The Mike Duffy Trial #1: Why in the Ontario Court of Justice?

Suspended Senator Mike Duffy faces thirty-one charges under the Criminal Code; multiple counts of fraud over $5000, fraud under $5000, breach of trust, and one count each of fraud on the government, and bribery. These charges relate to residency expense claims, expense claims unrelated to Senate business, awarding of consulting contracts, and accepting $90,000 from Prime Minister Harper’s Chief of Staff, Nigel Wright.

These charges were laid on July 17, 2014, and the trial began on April 6, 2015, with a total of 41 days set aside in April, May and June to hear the evidence. Clearly this is a complex matter, of high public interest and scheduled for trial on an expedited basis. That it has come to trial so quickly reflects the efforts of both parties and the criminal procedure context in which they are operating.

How it is that a trial considered “one of the most important in our history” is being heard in the Ontario Court of Justice?  Most “high profile” trials which attract national media attention are heard in a Superior Court, the Ontario Superior Court or a Court of Queen’s Bench in other provinces. These superior courts (called s. 96 courts because that section of our 1867 constitution  establishes them) have judges appointed by the federal government, and are the only courts with authority to hear jury trials. All jury trials, and many important “judge alone” trials, are heard in this court.

Mike Duffy, by contrast, is being tried in the Ontario Court of Justice, the lower court in the judicial hierarchy, where the judges are appointed by the provincial government. Mr. Justice Charles Vaillancourt is a seasoned veteran of that court. So why is Mr. Duffy before Justice Vaillancourt and not some judge of the Superior Court?

Although lower in the hierarchy than the Superior Court, the Ontario Court of Justice does the majority of the criminal court work in the province. All criminal cases start there. Depending on the nature of the charge, and on the choices (called “elections”) made by the crown and the defence, the matter may stay in the Ontario Court for trial or “go upstairs” to the Superior Court.

Most of the charges facing Mr. Duffy are straight “indictable” offences, serious charges where the maximum penalty ranges from a potential of five years custody to fourteen years. Where the charge is an indictable offence, Mr. Duffy would have been able to “elect” how he wanted to be tried. By a judge alone, in the Ontario Court of Justice? By a judge and jury, in the Superior Court? Or by a judge alone, in the Superior Court?

If he had opted for the Superior Court, he could have had a prior preliminary hearing in the Ontario Court. Preliminary hearings are held, at the request of the defence, to see if the crown has a prima facie case on each charge, and for the purposes of disclosure. When I was first appointed to the Bench, preliminary hearings were commonplace in the provincial court, and often used as a tool for delay. If a defendant chose “a prelim” (as they are called), it would be many months before it could be heard and, when it was, the defendant would frequently “waive the prelim” and consent to committal to the Superior Court without hearing any of the evidence. Then it would be many more months before a trial date could be set in the Superior Court. Since the 1990s, prelims have been streamlined. Usually the crown presents only enough evidence to satisfy the basic test for committal, and the defence presents no evidence at all. Defendants are now required to indicate what evidence they need to hear on a prelim, and the specific issues to be addressed. Disclosure is less of an issue than previously, as the Supreme Court of Canada decision in R. v. Stinchcombe (1991) compels all crown attorneys to disclose all they have about the case to the defence well before the trial.

As the Duffy case involves the relationship between Mr. Duffy and the Prime Minister’s Office, and the nature of the Canadian Senate, getting the matter to trial as soon as possible would have been a priority for both parties. The delay inherent in scheduling a preliminary hearing, and the publication ban typically imposed on evidence heard at a prelim, would have served the interests of neither party.

Another reason for the trial to go ahead in the lower court is that the seven counts of “fraud under $5000” charges against Mr. Duffy are “hybrid offences” where the crown can elect to proceed “by indictment” or “by summary conviction.” If “by indictment,” the Criminal Code mandates that fraud under charges must remain in the provincial court and the maximum penalty is two years in jail. That all the charges against Mr. Duffy should be heard together favours having the trial in the provincial court.

Just to complete the analysis, note that provincial criminal courts have exclusive jurisdiction to hear and decide all “summary conviction” offences. There are “straight” summary conviction offences defined in the Criminal Code, such as unlawful assembly, trespassing by night, indecent acts. There are also “hybrid” summary conviction offences where the crown has the choice of proceeding summarily or by indictment. Crowns generally choose to go summarily where the charges are alleged to have taken place within the past six months, are less important on their facts, and where the right maximum sentence on conviction would be six months or, in the case of certain offences like sexual assault or sexual interference, eighteen months.

Amendments to the Criminal Code in the 1990s increased the maximum sentence for conviction on more serious summary conviction offences to eighteen months. That this longer prison term was now available had a major impact on the workload of the Ontario Court of Justice. Now crown attorneys could secure an appropriate sentence without the need for a preliminary hearing or going “upstairs.” The effect has been to make the Ontario Court of Justice the principal criminal court in the province, doing more than 95% of the criminal and youth court work, attracting judges very skilled in criminal law, and also more “high profile” cases. Now, whether at the choice of the crown or the defence, the overwhelming majority of all criminal trials occur in the Ontario Court of Justice.

