This bill was last introduced in the 42nd Parliament, 1st Session, which ended in September 2019.
Jody Wilson-Raybould Liberal
This bill has received Royal Assent and is now law.
This is from the published bill.
This enactment amends the Criminal Code to, among other things,
(a) modernize and clarify interim release provisions to simplify the forms of release that may be imposed on an accused, incorporate a principle of restraint and require that particular attention be given to the circumstances of Aboriginal accused and accused from vulnerable populations when making interim release decisions, and provide more onerous interim release requirements for offences involving violence against an intimate partner;
(b) provide for a judicial referral hearing to deal with administration of justice offences involving a failure to comply with conditions of release or failure to appear as required;
(c) abolish peremptory challenges of jurors, modify the process of challenging a juror for cause so that a judge makes the determination of whether a ground of challenge is true, and allow a judge to direct that a juror stand by for reasons of maintaining public confidence in the administration of justice;
(d) increase the maximum term of imprisonment for repeat offences involving intimate partner violence and provide that abuse of an intimate partner is an aggravating factor on sentencing;
(e) restrict the availability of a preliminary inquiry to offences punishable by imprisonment for a term of 14 years or more and strengthen the justice’s powers to limit the issues explored and witnesses to be heard at the inquiry;
(f) hybridize most indictable offences punishable by a maximum penalty of 10 years or less, increase the default maximum penalty to two years less a day of imprisonment for summary conviction offences and extend the limitation period for summary conviction offences to 12 months;
(g) remove the requirement for judicial endorsement for the execution of certain out-of-province warrants and authorizations, expand judicial case management powers, allow receiving routine police evidence in writing, consolidate provisions relating to the powers of the Attorney General and allow increased use of technology to facilitate remote attendance by any person in a proceeding;
(h) re-enact the victim surcharge regime and provide the court with the discretion to waive a victim surcharge if the court is satisfied that the victim surcharge would cause the offender undue hardship or would be disproportionate to the gravity of the offence or the degree of responsibility of the offender; and
(i) remove passages and repeal provisions that have been ruled unconstitutional by the Supreme Court of Canada, repeal section 159 of the Act and provide 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.
The enactment also amends the Youth Criminal Justice Act in order to reduce delays within the youth criminal justice system and enhance the effectiveness of that system with respect to administration of justice offences. For those purposes, the enactment amends that Act to, among other things,
(a) set out principles intended to encourage the use of extrajudicial measures and judicial reviews as alternatives to the laying of charges for administration of justice offences;
(b) set out requirements for imposing conditions on a young person’s release order or as part of a sentence;
(c) limit the circumstances in which a custodial sentence may be imposed for an administration of justice offence;
(d) remove the requirement for the Attorney General to determine whether to seek an adult sentence in certain circumstances; and
(e) 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, as well as the requirement to determine whether to make such an order.
Finally, the enactment amends among other Acts An Act to amend the Criminal Code (exploitation and trafficking in persons) so that certain sections of that Act can come into force on different days and also makes consequential amendments to other Acts.
All sorts of information on this bill is available at LEGISinfo, an excellent resource from the Library of Parliament. You can also read the full text of the bill.
Bill Blair Liberal Scarborough Southwest, ON
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 third time and passed.
Criminal CodeGovernment Orders
November 28th, 2018 / 3:55 p.m.
Parkdale—High Park Ontario
Liberal
Arif Virani LiberalParliamentary Secretary to the Minister of Justice and Attorney General of Canada
Mr. Speaker, it is with great pleasure that I rise today to speak on behalf of the Minister of Justice and Attorney General of Canada to Bill C-75, an act to amend the Criminal Code, the Youth Criminal Justice Act and other acts and to make consequential amendments thereto.
This legislation represents a key milestone on our government's commitment to modernizing the criminal justice system, reducing delays and ensuring the safety of all Canadians. Delays in the criminal justice system affect public safety, undermine public confidence in the administration of justice, adversely impact the rights of accused persons and fails to provide Canadians good value for money.
When proceedings are stayed due to delays, the criminal justice system itself fails. Perpetrators are not held responsible for their actions, the innocent are not given the opportunity to truly clear their name and victims suffer.
Uses of delay in the criminal justice is not a new one. In the early 1990s, tens of thousands of cases were stayed due to delay following the Supreme Court of Canada's historic decision in the Crown and Askov.
As we know, the Supreme Court's subsequent decisions in Jordan and Cody set out a new legal framework for assessing delays. That framework included a transition period in assessing the cases for which charges had been laid prior to the release of the decision.
