Bill C-23 (Historical)

An Act to amend the Criminal Code (criminal procedure, language of the accused, sentencing and other amendments)

This enactment amends various provisions of the Criminal Code in relation to criminal procedure, language of the accused, sentencing and other matters.
The amendments respecting criminal procedure provide for, among other things,
(a) the use of a means of telecommunication to forward warrants for the purpose of endorsement;
(b) changes to the process with respect to the challenge of jurors;
(c) a new election for the accused where a preferred indictment has been filed against him or her or where the Supreme Court of Canada orders a new trial;
(d) an appeal of a superior court order with respect to things seized lying with the court of appeal;
(e) summary dismissal by a single judge of the court of appeal when an appeal has erroneously been filed with that court; and
(f) a summary conviction trial with respect to co-accused that can proceed where one of the co-accused does not appear.
The amendments respecting the language of the accused clarify the application of provisions related to that matter.
The amendments respecting sentencing provide for, among other things,
(a) clarifications with respect to the application of impaired driving penalties;
(b) the power to order an offender not to communicate with identified persons while in custody and the creation of an offence for failing to comply with the order;
(c) the power to delay the sentencing proceedings so that an offender can participate in a provincially approved treatment program;
(d) an increase of the maximum fine that can be imposed for a summary conviction offence to $10,000 and a change with respect to the calculation of the period of imprisonment to be imposed in default of payment of a fine;
(e) the suspension of a conditional sentence order or a probation order during an appeal;
(f) in the case of a person serving a youth sentence who receives an adult sentence, clarification that the remaining portion of the youth sentence is converted to an adult sentence; and
(g) the power of a court to order, on application by the Attorney General and after convicting a person of the offence of luring a child by means of a computer system, the forfeiture of things used in relation to that offence.
The enactment amends the description of the offence of conveying information on betting and book-making so that the offence encompasses the conveying of that information by any means and makes related changes to the exemption provided with respect to the use of a pari-mutuel system.
Finally, amendments are also made to reclassify the offence of possession of break and enter instruments into a dual procedure offence.

[The Chair, Conservative, Art Hanger]

There is, no doubt, some sympathy for it, Mr. Ménard. But it proposes to change another section of the Criminal Code that this bill, Bill C-23 does not touch on. You're talking about section 487.01. Bill C-23 does not deal with it. It does change some sections of the Criminal Code, but not this particular one.

It's inadmissible.

[The Chair, Conservative, Art Hanger]

That ends that business.

We will go on to Bill C-23, An Act to amend the Criminal Code (criminal procedure, language of the accused, sentencing and other amendments),

We have before us Monsieur Marc Tremblay, general counsel and director, official languages law group; and Anouk Desaulniers, senior counsel, criminal law policy section.

We are now going into clause-by-clause consideration of Bill C-23.

(On clause 1)

[Rob Moore, Conservative, Fundy Royal, NB]

The witnesses are here for Bill C-23, not to engage in a debate on Mr. Ménard's motion.

[The Chair, Conservative, Art Hanger]

We have clause-by-clause on Bill C-23 at the next meeting.

There's a motion for adjournment.

Criminal Code

[Marlene Jennings, Liberal, Notre-Dame-de-Grâce—Lachine, QC]

Mr. Speaker, it is a pleasure to speak at the report stage on Bill C-22, An Act to amend the Criminal Code (age of protection).

I would like to say, for those who are listening, that the Liberal Party of Canada supports this legislation.

Before I begin discussing the bill in detail, I wish to briefly address several remarks made by the Parliamentary Secretary to the Minister of Justice in his speech several minutes ago. He said that there were delays with the bill and that the government was happy that the bill was finally at this stage.

I wish to inform people that the Minister of Justice tabled Bill C-22 in the House of Commons on June 22, 2006. The House then adjourned for the summer. It came back at the end of September.

It is the government's prerogative to determine when it wants to move second reading and debate of its own legislation. The government moved debate at second reading on October 30, 2006. This was after the Liberal justice strategy was announced, after Liberals and the then Liberal justice critic offered to fast-track Bill C-22 and a number of other justice bills that the Conservative government had tabled.

Debate at second reading ended on October 30, 2006, which meant that there was an agreement by all parties not to delay debate in the House and to get the bill into committee as quickly as possible. It was referred to the justice and human rights committee, which was already conducting hearings on a series of other government bills and private members' bills.

