SoVote

Decentralized Democracy

Ontario Assembly

43rd Parl. 1st Sess.
April 26, 2023 09:00AM

Thank you, Speaker. It’s an honour to speak after the member from Oakville North–Burlington. Her advocacy on this matter has been incredible. As a member of the private members’ bills committee, I was present when she presented about this issue and she presented with a great deal of passion and dedication. I want to thank her for being so dogged in her advocacy in making sure that we’re aware of this.

Applause.

For some who aren’t as familiar with the role of the judiciary or criminal justice, there may be a concern that this does not go far enough. Why is it not a mandate for specific training? Why are we not intervening in what that training would look like? Those kinds of concerns. And obviously I understand those concerns. We have very, very powerful examples of when notice of these important issues has not been taken. However, what we need to respect and what this legislation absolutely does respect is the role of judicial independence. It’s absolutely vital that, in our system in Ontario, in Canada as a whole, our judiciary be able to make decisions which are, to some extent, conscience-motivated, but ultimately based on the law, and make those decisions without fear of censure by a hysterical public or by the trends of political favour. It’s an incredibly important part of our judicial system and one of the most dramatic differences, frankly, between us and our neighbours to the south and across the border and something that I still believe is incredibly important.

Again, this is why we need to make sure that we are maintaining this. This training will be developed by the judiciary itself, so you don’t want to, for example, have an excessive reliance on social science theories as versus social science data. I believe that, in the way that this is worded and by leaving it to the judiciary, we will be able to have them strike an appropriate balance between providing that type of relevant data and lived experience as versus, as I said, that political trend or social science trend that can be damaging, and that is why we have judicial independence as such an important part of our system in the first place.

However, as I said, there are, again, those who may feel that this goes too far as versus not going far enough. Again, I’m very confident that this government understands the role of judicial independence, and I said that this is why it’s been worded as such. However, in, for example, a criminal case—or really any case before a judge, but I’m more comfortable with the criminal realm—one of the absolute key rules of evidence in a trial or a proceeding is that you can’t bring anything before the court that isn’t brought out through evidence. So the fact that there may be a great deal of data or trends about domestic violence, family violence, coercive control, that type of thing, as a crown attorney, the crown is not permitted to simply make submissions to a justice that that is the case. You are not permitted to provide academic materials or articles in order to support that position. The only way that you can do it is by having an expert in the field actually in court to testify and be cross-examined and, perhaps, introduce it that way.

This is a huge burden on the system. It’s, frankly, impossible for the most part to find somebody that’s able to do that. It’s also completely beyond the powers of the system when we’re talking about, for example, the bail stage. Having anybody able to testify at the bail stage about some of these matters would be very challenging. And, again, this isn’t about in any way forcing the judiciary to be swayed one way or the other. This is about trying to make up for some of the gaps in lived experience that they have.

I can speak very directly and personally about what that can look like. I said this before and, again, I won’t be naming any names, but I have experienced a justice of the peace that, as a result of the Antic ruling, in any domestic violence, even choking, would not award a no-weapons condition as part of the release terms because he said that hands were not weapons and was adamant about that.

In another case there used to be—well, there still is—a mandatory minimum for human trafficking. That’s been ruled unconstitutional a number of times. I was involved in a case where the judge, again, found that it was unconstitutional and went dramatically below the two-year mandatory minimum. In that case, it was a human trafficking case with an extremely violent habitual offender who had been charged and convicted of this type of offence before. He targeted a young woman who was a crystal meth addict. He took her car and her bank cards and her driver’s licence. He brought her to a hotel, and he posted photos of her on back pages. Over the course of the next 24, 30 hours or so, he had about, I think, 25 men visit her in succession. There were times when he was not at the hotel, when he had left, and he never assaulted her himself.

