell you that more often than not it will have either narrowed the issues or got rid of the trial entirely.
How many of those issues there were, I don’t know, but I can tell you I have never had a prelim in my experience that has been fruitless where neither the trial could be shortened or got rid of completely.
Senator Dalphond: I have a quick question about jury selection. I understand that in Ontario jury selection is based on prepared lists that are based on property ownership. You say this is a very good system and that it’s based on trust.
Do you think the accused can trust a system based on ownership?
Mr. Johnston: No. My apologies on how that was understood as part of my submissions.
You’re correct that there was a problem in terms of how the provincial government was compiling the jury roll because they were using a property ownership list and obviously not all citizens own property. I believe there’s a proposed shift to something like health care.
That is really the truth of the jury selection issue. Representativeness is really more a function of provincial governments than that of the final selection or effect an accused might have in determining whether 4, 12 or 20 jurors should be rejected peremptorily. If you actually bring in a representative panel, the effect of a couple of peremptory challenges will really be comparatively small.
I would respectfully submit that is the larger issue Bill C-75 is not addressing and cannot address because of the division of constitutional powers.
Senator Dalphond: The bill proposes at clause 633 that the judge would be given wide powers to decide for any reasonable cause to discard the proposed jury.
Mr. Johnston: That’s the problem. Why would the judge in a jury trial have the right to issue a peremptory challenge but now you’re taking that right away from the accused?
Senator Dalphond: It’s not peremptory. Someone will ask the judge to make the ruling.
Mr. Johnston: There is also a move to increase the judge’s power to stand by jurors and for the judge to dismiss jurors as well. It is curious because Bill C-75 is seeking to increase the powers of the judge to select the jury. If you understand the system and the institution, you’re supposed to have a petit jury that is an independent fact-finding body.
Senator Dalphond: Do you prefer to have the first two journalists in the room select the jury? You know how it starts when you don’t have the jury first. We pick two people in the room to make decisions. They know nothing about the case, of course, and they know nothing about the law. Do you trust they are better equipped to do that than the judges?
Mr. Johnston: All they are deciding is whether or not they believe the prospective juror or veniremen, and ultimately you entrust the jury to decide the facts at the end of the case as well.
Senator Dalphond: When instructed.
Mr. Johnston: They are instructed in these capacities. You see at tab 7A of my materials that I provided the challenge for cause instructions that have been easily complied by Justice Watt in what is called the “Watt’s Manual of Criminal Jury Instructions.” It’s a very simple procedure and it’s what is problematic, I would respectfully submit.
When I did some digging, it seems that the reason that they want to change the challenge for cause procedure is simply for judicial expediency. I would ask the Senate to please look at tab 7 where the Ontario Court of Appeal talks about the importance of spreading the authority to decide the challenge for cause in this manner, as section 642 guarantees that a variety of views and perspectives will be brought to bear on the fundamental question of how the jury is to be constituted.
That’s pretty important, I would respectfully submit, and we have trusted jurors to do that for well over 100 years. I don’t know why we are now deciding that they are incapable of such.
Senator Pratte: Mr. Mansour, the Canadian Bar Association mostly agrees with you on preliminary inquiries, but they suggest a compromise, that preliminary inquiries be available only in cases where both parties consent or where the court is satisfied it is in the interests of justice. Then they have a series of criteria that the judge should look at.
Do you agree with such a compromise position?
Mr. Mansour: I certainly agree. My primary position is that if you don’t have the evidence, you shouldn’t make the change until you have the evidence.
To go back to Senator Dalphond’s question as to where are the statistics, I don’t know. Respectfully, neither do you, which is the problem. We don’t have the numbers. Until we have the numbers, don’t change something that is so drastic and so serious in the criminal justice system.
If you are to change it, then at least have a release mechanism which allows both parties, when they agree to do something, to do it. This is one of the few parts of the bill where both the prosecution and defence are opposed to it. Both agree that it is not in the interests of justice to eliminate them completely.
At least that mechanism would allow for a compromise. I agree and I would support it, but my primary position is that we don’t have to go there. Do not eliminate them right now until we have the evidence. If the evidence come out that is what’s best, then we can do that.
Senator McIntyre: First, Mr. Bird, I share your concerns regarding the reclassification of offences, which will have an impact on DNA collection and the identification of offenders, as will the judicial referral hearing.
My question is for Mr. Mansour. It’s actually a follow-up to questions raised by Senators Dalphond and Pratte regarding preliminary inquiries.
Mr. Mansour, in its Jordan decision the Supreme Court of Canada invited Parliament to consider the value of preliminary inquiries in light of expanded disclosure obligations.
In June 2017, this committee tabled a report echoing the Supreme Court of Canada’s invitation and recommending that the Minister of Justice take steps to eliminate preliminary inquiries or limit their use. On top of that, in light of stringent Crown disclosure obligations, the Supreme Court of Canada in the 2009 case R. v. S.J.L. ruled that there was no constitutional right to a preliminary inquiry.
Don’t you think the Supreme Court of Canada has been clear on this issue?
