Submissions on Behalf of the Criminal Lawyers’ Association Regarding Criminal Procedural Reforms
I. OVERVIEW 1. The Criminal Lawyers’ Association has been asked to comment on the Legislative Proposals Relating to Criminal Procedure Reform prepared by the Department of Justice, Canada. The Associations’ position can be succinctly stated as follows:
- Facilitating the use of new technologies to render the administration of justice more efficient and effective is warranted, including providing for remote appearances for routine and procedural court attendances.
- Codifying a plea comprehension inquiry scheme is supported.
- The creation of a reciprocal disclosure obligation with respect to expert witnesses is acceptable in principle.
- Making it easier for the Attorneys General to carry out the duty of supervising private prosecutions is supported in principle.
- Procedural modifications to the existing preliminary hearing regime are unnecessary.
- The hybridization of 90 more offences into dual or hybrid offences is not necessary and will do a disservice to the administration of justice in Canada. In our view this apparent “administrative” change represents a fundamental attack on criminal jury trials and its concomitant, the preliminary hearing.
(a) New Technologies and Procedural Reform
2. The Criminal Lawyers’ Association supports the proposed introduction of technology into the administration of justice. In particular the Association supports the introduction of electronic forms, documents, and signatures (ss.841-847); and the broadening of remote court appearances by video and audio link (ss.485(1.1), 606(4), 650.1, 714.1 – 714.8, 774.1, 848).
electronic forms, documents, etc.
3. The Association is content with the proposed wording of sections 841 to 849 of the Code and supports the introduction of electronic documents to compliment rather than substitute traditional documents. The Association recommends that the second proposed wording of section 848 be adopted to ensure that unrepresented accused fully understand that they have the option to appear personally in Court if that is their wish.
remote court appearances
4. The Association supports the broadening of remote court appearances to include guilty pleas. However, the decision to use video conferencing for guilty pleas should always be at the behest of the accused. Courts should not have jurisdiction to mandate that a plea or any other court proceeding be conducted by remote appearance nor should Rules of Practice be established requiring that an accused satisfy a judge that a personal appearance is necessary before acceding to such a request. The proposed wording of the sections governing remote appearances is acceptable in its present form. The Association is concerned however, that the legislative amendments not be used as a means of detaching incarcerated accused from the criminal justice system. Those accused, who for whatever reason, wish to be present in court for the most routine of court appearances should have the unrestricted option to do so.
(b) Codification of a Plea Inquiry Scheme
5. The Association supports the introduction of legislation to codify plea inquiries (s.606(1.1)) of the Code. The current wording of the proposed section is acceptable and mirrors the existing law on the issue.
(c) Reciprocal Disclosure Obligation for Expert Witnesses
6. The Criminal Lawyers’ Association finds acceptable the creation of a limited reciprocal disclosure obligation for expert witnesses.
7. However, applying the proposed provisions to the Crown may be problematic in their present form. The Association points out that Crown disclosure of proposed expert evidence is mandated by s.7 of the Charter and forms part of the general duty for the Crown to provide ongoing disclosure to the defence of all matters relevant to the charge. The proposed amendments to s.657.3 of the Code should not be taken to usurp the general duty of the Crown to disclose any information related to an expert witness in their control or possession in a timely manner. In particular, it is submitted that the proposed clauses contained in subsection 3, should not limit the Crown to only disclosing information that falls within the purview of the subsection. The Crown’s constitutional disclosure obligation cannot be cut back by legislative action. Therefore it is recommended that the clauses within subsection 3 only apply to an accused (subject to the changes proposed below).
8. The Association acknowledges that the “surprise” defence expert would normally, and properly, permit a Crown application for an adjournment while it considers the proffered evidence. Such adjournments mid-trial should be avoided. Correspondingly, the Association would consider a very limited rule of practice mandating the timely pre-trial disclosure of forensic expert reports that the defence proposes to call at trial. The rule of practice should be limited to those experts who are to be called as witnesses at trial by the defence. The failure of the defence to follow this rule of practice should not be the subject of adverse comments to the triers of fact and the only remedy should be a short adjournment for the Crown, if desired. The disclosure should consist of the names of any expert witnesses, a copy of their curriculum vitae and an outline of the nature of the witnesses’ evidence.