Given that this period will come to an end next summer, we have no time to lose. We must do everything we can to improve the efficiency of our criminal justice system.
Fortunately, we have many helpful studies and reports including the in-depth study of the Standing Committee on Legal and Constitutional Affairs. Its July 2017 report is entitled “Delaying Justice is Denying Justice”. After hearing from a sum total of 138 witnesses, the standing committee concluded that the causes of delays were wide and varied. It issued a call to the legal community, including judges and federal-provincial-territorial ministers of justice and attorneys general to “take decisive and immediate steps to address the causes of delays and to modernize our justice system.” It also called in the Minister of Justice to show leadership “in taking the necessary reformative action”.
I know the minister feels extremely privileged to have been entrusted with the responsibility to address this urgent issue, which also forms part of the mandate letter given to her by the Prime Minister. The Minister of Justice has taken several significant steps to improve the criminal justice system. In total, she has made now 240 judicial appointments and elevations to superior courts right across the country. In 2017 alone, the minister made 100 appointments, more than any other minister of justice in the last two decades. This year she is on pace to meet or exceed that number.
At the same time, the last two budgets presented by our government have allocated funding for an unprecedented number of new judicial positions, which are necessary to allow courts to respond to growing caseloads, including criminal matters. In all, our government has seen the creation of 75 new judicial positions over the past two years.
In fact, earlier this year, chief justices in Alberta and Quebec noted that for the first time in a long time, they were starting to notice positive trends in terms of delays. That is a very encouraging sign. The significant efforts made by judges, courts, governments and other actors in the justice system are paying off.
I will use the rest of the time that I have today to address our government's legislative response to criminal justice system delays.
I would like to thank the members of the Standing Committee on Justice and Human Rights for their thorough study of the bill.
The committee heard from 95 witnesses and examined a significant number of documents on a highly complex subject. There were 58 briefs submitted by various stakeholders, including representatives of police forces, Crown attorneys, defence attorneys, legal aid programs, victims' rights advocates, representatives of indigenous groups, and academics.
The discussion on the admission of routine police evidence by affidavit was particularly important, and our government was listening.
Although our intentions were commendable, we admit that our approach, as proposed, could have had unintended consequences, especially for unrepresented accused persons.
The committee gave that concern due consideration, and we accepted its amendment in that regard.
The reforms in this bill were also generally well received by all sides. There were some concerns heard regarding the provision, the proposed reverse onus, in the context of intimate partner violence due to operational issues that some had experienced with what is known as dual charging; that is where both perpetrators and victims are charged after a victim has had to use physical force to defend herself.
Supporting survivors of domestic violence and ensuring that more perpetrators are brought to justice was part of our platform in 2015, and the reverse onus provisions, which do just that, were maintained in the bill after the committee study.
We know, including most recently, from the Supreme Court of Canada decision in Antic that the problem is not the law itself but in how it has been applied. It is important to note that provinces and territories have developed policies and training in this area. We have a solid legal framework, yet a disproportionate number of indigenous and vulnerable and marginalized accused are being denied bail. Those who are being released are being required to follow too many onerous conditions, with a strong reliance on sureties in a number of jurisdictions.
The proposed new process contained in Bill C-75 talks about judicial referral hearings, which will provide an off ramp for administration of justice offences that do not actually cause harm to a victim. This proposal has been supported enthusiastically, both by residents in my riding of Parkdale—High Park and by Canadians right across the country, who are concerned about the disproportionate overrepresentation of indigenous and racialized persons in our criminal justice system.
What we have advanced is a shining example of exactly what the Supreme Court of Canada and the Senate committee report were imploring when calling for “a cultural shift among justice system participants that moves them away from complacency and towards efficiency, cooperation and fairness.”
My colleagues will also recall that Bill C-75 includes two proposals in relation to preliminary inquiries. First, the bill proposes to restrict preliminary inquiries for adults accused to offences punishable by life imprisonment, for example, murder or kidnapping. Second, it will permit the judge presiding over the preliminary inquiry to limit the issues to be explored and the number of witnesses to be heard at the preliminary inquiry.
The approach in Bill C-75 with respect to preliminary inquiries reflects the extensive consideration and consultation on various options throughout the years and the best evidence available, and ultimately proposes a balanced approach between various interests at stake. It also proposes an approach that was endorsed and supported by the provincial and territorial ministers of justice during the extensive consultations undertaken by the minister with her provincial and territorial counterparts.
One topic that was a particular focus for the committee was the reclassification of offences. Reclassification will result in amendments to many provisions in the code, both for the purposes of hybridizing existing indictable offences that carry a maximum penalty of imprisonment of 10 years or less, and to create uniform maximum penalty of imprisonment on summary conviction of two years less a day.