Mr. Mansour: Not at all. I think the Supreme Court of Canada made a suggestion in obiter to consider something, meaning come up with the evidence and then we can have a discussion about whether or not we should get rid of it.
The original purpose of preliminary inquiries was that of disclosure. As I have indicated, it has taken on a different purpose now. It has other usefulness. If we are to eliminate that other usefulness, let’s see what the consequences are. Both the defence and prosecution are pointing that out the consequences, and there is no mechanism to ensure those consequences don’t occur.
If the concern is Jordan, if the concern is this will take too long, the Crown already has the ability to prefer a direct indictment and go straight to trial. We already have a mechanism by which the Crown can choose to move things along and skip a preliminary inquiry.
In the meantime, let’s come up with a study and see what else we can do to replace the consequences.
Senator Batters: Thanks to all of you for being here and for your important contributions.
Mr. Johnston, I wanted to thank you for clarifying Mr. Justice Iacobucci’s recommendation on peremptory challenges and for providing the historical context regarding the previous powers the Crown had to be able to stand aside jurors in 1991 and how different many things about the jury system are than in 1991 in that respect.
You used the example of a juror looking at the accused and the accused looking at the juror and the reaction counsel can observe from that. It is exactly what I have encountered and frequently heard about in Saskatchewan, a province with a high percentage of Indigenous people. In large part, that is the reason I have significant concerns about the change the federal government is purporting to make in this bill for peremptory challenges.
I wanted to give Professor Stuart a little more ability to address this item. Professor Stuart, you indicated that on the issue of peremptory challenges there were real problems in the particular area. You talked about the limited circumstances currently that challenges for cause would be able to provide. Of course, that could lead to court delay if we have lengthy challenges for cause happening in situations where instead we could have been having peremptory challenges. I wanted to give you more opportunity, Professor Stuart, to be able to clarify that.
Mr. Stuart: I certainly agree that in the case of peremptory challenges in the Stanley and Kill cases, very serious concerns were raised that it was in the lawyers’ interests to get rid of anybody who looked or was Indigenous. That’s a very serious concern. It seems a bit odd that somebody could challenge somebody’s right to be on a jury without actually having to justify it to anybody.
I have come to the conclusion that it is probably time to get rid of peremptory challenges. The trouble is that if we go to just challenges for cause, we’re going to lengthen the trials because there is no agreement among judges that preside over trials at the moment as to how this should proceed.
For example, if somebody says, “I am worried about the fact that this jury panel looks exclusively male, and I would like to challenge it on that basis,” at the moment that’s not available. You can only challenge for cause on the bases of race and pretrial publicity.
The courts have shut down challenges for cause based on offences and based on anything else. It is not surprising, either, that there is a great deal of controversy among judges themselves as to whether or not and how to conduct court challenges.
I suspect that both sides of the practising bar are quite pragmatic and say, “There are problems sometimes with peremptory challenges, but the usual thing is that we choose jurors in Canada in two hours using peremptory challenges and we move things along.”
It is additional pragmatism against some people who have actually been hurt by the use of peremptory challenges in the two trials that I mentioned.
Senator Lankin: I am cognizant of time. I thank you all for appearing and I appreciate your comments.
Professor Stuart, I thank you for reminding us of the late Ian Scott’s proposal with respect to the unified court. Perhaps it’s time for a conversation to be prompted again on that.
My question is to the defence representatives. Yesterday, we heard from the Honourable Marion Buller, Chief Commissioner of the National Inquiry into Missing and Murdered Indigenous Women and Girls. With respect to the classification of murder, which is section 231 of the Criminal Code, she was suggesting that with the carve-out sections it is first degree murder when it is contemplated in the explanation unless it’s a police officer or a jail guard, et cetera. There are a number of areas set out. She recommended that consideration be given to the inclusion of a carveout, except when the person murdered is an Indigenous girl or woman.
She mentioned that it was time for us, like we’ve done with police officers and others, to educate about the seriousness. Also, given the overall lack of equality and the profound discrimination in the criminal justice system writ large with respect to impacts on Indigenous girls and women, it was time for this to be a situation to say that we will not tolerate and we will not give any leniency where the person murdered is an Indigenous girl or woman.
I appreciate you may not have heard that yesterday or you may not have had time to consider it. If you have any off the top comments, I’d appreciate it. If not and if you have anything to send us, I would appreciate that. I would say that time is of the essence, as you know.
Mr. Mansour: I will make a brief comment. I do not and cannot disagree with the motive behind that amendment. If you look at who is listed here, it is all individuals within the justice system. The notion is that it is more aggravating if you are committing a crime against the justice system. That same rationale does not exist here.
I am not saying the rationale put forth is any less important, but an analogy cannot be drawn because the underlying rationale here does not exist with the amendment. Is that something we want to do? I don’t know, but I don’t think the analogy can be drawn between the two classifications.
Mr. Johnston: Without having the opportunity to research it further, my understanding was, as Mr. Mansour has said, that these carveouts with respect to individuals who are justice system participants formally represented what constituted capital offences. It is curious to think of it from that perspective.
