An Act to amend the Criminal Code (unconstitutional provisions) and to make consequential amendments to other Acts

Sponsor

Status

Second reading (House), as of March 8, 2017

Subscribe to a feed (what's a feed?) of speeches and votes in the House related to Bill C-39.

Summary

This is from the published bill. The Library of Parliament often publishes better independent summaries.

This enactment amends the Criminal Code to, among other things, remove passages and repeal provisions that have been ruled unconstitutional by the Supreme Court of Canada. It also repeals section 159 of that Act and provides that no person shall be convicted of any historical offence of a sexual nature unless the act that constitutes the offence would constitute an offence under the Criminal Code if it were committed on the day on which the charge was laid. It also makes consequential amendments to the Corrections and Conditional Release Act and the Youth Criminal Justice Act.

Elsewhere

All sorts of information on this bill is available at LEGISinfo, provided by the Library of Parliament. You can also read the full text of the bill.

September 26th, 2018 / 3:55 p.m.
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Chair, All-Party Parliamentary Group for the Prevention of Genocide and other Crimes against Humanity

Ali Ehsassi

I am here this afternoon in my capacity as chair of the All-Party Parliamentary Group for the Prevention of Genocide and other Crimes against Humanity, hereafter referred to as GPG. I am here to discuss Bill C-75, in particular, the hybridization aspects of the bill impacting subsection 318(1) of the Criminal Code, incitement to genocide.

Before I continue I should stress that while I am here in my capacity as chair of the GPG, my views do not necessarily reflect the views of the GPG as a whole, nor the views of its individual members.

I also believe that a brief summary of the GPG's history, operations and mandate will provide some context to our approach to Bill C-75 and subsection 318(1) of the Criminal Code.

The GPG was founded in 2006 by Senator Roméo Dallaire to provide members of Parliament and senators with a non-partisan forum for co-operation on issues of pressing humanitarian concern. Currently comprised of 36 members from across party lines, the GPG works to inform parliamentarians about ongoing conflicts, and through close collaboration with partners, experts and stakeholders, crafts strategies to help prevent genocide and crimes against humanity.

Since its inception the GPG has conducted studies and meetings on humanitarian crises in Burundi, Darfur, the DRC, Myanmar and Yemen, and it has established close working relationships with Amnesty International, the Montreal Institute for Genocide and Human Rights Studies, the Stanley Foundation, the Roméo Dallaire Child Soldiers Initiative and the Digital Mass Atrocity Prevention Lab, to name a few.

The GPG, in other words, has largely been a forward-looking and globally oriented institution. The fields of human security, human rights and atrocity prevention have always, rightly or wrongly, been largely oriented toward studies of foreign policy and related fields such as security studies, international law, international trade and international development. It is somewhat unusual, therefore, that our group has been asked to comment on what is essentially domestic legislation and jurisprudence.

However, the changes in proposed section 318 of Bill C-75 clearly relate to domestic genocide prevention and incitement to hatred laws. Although such relatively minor modifications constitute only a small part of the sweeping changes included in Bill C-75, we have a duty to examine the potential impact and side effects. Moreover, given the leadership role Canada has always observed in matters of human rights and genocide prevention, it is imperative that our laws relating to genocide and atrocity prevention remain second to none.

As you are aware, Bill C-75 seeks to modify the wording of subsection 318(1). The existing wording of the section reads:

Every one who advocates or promotes genocide is guilty of an indictable offence and liable to imprisonment for a term not exceeding five years.

The proposed revised wording would read:

Every person who advocates or promotes genocide is guilty of

(a) an indictable offence and liable to imprisonment for a term of not more than five years; or

(b) an offence punishable on summary conviction.

These changes are part of the hybridization efforts included in Bill C-75, which I broadly support, and which seeks to improve access to justice by giving the Crown the necessary discretion to elect the most efficient mode of prosecution evaluated on a case-by-case basis. Hybridization will reduce court time consumed by less serious offences while freeing up limited resources for more serious offences. Of course there are few offences more serious than advocating genocide, which is why these amendments must be taken very seriously.

The first of these changes, which substitutes “every one” with “every person” appears multiple times in Bill C-75 and merely appears to be part of a broader effort to modernize the language in the Criminal Code. It is difficult to see how this change would have any impact on Canada's genocide prevention regime.

The second and more substantive change seeks to hybridize incitement to genocide as punishable via summary conviction. This change, which represents one of approximately 170 clauses in the Criminal Code being hybridized or reclassified, will allow prosecutors to pursue summary convictions for offences that would have a shorter sentence.

The proposal hybridizes all straight indictable offences punishable by a maximum penalty of 10 years or less, which is why clause 318 was captured. It also increases the default maximum penalty to two years less a day of imprisonment for all summary offences and extends the limitation period for all summary conviction offences to 12 months from the current six months.

It is important to note that subsection 318(1) has rarely been invoked in Canadian courts. The practical impact of this modification may ultimately prove negligible. However, given the extremely serious nature of the issue at hand, as well as Canada's moral obligation to serve as a leader in the field of genocide prevention, this committee should support an amendment to Bill C-75 ensuring that incitement to genocide provisions are not included within the otherwise prudent attempts at hybridization and reclassification.

Moreover, there is precedent within this bill for not hybridizing specific elements of the Criminal Code. Offences that would be repealed in Bill C-39 and Bill C-51 are excluded from the hybridization process. Furthermore, nine other indictable offences that are currently punishable under mandatory minimum penalties would not be hybridized either.

To be more specific, I'm referring here to subsection 92(3), which relates to possession of firearms, knowing possession is unauthorized; section 99, which relates to weapons trafficking; section 100, which relates to possession for purposes of weapons trafficking; section 103, importing and exporting firearms; section 202, relating to bookmaking; section 203, placing bets on behalf of others; section 279.03, which relates to withholding documents; section 286, which relates to purchasing sexual services; and lastly section 467, which relates to the recruitment of criminal organizations.

Therefore, given both the practical importance and symbolic value of subsection 318(1), we feel that this section should be included amongst the carve-outs referenced above. The fact that section 318 has almost never been invoked in Canadian courts is a testament to our tremendous good fortune and our dedication to diversity, human rights and human security. This good fortune has allowed Canada to serve as a global beacon for genocide prevention efforts. While I have every faith that Canada will continue in this noble tradition regardless of the outcome of Bill C-75, amending the legislation before us to ensure that genocide advocacy remains an indictable offence would once again send a clear message that this heinous act is incompatible with Canadian values.

I thank you for your consideration of this matter. I look forward to any questions you may have.

September 25th, 2018 / 5 p.m.
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Prof. Steve Coughlan

I would note two things in that.

One is that it is worth observing that although the things that Bill C-39 would have done are duplicated in Bill C-75, Bill C-39 still exists. There is actually no reason that Bill C-39 couldn't be proceeded with, even if Bill C-75 is not.

On the go-forward basis, though, it seems to me that there's no good reason that the Department of Justice couldn't, every two years, have the charter cleanup bill. Year 2018 is what Bill C-75 will be, but why not the charter cleanup bill 2020, the charter cleanup bill 2022? It's just tiny little housekeeping tasks and, like any other housekeeping, you keep on top of it a little at a time and it doesn't become overwhelming.

It probably doesn't need to be done annually. It's not as though charter challenges are successful as often as that, but if biennially the Department of Justice simply looked at whether there are any of these basic administrative tasks that need to be done to the Criminal Code—and did that every two years—we'd stay on top of this.

September 25th, 2018 / 4:55 p.m.
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Conservative

Michael Cooper Conservative St. Albert—Edmonton, AB

Thank you, Mr. Chair.

Professor Coughlan, I appreciate your submission with respect to zombie laws. You mentioned the case of Travis Vader, who murdered Lyle and Marie McCann, an elderly couple from my home community of St. Albert. Following Justice Thomas's decision and under the leadership of our chair, this committee wrote a letter to the Minister of Justice calling on the government to introduce legislation to repeal “zombie” sections of the Criminal Code. Bret McCann, the son of Lyle and Marie McCann, approached me shortly thereafter, and he and I had a press conference, along with his wife Mary-Ann in St. Albert in December 2016.