The reclassification amendments were supported by the minister's provincial and territorial counterparts, who felt strongly that these amendments would give prosecutors much-needed flexibility based on the gravity of cases before them.
Notably, the reclassification amendments are procedural. They change how conduct that is not deserving of an indictable sentence range can be treated. It is already a well-known feature of our criminal justice system that prosecutors assess the facts of the case and the circumstances of the offender to determine which type of sentence to seek from the court.
Importantly, nothing in the bill proposes to lower the sentences that would be awarded under the law. These reforms would not change the fundamental principles of sentencing. We value the variety of perspectives and knowledge that the many witnesses contributed to the Standing Committee on Justice's study.
Bill C-75's proposed reclassification of indictable offences, punishable by maximum of 10 years imprisonment or less, does not treat these offences any less seriously for sentencing purposes.
Nonetheless, this is an important point. The justice committee heard compelling testimony from witnesses on the terrorism and advocating genocide offences. Our government recognizes that these are crimes against the state, against society at large for the purpose of advancing a political objective, in the case of terrorism. In the case of advocating genocide, these are crimes not just against society at large but crimes against humanity.
I say that with some experience in the area, as a former prosecutor at the UN war crimes tribunal for Rwanda. I know first-hand that there is no more reprehensible crime known to law then genocide, which is advocating for the destruction, in whole or in part, of a national, ethnic, racial, or religious group.
The standing committee unanimously recommended that these offences be carved out of the reclassification approach in Bill C-75. We thank the committee for its diligent work in this area, and agree wholeheartedly with this amendment.
On that note, we moved consequential government amendments to remedy an unintended error from one of these committee amendments in order to reflect the committee's objective of removing these offences from the list of those that were being reclassified.
We also welcomed the committee's amendments to section 802.1 of the Criminal Code to allow the provinces and territories to set criteria permitting agents, that is non-lawyers, such as law students, articling students and paralegals, to appear on summary conviction offences punishable by more than six months imprisonment and to allow agents to appear on any summary conviction offence for the purpose of an adjournment.
One of the unintended consequences of the proposal to reclassify offences in the Criminal Code is that agents would not have been able to appear for individuals on most summary conviction offences unless authorized by the provinces and territories. The justice committee helpfully amended section 802.1 of the Criminal Code to enable provinces and territories to establish criteria for agent representation on summary conviction offences with a maximum penalty of greater than six months imprisonment in addition to the current authority to create programs for this purpose as well as to allow agents to appear on any summary conviction offences for adjournments.
This amendment would address concerns over access to justice issues. It would maintain jurisdictional flexibility while also recognizing regional diversity in how legal representation is regulated across Canada.
On this point, I would underscore that access to justice informs not only the core aspect of the bill, but in all of the efforts we are undertaking at the justice ministry and the efforts made by the minister. The minister has brought this issue to the attention of her provincial and territorial counterparts so they will take the requisite prompt legislative action to set the necessary criteria for this important matter relating to access to justice.
I would also like to talk about the jury reforms proposed in Bill C-75. These changes will make major improvements to our jury selection process by abolishing peremptory challenges for Crown and defence attorneys, allowing judges to direct that a juror stand by for reasons of maintaining public confidence in the administration of justice, modernizing challenges for cause, empowering judges to decide challenges for cause, and allowing trials to continue with the consent of the parties in the event that the number of jurors is reduced below 10, in order to avoid mistrials.
The under-representation of indigenous peoples and visible minorities on juries is a major concern. This problem has been well-documented for years. We believe that eliminating peremptory challenges will significantly improve the diversity of juries.
Peremptory challenges give both the accused and the Crown the power to exclude potential jurors without having to provide a reason. They have no place in our courtrooms, given the potential for abuse. Once this bill has passed, Canada will join countries like England, Scotland and Northern Ireland, which abolished peremptory challenges in 1988.
We must remember that provincial and territorial laws and processes play an important role in determining candidates for jury duty and the methods used to compile jury lists.
The federal government is just one piece of the puzzle. However, I am pleased to see that federal, provincial and territorial government representatives are working together on a wide range of jury-related issues in order to make further recommendations on how to improve Canada's jury system. I believe that the questions raised during the committee's study of Bill C-75 will help with these deliberations.
I was also pleased to see that the committee was generally in favour of the more technical proposals aimed at reducing delays and improving efficiency in our system, in particular with respect to removing the requirement for judicial endorsement for the execution of out-of-province warrants, clarifying the signing authority of clerks of the court, and facilitating remote appearances.