The idea that anybody should unfortunately lose their life is terrible, but I am not sure how that should be classified in terms of homicide provisions. I wouldn’t be able to speak to that informally.
Senator Lankin: I am sorry to put you on the spot. I appreciate that.
The Chair: Thank you, Mr. Mansour and Mr. Johnston for having made yourselves available this morning.
Professor Stuart, thank you so much for your presentation also. I have noted the five points you highlighted in your presentation. They are well noted.
Mr. Bird, your issues have certainly been well carried around the table and we thank you for your contribution.
We have another panel, and at 1:30 the honourable senators will have to be in the Senate Chamber for this afternoon’s session.
Honourable senators, we will therefore continue with the third part of our meeting this morning on Bill C-75, An Act to amend the Criminal Code, the Youth Criminal Justice Act and other Acts and to make consequential amendments to certain Acts.
Honourable senators know that we are under a time constraint. At 1:30 the bells will ring and I will have to adjourn the meeting. I will ask you to be as succinct as possible so that we will have questions by honourable senators.
From Aboriginal Legal Services, we welcome Jonathan Rudin, Program Director. You have five minutes to be effective in your presentation. It is a pleasure to see you this morning.
Jonathan Rudin, Program Director, Aboriginal Legal Services: We are pleased to have the opportunity to present our perspective on Bill C-75. The focus of our submissions will be on four aspects of the bill that we think are definite steps forward, two provisions of the bill that we see as significant steps backward, and one glaring omission that represents a broken promise to Indigenous people.
We are supportive of the elimination of peremptory challenges in jury trials. We have worked extensively on the issue of jury representation or, more precisely, the underrepresentation of Indigenous people on juries for over 10 years. Government neglect and the use of peremptory challenges have had a corrosive impact on efforts to encourage Indigenous people to volunteer as jurors. We are glad the government has finally adopted the recommendations the Aboriginal Justice Inquiry of Manitoba and the Iacobucci jury review. We know the committee has received a submission from Professor Kent Roach on this issue, and we support those recommendations wholeheartedly.
The second is we support is essentially what the bill does to decriminalize many administration of justice offences. Study after study has shown that Indigenous people are significantly overrepresented among those charged with the administration of justice offences. Penalties for these offences often result in jail. Significantly, these convictions themselves are often bars to release on subsequent arrest. This leads to people pleading guilty to things they are often not guilty of. The root problem is the overuse of unnecessary bail conditions by judges and justices of the peace for things like no alcohol and drug conditions. Hopefully, the use of those conditions will diminish when it becomes clear that breaches of them will no longer result in further criminal convictions or jail.
That brings us to the third part of the bill that we support, which is the amendment that enshrines the application of the Gladue principles to bail. Although courts in most parts of the country have arrived at this conclusion on their own, this will ensure the law is applied everywhere.
Finally, we support the victim surcharge. It’s good the bill implements what the Supreme Court of Canada did in Boudreault when it struck down the mandatory aspect of the victim fine surcharge. It is regrettable that the bill does not respond to the court’s request for a legislative response for those people who received the mandatory victim surcharge prior to the legislation being struck down.
There are two provisions with which we have great concerns and think should be rethought. The first is the reverse onus provisions on bail applications for those charged with domestic violence offences who have been convicted of such an offence in the past.
Let me be clear that ALS takes the issue of domestic violence very seriously. We are all too aware of the impact of this violence on Indigenous women and girls. At the same time, we are also aware that many well-meaning attempts to address the scourge of domestic violence not only fail, but they have unintended consequences that can be damaging to the very people they are supposed to help.
In this context, I would point out the phenomenon of dual charging, which occurs when a man charged with domestic assault insists that his partner started it and should be charged, has led to more and more women becoming enmeshed in the criminal justice system. Police policies that grant no discretion to police officers when domestic violence is alleged exacerbates the problem.
What happens with dual charging is that women end up with convictions for assault they never should have had. If these provisions go through and their partner once again alleges abuse, they may have trouble meeting the reverse onus. This means they will be detained, will likely plead guilty, and the cycle will continue and continue. Over 40 per cent of women in the country in custody today are Indigenous. This provision of the bill will make a shameful situation even worse.
Our second concern is with the increase in the number of super summary offences. If this bill passes, we won’t have the concept of super summary offences. Basically, all offences will be punishable by a maximum of two years less a day. We know from our 30 years of working in the criminal courts with Indigenous people what will happen if the maximum penalty for summary conviction offences becomes two years less a day. Crowns will insist on those higher penalties, judges will impose those higher penalties, and they will justify them because it reflects the will of Parliament.
This is a perfect example of what criminologists call net-widening. If there is a need to have some super summaries where straight indictable offences have now become hybrid offences, and I stress the “if,” then perhaps their use can be justified. As it stands, however, the promise of increased hybrid offences is being used as a Trojan horse to lead to a widespread and unjustified increase to the maximum penalty for summary offences.
