Bill C-75 and Facilitating Police Evidence: Making courts more efficient… or not?

The hot button legislative topic of the day, or at least this first half of 2018, seems to be the Liberals new omnibus bill making substantial and sweeping changes to the criminal law of Canada and its related procedures. Some of these changes have been expected and desperately needed, such as the elimination of so called “zombie” laws that continue to live on in the books, robbed of relevance by previous court decisions declaring them unconstitutional. Other changes are more contentious, and feature prominently in the eyes of the public, such as the elimination of peremptory challenges. However, most of the changes have managed to largely escape the public scrutiny, but that does not mean that they are innocuous. One such troubling change proposed in Bill C-75 is the modification to the acceptance of police evidence in court.

The Bill would modify the Criminal Code, by adding the following to the end of s.657: “657.‍01 (1) In any proceedings, the court may allow routine police evidence, if otherwise admissible through testimony, to be received in evidence by affidavit or solemn declaration of a police officer and may, on its own motion or at the request of any party, require the attendance of that police officer for the purposes of examination or cross-examination, as the case may be.”

This proposed change attempts to accomplish what a large portion of the bill is attempting to address, namely, to speed up the courts, and reduce the backlog of cases.

This is in part motivated by the recent Jordan decision, which has established a minimum standard of expediency that an accused can expect when dealing with the Canadian criminal justice system. Initially, this proposed change seems to make perfect sense in the quest for further efficiency: it would eliminate the necessity of police being forced to attend trials by submitting a written statement. This would save the police officer’s time, as well as the court’s time by not having to listen to the officer be questioned, and then cross-examined afterwards.

In practice however, this initiative seems destined to fail. When a police officer is able to give a written statement, what does the accused have to lose in requesting that the officer be present in order to be cross-examined? Why would the accused not ask for this? In essence the bill is now adding a swath of new motions that will be made in most trials that have police evidence. The judge will then have to actually make a determination as to that motion. Conveniently, the bill lays out factors to be considered when determining whether or not to grant this motion:

(a) the nature of the proceedings in which the evidence is sought to be received by affidavit or solemn declaration;

(b) the extent to which that evidence is central or peripheral to the issue before the court;

(c) whether and the extent to which that evidence is expected to be contested;

(d) the accused’s right to make full answer and defence;

(e) the importance of promoting a fair and efficient trial; and

(f) any other factor that the court considers relevant.

It is worth going through these guidelines and to consider how they will be applied in practice. The first three provisions all seem uniquely designed to stop an accused from wasting the court’s time purely for the fun of it, but this is not a common problem facing the courts at this time. First, a) we are to consider the nature of the proceedings. Presumably this is to mean that in trials for relatively minor offences, there will be less incentive to grant the motion to have the officer appear in court. However, why is it that we are willing to accept a lower standard of evidence for lessor offences? Is an accused not entitled to determine the veracity of evidence, and to highlight the flaws in the arguments made by an officer?

The second article, b), asks the court to consider, in effect, the relevance of the evidence that is being provided. It seems highly unlikely to me that, if an accused makes a motion for the officer to appear and claims that it is because they feel that the evidence the officer will provide on cross-examination will be central to the case, that the judge would refuse or argue? It seems improbable that a judge will be able to determine that an officer will make no pertinent statements on cross-examination, particularly given that surely the evidence intended to be elicited by having them there is absent from the written report?

The third criterion, c), on the expectation of whether the evidence is intended to be contested. If the accused is requesting the officer to be present, doesn’t this in and of itself demonstrate that the evidence is intended to be contested? It seems reasonable that the court can come to expect contention, simply by virtue of the motion being made.

The final three criteria seem to ultimately guarantee the success of the motion, should it be raised. If the court is to consider the accused’s right to make full answer and defence, (d), this must surely be in favor of granting the motion to have the officer present. Similarly, a “fair” trial as described in subsection (e) must surely include the opportunity to have the witnessing or arresting officer testify, as well as (f) any other factor that might be relevant. The only potential hurdle is the allusion to an “efficient” trial, but it seems doubtful that a judge would deny such a motion, when considering all the other factors, just because it would demand more of the court’s time. If the court were to deny one of these motions to have the officer appear, it would fundamentally undermine the legitimacy of the evidence being submitted, and would be violating the rights of the accused to have a fair trial.

The particularly amusing part of the legislation is to the definition of “routine police evidence” that is provided.

This provision is limited only to routine police evidence, and so anything abnormal would have to be presented in person. However, “routine police evidence” in this context includes evidence that is related to any of: a police officer gathering evidence or making any sort of observation; an officer analyzing, preserving, or otherwise handling evidence; a police officer arresting or interacting at all with an accused; anything else routine during the course of the police officer’s duties. Using this definition, it demands some creative imagining to conceive of what evidence a police officer might be providing that does not fall into this definition. If the police officer made an observation, that is routine… If the evidence was done while interacting with the accused, that is routine. Analyzing or interacting with evidence is routine. It is unclear exactly what kind of evidence is intended to be excluded from this rule.

While the bill does have some long overdue content, it also contains some amendments that will surely have the opposite effect than desired: they will slow down, rather than speed up, the Canadian Courts.