As well, I wish to highlight the committee's unanimous support of the repeal of section 159 of the Criminal code, a proposal that has been well received in the LGBTQ community, as well as the proposed amendment to repeal the vagrancy and bawdy house offences, which have been historically and improperly used to target consensual adult sexual activity. These amendments continue our government's important work to address discrimination against LGBTQ2 Canadians.
Importantly the committee also supported Bill C-75's proposal to repeal the abortion offences that the Supreme Court of Canada struck down as unconstitutional in the Morgentaler decision in 1988. Our government will always protect a woman's reproductive rights and her right to choose what to do with her own body.
As I have already stated, Bill C-75 proposes comprehensive reforms that will help to ensure that an accused person's right to be tried within a reasonable time is respected and that all justice system participants, including victims and witnesses, do not face delays.
At the same time, we are deeply conscious of the need and have heard the call for sentencing reform, including mandatory minimum penalties. The minister remains committed to advancing change.
The courts have made it clear that many mandatory minimum penalties present serious challenges from a constitutional perspective. The minister has been clear that her view is that judges should be provided the necessary discretion to impose sentences appropriate to the offender before them.
That said, we need to ensure we put in place sentencing reform that will stand the test of time. Mandatory minimum penalties are being litigated quite extensively. There are cases in which the Supreme Court has upheld the mandatory minimum penalty and there are cases in which the court has not.
We want to ensure we have taken all steps and done our due diligence as we continue to work on sentencing reform so the changes we make will stand the test of time.
The bold reforms proposed in the legislation have been the subject of extensive discussions, consultations and collaboration with the minister's provincial and territorial colleagues. Our commitment to prioritize key legislative reforms that we felt cumulatively would have the biggest impact in reducing delays in the criminal justice system remains strong.
This discussion and the consultations have included extensive debate within this very chamber itself. The House has debated Bill C-75 for a total of 14 hours and 45 minutes thus far. Ninety-five witnesses in the course of 27 hours were heard by the Standing Committee on Justice and Human Rights during extended sitting hours. A total of 28 members of the opposition benches from multiple parties have spoken out on the bill.
Further to that, we have listened to the standing committee's recommendations and to key stakeholders who have committed to address the issues of delays in the criminal justice system. Bill C-75, as amended, is a result of this commitment and reflects the beginning of a culture change that the Supreme Court was calling for in its Jordan and its Cody decisions. I therefore urge all members to support this important legislation.
Michael Cooper Conservative St. Albert—Edmonton, AB
Madam Speaker, I want to ask the parliamentary secretary about judicial referral hearings. At justice committee, a concern was raised about the fact that with the judicial referral hearings, a breach of an administrative offence, a breach of an order or bail condition, that this breach would not then be entered into the CPIC system.
In my riding of St. Albert—Edmonton, we saw the consequences of not having that information brought before a justice of the peace when Constable Wynn was shot and killed by someone who had an extensive criminal record, including 38 outstanding charges for failing to appear. Now, with Bill C-75, there is no guarantee that the totality of someone's record will even be entered into the CPIC system. What is the government doing to address that?
Arif Virani Liberal Parkdale—High Park, ON
Madam Speaker, I thank the opposition critic for his contribution in today's debate, but also extensively at the justice committee. I also want to highlight the tragedy that occurred with respect to Constable Wynn. I know it affected the member's community in particular. The member has been vocal about it, as he should be in advocating for his constituents here in this chamber.
With respect to the administration of justice offences, the concept of a judicial referral hearing was well-thought-out and well planned. It was meant to address a specific problem in the system, which is the overrepresentation of marginalized communities within the criminal justice system. I am speaking about indigenous persons, racialized persons, marginalized persons, people suffering under addictions, etc. What we have found is those persons have been suffering and overly criminalized within the system because of breaches of what we call administration of justice offences. Therefore, a breach of a bail condition or a breach of a curfew results in a further criminal charge and a further criminal record, perpetuating the cycle of criminalization of these individuals.
It was in an effort to reduce that cycle, and to move such people from the system and address the court delays that the member opposite has discussed extensively in this House, that we made the amendments. The amendments are there for a purpose. We are confident that we are on the right path to addressing that overrepresentation problem by amending this legislation in that manner.
Gord Johns NDP Courtenay—Alberni, BC
Madam Speaker, I have a lot of respect for the Parliamentary Secretary to the Minister of Justice. We know that at committee many witnesses came forward and testified that mandatory minimums in fact contributed to the backlog. I know that the parliamentary secretary discussed this in his speech. If he knows that this is a problem and it is helping contribute to the backlog in our court system, here is a 302-page bill. The Liberals have had an opportunity to fix it right here today.