The justice and human rights committee held hearings on Bill C-22, the age of protection bill, on March 21, March 22, March 27 and March 29, 2007. Members will remember that there was a two week adjournment for the Easter period.

The House returned on April 16 and the justice and human rights committee, which is scheduled to meet on Tuesdays and Thursdays, met on Tuesday, April 17 and on Thursday, April 19. The committee concluded its clause by clause and reported the bill back to the House on April 23.

The government decides when to move debate at report stage and it only decided to move Bill C-22 at report stage this week. It was in a line of bills for which the government determines the order.

If any member of that government is dissatisfied with the length of time it has taken for Bill C-22 to pass through second reading debate, committee stage and reported back, and now be at report stage debate, they need only to look at themselves in the mirror.

As the House knows, the bill has returned to the House from the Standing Committee on Justice and Human Rights. It has been reported with an amendment, as was mentioned by the Parliamentary Secretary to the Minister of Justice.

The amendment added marriage as a defence where an accused is charged with: sexual interference, which is section 151 of the Criminal Code; invitation to sexual touching, section 152 of the Criminal Code; indecent acts, section 173.2 of the Criminal Code; and sexual assault, section 271 of the Criminal Code, in cases where the complainant is 14 years or older but under the age of 16. We Liberals worked alongside the other parties to bring this amendment through.

We are happy to see it included in the committee's report on the bill. We are also happy that, notwithstanding the fact that the Conservative members on the justice and human rights committee, including the Parliamentary Secretary to the Minister of Justice, opposed the amendment in committee, those members have not brought forth a motion to amend the report stage bill and remove that defence.

I had proposed an amendment to the bill. The amendment would have repealed section 159 of the Criminal Code. This section sets out anal intercourse as a criminal offence. This outdated section of the Criminal Code is a relic of Canada's past and in fact has been found contrary to Canada's Charter of Rights and Freedoms. Two appellate courts, one in Quebec and the other in Ontario, reached this conclusion.

When the government drafted Bill C-22, it could have acted then to remove this archaic section of the Criminal Code or, having failed to do that, perhaps through inadvertence--I gave them the benefit of the doubt that it was by inadvertence--the government at that point could have supported my amendment in committee, because even if an amendment is beyond the scope of the bill, if the government agrees to the amendment it is then admissible and can be debated, voted on and adopted.

The government, however, decided on two occasions, when it was forced to take on the issue with this outmoded, archaic section of the Criminal Code, which is clearly a violation of the Charter of Rights and Freedoms, that it would instead champion discrimination and homophobia. I think this speaks volumes to that Conservative government's values and the members of that government.

Be that as it may, the bill did pass through the committee without other changes. The committee hearings on Bill C-22 proceeded smoothly and brought forth the views of many Canadian individuals and organizations who have a stake in this issue. Most stakeholders spoke in favour of the bill, while some did speak against it.

Among all parties there was a strong desire to support the bill and to see it clear the committee process quickly and efficiently. I believe the dates that I mentioned show that this is exactly what we achieved.

I would like to repeat that our party supports Bill C-22. Since October 2006, we have repeatedly offered to fast-track a number of justice bills. Surprisingly, the minority Conservative government has refused our offer. It would seem that the government addresses justice issues only when it thinks it can manipulate them for political gain. This is a government that would have Canadians believe it is taking action, but that is not delivering the goods. This is a government that is far more interested in grabbing headlines than getting results that will make Canadians and Canadian communities safer. This is a pattern that has been repeated a number of times already, as in the case of Bill C-22.

In October 2006, my colleague, the member for London West, who was then our party's justice critic, offered the government the chance to fast-track a series of six justice bills that the government had tabled in this House, including Bill C-22. The government turned us down flat. With my colleague, the member for Wascana, who is the Liberal House leader, I made the same offer again in mid-March, and again the government turned a deaf ear.

Towards the end of March, the Leader of the Opposition also made the same offer. The government again did not listen and completely ignored this last offer. To top it off, the government even had the audacity to oppose a motion I tabled to immediately move to third reading of four bills that the government itself had tabled, that is Bills C-18, C-23, C-35, and of course C-22.