The judge in that situation, in ruling that a two-year mandatory minimum would be cruel and unusual punishment, pointed out in his written reasons that at the end of the day the girl in question, the victim, was able to leave. He wasn’t there. There wasn’t a guard on the door. She was able to leave. And then he went on to comment that, well, because she was able to leave, she didn’t have to be subjected to this unimaginable night of sexual torture and assault, and because this specific accused had not in fact himself raised a hand to her that he had not perpetrated violence on her directly, basically leading up to the decision that, in the scheme of human trafficking, this was more minimal in nature and that, as I said, the two-year mandatory minimum was unconstitutional.

Again, as a crown in that case—you would have to bring an expert in in order to actually testify about the experience of a victim of human trafficking. But unfortunately, as we have all heard, human trafficking, domestic violence, intimate violence continue to be a rampant problem throughout the province of Ontario, and, frankly, our system would crumble if that was a requirement for all cases.

So, what this requirement does is it essentially, I think, flags to the judiciary that we as the representatives of the public, the elected members of the public, feel that this is a significant issue that we would like them to be better informed about, and then when it comes time for them to rule on the merits of the case or make a decision in bail, that that element of conscience and lived experience that judges bring to all of their decisions also includes some of that information that, absent exposure, would not be available to some of our judiciary otherwise.

In summation, I think this is incredibly valuable legislation and it perfectly balances the competing interests here.

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My understanding of how this is to be rolled out—as I said, judicial independence remains an absolutely essential feature of Canadian justice and not something that should be trifled with, altered, treated with any less than the seriousness that it requires. This training is to be developed by the judiciary. I can say, as somebody who has a great deal of experience with a number of members of our bench, both justices of the peace and judges, the vast majority are extremely caring individuals who already take a lot of this concern on their own initiative. The concept of an evaluation—again, I believe that would remain with the judiciary.

However, the idea here is not that we are attempting to force anybody to ascribe to a specific social theory, but simply that we expand some of that lived experience and that conscience that may otherwise be lacking, simply because of having had dramatically less exposure and experience with this.

In answer to your question, I think it will be left to the judiciary again.

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They are. It’s quite difficult. Again, there are good reasons for it to be difficult, because that’s what that judicial independence is, in that we’re not supposed to have the mob rule of the public making these decisions.

But again, the issue there is that it’s difficult to appeal because it’s not exactly a mistake in law or in fact. There’s criminal legislation that specifically prohibits justices and judges from making certain inferences. In sexual assault cases, for example, past sexual history you can’t ask about. You can’t draw an inference about a delay between an assault and actually reporting that assault as the likelihood that the assault happened. That’s enshrined in statute.

But no, something like this is quite difficult to appeal because in some ways, the reasons given are almost an obiter. Again, this is why I think this idea of training is important, and also simply the message that it sends, because our judges are not elected, which is a good thing. But because our judges are not elected and we are, we are the voice of the people. As the voice of the people, this is us flagging this as an issue and saying, “Please pay attention to this and understand it in making your decisions.”

When a person in Ontario is charged with a domestic violence offence, the police complete the ODARA report, but also what they do for bail and going forward is literally every single occurrence report that we can find that exists about that person being involved in a domestic incident if they are charged with domestic assault is included in the prosecution package, which we can actually see. So we are doing a lot of that.

When it comes to Clare’s Law, frankly, I support the concept behind it. It’s not likely to be found constitutional by the Supreme Court, to be perfectly honest, but that’s a discussion for a different time and a different jurisdiction.

Obviously in this case, we are maintaining judicial independence. We are not going so far as to say these theories are absolutely the case, but what we are talking about here is making sure that we are filling in some of the gaps of experience so that in making decisions in these cases, there’s a little bit of a space between judicial notice and simply being aware of a trend, because, as I said, otherwise we are entirely limited to actually bringing in live testimony and evidence, which creates a very significant burden, so this really helps inform our judges.

We’ve talked today about community safety, community policing, which is an incredibly important aspect. However, you need people in order to do that. My answer to that would be, frankly, for the NDP and the member to be loud and vocal in their support of our police officers because, ultimately, having them feel like they’re doing a job that is valued in society will help with our recruitment, whereas if we vilify them, I wouldn’t want to join the police either.

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