Maybe the member can explain to this House why the Liberals have not amended and fixed this problem right now, when we have heard at committee, in testimony from witnesses, that this is something that needs to be fixed, that mandatory minimums actually doubled under the previous Harper government, and that is contributing to the backlog in our court system.
Arif Virani Liberal Parkdale—High Park, ON
Madam Speaker, as I indicated in my opening comments here in this chamber, the issue of mandatory minimums is a pressing one. It is an issue that the minister is seized of. It is one that she is committed to working on.
We believe fundamentally in empowering judges to exercise their discretion to apply the most appropriate penalty given the context of a particular case. We also believe fundamentally in reform that will stand the test of time, not a piecemeal reform that would be challenged continuously in the courts. There are mandatory minimums that have been upheld by the Supreme Court and there are mandatory minimums that have been defeated and not upheld by the Supreme Court.
What we are doing is a comprehensive study and analysis of the issue so we can put forward to this House and for all Canadians a suite of proposals that would address the problem writ large in a comprehensive, sensible and evidence-based way. That would address the problem that the member opposite has rightly identified as was raised in committee and in this House, and is a problem that the minister is seized of.
Michael Cooper Conservative St. Albert—Edmonton, AB
Madam Speaker, I want to ask the parliamentary secretary a question regarding judicial appointments. He talked about the fact that the government has been appointing judges, but I say it is too little, too late. He can cite whatever number he wishes, and he did mention that the government is establishing new judicial posts. In the Budget Implementation Act of 2017, funding for 14 new judicial posts was provided for in the province of Alberta. Today, a year and a half later, seven out of the 14 remain vacant. Is that a record of action?
Arif Virani Liberal Parkdale—High Park, ON
Madam Speaker, the record of action is actually quite clear, and it is what I outlined in my opening statements. The actual record of the government is tremendous in respect to appointing judges. Was there a delay at the start of our mandate? Absolutely there was. Why was there a delay? It was because we took under our wing and under our mandate reforming the system of judicial appointments to make it inclusive of people's lived experience, to make it inclusive of merit that was hitherto ignored by the previous government. What has resulted is a diverse judiciary that actually reflects the community that it adjudicates.
The previous government's record was 30% appointment of women. We have appointed 56% women. We have appointed 3.1% indigenous individuals, 12% persons who are visible minorities, 6% who are LBGTQ and 30% who are bilingual. That point needs to be underscored in terms of the threats that Conservative governments at a different level are putting on bilingualism in this country.
That is a record that we will stand by and we will defend, and it applies across this country including in Alberta, the area that the member represents.
Peter Julian NDP New Westminster—Burnaby, BC
Madam Speaker, we heard just a few moments ago that the priority for the government was eliminating mandatory minimums. I remind the member that Liberals have now been in power for well over three years. With the idea that they get around to things or that something is a priority, they obviously need to understand that they are in government now and need to take action.
I am deeply concerned by certain provisions that the Liberals seemed to ram through committee. On the reverse onus positions, the considerations have been flagged by some witnesses, including Jonathan Rudin of Aboriginal Legal Services, that the provisions could actually perpetuate the overrepresentation of indigenous women in incarceration. Michael Spratt pointed out the concerns around restricting of preliminary inquiries. There are witnesses who brought forward concerns. The Liberals did not seem willing to address those concerns in any way.
Finally, the Liberals have now been in power for three years. Crime prevention programs that were gutted under the former Conservative government have not been restored in any way by Liberals. We know that $1 of crime prevention funding saves us $6 in policing, justice, court and prison costs. Why is the government not willing to get things right, and why is it so slow to meet the commitments it made back in 2015?
Arif Virani Liberal Parkdale—High Park, ON
Madam Speaker, I will take issue with pretty much all of what the member just articulated in this chamber. In terms of the position of Aboriginal Legal Services, what it did at committee was laud our initiative in respect of the overrepresentation of indigenous people in the criminal justice system. Specifically, Jonathan Rudin gave testimony at that committee about the elimination of peremptory challenges and what that will mean to avoid the situation such as the trial of Gerald Stanley, which had a homogenous all-white jury rendering a verdict with respect to an indigenous accused. That is specifically the kind of change needed to address concerns that the member opposite and I share with respect to the overrepresentation of individuals.
