Bill C-407 (Historical)

An Act to amend the Criminal Code (sentencing)

This enactment amends the Criminal Code to grant the court broader discretion in matters of sentencing.

[Joel Hechter, Barrister and Solicitor, As an Individual]

Thank you.

Thanks for inviting me to make these submissions.

These days, it can sometimes feel a bit like the world's going to hell in a handbasket and there's nothing you can do about it. I suspect each of you ran for office because you wanted to do something about it. You want to make things better for your families, just like I do. I'd be a terrible politician, but as a lawyer and a father, I'm here to try to help so that the Canada my son grows up in has the best possible system of criminal justice.

Because I have only a few minutes to address you in these opening submissions, please forgive my bluntness. There are a few good measures in Bill C-75, but much of it, from where I sit, appears arbitrary. I'm very concerned that if it passes in anything close to its current form, it will do far more harm than good, which is really too bad.

In respect of the consultation that's taken place, I have been looking at some of the evidence you guys have already heard, and I've read some of the briefs that have been submitted to the committee. Had this been the process before the bill was tabled, I suspect it would have come out quite differently. The government would have had the benefit of thoughtful submissions from criminal lawyers who spend every day dealing with these issues. Now that it has passed second reading, however, the government has poured a lot of political capital into it, and I worry that despite your commitment to do what is right, what I'm about to say may fall on deaf ears.

My principal recommendation is this: Don't rush this.

When you step back and take a look at this bill from a distance, a pattern emerges. Bill C-75 gives greater discretion to police officers and Crown prosecutors, restricts the discretion available to accused persons and their representatives, and fails to restore the discretion that was taken away from judges by the Harper mandatory minimums.

On that last point, we all know that Senator Kim Pate managed to draft what I think is a fairly simple fix to the mandatory minimums several months ago in Bill S-251. You take out the preamble and the explanatory notes, and that bill's three pages long, including both official languages. It's simple, elegant, drafted to stand the test of time. As you know, a week later, your colleague Sheri Benson, NDP member for Saskatoon West, proposed a similar solution with Bill C-407.

I was really disappointed to see that after nearly three years of studying this issue the government has not tabled anything in this bill to deal with those mandatory minimums. I say this with a bit of sadness, but also with respect. I submit that the government's actions may speak louder than the words they're using to describe this bill. What does this action, this Bill C-75, say? It says that a lot of trust is being reposed in police officers and Crowns, which in certain circumstances is perfectly reasonable.

But let's look at what that actually means. If the bill passes in its current form, officers will have a lot more discretion for dealing with breaches, for example. Permitting officers to give evidence in writing, which Mr. Sewell was just talking about, maybe without even being cross-examined is a breathtaking expression of trust. For their part, Crowns are going to be entrusted to decide what procedural protections are available to accused persons in a much wider scope of cases.

I'm not pulling this trust thing out of thin air. As parliamentary secretary, Mr. Mendicino, who is no longer part of this committee but was until recently, made it clear in the House that Bill C-75 is meant to increase the Crown's ability to exercise informed discretion on a case-by-case basis. That's one big reason why the government is hybridizing so many more offences.

He said this shortly after suggesting in the House of Commons on the same day—and this was June 5, 2018, in response to a question from Elizabeth May about routine police evidence—that defence counsels suffer from bad judgment and quibble over immaterial things.

Now, don't get me wrong. I'm not saying that Crown discretion is a bad thing. We know that Crown discretion is a key part of a properly functioning judicial system, of a criminal justice system. But as the Supreme Court made clear in a case called Bain back in 1992, basic rights cannot depend on the continuous exemplary conduct of the Crown. That case, interestingly enough, was about peremptory challenges and stand-asides. At the time, the Crown had significantly more opportunities to affect jury composition than the defence. The Supreme Court said that this was inconsistent with subsection 11(d) of the charter.

By contrast to all that additional discretion granted to agents of the state, Bill C-75 takes away from my colleagues and me basic tools that we use to ensure that justice is done fairly. Our role as a check against abuse is significantly constrained. To be clear, abuse does sometimes happen. That's why in my brief, which I know you all got this morning and so you may not have had a chance to read it, I recommend enacting a criminal provision prohibiting non-disclosure.

The justifications for this bill that I see in Hansard don't make a lot of sense in a free and democratic society. Take this idea of sparing witnesses from having to testify twice. If you take that to its logical conclusion, complainants would be spared even more if we moved straight from arrest to conviction without the need for a trial. We'd also save a lot of time and a lot of money, but that's not what a fair system of criminal justice does.