You're quite right. In March 2017, the Minister of Justice did introduce Bill C-39, and then it sat at first reading. Nothing went forward. I asked the minister repeatedly about the reason for the delay on a matter that is not controversial. As you pointed out, there is no conceivable reason for unconstitutional sections of the Criminal Code to remain in the Criminal Code, in black and white, purporting to be the law. As a result, we're now faced with this situation. A very straightforward bill, which could have been passed with unanimity, is now tied to a massive omnibus bill.

I am in touch with the McCann family, and they are quite distressed. They have spoken out in deep frustration over this government's inability to get it done.

I should note—you mentioned section 159 of the Criminal Code respecting anal intercourse. Similar to the way the government handled section 230, they introduced a stand-alone bill, Bill C-32, back in the fall of 2016. They made a big fuss about it, but it was such a priority for the government that it remained stuck at first reading. No action was taken on it. They then reintroduced the repeal of section 159 with the introduction of C-39 on March 8, 2017. Again, it was such a priority that it's stuck at first reading. Now we have Bill C-75.

You are quite right when you note that it's not just this government. Previous governments didn't repeal unconstitutional sections. Going forward, if we can get these sections repealed, what do you suggest should occur to prevent this from happening again? Presumably this bill will pass and these sections will be removed, but inevitably there will be new sections dubbed unconstitutional. What steps should Parliament take to be proactive going forward?

September 25th, 2018 / 4:30 p.m.
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Professor Steve Coughlan Professor, Schulich School of Law, Dalhousie University, As an Individual

Thank you very much.

I'm pleased to have been invited to speak with you today about the portions of Bill C-75 that deal with removing the outdated provisions in the Criminal Code, specifically those that have actually been struck down by courts, as opposed to simply being out of step with the times.

This is an issue that I've been concerned with for decades and about which I've been advocating with the Department of Justice for several years now. We do seem to be on the verge of action being taken, finally, long overdue action. I am, of course, in favour of that. Indeed, it's difficult to imagine any basis upon which anyone could be opposed to doing this.

In September 2016, a trial judge in Alberta, as all of you will know, convicted Travis Vader of murder, relying on the offence set out in section 230 of the Criminal Code. Of course, section 230 of the Criminal Code is part of the constructive murder provisions and it was struck down by the Supreme Court of Canada 25 years ago. Unfortunately, despite its presence in the Criminal Code, it's not part of the criminal law of Canada.

This was exactly one of the flaws in the Criminal Code that a large group of criminal law academics pointed out to the Minister of Justice in a letter in December 2015. It was the same failure to update the code to remove constructive murder that led the British Columbia Court of Appeal to observe, in a 2010 decision:

I cannot leave these reasons without wondering why steps have not been taken to amend the Criminal Code to conform to the now 20-year-old decision of the Supreme Court of Canada in Martineau determining that language in s. 229(c) is unconstitutional. The law that is recorded in the statute, on which every citizen is entitled to rely, is not the law of the land. An issue such as arose in this case should not occur. It creates the risk of a miscarriage of justice and the potential need to incur significant costs addressing an error in an appellate court with the possible costs of a new trial, assuming one is practical. In my view, failure to deal appropriately with such matters by updating the Criminal Code to remove provisions that have been found to offend the Constitution is not in the interests of justice.

As I say, that's a 2010 decision called Townsend. They reached that conclusion by citing other judgments in which exactly the same thing had happened, ranging from 1997 on to 2008, in which juries had been told that the law around murder was what was set out in the Criminal Code, when of course, it's not. That seems like a glaringly obvious point but it's worth stressing it.

Section 19 of the Criminal Code says that ignorance of the law is no excuse. We rely on the fiction that every member of the public actually knows the law, but that's really only justifiable if it's possible for a person to find out the law. One of the key principles of fundamental justice, guaranteed by section 7 of the charter, is the principle of legality, the notion that the law must be knowable. It's why we have the strict construction rule of statutory interpretation. It's why section 9 of the Criminal Code abolished common law crime. It's the reason that laws can be struck down for being vague. If it's not clear enough what the law is, we say, then the law is unconstitutional.

We have all sorts of fundamental and important rules insisting on the language of the Criminal Code being as clear as it can possibly be, and yet, in that context, we have provisions that unambiguously state as the law what is unambiguously not the law, and we allow that to continue for decades. That is, frankly, dumbfounding.

The trial judge in the Vader case received a certain amount of criticism. At some level, that's understandable. We expect judges to know the law more than ordinary people do, but the general public doesn't have access to an annotated Criminal Code. The general public will go online. They're going to go to the Department of Justice's website, the official Government of Canada website, and they will look up the Criminal Code and it will lie to them about what the law is.

Of course, it's not just the general public; it's the police. The police should be able to look at a statute that actually reflects the law of Canada. When that's not the case, then of course we get the situation that we have faced in Canada, with dozens of people criminally charged with an offence that does not exist—the prohibition on anal intercourse in section 159.

Of course such charges are eventually thrown out, but that's of very little solace to the person who has been caused the embarrassment and expense of going through that procedure. We can say, “Well, you know, the police should have known better than to believe that the criminal law was what the Criminal Code said it was,” but that hardly seems like an answer.

Let's think again about the blame given to the judge in the Vader case, in not knowing that section 230 had been struck down. Okay, yes, he should have known.

On the other hand, all it means is that he failed to evade a trap that had been set for him. Surely a legitimate question to ask is why we are setting traps for our judges. If someone falls because they don't notice that their shoelaces have been tied together, a lot of the blame has to go to the person who tied the shoelaces together. If a judge doesn't notice a trap, which was set in the law, a good part of the blame has to go to the person who set the trap. In this case, that's Parliament. It's you. There is no good reason that this situation should have been allowed to continue for decades, but Parliament has allowed it to do so.

How much work would it have taken to avoid the pitfall that arose in the Vader case and the ones that can potentially arise from the other unconstitutional provisions? Realistically, a summer student in the Department of Justice, spending two hours some afternoon, could have headed this off. It's hard to see how the drafting or passing of such a bill could have occupied any real legislative time since the Supreme Court of Canada has already done all of the policy work of deciding that the provisions are unconstitutional.

Now it's fair to respond that not every situation is the same. When the constructive murder provisions were struck down, it was clear that nothing needed to be put in their place. When loitering, in paragraph 179(1)(b) was struck down, the Supreme Court provided some guidance as to what a constitutional law would look like, so you would have needed a bit of time to draft a new bill that was constitutional. When the abortion provisions were struck down in 1988, the Supreme Court didn't actually say that no abortion provisions could exist, just that these ones were no good, so yes, some time might have been needed to decide whether we would do something else instead, and if so, what.

The key point to note here, though, is that it only means that the second step might vary. The first step, invariably, is unchanging and utterly non-discretionary. The existing law is no law, and it has to be removed from the Criminal Code. Whatever might happen after that, there is no reason not to do that in the short term.

This leads, I have to say, to my major concern here today. As I've said, there is no conceivable reason, finally, after decades, no to remove these unconstitutional provisions from the Criminal Code. We nonetheless seem to be faced with the real possibility that this Parliament will not do it.

The provisions dealing with the removal of unconstitutional provisions used to be in their own bill. It used to be Bill C-39. For some reason, that bill, which contained nothing else and had no real possibility of attracting any controversy, and those sensible and uncontentious provisions have now been placed in Bill C-75, which contains many sensible and many contentious provisions.

Personally, I think some of those other proposals are very good, and some, I think, have just not been thought through, so it's difficult to actually tell whether they are wise or unwise. This bill needs to be thoroughly debated and passed through both Houses with barely a year left until the next election. It won't be surprising if that doesn't happen.

That means that we're faced here with the choice between rushing through potentially far-reaching reforms without adequate consideration as the price for solving a long-standing and fundamental problem, or allowing that long-standing and fundamental problem to continue as the price for not creating further and bigger ones. That's not an easy choice, and it is not in the least apparent as to why we should have been forced to it, or why Bill C-39 couldn't have been proceeded with on its own.

Ultimately, I do commend to you the portions of Bill C-75 that do the sensible thing of removing these unconstitutional provisions, and I hope there is some fashion in which that can happen, whether the rest of this bill goes forward or not.

Thank you.