People concerned about having so important a matter decided by a single judge rather than a jury can be reassured that trial by judge alone is the most accountable of all proceedings. Juries do not have to give reasons for their verdicts and, in Canada unlike the United States, it is unlawful to ask about or reveal the nature of jury deliberations. A judge alone, by contrast, is required to give reasons for his or her findings. These reasons must deal with all the issues before the court and must be comprehensible to the litigants and to the public. A litigant unhappy with the result can appeal.

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Sexual Assault and the Criminal Courts: A Response to the Globe and Mail Editorial

Following the Bill Cosby and Jian Ghomeshi affairs, a year-end Globe and Mail editorial (published December 28/29th and entitled “The year justice changed”) proclaimed 2014 “the tipping point in a shift that is alarming to a country built on… due process and… fairness,… from a presumption of innocence to a tolerance of public shaming.” The editorial correctly spoke to fundamental issues about our criminal justice system which warrant attention. Public shaming versus due process. A presumption of innocence versus a presumption of guilt. Crowd “justice” versus justice in the courts.

What was so alarming about the Globe editorial, however, was its simplistic conclusion that the supposed “shift” to “public shaming”… “is easily explained by the failure of our justice system to defend sexual assault victims.” The specific problems identified were:

1) the police dismissing the majority of victims’ complaints,
2) courts not imposing “tougher sentences on convicted offenders (the average in Canada is two years, often conditional)”, and
3) our law of consent which is “progressive and clear on paper” but “mud” in court as “… our society continues to think it reasonable that women bear some of the responsibility….”

No sources for these assertions were identified.

In my experience, the above reveals a shocking misunderstanding about the criminal law of sexual assault, and how the courts have dealt with it since the last major reform over 30 years ago. I felt I was in a time warp, and did not recognize what I was reading.

First, the crime of “sexual assault” as defined in the early 1980s does not only refer to intercourse without consent (previously called “rape”). It extends to any unwanted touching which violates the sexual integrity of the complainant. The spectrum of sexual assaults runs from an unwanted patting on the buttocks, groping at the genitals, caressing of the breast area (over or under clothing) to intercourse. As one of the factors considered on sentencing is the severity of the particular fact situation, sentences for “sexual assault” run the gamut. Properly so.

Second, police have been trained to lay charges when they have “reasonable grounds” to believe that an offence has occurred. The test for “reasonable grounds” is not high. A complainant who reports that he or she has experienced a sexual assault can expect that these allegations will be taken seriously, investigated, and will likely lead to charges. The police cannot lay charges when there are no witnesses, and victims, for complex social reasons (to do with poverty, dependence, personal or family issues, fear of cross-examination, to name but a few) choose not to report.

Third, crown attorneys traditionally have discretion about how they pursue their cases in court. Most criminal charges (well more than 90%) are resolved without a trial. Most cases are heard by a judge alone. Most in the provincial court, in Ontario called the Ontario Court of Justice. Plea bargaining is the mechanism by which criminal courts manage their caseload. When alleged offenders take responsibility for some offence, and the crown proposes a sentence which the defendant can live with, and would be acceptable to a judge “as a joint submission,” matters typically end with no need for any trial. Without this practice, the courts would collapse.

With respect to domestic violence, this discretion of the crown has been considerably curbed. Often crowns pursue cases to the point of calling evidence from the complainant, even when she has recanted her story, and the chances of a conviction are minimal. This practice is controversial, and has its pros and cons. Where the crown does not “withdraw” the charges, the court may impose other remedies even without a conviction. The statistics will show another acquittal by a judge, but the reason for the acquittal has little to do with the system.

Fourth, judges are prohibited from basing their decisions on stereotypical assumptions. Except in very limited circumstances, judges cannot assume that a truthful complainant would have reported immediately. Reputation evidence is inadmissible, as is questioning on prior sexual conduct, except in strict situations after a hearing. Judges must give reasons for their findings of fact. Their reasons must be based on the evidence before the court, and are subject to review by appeal courts.

The real issue for a judge is determining credibility. The Supreme Court of Canada has defined a very specific test for credibility. Extensive case-law has refined it, including the need for judges to consider the special circumstances of particular complainants (children, young people, those with disabilities, and those from other cultures). If a judge cannot make findings of fact beyond a reasonable doubt, however, there can be no conviction. As a practical matter with respect to any offence, delays in getting to trial do not help.

Since the 1980s, the criminal law, and the criminal courts (in Ontario at least), have tried to make it easier for complainants. The appeal courts have given trial judges greater powers to constrain abusive cross-examination. Numerous mechanisms now exist which assist witnesses giving their evidence in court, and protect them outside. An elaborate victim witness program has long ago been created to inform witnesses about the system and provide support if they need to testify. A tide of child sexual abuse cases has swept through the courts, and been dealt with, many historical and involving powerful people.

It would be useful if the media focused on how the criminal justice system actually works. The system is complex; the administration of justice is a provincial responsibility, and practices may vary across the country. Perpetuating stereotypes about the system which are out of date, however, does no service to anyone. It deters potential complainants from coming forward, and ignores the real issues that undermine the delivery of justice in our criminal courts (including the problem of delay).

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