Bill C-18 deals with DNA identification. Bill C-23, which is presently before the Standing Committee on Justice and Human Rights, is an omnibus bill that makes corrections and technical amendments to the Criminal Code with respect to various procedures. Bill C-35 deals with the reverse onus of proof in bail hearings. This government has stated that this bill is all-important to its agenda and to its justice policy but has flatly refused to accelerate the process in the House. The last bill is Bill C-22, which we are currently debating. This is the first time, in my almost 10 years as a member of Parliament, that I have seen a federal government impede the progress of its own legislation. Who would have thought it possible? Anything is possible, its seems, for this minority Conservative government.

In conclusion, I simply wish to say that, from the time Bill C-22 was tabled in this House, in June 2006, the Liberal Party of Canada, the official opposition, has shown its support for this bill and has attempted to convince this government to fast-track it. However, it was the government that blocked any attempt by the official opposition to quickly adopt Bill C-22. We are very pleased that, finally, this bill is in the House at the report and third reading stage. We intend to vigorously support this bill.

[The Chair, Conservative, Art Hanger]

I believe it very much was, Mr. Fraser.

Thank you all for your appearance, Madame Côté, Madame Aucoin, Mr. Fraser, and Ms. Tremblay. Thank you for being here.

That brings our meeting dealing with Bill C-23to a close.

We will suspend for about two to three minutes.

I call the Standing Committee on Justice and Human Rights to order.

We have a motion put forward by Monsieur Ménard regarding matters dealing with organized crime, gangs, drugs, etc.

I'll give Mr. Ménard the floor. There are some issues as to how the government can deal with the motion, but I'll let you explain first, Mr. Ménard.

[Daniel Petit, Conservative, Charlesbourg—Haute-Saint-Charles, QC]

Good morning Mr. Fraser. This is the second time that I have met you. The first time was at the Official Languages Committee.

Good morning Ms. Tremblay, Ms. Aucoin and Ms. Côté.

With respect to Bill C-23, I think that it does provide some protection to the accused. I believe that we agree on that. We are often criticized for following an ideology that is only concerned about the victims. In this case, we have given some thought to the accused. My question is to Ms. Aucoin, who is a lawyer.

About two years ago, there was a megatrial in my province. Do you know what a megatrial looks like? Thirty-eight individuals who were involved in drug trafficking, murders, etc., were all charged at the same time. Some were francophones, and others were anglophones. The language of crime is universal. They were all brought before the judge at the Gouin Court House. The lawyers, myself among them, were not stupid. We asked for separate trials. Why? Because time spent waiting for trials means a double credit, so it is something that is often used.

I am wondering if the trials could be split. In this type of situation, an individual does not want to be charged alongside a co-accused who could testify against him, and vice versa. If I understand correctly, language will also become a tool. Therefore, if you have 38 defendants, you could end up with 38 separate trials.

I am talking about a megatrial. You are probably thinking about an ordinary trial with a single defendant. That would not be very difficult. But in almost every province, there are megatrials related to drug charges. That means that a clever lawyer could now use this bill, which protects the rights of the accused, and there would be 38 separate trials. Two grounds would then be available to him.

You are a lawyer working in the area of common law. I would like you to tell me if you think that could ever happen.

[Louise Aucoin, President, Federation of Associations of French-speaking Jurists of Common Law Inc.]

Good morning to all members of the committee.

My name is Louise Aucoin and I am the President of the Fédération des associations de juristes d'expression française de Common Law, also known as the FAJEF. With me this morning is Diane Côté, the Director of Community and Government Liaison for the Fédération des communautés francophones et acadienne du Canada, the FCFA.

With your permission, I would like to talk to you briefly about the FAJEF. The federation is made up of seven French-speaking jurists associations and its mandate is to promote and defend the language rights of francophones in minority situations, particularly, but not exclusively, with regard to the administration of justice. The FAJEF therefore has a community mandate.

For your information, there are French-speaking jurists associations in British Columbia, Alberta, Saskatchewan, Manitoba, Ontario, New Brunswick and Nova Scotia, and they represent approximately 1,200 French-speaking jurists. The FAJEF is also a member of the FCFA. That is the reason why Ms. Côté is here with me.

My presentation today will deal with Bill C-23, particularly with its proposed language amendments to the Criminal Code.

To begin, the FAJEF is generally pleased with the amendments to the language provisions in Bill C-23. The amendments are positive, particularly the duty to advise the accused of their right to choose the official language used during their criminal court case. That being said, the FAJEF is still concerned by a number of amendments and would like to suggest a few improvements. We have drawn up four specific recommendations.