June 19th, 2018 / 4:45 p.m.
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Liberal

Jody Wilson-Raybould Liberal Vancouver Granville, BC

As the member knows, the removal of section 159 by Bill C-75 is something that has been long-standing since we introduced Bill C-39 to ensure that we do some charter cleanup.

Section 159 in the Criminal Code has been rendered unconstitutional. It is discriminatory. Our government is committed to ensuring the rights of all Canadians and equality for all Canadians.

Another example would be the introduction and passage of Bill C-16, which you're very familiar with, with regard to gender identity and expression. It's an ongoing commitment to ensure the human rights and equality of all individuals.

Criminal CodeGovernment Orders

June 7th, 2018 / 8:55 p.m.
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Liberal

Colin Fraser Liberal West Nova, NS

Mr. Speaker, I am pleased to join the debate on this important bill, Bill C-75. I will be spending my time discussing those aspects of the bill that were previously introduced in Bill C-39. These changes seek to make our criminal law clearer and more accessible, revising or repealing certain Criminal Code provisions that have been found unconstitutional and thus are no longer enforceable. These are important changes, because they would help to ensure that the law as written would reflect the law as applied. This would promote efficiency in the criminal justice system by eliminating confusion and errors. Some might say that these kinds of changes are unnecessary and that the concerns motivating them are more theoretical than practical. However, this is simply not the case.

The Travis Vader trial serves as a recent and concrete example of the repercussions the continued presence of invalid provisions in the Criminal Code can have. We recall that the case involved the prosecution of Mr. Vader for two counts of first degree murder in respect of Lyle and Marie McCann. In finding Mr. Vader guilty of second degree murder, the trial judge relied upon an unenforceable, previously struck down provision of the Criminal Code. The trial judge's mistaken reliance on an invalid provision was quickly noticed, and shortly thereafter, two convictions of manslaughter were substituted for the second degree murder convictions.

I have the deepest sympathies for Mr. Bret McCann and his family, who have endured the loss of loved ones, the stress of a criminal trial, and the trauma that ensued from the mistaken reliance on dead laws. I want to thank him for his continued advocacy in this area. I also wish to acknowledge my colleague, the member for St. Albert—Edmonton, with whom I serve on the justice committee, who has advocated for the removal of these zombie laws from our Criminal Code and has said that this should be something that crosses all political lines and that he expects will be supported by all sides of this House.

What are these specific changes in Bill C-75? The bill would repeal provisions related to the offence of murder, the abortion offence, the spreading of false news, the loitering part of the vagrancy offence, two evidentiary requirements found in the impaired-driving regime, and a provision that prevented judges from giving enhanced credit for time served in custody prior to sentencing. It also proposes to repeal the prohibition against anal intercourse.

In the time available to me, it will not be possible for me to comprehensively discuss each of these amendments, but I would like to highlight a few of them, starting with the provisions mistakenly relied upon in the Vader trial that I referenced a moment ago.

The Criminal Code defines and classifies murder as either first degree or second degree. In either case, a murder conviction is punishable by a mandatory penalty of life imprisonment and it is accompanied by the highest level of social stigma. In 1990, building on a previous decision from 1987, the Supreme Court of Canada held, in R. v. Martineau, that in order to respect the charter, a murder conviction requires proof beyond a reasonable doubt of subjective foresight of death. In other words, the accused intended to cause death or intended to cause bodily harm knowing that, or being reckless as to whether, death would actually ensue.

The effect of this ruling is twofold. First, it means that the entirety of section 230 is unenforceable, the provision at issue in the Vader trial. Section 230 indicates that culpable homicide is murder where it occurred during the commission of other offences, such as robbery, even in cases where the offender did not intend to kill the victim.

Second, it means that part of subsection 229(c) is of no force and effect. Its says that it is murder when a person, while pursuing another unlawful object, “does anything that he knows or ought to know is likely to cause death, and thereby causes the death” of another person. The phrase “or ought to know” is an objective standard that is determined based on what a reasonable person, standing in the accused's place, would have known and not on what the accused actually knew. Therefore, it could allow a conviction for murder even if the accused did not know that his or her actions were likely to cause death. The phrase “or ought to know” was read out of subsection 229(c) by the Supreme Court of Canada, but its continued presence in the Criminal Code has caused delays, inefficiencies, and injustice to the accused where, for instance, a jury is not clearly informed that it should ignore it when determining an accused person's guilt. This can also lead to a waste of judicial resources where such an omission forms the basis for an appeal.

Bill C-75's proposed amendment would make clear that a conviction for murder cannot rest on anything less than an intent to kill, or an intent to cause bodily harm knowing that, or being reckless as to whether, death would actually ensue. Bill C-75 would also repeal section 159 of the Criminal Code, an unfortunate vestige of a bygone era in which society passed moral judgment on non-harmful consensual sexual preferences through the criminal law, a section of the Criminal Code that has been declared unconstitutional by several appellate courts because it discriminates on the basis of age, marital status, and sexual orientation.

Additional changes will clarify that historical sexual offences can only be used if the conduct at issue would be prohibited by existing sexual offences if committed today. This approach protects both equality rights and victims of sexual offending, regardless of when the offence occurred. Bill C-75 would also repeal section 181 of the Criminal Code, which prohibits the spreading of false news. This is an extremely old offence, dating back to 13th century in England, and at that time it was targeted at conduct that was meant to sow discord between the population and the king, and is out of place in today's society. In Regina v. Zundel in 1992, the Supreme Court of Canada struck down this offence because it found that it unjustifiably violated freedom of expression, pursuant to paragraph 2(b) of the charter. The court held that the offence lacked a clear and important societal objective that could justify its extremely broad scope.

As we are proposing to repeal this unenforceable offence, some might have questions about whether our criminal laws should target false news in some way. These questions would be understandable, particularly given recent discussions of the spreading of fake news, for example, and concerns about the use of fake news to promote hate against particular groups. In this respect, it is worth noting that the Criminal Code already contains a robust set of hate propaganda offences and other hate crime-related provisions that can be relied upon in appropriate cases.

Bill C-75 would also repeal section 287 of the Criminal Code, the abortion offence, which prohibited the procurement of a miscarriage and was declared unconstitutional by the Supreme Court almost 30 years ago. It is high time that this invalid provision be removed from our Criminal Code, in part so that women across Canada will not face the additional and unnecessary burden of figuring out what the criminal law currently prohibits at a time when they may be facing one of the most difficult decisions of their lives.

The Supreme Court of Canada's guidance on this point was clear. It stated, “Forcing a woman, by threat of criminal sanction, to carry a foetus to term unless she meets certain criteria unrelated to her own priorities and aspirations, is a profound interference with a woman's body and thus an infringement of security of the person.” I agree, and wish to applaud the Minister of Justice for proposing the removal of this long outdated and unenforceable provision from the Criminal Code.

As I said earlier, these changes and others that I have not been able to discuss in detail tonight are about promoting clarity in the law. All Canadians should be able to turn to the law as written as a reliable and trustworthy indication of the actual state of the law. These changes are consistent with the objectives of other amendments contained in Bill C-75, in that they will make our system more efficient and accessible. These changes are all about respect for the charter, and I urge members of Parliament to support the passage of this bill at second reading so it can go to the Standing Committee on Justice and Human Rights, which I am proud to be a member of, so that it can be fully examined, studied, and be given thoughtful consideration.

Criminal CodeGovernment Orders

June 7th, 2018 / 8:45 p.m.
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Conservative

Harold Albrecht Conservative Kitchener—Conestoga, ON

Mr. Speaker, I thank my colleague for his comments and also for his service to our country, especially to the city of Toronto.

As I mentioned earlier, the bill is made up of three separate bills that have already been tabled in the House: Bill C-28, Bill C-38, and Bill C-39. One deals with the victim surcharge, one with exploitation and trafficking, and one with unconstitutional provisions, which we support.

During the last campaign, in 2015, we heard over and over from Liberal members that there would be no omnibus bills, there would be no closure, and MPs would be allowed to speak individually and have adequate time for debate.