If we look south of the border, the United States Supreme Court talked about the need to ensure the integrity of the fact-finding process through things like appropriate cross-examination. This is from a case, Coy v. Iowa, from 1988 in the Supreme Court. It said that while the process “may, unfortunately, upset the truthful rape victim or abused child...by the same token it may [also] confound and undo the false accuser, or reveal the child coached by a malevolent adult.” The court concludes that passage by saying, “It is a truism that constitutional protections have costs.”

Our system of criminal justice is not exactly the same as the Americans', nor should it be, but that case says something universal. We don't have trials because they're convenient. They're not. Nor are they generally much fun for the people involved. They can be expensive and in rare cases they can take a long time.

I can assure you, despite what you may have heard, that the defence bar is not complacent about that. The overwhelming majority of accused persons want the whole process over as quickly as possible, but not at the cost of injustice.

While cases with a preliminary inquiry often do take longer than those without, that's no reason to abolish most preliminary inquiries. It's simply a reflection of the fact that more complex cases tend to be the ones that require prelims to ensure that the subsequent trial is fair. Every Canadian accused of a crime, not just those facing a life sentence, rightly expects to have a fair trial.

Perfection is always going to be unattainable, but procedures that support fair trials are critical to preventing wrongful convictions. In many Canadian criminal cases, a well-conducted prelim is what makes the subsequent trial fair. Cross-examination as a right is a cornerstone of fairness in free and democratic societies around the world, so I urge you to carefully consider the consequences of passing Bill C-75 as is. It will take years of expensive litigation to undo the damage, during which time a number of innocent people will almost certainly lose liberty as a direct result of the bill. Fix it now and you can prevent that.

Thank you.

[Paul-Matthieu Grondin]

I will be presenting in French, for those who might need to use an earpiece.

Mr. Chair, Vice-Chairs, distinguished members of the committee, my name is Paul-Matthieu Grondin and I am the Batônnier du Québec.

As the Chair has said, I am accompanied by Pascal Lévesque, who is the president of our Criminal Law Committee, an advisory committee, and Nicolas Le Grand Alary, who is a lawyer in the Secretariat of the Order and Legal Affairs.

We thank you for the invitation.

The Barreau du Québec is testifying before you today on Bill C-75 with great interest.

As a professional order, the Barreau du Québec's mission is to ensure the protection of the public. The Barreau is impelled to demonstrate this mission because of the significant amendments, both to criminal procedure and the administration of criminal justice in Canada.

With that said, we are grateful to you for inviting the Barreau to share with you its position on the subjects that follow.

First, the Barreau reiterates its opposition to minimum terms of imprisonment, except for the most serious cases, such as murder. Minimum sentences remove the flexibility in properly applying the principle of proportional sentencing from those in the front line, meaning prosecutors, defence counsel and trial judges. Consequently, the Barreau would have liked to see measures on mandatory minimum prison sentences in this bill.

Imposing minimum punishments may, in the short term, provide some sense of security for the public. In the long term, however, these measures are counterproductive for the justice system. Prosecutors lose an incentive to bring an accused to plead guilty when the circumstances surrounding the commission of an offence justify a punishment that would be under the mandatory minimum. Conversely, when the prosecution asks for a sentence in cases where it would be justified to impose slightly more than the minimum sentence, the courts tend, in those cases, to keep to the minimum sentence.

The bill would have been a good opportunity to abandon those types of punishments, which do not promote an efficient and flexible administration of the criminal justice system. Unfortunately, we acknowledge that we will have to wait for next time.

The Barreau du Québec believes that it is urgent for the government to amend the Criminal Code to give courts the residual discretionary power to not impose a mandatory minimum punishment.

But we note the introduction of two bills that seek to give this discretion to the courts. These are Bill S-251, An Act to amend the Criminal Code (independence of the judiciary) and to make related amendments and Bill C-407, An Act to amend the Criminal Code (sentencing). The measures in these bills could be included in Bill C-75 to address the issue of mandatory minimum punishments.

Persons before the court have the right to this constitutional protection. In addition, each accused or each party would no longer have to bear the heavy burden of a constitutional challenge right up to the Supreme Court.

Mandatory minimum punishments can be profoundly unfair in some cases. This is because the only possible penalty is imprisonment, while sometimes other solutions may encourage rehabilitation and thus reduce the risk of reoffending. Judges must be trusted to apply the law in a fair and equitable manner, ensuring that sentences are proportionate to the seriousness of the offence and the degree of responsibility of the offender.

Our second subject is the removal of the preliminary inquiry. The bill proposes to restrict preliminary inquiries to offences punishable by life imprisonment. It also strengthens the power of justices to limit the issues explored to specific matters and restrict the number of witnesses who may be heard.

The Barreau du Québec opposes this amendment. By limiting the use of preliminary inquiries, some argue that we can speed up the judicial process and thus reduce delays. We believe that limiting preliminary inquiries in this way would be ineffective or even counterproductive.