With respect to intimate partner violence, there was clearly a discussion about it at committee. There was discussion about the important steps we are taking to address intimate partner violence, and about expanding the definition so dating partners and former dating partners are included in the analysis so adjudicators and actors within the criminal justice system could take more seriously domestic violence and address this serious scourge on our system.
With respect to what we are doing with the broader system delays, we are acting on multiple fronts. We have a role to play, as do the provinces and territories. I note for the member's edification the contribution we made just yesterday to Pro Bono Ontario, a system that was gutted by the current provincial government in Ontario. We are shoring it up with $250,000 of new funding to reduce the number of self-represented litigants in our courts, which contributes to the delays that we would seek to address and I am sure the member opposite would seek to address as well.
Michael Cooper Conservative St. Albert—Edmonton, AB
Madam Speaker, I rise once again to speak to Bill C-75. One of the biggest problems with Bill C-75 is that, although the objective of the legislation is to reduce delay in Canada's courts, it actually does very little to reduce delay. For a bill that is designed to reduce delay, the fact that it does not reduce delay is a pretty big problem.
The Parliamentary Secretary to the Minister of Justice and other Liberal MPs who have spoken on the bill in this place have patted themselves on the back about, as they have put it, the good work of the justice committee, which heard from 95 witnesses, as the Parliamentary Secretary to the Minister of Justice just stated, and that Liberal MPs listened to the key stakeholders and acted on the concerns raised by stakeholders.
In the three years I have been a member of Parliament I have never seen a piece of legislation more widely criticized in virtually all aspects of this massive 300-page bill than Bill C-75. Despite the rhetoric from across the way about listening to key stakeholders, the reality is that on issue after issue, the Liberals did not listen. They ignored the concerns raised by key stakeholders at committee. Instead they rammed the bill through committee and, other than a few minor changes, we are largely stuck with a very flawed bill, a bill that is problematic in so many different ways.
In that regard, let me first highlight the issue of hybridization. Putting aside the issue of watering down serious indictable offences, which is certainly a serious concern, from the standpoint of reducing delay, hybridization is going to download even more cases onto provincial courts. Some 99.6% of criminal cases are already heard before provincial courts, and if any member questions my statement about the fact this would result in the further downloading of cases, do not take my word for it. Take the Canadian Bar Association's word. The Canadian Bar Association, in its brief to the justice committee said that hybridization, “...would likely mean more cases will be heard in provincial court. This could result in further delays in those courts....” No kidding. Despite what the Canadian Bar Association said, the government said, “No problem. We'll just download more cases on to provincial courts”.
Then, there were public safety concerns raised about hybridization. One of the concerns raised was by John Muise, a former member of the Parole Board. He noted that offences being reclassified included breaches of long-term supervision orders. Long-term supervision orders apply to the most dangerous sexual predators in our society. We are talking about individuals who are so dangerous that after they complete their sentence, they are subject to a long-term supervision order for up to 10 years, with many stringent conditions.
John Muise said that it is a serious problem to treat breaches of these orders which are imposed on the most dangerous of people and that they should remain solely indictable, mainly because a breach of a long-term supervision order is a sign that these very dangerous offenders are returning to their cycle of violence and exploitation of vulnerable persons. We are not talking about marginalized people here, as the hon. parliamentary secretary referred to with respect to minor administration of justice offences, breaches of orders, which should be treated seriously. In this case, we are talking about the most serious offenders. Instead of heeding the advice of John Muise, the government said, “No problem; we'll move ahead”, forgetting about what a member of the Parole Board of Canada had said.
As well, Mr. Chow, deputy chief constable of the Vancouver Police Department, appeared before our committee. He said that there was another problem to reclassifying some very serious indictable offences as it relates to taking a sample and putting it into a national DNA database. Right now, if someone is convicted for one of those offences as an indictable offence, the Crown could apply to a judge to take a DNA sample to be put into the national DNA data bank. However, with Bill C-75, if the offence was prosecuted by way of summary conviction and the individual was convicted, it would be a summary conviction offence rather than an indictable offence, and no such application could be made.
In talking about the impact that might have upon police investigations, Deputy Chief Constable Chow noted in his testimony that of the 85 offences that are being reclassified, as a result of DNA samples being taken over the last number of years, 19 homicides and 24 sexual assaults were solved. However, instead of listening to Mr. Chow, instead of listening to Mr. Muise, the government said, “We don't care. We're moving ahead.”
Then there is the issue of preliminary inquiries. The government is limiting preliminary inquiries to be held if the maximum sentence is life imprisonment, and for all other offences with a lesser maximum penalty, a preliminary inquiry would no longer be available. The government claims that this will help speed up the court process. Witness after witness begged to differ with the government. The brief submitted to the committee by the Canadian Bar Association stated on limiting preliminary inquiries:
This would not reduce court delays and would negatively impact the criminal justice system as a whole.... Any connection between court delays and the preliminary hearing is speculative at best.
