OTTAWA — A provision to allow police officers to submit routine evidence in a trial by affidavit, as opposed to automatically appearing in person to be cross-examined, has been removed from the government’s justice bill after coming under heavy criticism.
But Liberal MPs on the Commons justice committee rejected most other changes to Bill C-75, including proposals by the opposition on contentious items such as jury selection and preliminary inquiries.
The committee wrapped up its consideration of amendments to C-75 on Monday night, meaning the legislation — an extensive 300-page bill that the government hopes will reduce court delays — will soon be back for third reading in the House of Commons. Then it will go to the Senate for debate and amendments.
During testimony in committee, many experts called for changes on the police evidence issue. The bill as drafted would have allowed “routine police evidence” to be submitted by a sworn statement, instead of the current practice of an officer coming to court to present the evidence and getting cross-examined by the defence.
Many witnesses pointed out that the definition of “routine” evidence is vague, and in practice it could mean nearly all police evidence is submitted by affidavits. A defence team could still make an application for cross-examination, but experts argued it was wrong to put the onus on defence to convince a judge to have the officer appear, and that the extra step could ultimately make court delays worse.
“When I picture how a trial will proceed upon the filing of a police officer’s solemn declaration, I see consequences that pierce the very heart of due process and fundamental rights for accused persons,” said Stephanie Heyens, a criminal defence lawyer with Legal Aid Ontario, during her committee testimony. “Reversing the onus at a criminal trial is not a minor infringement of an accused’s rights.”
Liberal MPs Colin Fraser and Iqra Khalid both said they were convinced the provision was a bad idea, and the Conservative and NDP MPs on committee agreed. The vote to remove it was unanimous.
But the Liberals held their ground on most other areas of the bill.
An amendment submitted by Green Party MP Elizabeth May (who does not have a vote on committee) to scale back the elimination of preliminary inquiries was defeated.
The bill also remained unchanged in the area of jury selection. C-75 as drafted will eliminate peremptory challenges, which allows prosecutors and defence to reject a juror on sight.
NDP MP Murray Rankin moved an amendment that would have allowed the Crown to challenge jury composition “on the grounds of significant underrepresentation of aboriginal people or other disadvantaged groups that are overrepresented in the criminal justice system.”
But Khalid argued that issues of jury composition are best addressed by provinces. “I believe we are writing a letter to our provincial and territorial counterparts by way of the minister to see how we can address the crux of the issue that we’re trying to get at here,” she said, and the Liberals voted down the amendment.
A subsequent attempt by Conservative MP Michael Cooper to restore peremptory challenges to the bill was defeated.
The Liberals also decided to leave the issue of legal representation on summary convictions to the provinces. The bill “harmonizes” summary convictions by making the default maximum two years — meaning the limit is being raised for many crimes that currently have a six-month maximum sentence.
This created a problem because most provinces only allow law students and paralegals to represent clients when they face sentences of up to six months. On Monday, the Liberals passed an amendment to give provinces and territories more power to establish their own criteria for who can appear as an agent.
All of the other changes adopted by the committee on Monday were largely technical in nature.
In previous meetings over the past week, the committee’s time was mostly taken up with considering amendments on the “hybridization” of Criminal Code offences in C-75, which gives prosecutors the choice to proceed by summary or indictable conviction.
Summary convictions are faster to prosecute but come with a maximum sentence of two years less a day. The Liberals backed down on hybridizing terrorism-related offences and the offence of advocating genocide, deciding that allowing summary convictions for those offences would send the wrong message.
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