Finally, let me address what is missing from the bill. Given how comprehensive the bill purports to be and how many issues big and small it addresses, it is baffling to us how it avoids the issue that is the elephant in the room, the proliferation of mandatory minimum sentences and the unjustified restrictions on access to conditional sentences. This has been the largest single change to the Canadian criminal justice system in the 21st century. It is something that this government explicitly committed to changing. Yet, it is not addressed at all in this bill.
One of the purposes of the bill is to increase efficiency and unclog the courts. Yet, there are many Charter challenges currently under way and many being contemplated to the many mandatory minimums that litter the Criminal Code. Having been involved in some of these Charter challenges, I can tell you that they take up a lot of court time.
Legal scholars often talk about the concept of dialogue, the way judges and legislators speak to each other. In 2016, in Lloyd, the Supreme Court of Canada implored the government to come up with a process that would relieve courts of having to adjudicate the constitutionality of each and every mandatory minimum. The legislature has not entered into the dialogue about this pressing issue. Instead, it is engaged in wilful deafness.
Addressing the proliferation of mandatory minimums is not hard to do. The simplest and most expedient response is to put in a safety valve mechanism that would allow a judge to avoid imposing a mandatory minimum where to do so would shock the conscience of Canadians. The judge would be required to provide written reasons. Those, of course, would be subject to review by appellate courts.
The Chair: Please conclude, Mr. Rudin.
Mr. Rudin: I will wrap up right now. I would simply encourage the legislature to follow the recommendations of the Truth and Reconciliation Commission which made the same recommendations. There can be no excuse for waiting. There is no justification for waiting.
Senators, we know what is the right thing to do, and we need to do it now. Thank you. Meegwetch.
The Chair: Thank you very much, Mr. Rudin.
I invite our witnesses from the Barreau du Québec, Mr. Le Grand Alary and Mr. Lévesque, to make their presentations. I remind you that we have a very strict schedule. You have five minutes.
Nicolas Le Grand Alary, Lawyer, Secretariat of the Order and Legal Affairs, Barreau du Québec: Good morning. I am Nicolas Le Grand Alary, a lawyer with the Secretariat of the Order and Legal Affairs, Barreau du Québec.
I am accompanied by Pascal Lévesque, Chair of the Committee on Criminal Law of the Barreau du Québec.
It is with great interest that the Barreau du Québec testifies before you regarding Bill C-75, An Act to amend the Criminal Code, the Youth Criminal Justice Act and other Acts and to make consequential amendments to certain Acts.
As a professional order, the Barreau du Québec has a mission to protect the public. The major changes that are being contemplated, both in criminal procedure and in the administration of criminal justice in Canada, involve the Barreau as we carry out that mission. As such, we thank you for inviting the Barreau du Québec to share with you its position on these important issues.
The Barreau du Québec supports the purpose of the bill. However, we are disappointed to see that the bill includes no measures on mandatory minimum sentences of imprisonment. The Barreau du Québec reiterates its opposition to minimum penalties, especially prison sentences, except in the most serious cases. Minimum sentences remove the flexibility for front-line legal officers, such as Crown prosecutors, defence counsel and trial judges, to properly apply the principle of proportionality of sentencing.
Imposing minimum sentences may provide a sense of security for the public in the short term, but, in the long term, these measures are counterproductive to the justice system. Crown prosecutors lose an incentive to have an accused plead guilty when the circumstances of the offence justify a sentence that would be below the mandatory minimum. Conversely, when the prosecution asks for a sentence in a case where slightly more than the minimum sentence would be justified, the courts tend to stick with it.
The bill would have been a good opportunity to get rid of this type of sentence, which does nothing for the efficient and flexible administration of the criminal justice system. Unfortunately, we see that we will have to wait until next time.
The Barreau du Québec believes that it is urgent for the government to amend the Criminal Code to give courts the residual discretion not to impose a mandatory minimum sentence.
Individuals are entitled to this constitutional protection. In addition, each accused would no longer have to bear the heavy burden of a constitutional challenge to the Supreme Court. Mandatory minimum sentences can be profoundly unfair in some cases, as the only possible penalty is imprisonment, while other solutions may sometimes facilitate rehabilitation and thus reduce the risk of recidivism. Judges must be trusted to apply the law fairly and equitably, so that the sentences imposed are proportionate to the seriousness of the offence and the degree of responsibility of the offender.
I now give the floor to Pascal Lévesque for the rest.
Pascal Lévesque, Chair of the Committee on Criminal Law, Barreau du Québec: I will address three points. The first two are related to the bill and the third invites you to reflect on the next steps.
The first point is about abolishing preliminary inquiries. The bill proposes limiting preliminary inquiries to offences punishable by life imprisonment. It also strengthens the powers of magistrates to limit the investigation to specific issues and the number of witnesses who can be heard.
The Barreau du Québec opposes this amendment. By limiting the use of preliminary inquiries, some argue that it will be possible to speed up proceedings and reduce delays. We believe that limiting preliminary inquiries in this way would be ineffective, not to say counterproductive.