If members do not want to take the word of the Canadian Bar Association, perhaps they might be interested in taking the word of the Barreau du Québec, which stated:
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.
Then there was Philip Star, a criminal defence lawyer from Nova Scotia, who said before the committee in respect to preliminary inquiries:
They're incredibly helpful, not only to the accused, but to the Crown and ultimately to our system, by cutting down on delays....
So much for the government's assertion that limiting preliminary inquiries is somehow going to reduce delays.
It gets better, because Laurelly Dale, another lawyer, a defence counsel, who appeared before the committee said:
Two major studies have concluded that preliminary inquiries do not contribute substantially to the problem of court delay. Preliminary hearings facilitate the resolution of potentially lengthy and expensive trials in superior court. They are often used instead of rather than in addition to trials. They expedite the administration of justice. It is far easier and quicker to get a two- to four-day prelim, as opposed to a one- to two-week trial in superior court.
Then there is Michael Spratt, who said:
There is a delay problem in our courts, but preliminary inquiries are not the cause of that delay.
Witness after witness, as I said, told the government that this is not going to work. It is not going to reduce delay. Did the government listen? Did the Liberal members on the justice committee listen? Apparently not.
Further testimony on prelims was from Sarah Leamon who said:
...87% of them actually resolve after the preliminary inquiry process. It saves the complainant,—
—in the context of a sexual assault complainant—
—in the vast majority of circumstances, from having to testify again and from being re-traumatized.
While the Liberal members opposite say they listened, the evidence before the committee and the response of the government to the evidence before the committee demonstrates exactly the opposite.
Even if one accepts the reasoning of the government, despite all of the evidence before the committee that limiting preliminary inquiries will in fact reduce delay, it is important to note that preliminary inquiries only take up about 3% of court time across Canada. To the degree that this is going to have a beneficial impact, the fact remains it is a very small piece of the much larger problem of backlog and delay in Canada's courts.
Let us look at the issue of judicial referral hearings, and the evidence that was before the committee on judicial referral hearings. Serious concerns were raised, including by John Muise, a former member of the Parole Board of Canada, as well as from Mr. Chow from the Vancouver Police Department, about the fact that individuals who commit an administration of justice offence, who are referred to a judicial referral hearing, would not have that breach of an order or other administration of justice offence entered into CPIC.
Right now, if someone does commit an AOJ offence, it is entered into CPIC, but thanks to the government's judicial referral hearing process, that would not happen. As I mentioned when I posed a question to the hon. parliamentary secretary, the consequences of not presenting the full CPIC record before a judge or justice of the peace can have devastating consequences. My community learned this when Constable David Wynn was shot and killed by someone who had an extensive criminal record, including an extensive record of administration of justice offences.
Now the government is saying that the court would not even have the benefit, if that CPIC record were to be presented, of the totality of that offender's criminal record because, after all, those offences would not be entered into CPIC. When I asked the parliamentary secretary what the government intended to do to fix this serious public safety issue, which was brought up more than once before the justice committee, he regretfully did not have an answer.
I should note again that in terms of judicial referral hearings, while they will have an impact on undermining public safety because those breaches will not be entered into CPIC, the impact of administration of justice offences on the backlog in our system is actually quite limited. That is because AOJ offences are typically dealt with as tagalong offences. What I mean by that is that they are usually dealt with at the same time that the main or underlying charge is dealt with. Therefore, in terms of the amount of court time and court resources that are being used for the purpose of dealing with administration of justice offences, in fact, it is quite minimal.
Again, members should not take my word for it. They should take the word of Rick Woodburn, the president of the Canadian Association of Crown Counsel. Here is what Mr. Woodburn said to the justice committee:
I can tell you from the ground, they don't clog up the system. They don't take that much time. A breach of a court order takes very little time to prove, even if it goes to trial—and that's rare. Keep in the back of your mind that these charges aren't clogging up the system.
Did the Liberals keep that in the back of their minds? Apparently not because they just went ahead with the judicial referral hearing process without a plan, without any thought of the serious public safety issues that were raised before the justice committee.
Then there is the issue of peremptory challenges. Peremptory challenges have nothing to do with delay, but they were added to this bill. The basis upon which the government has decided to eliminate peremptory challenges is that somehow it will increase the representativeness of juries. Witness after witness said quite the opposite, but instead of listening to those witnesses, the government just moved ahead.