There are so many promises that have been broken. How can the member and his colleagues stand here tonight and speak to the bill, which is clearly an omnibus bill? We support many parts of it, but because of the fact that the Liberals rolled three bills into one, it made it impossible for us to even accept some of the good things in it without buying into all of these very negative implications, which I outlined earlier.

Criminal CodeGovernment Orders

June 7th, 2018 / 8:10 p.m.
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Conservative

Harold Albrecht Conservative Kitchener—Conestoga, ON

Mr. Speaker, I rise on behalf of the constituents of Kitchener—Conestoga to participate in the debate on Bill C-75, the omnibus Liberal justice bill.

This bill is over 300 pages long and amends several different acts. One does not have to look too far into the past to recollect some of the comments made by members of the Liberal Party in regard to omnibus legislation. I am sure that many of us in this House remember the promises made during the all-candidates debate in the 2015 election not to have more omnibus bills, and many others as well. I will refer to those a little bit later tonight in my comments. However, it seems as if the Liberals have kept their reputation and have changed their minds to suit their own interests. It is a reputation they have developed quite well.

Not only is it a very lengthy bill, but its timing is also suspect, given that on the eve of the Easter long weekend, the Liberal government tabled this piece of legislation that would drastically change our criminal justice system and how criminals and victims are treated. We see again in this bill that the needs of victims are discounted and the lighter treatment of criminals is a priority of the Liberal government.

Tabling Bill C-75 on the eve of the Easter weekend, just prior to the two-week parliamentary break, clearly shows that the government knew it would not go over too well with Canadians or members of the legal community. That, in fact, is definitely what has happened since the tabling of this bill, in spite of the best efforts of the Liberal Party to hide these facts from Canadians.

Another interesting fact about this piece of legislation is that it re-tables three bills already on the Order Paper: Bill C-28, Bill C-38, and Bill C-39 have all been rolled into this new bill, Bill C-75. If anything speaks to the government's inability to handle a legislative agenda, this is surely it. The government has proven to be so badly organized that it is now just combining several previously tabled pieces of legislation in order to make broader changes to our criminal justice system in less time with less scrutiny, and less debate. It is a real shame, especially, as I said earlier, when during the 2015 campaign they promised to allow all members of Parliament to have a voice, and that the government would not use omnibus bills. They also promised that that election would be the last first-past-the-post election, and that they would run small deficits and not use time allocation. All of those promises are out the window with no respect shown for Parliament.

A primary stated objective of Bill C-75 is to reduce delays in our justice system. The R. v. Jordan ruling, which imposes strict time limits on criminals, has made this objective very important. It is a crucial issue that needs to be addressed.

Thousands of criminal trials across Canada have been stayed, including those involving murderers who have been charged. The reason these charges have been stayed is that the time limits imposed by R. versus Jordan were exceeded.

However, we know that this legislation does not achieve the objective. Do not take my word for it. A number of members of the legal community and journalists have also written about this. For example, an opinion piece in the Toronto Star stated:

On Thursday, the federal government released Bill C-75, an omnibus bill aimed at reducing court delays. Unfortunately, good intentions stop at the preamble, especially for those of us who believed in the government’s pre-election promise to bring a principled approach to criminal justice reform.

The author goes on to state:

However, C-75 reclassifies a myriad of offences, giving the Crown discretion to prosecute them summarily. To further incentivize this option, the bill increases the maximum penalty for summary offences from six months to two years. Summary offence trials, like preliminary inquiries, occur in provincial courts, which are already the most congested courts in our system. C-75 may very well take many preliminary inquiries off the provincial court docket, but it will replace them with many more trials.

What has proposed here are more backlogs, more delays, longer time limits. This justice minister is abdicating her responsibility to ensure that there is a functional justice system in Canada.

We see this inability to ensure a functional justice system with this current legislation, as well as with this Liberal government's extremely poor record of appointing judges.

I have one more comment from a legal expert from McElroy Law, a firm located right in Ottawa. She notes, “Under Stephen Harper, the Conservatives justice policies drew a clear line in the sand between criminals and victims. It was an easy sell to promise law-abiding citizens that those convicted of criminal offences will be punished harshly, in order to keep the good guys safe.”

She goes on later to say:

...the government is tinkering with the guts of criminal trials themselves, such as seeking to have police provide evidence by way of affidavit and having an accused person apply to be able to cross-examine them. The changes, if the bill is passed, will not aid in reducing delay, but will instead undermine trial fairness and may adversely affect Indigenous and other marginalized communities that are so often over-represented in our justice system.

Taken from the Ottawa citizen is the following:

Bill C-75 promises to speed up court cases by eliminating preliminary hearings for all but the most serious matters. Also, quietly slipped into the bill is a provision that would allow Crown prosecutors to simply file written copies of police officers’ evidence instead of actually calling them at trial to testify. Not only will these changes waste more court time than they save, they will erode fundamental safeguards of trial fairness.

The number one responsibility of a government is to keep its citizens safe, and this bill is seriously failing in that responsibility. It seems the government, despite all of its comments about “rigid ideology”, is clearly implementing its own rigid ideology without proper consultation with experts and lawyers in the field who are actually going to be dealing with the ramifications of this poor legislation.

Mr. Speaker, I have just been informed that I am sharing my time with the hon. member for Medicine Hat—Cardston—Warner. I thought I had 20 minutes, but I guess I will have to move quickly.

I have not yet addressed the aspects of the bill that my colleagues and I consider to be the most egregious. I am going to move to those now, as I see my time is elapsing quickly.

Some of the offences that would see penalty decreases include, but are not limited to, leaving Canada to participate in a terrorist group or participation in the activity of a terrorist group. The bill proposes to actually reduce the penalties for these crimes, and it is important that Canadians understand that.

There is a long list of criminal offences that the government appears to think are not worthy of indictable charges: leaving Canada to participate in the activity of a terrorist group; punishment of rioter and concealment of identity; breach of trust by a public officer; municipal corruption; influencing or negotiating appointments or dealing in offices; prison breach; infanticide; concealing the body of a child; neglect to obtain assistance in child birth that results in the permanent injury or death of the child; assisting a prisoner of war to escape; obstructing or violence to, or arrest of, an officiating clergyman; keeping a common bawdy house; causing bodily harm by criminal negligence; and impaired driving causing bodily harm. The bill proposes to reduce the sentences for all of these offences.

One of the hybrid offences that the bill adds to the sequence is the obstruction of, or violence toward, an officiating clergyman. This is in section 176. This is the same section that the government proposed to repeal in Bill C-51, the justice omnibus bill. However, eventually it caved in to public uproar and feedback that was carried by our opposition members. Clearly, the government is not listening to the thousands of Canadians who are very concerned by the softening of punishment for this crime. The government is trying to diminish the severity of this crime. The issue is of crucial importance, especially now, given there is an increasing concern about sectarian violence in our world.

I could go on and speak for another 10 minutes, but hopefully I will get a chance to finish later.

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June 5th, 2018 / 11:15 p.m.
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Conservative

Tom Kmiec Conservative Calgary Shepard, AB

Madam Speaker, I would like to hear from the member on this particular piece of proposed legislation. It is a combination of three other justice bills, namely Bill C-28, the victims surcharge bill; Bill C-38, the exploitation and trafficking in persons bill, which I know the member has a great interest in, as he has formed a bipartisan group of legislators in the House to study the issue much more deeply; and Bill C-39, the unconstitutional provisions bill.

I would like the member speak on the fact that the bill is a few hundred pages of what would otherwise be considered an omnibus justice bill, as it combines different parts of the justice system into one bill.

Does the bill speak to the failure of the Liberals to push forward reforms in our justice system in a meaningful way and in a reasonable time line?

Criminal CodeGovernment Orders

June 5th, 2018 / 10:40 p.m.
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Liberal

Anthony Housefather Liberal Mount Royal, QC

Madam Speaker, I will share my time with the hon. member for Ottawa South.

One of the joys of being the chairman of the Standing Committee on Justice and Human Rights is the collegial way that we work together, which is the way we should work together when it comes to the justice system, because whether we are Liberals, Conservatives, New Democrats, or Green, we all want the same things: We want a system that moves quickly; we want a system under which the accused has the right to a fair trial and is presumed innocent; we want a system that protects the rights of victims and treats victims with respect; and we want a system that ensures that we are not soft on crime but that allows for rehabilitation of an offender.