According to Statistics Canada, preliminary inquiries were held in only 3 per cent of eligible cases. Of the cases that incurred delays beyond the Jordan and Cody thresholds, only 7 per cent included a preliminary inquiry. No evidence, other than anecdotal evidence, suggests that preliminary inquiries lead to undue delays in the justice system or that the current rules about them need to be changed.
In some cases, preliminary inquiries may be practical, particularly when evidence of an offence may be based on testimonial evidence. Preliminary inquiries can test the strength of the parties’ positions.
The preliminary inquiry can be beneficial for both the accused and the prosecution, as they will be able to assess the credibility of witnesses, which may lead both parties to want to settle the case by entering a guilty plea or withdrawing the charges.
At the Barreau du Québec, we are aware of the fact that some may misuse the preliminary inquiry, but trial judges already have many management powers.
The Chair: Your second point, Mr. Lévesque?
Mr. Lévesque: I’m getting to my second point. The bill abolishes the peremptory challenges of jurors. This measure appears to be based on a high-profile trial in Saskatchewan, where the jury constituted did not reflect the diversity of the community in which the trial was held.
The Barreau du Québec considers that the measure proposed by the bill misses its target. Of course, we deplore the tactics of some lawyers who use peremptory applications to systematically exclude jurors on discriminatory grounds, including race or ethnic origin.
We consider, however, that simply abolishing peremptory challenges is not the solution. Peremptory challenges are always useful for all experienced jury trial litigants. Lawyers perceive in the appearance, words and non-verbal language of a sworn candidate that he or she will not have sufficient objective listening skills to hear the evidence he or she intends to present and make an impartial judgment on it. They also ensure that the accused accepts the legitimacy of the jury and, by extension, the verdict and the sentence that will be proposed.
The Barreau du Québec agrees, however, that the composition of juries must reflect the diversity of Canadian society. Therefore, we propose that the Criminal Code be amended to provide that either party may ask the judge to direct the composition of the jury when a party appears to be acting in bad faith in the use of peremptory applications or when the jury, for other reasons, is not representative of the community. The judge, by holding a hearing to this effect, could then intervene in the composition of the jury to respect the principle of diversity.
As for our third and final point, we invite honourable senators to consider the relevance of allowing only prosecutors to lay charges. In addition to what is provided for in the bill, the Barreau du Québec proposes that charges for Criminal Code offences may only be laid by prosecutors.
British Columbia, New Brunswick and Quebec have chosen to grant prosecutors the power to lay charges only. In Quebec, this measure is all the more effective because prosecutors have the discretion, in appropriate circumstances, to apply an alternative to judicialization, such as non-judicial processing of the case or an alternative measures program when the person admits responsibility. This reduces delays by relieving the system of some of the workload of cases that can otherwise be handled without harming the public interest, or that would likely not have held up well at trial.
The Chair: Thank you very much, Mr. Lévesque.
Elizabeth Sheehy, Professor Emerita of Law, University of Ottawa, as an individual: Thank you. I am in support of many aspects of this bill that affect the criminal justice response to domestic violence and sexual assault. However, the good intentions behind many of these amendments are undermined by some important weaknesses.
First, the bill will now aggravate sentences. It will affect all sorts of provisions. It has a new definition of spouse. It has now changed spouse to intimate partner, current or former, which includes a dating partner. However, this amendment doesn’t include those men obsess about and stalk women who refuse them access to even a dating relationship, men like Basil Borutski who we know became obsessed with Carol Culleton and hunted her down along with two other women, regardless of the fact that she refused any sort of dating relationship.
These men can be as dangerous as men who batter their wives or their ex-partners. The threat they pose to the women they harass should be recorded in criminal justice records to help assess the risks they pose to other victims.
The new definition also fails to respond to the targeting of others, whether new boyfriends, family members or friends by the perpetrator. Perpetrators may harm or threaten others as a strategy to intimidate and control the woman. They may strike out against those who attempt to protect her. These forms of violence are part of the dynamic of wife battering and should be similarly treated for the purposes of these amendments.
Second, the bill will reset the default maximum for summary conviction offences at two years, as Mr. Rudin mentioned. I am not in favour of increasing sentences, but I point out a discrepancy here. This new maximum will apply to all forms of assault except sexual assault. I think that’s quite strange. It’s quite a strange anomaly. It ought to be rectified. They should all have the same sentencing maximum.
We know the vast majority of sexual assaults are in fact committed in the course of spousal and dating relationships, so it shows a bifurcated thinking to treat assault and sexual assault differently in terms of the sentencing parameters.
Third, the bill would add choking, suffocating or strangling the victim as a factor that would aggravate either the crime of assault or sexual assault. This is an important amendment. I fully support it, but other code amendments are necessary to breathe life into this one. This is because the law is seemingly unsettled as to whether women can consent to strangulation, particularly in the context of sexual relations.
R. v. Gardiner, a 2018 Alberta Court of Appeal decision, is the most recent and arguably the most alarming decision on this issue. The trial judge found the complainant did not in law consent either to the fight or to strangulation. The appeal court labelled this as an error of law and stayed the charges.