It is important to realize that, according to Statistics Canada, only 3% of eligible cases were the subject of a preliminary inquiry. Of the cases that caused delays beyond the thresholds established by the Cody and Jordan decisions, only 7% included a preliminary inquiry. Apart from anecdotal events, there is no evidence to conclude that preliminary inquiries create undue delays in the justice system, or the need to amend the current rules.

It is also important to mention that, in some cases, preliminary inquiries can test the strength of each party's position. This encourages the settlement of cases, thus avoiding trials on the merits and contributing to the reduction of delays. For example, evidence of an offence may be based on proof by testimony. A preliminary inquiry may be of benefit to both the accused and the prosecution, as they may be able to assess the credibility of those witnesses. This may encourage one or other of the parties to want to settle the matter by pleading guilty or by withdrawing the charges.

We are aware that some may abuse this step and thus unduly lengthen procedures. However, the Barreau du Québec wishes to point out that judges already have many powers of case management. The Supreme Court has invited them to use those powers time and time again. They must be used to define the scope of the inquiry and prevent abuse. Otherwise, we risk abandoning a stage of the criminal proceeding that remains relevant to the search for more efficient justice.

In addition, the Barreau du Québec is proposing an additional measure. It is all well and good to point out problems, but sometimes, we must also talk about solutions. This additional measure involves adding to the Criminal Code the possibility, with the consent of the accused, of replacing preliminary inquiries with our-of-court questioning. Pilot projects in this area have been set up in several judicial districts in Quebec and have proven their worth. This means not having to deal with the cumbersome legal system. Codifying these practices will allow them to extend across Canada, help to reduce delays in criminal practice and improve the efficiency of the justice system.

I will now deal with the elimination of peremptory challenges in jury selection.

The bill abolishes the peremptory challenging of jurors. This measure appears to be inspired by a highly publicized trial in Saskatchewan, where the jury selected did not reflect the diversity of the community where the trail was being held.

The Barreau du Québec considers that the measure proposes in the bill misses the mark. Of course, we find it deplorable that—as sometimes occurs—some lawyers use peremptory requests as a tactic to systematically disqualify prospective jurors for discriminatory reasons such as race or ethnicity.

However, we consider that simply abolishing peremptory challenges is not the answer. Peremptory challenges are always useful for litigants who are familiar with jury trials. Here is why. Lawyers can perceive, through the appearance, the words and the non-verbal language of prospective jurors, that they will not have the capacity to listen sufficiently objectively to the evidence to be presented and to make an impartial judgment on that evidence. They also ensure that the accused accepts the legitimacy of the jury and, by extension, the verdict and the sentence that will be pronounced. It is also important to mention that peremptory challenges are often made with the consent of both parties. That is important to keep in mind.

The Barreau de Québec agrees, however, that the composition of jurors must reflect the diversity of Canadian society. We therefore propose that the Criminal Code be amended so that one party or the other may request the judge to steer the composition of the jury when one party appears to be making peremptory challenges in bad faith, or when the jury, for other reasons, is not representative of the community. By holding a hearing to that effect, could appoint jurors to ensure that some members come from diverse backgrounds. Once again, I feel that it is important to mention that, when peremptory challenges are used, the vast majority of lawyers use them in good faith.

I will now talk about the impacts of the amendments to the Superior Court of Appeal.

The Barreau du Québec is afraid that significantly increasing the number of hybrid cases and imposing a one-year limitation period on summary conviction offences may have potential impacts on appeals in Superior Court.

We therefore want to make sure that there will be more resources for superior courts so that they will be able to handle the increased volume of cases without increasing the delays that we actually want to reduce. But I feel that it is important to emphasize that we are in general agreement with increasing the number of hybrid cases. That is a very good thing.

As for replacing some of the terms in the constitutive provisions of offences, we note that, for a number of offences, the adverb “wilfully” or the expression “with intent to” have been replaced by “knowingly”. We question the scope of these changes.

Is this a simple exercise in semantics, as in R. v. Sault Ste. Marie, which uses “wilfully” and “knowingly” as synonyms? Or is rather a desire to change these offences so that they go from specific intent offences to general offences?

The change in wording suggests that the intent is to change the applicable criteria, since, as the Supreme Court has stated, “the legislator does not speak for nothing.” The amendments are therefore likely to cause both difficulties in interpretation and disputes.

I will now address the proposal to permit only prosecutors from filing charges.

In addition to what is provided for in the bill, the Barreau du Québec recommends that charges for Criminal Code offences should be filed only by prosecutors. It is often the case that charges are dropped for lack of evidence or because of exculpatory evidence brought to the attention of the authorities. In addition, charges may be laid despite their technical or unimportant nature, despite the fact that it may not be appropriate to do so in the interests of justice. To reduce this risk, British Columbia, New Brunswick and Quebec have chosen to grant the power to lay charges to prosecutors only.