These are all elements that we need to consider as we deal with Bill C-75, a very important bill that deals with not only the Jordan decision but a number of elements that need to be enhanced and improved within the justice system.

I want to talk about some of the elements of the bill, ones that we will need to study at the justice committee. I will start with the issue of preliminary inquiries.

Parliament was invited to look at the issue of preliminary inquiries by the Supreme Court in the Jordan case itself. Due to the vast disclosure requirements now required in preliminary inquiries, the court mentioned in Regina v. Jordan that Parliament may wish to revisit the issue of preliminary inquiries, and the bill would do away with preliminary inquiries for all those offences that do not carry life sentences.

In general, I do agree with the proposal to drastically reduce the number of preliminary inquiries. It is clear that there is no constitutional right to a preliminary inquiry. That does not mean, of course, that we do not need to consider arguments that may be made by defence counsel and those there to defend the rights of the accused, so one of the issues the justice committee will need to study is whether the list of offences for which there could be a preliminary inquiry should be expanded or should be left as it is in the bill.

Another issue that we will need to study is the issue of hybrid offences. I have heard the arguments made by my colleague from St. Albert—Edmonton on hybrid offences and on the possibility that sending offences to a provincial court with a shorter time frame under Jordan will clog up the justice system even more. I do not think it will. Doing away with certain administrative offences and reducing the volume for the court in that sense will not be problematic, but I hear that argument, and we will have to look at the list of offences that are now only indictable but that would become available for summary conviction as well, and we will need to determine whether any offences that are currently on the list to be hybridized should not be hybridized.

One of the issues that is very important for all Canadians is the over-incarceration of certain populations in this country. My colleague from Victoria, the NDP justice critic, today raised at our committee the fact that 25% of jailed people in Canada are indigenous, and among women in prison it is 33%. Since this community makes up approximately 5% of Canada's population, this is a shocking situation and it needs to be fixed. As for the other vulnerable populations that are overrepresented in the prison population, we need to diagnose why that is.

The hon. member for Saanich—Gulf Islands raised the issue of mandatory minimums. That is certainly an issue that we will need to look at in depth at some point in time, because clearly mandatory minimums are one of the reasons for overrepresentation. Another reason, though, that I do believe is dealt with by the bill in a way that I totally support is the issue of creating a new judicial referral hearing that allows people who miss a condition not to automatically be charged and sent before a court, which creates a vicious cycle in which people who, for example, miss a hearing because they do not have transportation to get to the bail hearing are then incarcerated again because they have breached a condition, and it happens over and over. I totally approve of the issue of modernizing and streamlining the bail system and legislating a principle of restraint.

Another issue we need to look at is reverse onus. I do support the presumption that those people who have already been convicted of intimate-partner violence should have a more difficult time making bail. However, I understand that there are charter issues to be raised in terms of any reverse onus of proof that we create, and that is another item that our justice committee will have to study when this bill comes before us after second reading and a vote by Parliament.

Another issue I want to talk about is amending the Youth Criminal Justice Act to reduce the rates at which youth are charged for administration of justice offences.

One of the things that has worked really well in Canada since the Young Offenders Act was revised in the early 2000s is the fact that we have drastically reduced the number of youth incarcerated in Canada. This is something we need to look at, not only for young offenders but for all offenders. We need to find a way to keep people out of the vicious cycle of prisons. We need to find a way to make sure people can stay in their communities and be rehabilitated, as much as possible.

While I have a minute, I also want to turn my attention to the sections that will be repealed in the Criminal Code.

Section 230 of the Criminal Code, which was originally dealt with in Bill C-39, is now present in Bill C-75. This is a very unfortunate section that the courts have struck down, and in the case of the McCanns, which my hon. colleague, the member for St. Albert—Edmonton, has raised on multiple occasions, the judge erroneously referenced this section, causing even more pain for the family. One of the items that we need to make sure of is that those provisions of the Criminal Code that are struck down by our courts are repealed from the Criminal Code so that nobody else could ever make that type of mistake.

I also want to draw attention to section 159 of the Criminal Code, which desperately needs to be removed. The stigmatization of the gay community through section 159, the distinction between anal sex and other types of sex, and the stigmatization of gay men by a different age of consent is totally unacceptable, totally out of date, and needs to be repealed.

One of the things that I am very proud of is that the government, in bringing forward Bill C-75, has talked to all of its provincial counterparts, has held round tables throughout the country, and has not come back with its own ideas but has come back with lots of good principles that were worked on by multiple parties.

Now it is up to us as a Parliament to further enhance the bill, and for the committee to do its good work in terms of carefully looking at each of the provisions. I am very gratified that my colleagues in the other parties have agreed that we will sit extra hours when needed to deal with these provisions and to hear all the witnesses. I want to encourage those witnesses across Canada who have comments on Bill C-75 to come forward, send their briefs to committee, and ask to appear before our committee should they have a reason to do so. The more people we hear from on these important issues, the better the law will be. The goal for all of us is to get this bill as right as possible.

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June 5th, 2018 / 9:45 p.m.
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Conservative

Martin Shields Conservative Bow River, AB

Mr. Speaker, I appreciate my hon. colleague's speech. He is very learned and comes from a profession that understands things well. I did pass through law school at one time, but decided that another profession was of more interest to me, so my speech will probably be a little more the layman's type, and will probably have some rhetoric in it that I am sure he will rather enjoy.

I will be speaking on Bill C-75, an act to amend the Criminal Code, the Youth Criminal Justice Act and other acts and to make consequential amendments to other acts. That is quite the title, and it probably should come as no surprise that it is an omnibus bill. It makes massive reforms to our criminal justice system, and in fact, it re-tables three bills already on the Order Paper: Bill C-28, on the victim surcharge; Bill C-38, on consecutive sentencing for human trafficking; and Bill C-39, which repeals unconstitutional provisions.

The government simply cannot seem to manage its legislative agenda. It waited until late in its mandate, and now Parliament is expected to rush through debate on these important matters.

What is apparent is that Bill C-75 is a big, complicated bill that is supposed to fix the issues facing our justice system. It does contain provisions that I could support. Repealing unconstitutional provisions in the Criminal Code is a positive proposal. Increasing the maximum term for repeat offenders involved in domestic violence also makes a lot of sense.

However, the bill also introduces a host of other issues. This legislation should have been split so we could have debated and voted on some of its parts, rather than as an omnibus bill. There is far too much here to be considered in such a short time. The Liberals promised they would not introduce an omnibus bill, but here we are.

We have known for a long time that our justice system is dangerously backlogged. A primary stated objective of Bill C-75 is to reduce delays in our justice system. The R. v. Jordan ruling, now known as the Jordan rule or principle, imposes strict timelines on criminal trials: 30 months for the criminals, and 18 months for the indictable.

This objective is very important. Thousands of criminal trials across Canada have been stayed, including murder trials, for going over the imposed time limits. We have seen the stories of individuals accused of horrendous crimes being let off because of massive delays in the court system. The problem is only getting worse, but this bill is finally supposed to do something about this serious problem.

Before I get into the details of this bill, I have to ask: Why has this government not taken steps to appoint more judges? It has been pointed out that the government has appointed many, but we still have 59 vacancies. Let us get them all filled so that we can improve the justice system. Appointing judges may have been a faster way to address the delays in our justice system, rather than forcing an omnibus bill through Parliament. I know that the Liberals have left appointments unfilled in other government agencies, but the judicial ones are critical. At the very least, they need to fill those. I am sure that is something they will do quickly, right?

The biggest red flag in this legislation is the hybridization of many indictable-only offences, done by adding summary convictions as a sentencing option. Simply put, serious crimes deserve serious penalties, but some of the offences listed in the bill are undoubtedly, to me and many of my constituents, serious crimes. These include participating in a terrorist group; impaired driving causing bodily harm; kidnapping a minor; possessing stolen property over $5,000, which is a huge concern in my rural riding; participating in activities of a criminal organization; municipal corruption or influencing a municipal official; committing infanticide; extortion by libel; advocating genocide; arson for fraudulent purpose; advertising and dealing in counterfeit money; and many more. There are a lot of serious crimes in here that are going to change. Many of these crimes are classified as indictment-only for a reason. They should not be punishable under a summary conviction, with a possible mere fine. That option has been included, and it should not be there.

