What is routine?
What might seem like an abstract question has taken on larger significance under Bill C-75, the federal government’s omnibus justice reform legislation, which will come back before the Justice and Human Rights Committee as the House of Commons returns this month.
The bill has drawn considerable interest and criticism, particularly concerning its more controversial aspects — eliminating preliminary hearings, doing away with peremptory juror challenges, the hybridization of numerous offences.
The other issue, at first overshadowed by the other changes, is the provision — s. 278 — proposing to “allow routine police evidence in writing.”
Under the proposed bill, that means anything collected by a police officer related to “gathering evidence and making observations; analysing, preserving or otherwise handling evidence; identifying or arresting an accused or otherwise interacting with an accused.” It extends to any other similar activities “that the police officer undertook in the course of their duties.”
“The definition given in the bill of routine police evidence is almost all-encompassing,” writes Thomas Surmanski, an associate counsel at Robichaud Law. “Save for a ‘Die-Hard’ type of bizarre scenario where John McClane is called as a witness.”
Vancouver lawyer Kyle Lee puts it more bluntly: “What Bill C-75 defines as ‘routine police evidence’ is, in fact, all of policing.”
There is a growing concern that the definition in the bill is so broad that it opens the door to allow Crown counsel to introduce police evidence that is free from cross-examination.
Under the scheme drawn up in Bill C-75, either party can introduce evidence collected by police by way of an affidavit or a solemn declaration by the officer.
Either party can also file to have that officer appear to be cross-examined. However, that decision isn’t automatic. In hearing the application to bring the officer to the stand, the court must consider, the nature of the proceedings, the importance of the evidence, the accused’s rights, the importance of promoting a “fair and efficient trial,” and “any other factor that the court considers relevant.”
“They could run entire trials by way of affidavit,” says Tony Paisana, a lawyer at Peck and Company in Vancouver and a member of the executive of the CBA Criminal Justice Law Section.
But it may be a rare case that defence counsel allows police evidence to be introduced at trial without being given a chance to cross-examine the officer who collected the evidence. According to Paisana, if Crown counsel wants to enter uncontroversial evidence at trial, they’ll likely already find that defence counsel will agree to skip cross-examination. “You don’t need another mechanism to do that,” he says.
“Truly ‘routine’ police evidence is already admitted on a daily basis by way of admissions,” says Ian Carter, a partner at Bayne Sellar Ertel Carter and chair of the Criminal Justice Law Section.
“Instead of making admissions, counsel will be encouraged to force the other side to draft affidavits for ‘routine’ evidence, and then decide whether to apply to cross-examine at a later date,” he says. “This would be a wasteful and unnecessary development in the preparation of trials.”
Because defence counsel will almost certainly contest any effort to introduce evidence by way of affidavit alone, Bill C-75 may well have the unintended consequence of further contributing to court delays.
“There are all sorts of extra procedural steps that are now being added because of this proposal,” Paisana says.
Because Bill C-75 allows “virtually any aspect of a police officer’s evidence” by way of affidavit, says Carter, “presumably, the accused would then be required to justify calling the witness.”
That, in and of itself, is problematic. Carter says that any such application would be “likely to require the defence to expose its strategy before calling the witness.”
“Now you’re going to have to tell the judge and the other side, ‘yes, I am contesting the other person’s evidence,’” adds Paisana.
Carter and Paisana are working together to prepare the Canadian Bar Association’s submission to the House of Commons committee studying the bill.
The big question is: What happens if the application to cross-examine the officer is denied?
“We believe that any provision that limits the right to cross-examine would be vulnerable to a Charter challenge,” says Carter. Even requiring the defence to tip its hand in submissions to call the officer to testify could be Charter breach, he says.
Paisana points to R. v. Lyttle, a 2004 ruling in which the Supreme Court of Canada found that “the right of cross-examination...must be jealously protected and broadly construed” as evidence that the courts won’t look fondly on any effort to limit that power. All the more so as some cases could run entirely on so-called “routine” police evidence — notably, matters involving drug crimes and administration of justice offences.
In the government's Charter analysis of Bill C-75, Ottawa anticipates that safeguards would be enough to defend the bill from a challenge.
“Where effective protection of the accused’s Charter rights would require the judge to call the police officer for cross-examination, the judge would be able to do so,” it notes. It adds that the evidence in the affidavit must be otherwise admissible and that all issues, here, are ultimately at the judge’s discretion.
“On what basis are they going to justify it?” Paisana asks. Ottawa would likely need to prove that cross-examining police testimony is either inessential, or that there are substantial issues caused by requiring police to testify.
“I’ve yet to come across any study or anything that suggests that this was a problem,” Paisana says.
There is some sympathy amongst defence lawyers for the government in its efforts to speed up criminal trials in the wake of the Supreme Court’s decision in R.v.Jordan.
But the prevailing view is that opening the door for police evidence to enter criminal proceedings without requiring the office to face the truth-seeking rigour of cross-examination is the wrong way to go about it.
When the issue around routine police evidence was put to Justice Minister Jody Wilson-Raybould at committee, in June, the minister told MPs that the measure was intended to help with reducing delays around that routine police evidence. She also stated that she was open to considering amendments.