9. It is a fundamental principle of criminal law that an accused person need not disclose his or her defence. Mandating disclosure of the “facts and assumptions” relied upon by the defence expert in support of the opinion to be given and providing a copy of any report that was prepared by a proposed expert will have the effect of eroding this fundamental principle and would be a dangerous step. The Supreme Court of Canada’s broad approach to the principle that an accused must not be conscripted to assist the state in proving its case against him supports the absence of any obligation of disclosure on the defence. The imposing of such an obligation of disclosure offends s.7 of the Charter and would give rise to constitutional scrutiny. The Association supports AIDWYC’s concerns in this regard as raised in their submissions to the Minister namely:
10. The purpose behind reciprocal disclosure is to ensure that trials are not delayed by adjournments necessitated by late disclosure of the fact that the defence intends to call an expert. A general outline of what a defence expert is likely to attest to, together with the expert’s curriculum vitae will provide Crowns with the necessary information to consider their options and make those decisions in advance of a trial. The concern of undue delay or unanticipated adjournments will be alleviated. The Associations submits that to require more information to be disclosed (as provided for in clauses (c) and (d)) would be unconstitutional and threatens some of the basis tenets of our criminal justice system including the principle against self incrimination and the right to silence.
That s.657.3 (3) be amended such that both Crown and the Defence be required to give notice of an intention to call an expert witness at trial. That in addition to notice being given, the Crown be required to comply with their constitutional obligations and disclose all information in their control or possession relevant to the expert in a timely manner. That the defence be required to disclose to the Crown only a statement of the expert’s qualifications and a summary of the opinion anticipated to be given by the expert. There be no adverse inferences drawn from a failure by the defence to give notice or deficiencies in the content of the notice nor adverse comment be made to the trier of fact. The Crown be permitted an adjournment to consider the evidence where there is a lack of notice. Where the Crown fails to give notice, the defence be entitled to an adjournment to consider the evidence. Where the Crown fails to comply with their constitutional obligations regarding disclosure of the expert, the defence be entitled to a constitutional remedy.
(d) Control over private prosecutions
11. The Association supports proposed amendments to the Code contained in s.507.1 to provide the Crown with more control over private prosecutions. It is recommended however, that notice that there is to be an inquiry also be provided to the person against whom the Information is sought to be laid. The proposed accused would then have the right to attend at, although not participate in, the hearing and would appreciate the nature of the allegations against him or her.
(e) – (f) Reclassification & modifications to the preliminary inquiry
12. The Criminal Lawyers’ Association vehemently opposes the proposed reclassification of offences and modifications to the preliminary inquiry. The Association urges the Minister of Justice not to adopt the proposed amendments. In this regard, the Association agrees with the submissions of AIDWYC.
13. It is the position of the Association that the proposed increased hybridization of criminal offences and limitations on the right to a preliminary inquiry will do a serious dis-service to the administration of justice in Canada. The proposed reforms are seen as a double barreled attack to further empower prosecutors with unparalleled discretion; to reduce the availability of the preliminary inquiry; to deny an accused the opportunity to be tried by a jury of his or her peers; and to increase the swiftness with which convictions are sought all at the cost of the innocent accused.
14. The Association has consistently brought to the attention of the Ministry and the media the dangers associated with the elimination of an accused’s right to a preliminary hearing. The preliminary inquiry is an essential and useful component of the criminal justice system for all serious criminal offences. Our members support the continued retention of the existing model of inquiry for the current list of indictable offences.
Importance of the Preliminary Inquiry
15. The preliminary inquiry serves multiple functions in the administration of justice. First, the screening element whereby charges upon which there is “no evidence upon with a jury, properly instructed and acting reasonably, could convict” are discharged. Even with this narrow test, complete discharges and committals on lesser charges regularly occur. This is true even where Crown screening and full disclosure exists. The preliminary hearing has been an entrenched safeguard ensuring that no accused person could stand trial in the absence of aprima facie case. By sorting out the wheat from the chaff at the preliminary hearing stage unwarranted trials which ought not to proceed are thereby obviated whilst saving time, money and the associated anxieties. This “screening” function of the preliminary inquiry is supported by the statistical data.
16. The preliminary inquiry also serves a discovery function. This critical component encompasses not only an assessment of the witness’ demeanor and credibility, which rarely emerge accurately from “will-say” statements, but also examination of witnesses under oath to provide a record for the assistance of the trier of fact in the truth-finding function at trial. Furthermore, the discovery function has become all the more important in light of recent decisions such as R. v. O’Connor and legislative amendments, which require the laying of an evidentiary foundation to secure access to third party records at an ultimate trial. As Mr. Justice Rosenberg so aptly stated in a paper written prior to his appointment:
17. The advent of “full disclosure” following Stinchcombe has not, with respect to those who have suggested otherwise, obviated the need for discovery at the preliminary inquiry. Discovery differs significantly from disclosure. What is supplied in disclosure is often an officer’s memo book with frequently illegible handwritings of the witnesses’ statements or a typed “will state” of what an officer expects the witness to say. It is the exception where the statement is reviewed by the witness. Even where it is, it relies on the police officer’s perceptions of what is relevant to the case. What is relevant to the officer may not include all aspects relevant to either the Crown or the Defence. As has been noted elsewhere:
18. The Association therefore strongly opposes the erroneous suggestion that as a result ofStinchcombe the preliminary hearing has “outlived its usefulness.”