In Quebec, this measure is all the more effective because prosecutors have discretionary power, when circumstances warrant, to apply an alternative, such as to handle the case non-judicially, or with alternative measures, when a person admits responsibility.

So pre-charge screening by prosecutors reduces delays by unclogging the system of some of the cases that can be handled alternatively without harming the public interest, or that would likely would not have been successful at trial. As the Supreme Court of Canada stated in R. v. Sciascia, this practice assists the extremely overburdened justice system.

With the agreement of the provinces and territories, since we are dealing with the administration of justice, this rule should be enshrined in legislation to standardize the practice across Canada. At very least, it should encourage the use of pre-charge screening, as does subsection 23(1) of the Youth Criminal Justice Act.

Mr. Chair and members of the committee, that is an overview of the principal issues that the Barreau du Québec wanted to discuss with you as part of the consultations on Bill C-75. The brief we have submitted to you contains more detailed explanations of the various issues we have just presented. The brief is also available on the Barreau's website. We hope that our presentation will provide you with food for thought.

In our reflections, we have deliberately highlighted the parts of the bill that we would like to be amended. But I would still like to point out that the bill contains a lot of good things. However, to channel the discussion and to use our time effectively, we have focused our thoughts on the places where we believe that amendments should be made.

We are now able to answer your questions.

Thank you, Mr. Chair.

[Murray Rankin, NDP, Victoria, BC]

Thank you.

Thank you, Minister, and thanks to your officials as well for being with us today. It won't surprise you that I'm going to ask about something that has been called the elephant in the room in your criminal justice reforms, namely, the failure to address mandatory minimum penalties.

As you know, call to action number 32 in the Truth and Reconciliation Commission's report called on you to “amend the Criminal Code to allow trial judges, upon giving reasons, to depart from mandatory minimum sentences and restrictions on the use of conditional sentences”. It pointed out that this would assist in particularly addressing the specific needs of indigenous offenders.

Indeed, to my astonishment, the correctional investigator of Canada last year stated that although the first nation population of Canada is about 5%, fully over one-quarter of prisoners are indigenous, and in respect of indigenous women, over one-third of our incarcerated Canadians are indigenous. It was suggested that to address mandatory minimums would have a very positive effect on what I call the crisis of overrepresentation.

Today I had a press conference with my colleague, member of Parliament Sheri Benson, who tabled a private member's bill, Bill C-407, which is similar, by the way, to Senator Kim Pate's recently tabled Bill S-251. I should add that bill was prompted by high school students from Saskatoon, who chose this important measure as their primary suggested change in Canadian law. In the audience today, I recognize Brody Beuker and Camilo Silva, who drafted that bill, who helped in drafting that important measure.

Last, Minister, it was reported that fully over two-thirds of all charter challenges in the courts—256 charter challenges in the courts—are mandatory minimum sentence challenges. Imagine how much time and money it's taking to address that issue alone.

Minister, you came to office almost two years ago, and in a Globe and Mail article in November, you promised that new legislation on mandatory minimums was coming soon, “certainly in the early part of next year”. That was in the early part of last year.

My question for you is, will you be moving forward in a timely way with your commitment to address this crisis in over-incarceration of indigenous Canadians by way of fixing the mandatory minimums? Also, will you commit today to adopt the bills that I referenced earlier—the private member's bill, Bill C-407 , and the Senate bill, Bill S-251—or perhaps include them in Bill C-75 so we can address this important issue?

Criminal Code

[Sheri Benson, NDP, Saskatoon West, SK]

moved for leave to introduce Bill C-407, an act to amend the Criminal Code (sentencing).

Mr. Speaker, I am honoured to rise today to introduce a bill that would reverse harmful effects brought on by the mandatory minimum sentencing. My thanks to the member for London—Fanshawe for seconding my bill.

The bill, proposed by two students from my riding, would answer the TRC's call to action number 32. It calls upon the federal government to amend the Criminal Code to allow trial judges, upon giving reasons, to depart from mandatory minimum sentences and restrictions on conditional sentences.

The rates of incarceration for indigenous people in Canada are a national disgrace. Canada's correctional investigator has stated that the over-incarceration of indigenous people is a human rights issue. My home province of Saskatchewan is incarcerating indigenous people at an increasing rate, when the rate of overall incarceration of non-aboriginal people is declining. The bill would allow judges to use their training and judgment to impose sentences that are reasonable, just, and based on the facts of each case, and that would not cause undue hardship.

I am extremely proud of Brody Beuker and Camilo Silva, of Bethlehem High School in Saskatoon West. I thank them for creating a better Canada.

(Motions deemed adopted, bill read the first time and printed)