The first recommendation deals with subsection 530(6). This subsection automatically directs trials to be bilingual—and we insist upon the word "automatic"—when co-accused choose different official languages. Although it is in the interest of justice to occasionally hold bilingual trials, the FAJEF believes that bilingual trials should not become automatic, because they can significantly weaken the accused's language rights.

The FAJEF recommends that there be a very minor amendment to the wording of subsection 530(6), namely the addition of the word "may", at the beginning. Such an amendment to the wording would allow judges to exercise their discretionary authority by either agreeing or not agreeing to a bilingual trial, in light of the specific circumstances of each case.

Our second recommendation concerns subsection 530.01(1) of the bill. This subsection provides that, once the accused has asked to be tried in an official language that is different from that of the information and indictment, the prosecutor has to, at the request of the accused—and this is an issue raised by Mr. Fraser—provide the accused with a written translation of the text. The FAJEF believes that the accused should automatically receive a translated copy of the information and indictment, rather than have to ask for it, especially since the accused would already have indicated the official language to be used during his or her trial. It is the FAJEF's view that the accused should not be required to make several requests for proceedings to be conducted in the official language of his or her choice. A single request should be sufficient.

Our third recommendation deals with paragraph 530.1(c). This paragraph allows the presiding justice or judge to authorize the prosecutor to examine or cross-examine a witness in the official language of the witness, even though it is not that of the accused or that in which the accused can best give testimony.

The FAJEF is of the view that the prosecutor should, as far as possible, use the language of the accused to examine or cross-examine a witness, although at times it may be justified for the prosecutor to examine or cross-examine a witness in a language other than that of the accused. We believe that by adding "where circumstances warrant" to the wording of paragraph 530.1(c), the discretion of the judge or justice would be better delimited so that such a practice would not become automatic.

Finally, our fourth recommendation has to do with section 531. The FAJEF is concerned about section 531 of the bill, and its application in New Brunswick in particular, because this section could lead to trials being moved from one territorial division to another for reasons of language. Given the quite unique language situation in New Brunswick, the only officially bilingual province, criminal trials are suppose to be available in both official languages in all territorial divisions of the province, without requiring the accused to be tried in another division. The FAJEF would like to see the wording of section 531 of Bill C-23 amended accordingly.

So those are FAJEF's four recommendations. However, before closing, I would like to point out that Bill C-23 raises two other concerns that we would like to see dealt with in the near future.

First, since the right to be tried in the official language of one's choosing requires there to be a minimum number of bilingual judges, the process for appointing judges to the federal bench should be changed in order to better reflect that reality. For example, the level of bilingualism of candidates should be evaluated, and the number of bilingual judges needed to ensure equal access to justice in French in Canada should be provided for in every province or region. That's definitely not the way things stand right now.

Second, it is important that language rights at trial also extend, hopefully in the near future, to all of the procedures incidental to a trial and to other forms of inquiry and hearing under the Criminal Code, such as an application for variation in a probation or conditional sentence order, a dangerous offender application, or an application for judicial review.

By way of conclusion, the FAJEF supports the linguistic amendments set out in Bill C-23, subject to the reservations we have expressed.

I would be happy to answer all of your questions. Thank you.

[Graham Fraser, Commissioner of Official Languages, Office of the Commissioner of Official Languages]

Thank you very much, Mr. Chair.

Ladies and gentlemen of the committee, mesdames et messieurs, thank you for giving me the opportunity to appear today to comment on Bill C-23, and more specifically on the proposed amendments to sections 530 and 530.1, which guarantee the language rights of accused persons.

As stated by the Supreme Court of Canada in Beaulac, the purpose of these provisions is to provide equal access to the courts by accused persons speaking one of the official languages of Canada in order to assist official languages minorities in preserving their cultural identity. For quite some time, the commissioner's office has identified the need to amend these provisions.

To provide some background to my comments, I should point out that Bill C-23 deals with some of the issues that were brought to light in the 1995 study by the then Commissioner of Official Languages, Victor Goldbloom, The Equitable use of English and French Before the Courts in Canada.

I am pleased to see that a number of the provisions of Bill C-23 serve to clarify and improve the language rights provisions of the Criminal Code and must be seen as advancements in that regard.

For example, Bill C-23 clarifies that the justice of the peace or provincial court judge before whom the accused first appears will ensure that the accused is advised of his or her right to a trial in the official language of choice. Currently the accused is informed of this right only if unrepresented by counsel. The extension of this right to all accused represents a positive step forward.