The bill would also delay consecutive sentencing for human traffickers. Human trafficking is a severe crime. There is a cross-party committee dealing with this crime. It is a severe problem and deserves severe punishment. We know it is taking place in Canada. It is an international issue that needs to be combatted with all the tools at our disposal. Why would the government weaken our criminal justice system with these changes? We all need to address the backlogs in our courts system, but some of these measures just do not make sense.

In my riding of Bow River, we have been dealing with serious issues involving rural crime. I am happy that motion by the member for Lakeland, Motion No. 167, was passed last week in this House. I believe it will be an important step toward actually doing something about rural crime. The statistics show that crime in rural areas has increased significantly in all three prairie provinces. However, right on the heels of adopting this important motion, we have this bill taking two steps backwards. This is going to be hard to explain to the constituents in my riding who are dealing with constant rural crime. Residents across the country are going to be shaking their heads in disbelief at this one. I have heard from many constituents who have suffered break-ins, property theft, and threats to person. We have held round tables in locations in ridings across Alberta and heard from many people who are living in fear. They do not have confidence that the criminal acts taking place around their homes will be addressed. In many cases, the RCMP is simply stretched too thinly across the vast rural areas to respond promptly.

I am particularly concerned that this bill would relax sentences for crimes like possession of stolen property and participating in criminal gangs. It is hard enough to catch criminals engaged in rural crimes. In many cases, the criminals are long gone before anyone can show up to deal with them. When it takes police officers hours or until the next day to get to the scene, there is plenty of time to disappear. This is not like crime in a city where people reasonably expect police to show up on their doorstep in minutes. When criminals are caught, there is a reasonable expectation that they will face serious consequences for their actions. It is hard enough to convince people to report crimes when they occur. We encourage them to do so because it is very important for the statistics of the police services. The police need to know what is actually happening in communities, but people are afraid to report crimes, or they say it is a waste of time. The police need the statistics to make decisions related to how to best enforce the law, but my constituents do not always believe they will make any difference in the justice system anymore. It is going to be that much harder to encourage people to report rural crimes if this bill receives royal assent. At a bare minimum, people need to know that if they report a crime and the criminal responsible is actually apprehended, there will be serious consequences for that individual. We need real deterrents, not slaps on the wrist, to keep Canadians' faith in the justice system.

They talk about Alberta judges, and yes, we are short of judges, but here is the other side of it. I have spoken with legal people and they say that the number of crown prosecutors is drastically short. There are few crown prosecutors willing to do it. As the number of crown prosecutors has decreased, there are fewer of them who will work on this huge workload. The average caseload that crown prosecutors have is twice what it used to be years ago. Legal aid lawyers are quitting. The pay they are getting has decreased, or they are not being paid at all. If they are moving to summary convictions, two years less a day, the jails are full. I have seen downloading from governments before; this is a huge download from the federal government to the provincial governments. They are going to download into the provinces' judicial systems by changing convictions from indictable to summary convictions. As the prosecutors have told me, they have been told to clear the docket and keep only the very serious cases and kick all the rest of the cases out, not to take them to court but to get the charges dropped, to kick them out.

There is a joke around the provincial jail system that if there is an arrest for car theft, the officers should make sure their car is locked when the criminal goes out the door, because the criminal is likely to steal their car to go home. With the shortage of prosecutors, the time that is available to put people in jail for two years less a day is a huge download to the provincial system.

It is especially wrong that this bill is being introduced at the same time we are considering Bill C-71. That bill would do nothing to address rural crime and gang violence. Nothing in it would make a difference to the criminals using illegal firearms. All the bill does is target law-abiding firearms owners with new, poorly designed, heavy-handed regulations.

Farmers in my riding make use of all kinds of firearms on their property. Firearms are basic to rural life in many cases. I have heard from many constituents who are very concerned about Bill C-71. Why would the government treat farmers like criminals, while reducing sentences for rural criminals at the same time? Summary convictions and fines are just kicking the cases out, because there is no time to deal with them.

Again, it makes no sense. The government's agenda is looking increasingly incoherent, especially from the perspective of rural residents. Will these measures do anything to reduce the backlog? No. They are just downloading the problem on the provinces. Just as Chrétien did with the transfer payments, the current government is going to do it with the judicial system to download to the provinces.

Our legal institutions are overwhelmed by the number of cases that need to be addressed. The bill could stretch them to a breaking point, as the crown prosecutors in Alberta told me. We could have many more cases thrown out for taking too long. Jordan's principle is going to come in and many people will walk the street because of it. In other words, criminals will walk. That is not a result anyone wants to see, especially when rural crime is involved. It is deeply painful for victims of crime and it is dangerous for the Canadian public at large to lose faith in the justice system, like the rural residents in my constituency.

The government seems to be dumping more problems on provinces and municipalities. It leaves them to clean up the mess. We have already seen how the government has done this with cannabis legislation. Its approach has left provinces and municipalities scrambling to accommodate the new laws and pay for their implementation.

I have heard from town councillors across my constituency how concerned they are about the cannabis legalization and how they are going to pay for it. They do not know how the small towns and villages will handle all the issues that are coming down the pipe, just like the carbon tax. The Alberta Urban Municipalities Association has expressed grave doubts about how its members are going to get ready for legalization. It has been conveying these concerns to the government for a long time, but the Liberals are not listening.

The federal government simply punts its problems on to subnational governments and claims to have taken action. That is exactly what it did with the cannabis legalization, and that trend is continuing with Bill C-75. We need real leadership, not just passing the buck to the provinces.

The legislation would weaken our criminal justice system by relaxing the sentences for many serious crimes. That list was not even the extent of it. It is a very broad bill. It downloads the delays in our court system onto the provinces. It also changes the victim surcharge, which is a deeply disappointing departure from our former government's priority of putting victims first. It would remove the requirement of the attorney general to determine whether to seek an adult sentence in certain circumstances. It would remove the power of a youth justice court to make an order to lift the ban on publication in the case of a young person who receives a youth sentence for a violent offence. It would delay consecutive sentencing for human traffickers, and that is wrong. It would make our justice system more like a revolving door than it is now. It would make rural crime in my riding and across Canada even harder to deal with, and it would make people not trust the justice system.

We need to deal with the problems in our justice system, but this is not the way to do it. This is simply a huge, poorly designed bill. It would make many changes that I simply cannot support.

June 5th, 2018 / 4:20 p.m.
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Liberal

Jody Wilson-Raybould Liberal Vancouver Granville, BC

With respect to Bill C-39, as you say, it has now been put into Bill C-75, as has another very important piece of the legislation around victim fine surcharge and human trafficking.

In terms of time with regard to the passage or proceeding in the House, I'm not sure that's a question I can specifically answer. As to why we have put these bills into Bill C-75, it's to ensure that the important provisions that are contained within these proposed pieces of legislation are moved through. It makes sense to me, in terms of a thematic approach, to put these bills into Bill C-75, because they are all looking to amend the Criminal Code.

I hear the member in talking about the McCann family and the tragedy faced by the McCann family. We wanted to ensure, in then Bill C-39 and in Bill C-51 , that we do renovate the Criminal Code and that we do get rid of the unconstitutional provisions. I would look to the member, as well as to everybody on this honourable committee, to have vigorous debate and discussion about all of the provisions and proposals that are contained within Bill C-75. This committee and the legal and constitutional affairs committee of the Senate have been very diligent, and necessarily so, in terms of seeking that I and our government address delays in the criminal justice system. Bill C-75 does do that, as well as address the necessary changes we have proposed in terms of the victim fine surcharge to address indigent offenders, as well as get rid of the constitutional provisions beyond section 230, which the member talked about.

June 5th, 2018 / 4:20 p.m.
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Conservative

Michael Cooper Conservative St. Albert—Edmonton, AB

No, Madam Minister, I am not misrepresenting anything. I think I was quite clear that you are taking a sentence, under an indictable that is punishable by up to 10 years, and if it's prosecuted by way of summary conviction, the maximum is two years less a day, and it could be as low as a mere fine. That's not a misrepresentation; that's a fact.