19. The preliminary inquiry provides a further opportunity for the defense to crystallize a witnesses evidence under oath and may provide the foundation for an attack on the credibility of the witness at trial. A critical element of the adversarial system is the credibility of witnesses. No impediments should be placed in the path of a proper examination of the credibility of witnesses.
20. The preliminary inquiry far from costing time is a significant time saving device. If the flaws in the prosecution’s case can be determined at an early stage a trial may be avoided or what at first appears to be a serious matter may be revealed as a matter which can easily be resolved by plea discussions. The accused after observing the witnesses and the strength of those witnesses often instruct counsel to negotiate a plea of guilty thereby avoiding a trial. The preliminary inquiry also permits exploration of Charter issues to be raised at trial and areas of evidence to assist in establishing a defence at trial, which ultimately shortens trials as opposed to prolonging them.
21. Additionally, the preliminary inquiry in connection with s.715 of the Criminal Code provides a mechanism to preserve a witnesses evidence for later use at the trial where the witnesses are aged, infirm or reside outside of the country. As Pomerant and Gilmour note:
22. While it is conceded that the availability of a preliminary inquiry may mean that some witnesses will have to testify twice thereby inconveniencing them, their inconvenience needs to be understood in context. Requiring the state to prove guilt beyond a reasonable doubt and the presumption of innocence are also “inconvenient” to complainants and Crown witnesses but are necessary in a fair and just criminal justice system. The concern is also raised that having complainants provide details of an incident more than once will result in “normal variation in repeated stories which become issues of credibility.” In almost every prosecuted case witnesses have been interviewed at least once by the police. In many cases they have been interviewed by school teachers, social workers and other state workers. To suggest that inconsistencies are going to arise because of preliminary inquiries ignores the reality of prosecutions. Credibility is an essential component of the adversarial process. If there are minor inconsistencies in a witnesses evidence they will be regarded as such. However, material inconsistencies are legitimate and important factors to be assessed by the trier of fact.
23. The Criminal Lawyers’ Association does not stand alone in its submission that the preliminary inquiry needs to be retained. The importance of the preliminary inquiry has been underscored by other respective parties in the criminal justice system. The Ontario Judges’ Association; Family Law Judges’ Association and Ontario Provincial Court (Civil Division) Judges’ Association in their submissions to The Fourth Triennial Provincial Judges Remuneration Commission (1998) highlighted the importance of the preliminary inquiry. Similarly, Sarah Welch, President of the Ontario Crown Attorney’s Association recently commented that:
Proposed procedural reform
24. The overhauling of preliminary inquiries as proposed is too drastic a departure from fundamental principles and such departure has not been proved to be necessary nor consistent with the basis tenets of our criminal justice system. The Association recommends that existing code sections relating to preliminary inquiries remain in tact and that the proposed amendments at ss.536, 536.2, 536.3 be abandoned. The Association would support a proposed amendment that would allow defence counsel to waive the necessity of having a judge preside at the preliminary hearing. In cases where committal is not an issue and the defence merely seeks to hear from the Crown witnesses to further discover them and/or lay foundations for a defence, counsel could agree to a modified from of the preliminary inquiry in the nature of a civil discovery. This type of inquiry is in fact being done on an informal basis among some counsel in large and complex cases where committal is not an issue. 25. Furthermore, the Association does not support the proposed amendments to s.537(1) that purport to codify the judicial officer’s ability to regulate the inquiry process. Specifically proposed s.537(1)(I) and s.537(1)(1.1) would allow judicial officers to unduly restrict the extent to which counsel could effectively represent their clients. Existing legislation and jurisprudence adequately addresses the need to control vexatious or oppressive questioning by irresponsible counsel.