Furthermore, that the purpose of the proposed amendments is to codify existing jurisprudence on language rights in Canada is indeed reflected in a number of the bill's provisions.

For instance, Bill C-23 recognizes the accused's right to receive a translation of the information or indictment against him or her. This is a positive step in the direction set out by the courts. However, under the proposed amendment, the accused would have to make an application for a translation of the information or indictment even if he or she had already chosen the official language to be used at trial.

The information or indictment contains important information required for the accused to respond to the charges. The burden should not fall upon the accused to make an application for translation. He or she should have access to this as promptly as possible without having to make an application.

I recommend that clause 19 of Bill C-23, which adds proposed section 530.01, be modified accordingly.

Another issue that I wish to address today is that of bilingual trials. Under the new subsection 530(6) of the Criminal Code, introduced by subsection 18(2) of Bill C-23, where two or more accused who would otherwise be tried jointly choose to be tried in different official languages, an order that the trial be held in both official languages is warranted. The Criminal Code currently allows for courts to order bilingual trials. However, according to the relevant jurisprudence in this area of the law, for a court to make such an order, it must first be satisfied that the rights of the co-accused and the interests of justice are appropriately balanced. Because this amendment explicitly provides for circumstances in which a bilingual trial is warranted, it is my concern that it would eliminate this important balancing exercise. I therefore recommend that the proposed wording of subsection 530(6) be modified to maintain this element of judicial discretion in ordering a bilingual trial. The holding of a bilingual trial presupposes that the co-accused have a sufficient grasp of both languages to understand the proceedings. This may not always the case.

To conclude, I would like to draw your attention to two issues not specifically addressed by Bill C-23. The first pertains to the fact that the language rights provisions in the Criminal Code are restricted to the trial and preliminary inquiry stages of the criminal process. In the past, my predecessors advocated for the extension of such rights to procedures related to the trial, such as motions, jury selection and bail hearings, as well as the appeal process generally. These are critical stages of the criminal process, and have a significant impact on the outcome of the process as a whole. Without extending language rights to related proceedings, the right of the accused to a trial in his or her official language is not fully achieved. We encourage the government to examine this issue in the near future.

The second, but perhaps most important issue, pertains to the shortage of bilingual judges in provincial superior courts. As you are no doubt aware, the shortage of bilingual judges, that is judges with adequate knowledge of both English and French, constitutes one of the main barriers to access to justice in our two official languages. This problem has been identified by my predecessors since the early 1990s, and by the Department of Justice in a study entitled "Environmental Scan: Access to Justice". It still exists.

The Fédération des associations des juristes d'expression française, the Canadian Bar Association as well as Commissioner Dyane Adam raised the issue before the House Subcommittee on the Process for Appointment of the Judiciary.

In its preliminary report made public in November 2005, the subcommittee recognized the importance of modifying the process in order to remedy the problem. It is important that the superior courts have a sufficient level of institutional bilingualism in order for the accused to benefit from the language guarantees provided for in sections 530 and 530.1 of the Criminal Code. Without this capacity, the language provisions of the Criminal Code have no chance of fulfilling their objective, which is to provide the accused with the right to be tried in the official language of his or her choice.

Thank you for hearing my comments, both positive and constructive, on Bill C-23. I'm very pleased by the positive features of the bill in terms of language rights in the criminal context. However, I would ask that you consider the suggestions I've made in order to improve it, as well as my comments for further advancement in this important area.

I'd be very happy to answer any questions you may have.

[The Chair, Conservative, Art Hanger]

I would like to call the meeting of the Standing Committee on Justice and Human Rights to order.

It is Thursday, May 3, and our orders of the day deal with Bill C-23, An Act to amend the Criminal Code (criminal procedure, language of the accused, sentencing and other amendments).

Again, I will apologize directly to our witnesses for my late appearance, as well as Mr. Comartin's. We were listening to a very riveting story at the national prayer breakfast, and we didn't want to leave before we could get the total gist of it. But I do apologize for making everyone wait.

We have, from the Office of the Commissioner of Official Languages, Mr. Graham Fraser, Commissioner; and Johane Tremblay, director of the legal affairs branch. From the Federation of Associations of French-speaking Jurists of Common Law, we have Louise Aucoin as well as Madame Côté.