There is no doubt that consent will be raised by those men charged with these new forms of assault and sexual assault. For example, the “We Can’t Consent To This” campaign in the U.K. has documented 52 homicides where men who have killed women claimed consent: “a sex game gone wrong.” Two thirds of these victims died by strangulation. Since 2010, there has been a 90 per cent increase in such defences. This does not include the far more numerous cases of assault and sexual assault, where consent is raised as a defence to strangulation. There’s no justification for a criminal law policy that fails to prohibit strangulation in unequivocal terms.
Fourth, as you know and as has already been mentioned by Mr. Rudin, there’s a new reverse onus introduced here for those domestic violence perpetrators who have been convicted previously of domestic violence offences. This clause will require justices presiding over bail hearings to engage in a searching inquiry as to the risks the accused person presents to the woman he is charged with assaulting or threatening. It’s an important reform because the study commissioned by the Department of Justice showed that domestic violence offenders breached their conditions in 50 per cent of their cases while on bail, and 50 per cent of those breaches were violent breaches.
The proposed reverse onus only applies to those previously convicted of an offence. This therefore excludes those men found guilty but granted an absolute or conditional discharge by the sentencing judge. Discharges are not uncommon sanctions for men guilty of assaulting female partners, even for sometimes very serious assaults. Therefore, the reverse onus is framed too narrowly here. It should extend to all those found guilty of domestic violence offences.
Brian R. Pfefferle, Defence Counsel, as an individual: I am appearing from Saskatoon. I appreciate the opportunity to appear before you by video conference.
I practise law in Saskatoon, Saskatchewan, which is Treaty 6 Territory, the territory that encompasses The Battlefords where the Gerald Stanley jury trial was recently heard which prompted a number of changes to the jury legislation that are before you.
In addition, I also teach as a sessional lecturer at the College of Law, University of Saskatchewan. I teach a practicum course called “Advanced Criminal Law in Practicum,” where we place students with criminal practitioners in our community. Many of those students provide invaluable services to our lawyers and to our community by helping in many cases less fortunate individuals, people who are not covered by legal aid plans that may otherwise not even be represented.
I make my comments on my behalf and do not make them on behalf of the University of Saskatchewan or any of my colleagues there. I’d like to limit my comments to two areas, those being the peremptory challenges and the hybridization changes with which I have significant concerns. As a practicum course coordinator, I believe that will have a significant impact on access to justice issues.
I reviewed some of the materials. You’ve had a number of excellent speakers, so I don’t want to go over the same ground they’ve covered. I know many of them have spoken about the history and other provisions. I tried to provide some anecdotal information. I reviewed some of my files, and I have represented approximately 1,500 criminal clients in my 12 years in practice. Most of them were in my home province of Saskatchewan, although in some other areas as well.
According to my calculations, I have done 26 jury trials. I would say 15 of those individuals would visibly identify as Indigenous. There would be a smattering of others who would be Indigenous or have Indigenous ancestry but would not self-identify. There was one non-Canadian visible minority.
By and large, in my experience it is extremely difficult to obtain Indigenous jurors on our juries because of a number of factors, but peremptory challenges are not a cause in my experience. In fact the opposite is true. I use peremptory challenges for the purposes of obtaining Indigenous jurors on my juries.
In addition, I want to make a comment on what I believe is factually a little unfair. The jury selection process is not a blind process. We receive lists with people’s names on them. We’re able to do limited research within the confines of what’s available on the Internet. Nowadays that’s oftentimes quite a bit. We can find comments on Facebook, Twitter, Instagram and other sites.
Rarely are we challenging a juror simply because of the way they look, but on occasion we are challenging them when they glare at our clients or give a look. We’re counsel, and human beings can identify those people who aren’t going to be fair.
My experience anecdotally is certainly that peremptory challenges are valuable in creating diversity. As an example, I ended up running the jury trial in The Battlefords following the Gerald Stanley trial. I represented an Indigenous male who resided 600 kilometres away from the community where he was being tried. We used three straight peremptory challenges so that we could obtain what we viewed as a visibly Indigenous person on our jury. The accused was ultimately acquitted of his homicide charges.
There are numerous examples of that. I would certainly be happy to discuss those with honourable senators. I’ll leave my comments at that, given the comments from other witnesses.
The Chair: Thank you very much, Mr. Pfefferle.
Senator Boisvenu: My question is for Ms. Sheehy. Bill C-75 contains some interesting provisions regarding violence against spouses or ex-spouses. However, one thing that concerns me in particular is the fact that the reversal of evidence would only apply in the event of a repeat offence. Organizations of women victims of violence tell me that, in the case of a second recurrence, it is often death that awaits women. This is because the individual was not forced to prove that he was dangerous. It’s like giving him permission to reoffend.
In your opinion, should the prescription referred to in the bill regarding the reversal of evidence in cases of a second recidivism apply as soon as there is violence, especially physical violence, to ensure that the spouse or former spouse demonstrates that he or she does not pose a danger to the victim?