26. The Association submits that the more appropriate avenue of reform would be to strengthen the test for committal at a preliminary hearing so that judges can weed out bad cases. While having a more involved test for committal was inappropriate historically where preliminary inquiries were held before justices of the peace, provincial court judges can be entrusted to adjudicate these issues. Rather than turning the Provincial Court into the trial forum for the most serious of cases, the Association recommends that they be empowered to exercise a greater judicial function at the preliminary inquiry. Committal to trial should only be made where the Crown can establish before a preliminary hearing justice that there is a “reasonable likelihood of conviction.” As has been noted:
Reclassification of offences through hybridization
27. The proposed amendments to reclassify some 90 offences in the Criminal Code through hybridization continues a recent legislative trend (whose implications may well have escaped observers such as us in the past) that drastically diminishes the notion of being tried by one’s peers, the right of an accused person to a trial by judge and jury, to a hollow shell of its former self. In fact, the amendments have the effect of giving, not the accused but the Crown (through unchecked discretion) the right to decide whether to hold a jury trial or not. The constitutional guarantee of a right to a jury trial in s.11(f) of the Charter where an accused faces 5 years imprisonment or greater is a minimum standard. It is the constitutional floor below which Parliament cannot go (subsection to s.1). It defines what “can be.” It was never meant to the exhaustive standard, to define what “should be.”
28. Serious offences provided for jury trials historically and when the Charter was drafted. All but the least serious category of offences had the right to trial by jury. The notion of being tried by one’s peers is fundamental to our notions of justice — that representatives from the community adjudicate a citizen’s dispute with the state. Even in the civil context jury trials remain notwithstanding the lack of constitutional protection. The jury trial is not an archaic rarely used vehicle to adjudicate criminal culpability. Recent statistics prepared on the occurrence of jury trials reveals the following. For the past three years in Toronto almost one half of all maters tried in the General Division were with a jury (1998 – 36%, 1997 – 42%, and 1996 – 46%). Similarly, province wide statistics confirm that jury trials account for approximately one half of all trials (1998 – 46%, 1997 – 53% and 1996 – 51%).
29. Regrettably, earlier hybridization efforts were not recognized for what they really were: a slippery slope, leading to the abolition of the preliminary hearing and the marginalizing of jury trials. Jury trials will become even more illusory, available only in the rarest of cases or at the whim of the Crown. It is wrong in principle for the Crown to be able to withhold a jury trial as it chooses.
30. Further, the end result is a significant downloading of serious and complex cases into the Provincial Division, which in many jurisdictions is barely keeping pace at the present time as a result of previous hybridization amendments. There are real concerns whether the Provincial Division can accept the increased workloads without major increases in resources. In a nutshell, moving cases into Provincial Court is diametrically at odds with the present allocation of resources in the criminal justice system.
31. Related to this is the larger reality that the amendments will bring about a fundamental change in the nature and character of the criminal trial. The effect of the amendments is to recast the protypical Canadian criminal trial as essentially one of judge alone, divided between two type of judges. This model that has never been considered or debated in its own right. There are substantial policy concerns to be debated and resolved. For example, only superior court judges have the plenary jurisdiction at common law to ensure fair trials. The Provincial Court’s jurisdiction is limited. This historical accident needs to be reconsidered. There are other issues. Should not an accused person have the right to one challenge to a judge as in some American jurisdictions? Should not some form of discovery be made available to an accused in addition to disclosure in a judge alone trial?
32. If the Canadian criminal trial is to be drastically changed from the jury model to the judge alone model, this fundamental change and all its implications should be fully acknowledged, debated and considered. The Association submits that Members of Parliament and their constituents who were fully informed of the importance of the preliminary inquiry and its significance to the administration of justice in Canada would seriously question the substantive impact of the proposed “procedural” amendments.
33. The Association acknowledges that some aspects of our criminal justice system are in need of reform. One need only refer to the reports generated from the Marshall and Morin inquiries to substantiate the need. It is further acknowledged that as we approach the millennium, technological upgrades to the administration of justice in this country are necessary and long overdue. However, the attempt to reclassify offences and to take away from an accused not only the right to a preliminary inquiry but the right to trial by jury threatens the fundamental principles upon which our system of law was founded. The proposed amendments will only serve to further increase public skepticism about the justice system as their main involvement in the system (as jurors) is curtailed. In 1980 the Law Reform Commission commented that the jury system was a “fundamental institution, a veritable ‘rock of ages.’” There are good reasons – historical, political, intellectual and pragmatic to retain the jury system. Similarly there are equally good reasons to ensure that the availability of a preliminary inquiry is retained. We urge the Ministry of the Attorney General to heed these submissions and be wary of adopting proposals for reform that have more to do with ruthless efficiency than the promotion and entrenchment of a just society and a civilized administration of justice.