Thank you all for being here. We will proceed along the order in which the witnesses are noted on the agenda, beginning with Mr. Fraser.

[Daniel Petit, Conservative, Charlesbourg—Haute-Saint-Charles, QC]

Thank you. Good afternoon minister. Good afternoon Ms. Desaulniers and Mr. Tremblay.

My question is rather simple, but I want to make sure that it has been properly understood. In Quebec, there's currently a huge ad campaign underway to prevent car accidents. We know that many car accidents are the result of drunk or impaired driving. Naturally, my government has proposed doing something about this. Because this issue is important, I would like for you to explain something. In Quebec, each year, many people die as a result of drunk driving, or driving under the influence of drugs, an issue that we will talk about later. Minister, you are the sponsor of Bill C-23, and I would like to know what impact it will bear on serious offences such as impaired driving causing death. That is the issue which is important in this bill, and one which is of great interest to me.

[Rob Moore, Conservative, Fundy Royal, NB]

Thank you, and I think that's a great move.

On the issue of the possession of break-in instruments, I know in my riding, which has some suburban and also rural areas, break-and-enter is a major issue. We know that it's being done by a small number of people, but in many cases, as we've heard in testimony here at committee, sometimes it's a small number of individuals who can create a lot of havoc in communities both large and small.

I note that Bill C-23 makes possession of break-in instruments a hybrid offence. I'm wondering what the significance of that is. What can we report back to our constituents on that being made a hybrid offence?

[Rob Nicholson, Conservative, Niagara Falls, ON]

I heard your concern. I'm sorry, please continue.

Are you asking with respect to the change of venue for trial, why we are doing that?

I'll indicate to you some of the information that I had on that. I guess your concern is why would we permit a change of venue when a trial cannot be held in one of the official languages of this country in a particular territorial division?

The provision that's been in force since 1978, and Bill C-23 does not in any way change the provisions with respect to a change of trial, is simply to clarify the language. Again, there's been no change with respect to the provisions that exist in the Criminal Code. Our attempt was simply to clarify, but maybe I didn't get the import of your question.

Go ahead.

[Rob Nicholson, Conservative, Minister of Justice]

Thank you very much, Mr. Chairman.

You're quite correct, I'm very pleased to be joined by Ms. Anouk Desaulniers, senior counsel, criminal law policy section of the Department of Justice; and Marc Tremblay, general counsel and director of the official languages law group.

I want to thank you, Mr. Chairman and members of the committee, for the opportunity to be back with you again as you begin your consideration of BillC-23.

I note that during second reading debates, all parties expressed general support for Bill C-23. This bill introduces Criminal Code amendments to update, improve and modernize the law by enhancing the efficiency of criminal procedures, strengthening sentencing measures and clarifying court-related language rights provisions.

Most of the changes brought about by BillC-23 are the result of our work with the provinces and territories as well as stakeholders. These participants and stakeholders in the criminal justice system have been influentual in helping us identify amendments that needed to be made, whether they be deficiencies, gaps, or ways to improve the criminal justice system. Bill C-23 contains a number of technical amendments that, among other things, clarify the meaning of certain provisions.

The bill also includes amendments of a more substantive nature to update the Criminal Code in targeted areas of the code. There are over 40 clauses in Bill C-23, most of which are unrelated. I propose to simply highlight some of them for you today.

Following this brief overview, I'd be pleased to answer questions that the committee members may have, with the assistance, of course, of the departmental officials.

The amendments fall into three principal areas, namely criminal procedure, language of trial, and sentencing.

With respect to criminal procedure, most of the amendments are technical and will, among other things, harmonize and consolidate provisions dealing with proof of service of documents, expedite the execution of out-of-province search warrants by taking advantage of technologies, improve the process with respect to the challenge of jurors to assist in preserving the jury's impartiality, identify the proper appeal route for judicial orders to return seized property, and clarify powers of some reconviction courts when a co-accused does not appear for trial.

The Criminal Code amendments that are considered of a more substantive nature include: the right of an accused to change his or her mode of trial when the Supreme Court of Canada orders a judge and jury trial to be retried, or in cases where an indictment is preferred--that is, where the crown files the indictment directly with the Superior Court; the reclassification of the offence of possessing break-in instruments, which is currently a strictly indictable offence, to a dual procedure to allow the prosecution to elect to proceed by way of indictment or way of summary conviction procedure; and the creation of a corresponding offence for the breach of a non-communication order imposed on an accused who is remanded to pre-trial custody.