Ms. Sheehy: I would personally support that. I just think politically that it is not going to happen. We ought to be treating those charged with those offences in that way. We ought to be asking for justices to make a searching inquiry into the element of dangerousness that person presents.
Senator Boisvenu: Why do you say that, from a political point of view, this would be impossible?
Ms. Sheehy: I think the battle is pretty large. The most comparable is the trafficking in drugs reverse onus. That’s when someone is charged with the offence and there’s a reverse onus. They haven’t been convicted. They’ve just been charged.
It might be very hard to demonstrate that those charged with domestic violence necessarily present the kind of risk needed to be able to justify a reverse onus. I think it would be difficult. It’s a much simpler battle once they’ve either been convicted, plead guilty or have been found guilty of intimate partner violence to then justify the reverse onus.
Senator Boisvenu: I understand.
Senator Dupuis: My question is for representatives of the Barreau du Québec. Thank you for being here.
You said that eliminating preliminary inquiries except for very serious charges would have a counterproductive effect. We have heard a lot of evidence that preliminary inquiries are only proceedings — and I understand that it is not the majority of cases that are the subject of preliminary inquiries — that are used to discredit abused women. Why do you think that eliminating these inquiries would be counterproductive, especially for victims?
Mr. Lévesque: They can be counterproductive in some cases. We asked the committee members, which includes prosecutors, defence people, people who work in the field or who play a strategic role. Some have told us that sometimes these investigations can defuse the case. I will give you two examples. From a prosecutorial point of view, we have a complainant, not necessarily in matters of sexual violence, and we have to test the evidence. In many cases, the documents do not say much when you look at a file. The prosecutor may sometimes choose to say that this is a case where he or she would accept a preliminary inquiry, if only to see if the evidence can hold up at trial. Obviously, there is an expectation of a reasonable probability of conviction, but sometimes things are not necessarily so obvious in the documents. Sometimes it’s different in court.
The opposite is also true. Defence lawyers may try to convince their clients that the evidence is so strong that their chances for trial are basically minimal. However, the client, for one reason or another, is not there, and is not in a position to accept what the lawyer recommends. So we do a preliminary inquiry to test the client, in a way, who will see the evidence presented. This exercise sometimes leads the client to better feelings for a settlement because, when he sees the evidence before him, he can be summoned to trial very quickly. This will ensure that we will then have a regulation.
We are afraid to throw the baby out with the bath water. Earlier I heard Senator Dalphond say that, according to statistics, these eventualities are occurring less and less frequently, because information gathering is less used. However, the need to test the evidence is still there for litigants. Sometimes it is useful to hold a preliminary inquiry. This basically avoids a trial.
Senator Lankin: Thank you very much.
Senator Boisvenu covered my question, although I acknowledge that Mr. Rudin has a different perspective on the particular reverse onus issue. We’ve heard much about it.
Mr. Chair, before I pass the microphone, I wanted to raise with respect to hybridization offences that we are awaiting further information about the impact on immigrants waiting for citizenship and/or with higher sentences who may face deportation.
Given that many of us and our offices will be working on drafting amendments this weekend, if there’s anything we can do to facilitate a quicker response to the question that you raised, I’d appreciate it.
The Chair: I will do my utmost to contact the witnesses we heard on that issue. I remember very well the statement that was made at that time. I will make sure it’s made available to the honourable senators as soon as I can.
Senator Lankin: Thank you very much.
Senator Batters: Mr. Pfefferle, I would like to direct my questions to you. Thanks very much for taking the time to present to us today. Your practical experience as a highly regarded lawyer in Saskatchewan who has represented a significant number of Indigenous accused, particularly in jury trials, provides us with a valued perspective on the issue of peremptory challenges. You have seen how peremptory challenges work in actual practice when representing Indigenous accused. You have, as you said, used them frequently for the benefit of your Indigenous clients.
I would like you to use the brief time that we have today to tell us a little more about why you oppose eliminating peremptory challenges for those particular reasons.
Mr. Pfefferle: In my experience, we use these peremptory challenges for the purpose of creating diversity on the juries.
An example would be in a typical Saskatchewan jury now we’re having 500 people called for jury duty. The 500 people are randomly selected based on their health cards in our province. They’re to come to the courthouse. Almost half of those individuals won’t even attend. They will either be dismissed by sheriffs in advance. Sometimes they will have an issue. Maybe they will be legally excluded based on one of the criteria outlined. Based on the Internet research I do when I search for potential jurors, the vast majority of those who don’t come to court are, by and large, from visible minority groups. The original array we have to choose from is grossly underestimating the number of Indigenous people in our communities.
We end up as counsel with 20 names typically called randomly from that array, and those 20 individuals would come up. Many times we know something about those individuals already. It is not sufficient to challenge them for cause but sufficient to know they wouldn’t be necessarily the most favourable or fair-minded person, frankly.