I want to also ask you about Bill C-39, which was introduced on March 8, 2017. Lyle and Marie McCann of St. Albert were brutally murdered by Travis Vader. After waiting for justice for six years, the McCann family, just when they thought justice had arrived, found out that it had not arrived, because the trial judge applied an unconstitutional section of the Criminal Code, section 230.

To your credit, you did introduce Bill C-39 to repeal unconstitutional sections of the Criminal Code, but more than a year later, that bill is stuck at first reading. It has now been rolled into Bill C-75, which is a big bill. As you can see, it's a contentious bill. There is a lot of debate around it.

By contrast, with Bill C-39 there is no debate. I think there is a consensus, or near consensus, that we need to get unconstitutional sections of the Criminal Code out of the Criminal Code. I just don't understand, after more than a year, what the delay is and why it has been rolled into Bill C-39. Quite frankly, this could have been passed on a voice vote a year ago.

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May 24th, 2018 / 4:45 p.m.
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Conservative

Michael Cooper Conservative St. Albert—Edmonton, AB

Madam Speaker, I rise to speak to Bill C-75, another omnibus bill introduced by a government that said it would never introduce an omnibus bill, but here we are again with another 300-page bill.

Quite frankly, there are some provisions in Bill C-75 that I support, but on the whole I believe this legislation to be deeply problematic.

Before I address the substance of Bill C-75, I want to talk a bit about the process surrounding Bill C-75.

This omnibus legislation reintroduces four government bills currently before the House of Commons: Bill C-28, Bill C-32, Bill C-38 and Bill C-39. This is the third piece of legislation the government has introduced to repeal section 159 of the Criminal Code, the unconstitutional section related to anal sex.

With much fanfare, the Liberals introduced Bill C-32. They wanted to take tremendous credit for introducing that bill that proposes to repeal section 159. It was such a priority for the government that a year and a half later, Bill C-32 remains stuck at first reading.

Not to be outdone, they proceeded to introduce Bill C-39, which would remove unconstitutional sections of the Criminal Code, also known as zombie laws. That included section 159 of the Criminal Code. It was introduced on March 8, 2017, and it was such a priority of the government that more than a year later, Bill C-39 remains stuck at first reading.

Now, for the third time, the government has introduced, with Bill C-75, another attempt to remove section 159 of the Criminal Code.

How many bills is it going to take the Liberal government to repeal one simple section of the Criminal Code? It speaks to the utter incompetence of the government and its complete inability to move justice legislation forward. In light of that record of incompetence and failure, Canadians should be left to ask the question: how it is that the government can be trusted to address delay in our courts when it cannot even manage its own legislative agenda?

The purported objective of Bill C-75 is to deal with the backlog in our courts. It arises from the Jordan decision that was issued by the Supreme Court almost two years ago. The Supreme Court of Canada determined that there would be strict limits before delay would become presumptively unreasonable. The remedy that the Supreme Court provided in the case of delay was that the charges against the accused person would be stayed, in other words, thrown out of court. The strict timeline that the Supreme Court provided was 30 months between the laying of charges and the anticipated or actual conclusion of a trial for matters before superior courts, and 18 months for matters before provincial courts.

It has been almost two years since the Jordan decision and in those nearly two years, the Minister of Justice has sat on her hands and done absolutely nothing to deal with delay and backlog. The minister is so incompetent that she could not get around to doing the simplest and easiest thing, which is to fill judicial vacancies in a timely manner.

Under this Minister of Justice's watch, we have seen a record number of judicial vacancies. Indeed, the average number of vacancies has consistently been between 50 to 60. In the province of Alberta, where the issues of backlog and delay are most acute, the provincial government tried to respond in 2016, by way of order in council, establishing 10 new judicial positions, nine Court of Queen's Bench positions and one Alberta Court of Appeal position. The government, to its credit, in budget 2017, provided funding for additional judicial positions. All the minister had to do was fill them.

Do members know how long it took the minister to appoint a new judge in Alberta?

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May 24th, 2018 / 3:15 p.m.
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Vancouver Granville B.C.

Liberal

Jody Wilson-Raybould LiberalMinister of Justice and Attorney General of Canada

moved that Bill C-75, An Act to amend the Criminal Code, the Youth Criminal Justice Act and other Acts and to make consequential amendments to other Acts, be read the second time and referred to a committee.

Mr. Speaker, I am proud to rise today to speak to Bill C-75, an act to amend the Criminal Code, the Youth Criminal Justice Act and other acts and to make consequential amendments to other acts. The legislation represents a key milestone in our government's commitment to modernize the criminal justice system, reduce delays, and ensure the safety of Canadians.

For more than a decade, the criminal justice system has been under significant strain. Although the crime rate in Canada has been declining, court cases are more complex, trials are getting longer, and the impacts on victims are compounded. In addition, indigenous people and marginalized Canadians, including those suffering from mental illness and addictions, continue to be overrepresented in the criminal justice system. For these reasons, I was mandated by the Prime Minister to reform the criminal justice system, and it is why I was proud to introduce this legislation as part of our government's response to those fundamental challenges.

Bill C-75 also responds to the Supreme Court of Canada's decision in 2016 in R. v. Jordan. The decision established strict timelines beyond which delays would be presumptively unreasonable and cases would be stayed. In such cases, the accused will not stand trial. This is unacceptable, and it jeopardizes public confidence in the justice system.

The bill also addresses issues raised in the June 2017 report of the Standing Senate Committee on Legal and Constitutional Affairs, which called on the government to address court delays, and it reflects our government's commitment to bring about urgent and bold reforms, many of which were identified as priorities by all provincial and territorial justice ministers in April and September of last year.

The bill proposes reforms in seven key areas. First, the bill would modernize and streamline the bail system. Second, it would enhance our approach to addressing administration of justice offences, including for youth. Third, it would bolster our response to intimate partner violence. Fourth, the bill would restrict the availability of preliminary inquiries to offences with penalties of life imprisonment. Fifth, it would reclassify offences to allow the crown to elect the most efficient procedure appropriate in the circumstances. Sixth, it would improve the jury selection process. Seventh, it would strengthen the case management powers of judges. The bill includes a number of additional reforms related to efficiencies, which I will touch on briefly later.

As noted, the first area of reform would modernize and streamline the bail regime. Under the charter, an accused person is presumed innocent until proven guilty. If charged with an offence, that person has the right not to be denied bail without just cause. The Supreme Court of Canada has repeatedly stated that bail, including the types of release and conditions imposed, must be reasonable, yet we know that police and courts routinely impose conditions that are too numerous, too restrictive, and at times directed toward improper objectives, such as behaviour and punishment. These objectives do not protect public safety.

We also know that there are more individuals in remand than those convicted of a crime. In other words, our correctional facilities are more than half-filled with people who have not been convicted of an offence.

In addition, the current approach to bail uses a disproportionate amount of resources, taking away from more serious cases. It perpetuates a cycle of incarceration.

Consistent with the 2017 Supreme Court of Canada decision in R. v. Antic, the proposed bail reforms would codify a principle of restraint. This would direct police and judges to consider the least restrictive and most appropriate means of responding to criminal charges at the bail stage rather than automatically detaining an accused. The individual circumstances of an indigenous accused and a vulnerable accused, such as a homeless person or one with mental illness and addiction issues, would become required considerations when making bail decisions. This means that an accused's circumstances would have to be considered prior to placing conditions upon them that were difficult or impossible to follow.

The principle of restraint would make bail courts more efficient by encouraging release at the earliest possible opportunity, without the need for a bail hearing in every case, and would take significant steps to reduce costs associated with the growing remand population currently detained in custody awaiting trial.

The bill would also strengthen the way our bail system responds to intimate partner violence by providing better protection for victims. If an accused has a history of violence against an intimate partner and is charged with similar conduct, the amendments would impose a reverse onus at the bail hearing, shifting the responsibility to the accused to show why the accused should not be detained pending trial.

I will now turn to the second area of reform proposed in Bill C-75, which is to enhance the way our justice system responds to administration of justice offences. These are offences that are committed by a person against the justice system itself after another offence has already been committed or alleged. Common examples are failure to comply with bail conditions, such as to abstain from consuming alcohol; failure to appear in court; or breaching a curfew.