With respect to language rights amendments, sections 530 and 530.1 of the Criminal Code guarantee the right of all accused persons to have their preliminary inquiry and trial before a court that speaks their official language. These sections also provide that the Crown prosecutor conducting the prosecution must speak the language of the accused.

These rights have been enforced throughout Canada since January 1, 1990. Canadians have told us, however, that there are still obstacles to full, complete, and equal access to the criminal justice system in one's official language. Court decisions as well as reports by different stakeholders also confirm the need to improve and clarify the current language-of-trial provisions.

The courts have indeed had to wrestle over the years with a number of issues with regard to the proper interpretation of these provisions and their decisions highlight the need for some fine-tuning.

The purpose of these amendments is therefore to ensure a better implementation of the language-of-trial provisions as well as rectify some of the shortcomings identified in a number of studies and by the courts. For instance, one amendment would heed the advice given by the Supreme Court of Canada by requiring courts to inform all accused persons of their right to be tried in their official language, whether they are represented by counsel or not.

The Commissioner of Official Languages, in a 1995 study entitled “The Equitable Use of English and French Before the Courts in Canada”, had also recommended that all accused be better informed of their right to a trial in the official language of their choice.

Another amendment will require that the charging document be translated into the language of the accused upon request. This follows court decisions requiring that such an important document be translated upon request, since it is a logical complement to the accused person's exercising their language rights. Where the charging document has been translated, a further amendment would make clear that where there is an inconsistency between the original version of the document and a translated version, the original charging document would prevail.

Another proposed amendment would provide the presiding judge with the power to issue appropriate orders to contribute to the efficient conduct of bilingual trials. The absence of such provisions has led to fruitless debates, and it is time to bring greater efficiency to such proceedings. Other amendments simply resolve certain anomalies and problems identified with the existing provisions.

On the whole, these amendments bring the language-of-trial provisions of the Criminal Code in line with the judicial interpretation, while also removing some of the hurdles on the road to greater access to justice in both official languages. Under the sentencing portion of the bill, technical as well as substantive amendments have also been put together to respond to current realities or to fill certain gaps. For example, one technical amendment provides for sentencing courts to suspend a conditional sentence order or a probation order during an appeal.

Another amendment will remove uncertainty regarding the application of impaired driving penalties. One such important amendment will clarify that the minimum fine and minimum jail terms that apply for a first, second, and subsequent impaired driving offence, such as operation of a motor vehicle while impaired and refusal to provide a breath sample, do apply to the more serious situations of impaired driving causing bodily harm. The legislation will make it clear that repeat impaired driving offenders whose new offence causes death will have a mandatory period of incarceration and will therefore not be eligible for conditional sentence of imprisonment.

The more substantive changes in Bill C-23 propose to provide courts with the powers to order an offender not to communicate with identified persons while in custody, delay sentencing proceedings so that an offender can participate in a provincially approved treatment program, order the forfeiture of computers and other things used in relation to the offence of Internet luring on application by the attorney general after an accused has been convicted of that offence, order that a driving prohibition be served consecutively to any existing prohibition order, and impose a fine of up to $10,000 for a summary conviction offence where no other maximum fine is provided in a federal statute.

With respect to this last amendment, Mr. Chairman, I recognize there have been concerns raised by some honourable members during the second-reading debate. I would like to say that this government is prepared to work in collaboration with committee members regarding this clause as well as with respect to other issues that may arise during the consideration of the bill.

As I mentioned, Bill C-23 was developed in cooperation with our provincial and territorial partners as well as legal experts. Provinces and territories and other justice system stakeholders are keen to see this bill enacted, as it will improve the effectiveness and access to the criminal justice system.

I would be pleased to respond, with the assistance of my officials, to any questions the committee members might have.

Indeed, given the technical nature of many of the amendments, the expertise of our officials will be particularly relevant and helpful.

Thank you, again, Mr. Chairman.

[The Chair, Conservative, Art Hanger]

The time actually is up. I know you won't have time to get to this last point.

Unfortunately, Mr. Murphy was the last on the line here and time has gone.

I would like to advise the committee that the minister will not be available to appear on Bill C-23 this Thursday. The meeting will continue, of course, and we will give instructions to the analyst in reference to the report on judicial appointments. The minister won't be here Thursday. It will be rescheduled.

The meeting is adjourned.