Then there’s the issue of when the clerk asks the juror to look at the accused and the accused to look at the juror. That experience is one that you cannot really describe. It’s not an experience of racial profiling or anything of the like in my experience. If the juror won’t even look at my client, I don’t want them on my jury. Can I prove bias? No, I can’t. To an Indigenous person sitting on that jury and particularly standing in front of this grand crowd can be an intimidating experience. It’s like the Head & Shoulders commercial from maybe the 1990s: You never get a second chance to make a first impression. That’s the same principle with this process.
We have vulnerable people on trial for serious matters that should have their opportunity to pick their jurors. In my experience, I would admit that the Crown on occasion has objected or challenged jurors that I would have liked on my jury. They use the challenges for the exact reason some people complain about them. As defence counsel that has not been my experience. It’s going to lead to significant, expensive delays in our jury trial process, again with Indigenous people being overrepresented in that process while underrepresented on juries.
Senator Batters: Thank you so much.
Senator Pratte: My question is for Mr. Lévesque. It concerns the creation of many mixed offences. In your brief, you basically support this concept. We heard from witnesses on both sides about the creation of hybrid offences and the increase in the maximum sentence for summary conviction offences. The government believes that this will not change the sentences and will only give prosecutors discretion. Some have told us that they expect all this to result in an increase in summary sentences and, in the case of hybrid offences, the opposite effect will be to reduce the number of sentences imposed by the courts. What do you think of that?
Mr. Lévesque: We can see it in practice. It may also depend on each province, which will decide how much discretion will be given to prosecutors with these amendments. Will the work of prosecutors be marked out? There is discretionary power with respect to each of the prosecutions. There are disparities between the provinces and territories of Canada. The provinces will probably hold conferences to find out if there is a way to set guidelines so as not to have too many disparities. We’ll see it in practice. This will depend very much on how the prosecutor’s discretion is marked.
The golden rule in terms of prosecution is to delay it, or to go in a balanced way. Having been a prosecutor for some time, I can tell you that this is the golden rule. Will they apply it? We can reasonably think so, based on our experience.
What will the judges do? That’s another matter. Are they going to assume, because the legislator meant something, that they will start with what is called a starting point, a floor or a specific time. At the Barreau, we are in favour of this practice, because it gives flexibility to people in the field, and that is what is important. We must remember that there are people in the regions and others who work in the major centres. These are different realities and give flexibility.
Senator Pratte: Thank you.
The Chair: Mr. Lévesque, we are well aware of the position that the Canadian Bar Association is defending or proposing as a compromise or as a modified approach to preliminary inquiries.
Does the Barreau du Québec share the Canadian Bar’s view on this approach? Perhaps Mr. Le Grand Alary could answer?
Mr. Le Grand Alary: We did not consider this issue because we proposed an additional measure in the brief regarding the preliminary inquiry. It was proposed to replace the preliminary inquiry with out-of-court interviews. So we came up with another solution that, in fact, when we look at it at the same time as the Canadian Bar Association’s position, overlaps with that of consent. It is a mechanism, in both cases, to reduce the number of preliminary investigations that should not take place in order to reserve these investigations for files that require it for various reasons.
The Chair: Your objective is generally the same as that of the Canadian Bar Association?
Mr. Le Grand Alary: Yes, we have proposed another measure based on pilot projects currently being carried out in Quebec. We based ourselves on our local experience.
Senator Dalphond: Are you referring to the experience in the Court of Quebec, where the judge systematically sends people out of court or in civil matters, and not preliminary inquiries before the judge?
Mr. Lévesque: Indeed, this approach is a bit revolutionary for someone who practises criminal law. We wonder what pre-trial examinations are. I will draw a parallel. A few years ago, 10 or 20 years ago, criminal facilitation did not exist and when Judge Rolland arrived, he gradually brought the players to —
Senator Dalphond: In fact, it was Judge Otis who launched this initiative. It has even brought this concept into the criminal justice system.
Mr. Lévesque: Indeed. So the question is whether the accused should be present at his or her trial. This is a difficulty in criminal law, but there are several ways to achieve the same result.
Senator Dalphond: The Canadian Bar Association proposes that the judge may order examinations on request, with a number of criteria. This opens a much wider door than just consent. Are you in favour of that? These are not the criteria that have been proposed. I don’t want to put you in an impossible situation.
Mr. Lévesque: We haven’t thought about it, but it’s all related to the spirit of the recommendations we’re proposing, which is not to start from scratch with the preliminary inquiry. We could have a counterweight system or a safety valve, so that the judge would have the power over this request based on a series of criteria that would limit this practice. This would eliminate anecdotal situations where someone schedules a preliminary inquiry with witnesses and, on the morning of the trial, says, “Finally, I give up my preliminary inquiry,” so everyone is frustrated.
The Chair: Thank you very much, Mr. Lévesque.
Mr. Rudin, on behalf of Aboriginal Legal Services, thank you so much for your contribution this morning. Mr. Pfefferle, on the basis of your own longstanding experience, you seem to have quite a future ahead of you. Professor Sheehy, thank you so much for having made yourself available this morning, and I thank the lawyers from the Barreau du Québec.