Across Canada, accused people are routinely burdened with complex and unnecessary bail conditions that are unrelated to public safety and that may even be impossible to follow, such as when a curfew is broken by an accused because he or she missed the bus in a remote area. In other words, accused people are being placed in circumstances in which a breach is virtually inevitable. We are setting them up to fail.

Indigenous people and marginalized Canadians are disproportionately impacted by breach charges, often because of their personal circumstances, such as a lack of family and community supports. As a result, indigenous people and marginalized Canadians are more likely to be charged, more likely to be denied bail, and if released, more likely to be subject to stricter conditions.

In addition, administration of justice offences impose an enormous burden on the criminal justice system, as nearly 40% of all adult cases involve at least one of these administrative charges. To respond to these challenges, Bill C-75 proposes a new approach. Police would retain the option to lay a new charge for the breach or failure to appear where appropriate. However, if the offence did not involve physical or emotional harm to a victim, property damage, or economic loss, the police would have an additional option of referring the accused to a judicial referral hearing. This would be an entirely new tool that would serve as an alternative to an unnecessary criminal charge and that would substantially increase court efficiencies without impacting public safety.

In the youth context, these proposals would encourage police to first consider the use of informal measures, as already directed by the Youth Criminal Justice Act, such as warnings, cautions, and referrals, and would require that conditions imposed on young persons be reasonable and necessary. This aligns with the overall philosophy of the act, which is to prevent our youth from entering a life of crime, in part by providing alternatives to formal criminal charges and custody.

At the judicial referral hearing, a court would hear the bail conditions and have three options: release the accused on the same conditions, impose new conditions to better address the specific circumstances of the accused, or detain the accused. This approach would allow for alternative and early resolution of minor breaches and would ensure that only reasonable and necessary conditions were imposed. This is a more efficient alternative to laying a new criminal charge and would help prevent indigenous persons and marginalized Canadians from entering the revolving door of the criminal justice system.

The third area of reform in Bill C-75 is with respect to intimate partner violence. In 2015, Canadians elected our government on a promise to give more support to survivors of domestic violence, sexual assault, and sexual harassment and to ensure that more perpetrators were brought to justice. I am proud to follow through on this commitment within this bill.

As I already noted, those accused of repeat offences involving violence against an intimate partner would be subject to a reverse onus at the bail stage. In addition, the bill does the following: (1) proposes a higher sentencing range for repeat offences involving intimate partner violence; (2) broadens the definition of “intimate partner” to include dating partners and former partners; (3) provides that strangulation is an elevated form of assault; and (4) explicitly specifies that evidence of intimate partner abuse is an aggravating factor for sentencing purposes.

Intimate partner violence is a reality for at least one in two women in Canada. Women who are indigenous, trans, elderly, new to Canada, or living with a disability are at increased risk for experiencing violence due to systemic barriers and failures. The personal and often lifelong consequences of violence against women are enormous.

The fourth area of reforms is to increase court efficiencies by limiting the availability of preliminary inquiries. Preliminary inquiries are an optional process used to determine whether there is enough evidence to send an accused to trial. Bill C-75 would limit their availability to accused adults charged with very serious offences punishable by life imprisonment, such as murder and kidnapping.

I recognize this represents a significant change. It is not a change we propose lightly. It is the product of an in-depth consultation process with my counterparts in the provinces and territories and with the courts, and it is based on the best available evidence. For instance, we know in 2015-2016, provincial court cases involving preliminary inquiries took more than four times longer to reach a decision than cases with no preliminary inquiry.

It is important to note that there is no constitutional right to a preliminary inquiry, and one is not necessary for a fair trial so long as the crown satisfies its disclosure requirements. In the Jordan decision, the Supreme Court of Canada asked Parliament to take a fresh look at current processes and reconsider the value of preliminary inquiries in light of the broad disclosure rules that exist today. The Standing Senate Committee on Legal and Constitutional Affairs also recommended that they be restricted or eliminated.

The proposed measures would reduce the number preliminary of inquiries by approximately 87%, ensure they are still available for the more complex and serious offences, help unclog the courts, and reduce burdens on witnesses and victims from having to testify twice, once at a preliminary inquiry and once at trial. For example, this measure would eliminate the need for a vulnerable witness in a sexual assault or child sexual assault trial from having to testify twice.

I am confident these reforms would not reduce trial fairness, that prosecutors would continue to take their disclosure obligations seriously, that our courts would continue to uphold the right to make full answer and defence, and that there would remain flexibility in existing processes, such as out-of-court discoveries, that have been implemented in some provinces already—for example, in Quebec and Ontario.

I will now turn to the fifth major area of reform proposed in Bill C-75, which is the reclassification of offences. The Criminal Code classifies offences as summary conviction, indictable, or hybrid. Hybrid offences may proceed as either a summary conviction or as an indictable offence. That choice is made by the prosecutor after considering the facts and circumstances of the case. The bill would hybridize 136 indictable offences and standardize the default maximum penalty for summary conviction offences in the Criminal Code to two years less a day.

These proposals would neither interfere with the court's ability to impose proportionate sentences nor change the existing maximum penalties for indictable offences. What Bill C-75 proposes is to provide more flexibility to prosecutors to proceed summarily in provincial court for less serious cases. This would allow for matters to proceed more quickly and for superior courts to focus on the most serious matters, resulting in an overall boost in efficiency in the system.

Let me clear: this reform is in no way intended to send a message that offences being hybridized are less serious or should be subjected to lower sentences. Rather, it is about granting greater discretion to our prosecutors to choose the most efficient and appropriate procedure, having regard to the unique circumstances before them. Serious offences would continue to be treated seriously and milder offences would take up less court time, while still carrying the gravity of a criminal charge.

A sixth area of proposed reforms in Bill C-75 is with respect to jury selection.

Discrimination in the selection of juries has been well documented for many years. Concerns about discrimination in peremptory challenges and its impact on indigenous peoples being represented on juries was raised back in 1991 by Senator Murray Sinclair, then a judge, in the Manitoba aboriginal justice inquiry report. That report, now over 25 years old, explicitly called for the repeal of peremptory challenges. More recently, retired Supreme Court Justice Frank Iacobucci addressed these issues in his 2013 report on first nations representation on Ontario juries.

Reforms in this area are long overdue. Peremptory challenges give the accused and the crown the ability to exclude jurors without providing a reason. In practice, this can and has led to their use in a discriminatory manner to ensure a jury of a particular composition. This bill proposes that Canada join countries like England, Scotland, and Northern Ireland in abolishing them.

To bring more fairness and transparency to the process, the legislation would also empower a judge to decide whether to exclude jurors challenged for cause by either the defence or prosecution. The legislation will strengthen the power of judges to stand aside some jurors in order to make room for a more diverse jury that will in turn promote confidence in the administration of justice. Courts are already familiar with the concept of exercising their powers for this purpose.

I am confident that the reforms will make the jury selection process more transparent, promote fairness and impartiality, improve the overall efficiency of our jury trials, and foster public confidence in the criminal justice system.

The seventh area of reforms will strengthen judicial case management. As the Supreme Court of Canada noted in its 2017 decision in Cody, judges are uniquely positioned to encourage and foster culture change. I completely agree. Judges are already engaged in managing cases and ensuring that they proceed promptly and fairly through the existing authorities in the Criminal Code, as well as provincial court rules. These reforms would bolster these powers—for instance, by allowing case management judges to be appointed at the earliest point in the proceeding.

In addition to the major reforms I have noted thus far, Bill C-75 will make technical amendments to further support efficiencies, such as by facilitating remote technology and consolidating and clarifying the Attorney General of Canada's power to prosecute.

Finally, the bill will make better use of limited parliamentary time by including three justice bills currently before Parliament: Bill C-28, Bill C-38, and Bill C-39.

In closing, Bill C-75 proposes meaningful reforms that will speed up criminal court proceedings and improve the safety of our communities while also taking steps to address the overrepresentation of indigenous peoples and marginalized Canadians in the criminal justice system.

Our criminal justice system must be fair, equitable, and just. Victims, families, accused, and all participants in the justice system deserve no less. I urge all members of this House to support this important piece of legislation.