Taken together, the record is very clear. Ninety-five witnesses gave evidence at committee and on issue after issue, the Liberals ignored the evidence. The Liberals ignored the witnesses and as a result, we have a very flawed bill that is not going to get to the heart of the problem, which is to reduce the delay and backlog in Canada's courts.
Criminal CodeGovernment Orders
November 28th, 2018 / 4:45 p.m.
Parkdale—High Park Ontario
Liberal
Arif Virani LiberalParliamentary Secretary to the Minister of Justice and Attorney General of Canada
Madam Speaker, I thank the member opposite for his contribution to today's debate and, again, for his contribution to the justice committee. To assert as the member just did that somehow the government is not listening attentively to, or indeed hearing, and validating the work being done in committee is just patently false. Fifty amendments to the bill were accepted at committee. Some were from the member opposite and his party. They included four key areas relating to routine police evidence; the use of illegal agents; the hybridization of terrorism and genocide offences that I outlined in my speech, with amendments proposed by the Conservative Party; and finally, the bawdy house and vagrancy provisions, which were also addressed and accepted at committee. Therefore, to assert in this chamber that somehow the committee's work was not validated is simply incorrect.
My question is about those important changes to the bawdy house and vagrancy provisions, because more than just those, there is a key provision in the bill to repeal section 159 of the Criminal Code. To simplify matters for people watching, section 159 basically says that consensual sexual activity among a gay young couple is illegal, whereas among a heterosexual young couple it is perfectly legal. By removing 159 we would be creating equality for young gay couples in Canada. Does the member opposite agree with this kind of change being commensurate with the approach that is necessary in 2018 to address LGBTQ discrimination in Canada?
Michael Cooper Conservative St. Albert—Edmonton, AB
Madam Speaker, section 159 is an unconstitutional and inoperative section of the Criminal Code. In other words, it is one of these zombie laws. I fully support the removal of zombie laws, including section 159.
I am surprised that the hon. member would pat the government on the back for taking this step, given the government's record of dragging its feet. It was all the way back in the fall of 2016 that the government introduced Bill C-28 to remove section 159 of the Criminal Code. What happened to Bill C-28? Two years later, it is stuck at first reading. The Liberals could have passed that bill with unanimous consent, but because of the inaction of the government, section 159 remains in the Criminal Code.
To highlight the incompetence of the government, after introducing Bill C-28, in March of 2017, it also introduced Bill C-39. It also would have removed section 159 and other zombie sections of the Criminal Code. What happened to Bill C-39? It is stuck at first reading. Quite frankly, the only thing keeping section 159 from being removed from the Criminal Code is the government.
Alistair MacGregor NDP Cowichan—Malahat—Langford, BC
Madam Speaker, the hon. member for St. Albert—Edmonton and I sat on the justice committee last year. I certainly appreciated the subject matter we dealt with. It is a committee that demands a lot of responsibility from its members. It requires a lot of maturity, because the subject matter is always very weighty. When we are deliberating on legislation affecting the Criminal Code, there is a real sense that the actions we take when we amend that statute will have real-life consequences for people.
He is right when he talks about the government's slow legislative agenda. I will just correct him, however. Bill C-28 was actually the victim surcharge bill, but it was residing at first reading. Bill C-32 was also residing at first reading. We also had Bill C-38 and Bill C-39. The Canadian public got the feeling that the Minister of Justice, despite coming to power with a bold agenda to reform our criminal laws, was just kind of stringing the public along and giving us little crumbs, saying “Yes we're going to fix this”. Now, we finally have Bill C-75, which I liken to a giant amoeba that has swallowed all of those previous bills, but also added a whole bunch more. We are finally getting to the stage, three years later, where we get to debate this.
I agree with him that some of these bills could have been passed really quickly, like the zombie provisions of the Criminal Code. Scholars and professors have been calling for decades for the Criminal Code to be cleaned up, and we could have passed that bill very quickly, but we are only dealing with it now.
Would the hon. member agree that when we are looking at sections, like section 287, which deals with abortion, and section 159, that they could have been dealt with very quickly by the House and that it is a real shame that we are only doing that now?
Michael Cooper Conservative St. Albert—Edmonton, AB
Madam Speaker, I would agree that the Criminal Code should accurately reflect the law in Canada. Therefore, inoperative sections of the Criminal Code should be removed. The consequences of not doing so can be very, very serious.
We saw that happen in the case of the conviction of Travis Vader in respect of two second-degree murder convictions that were overturned because the trial judge applied an inoperative section, section 230, of the Criminal Code, which had been struck down in the Martineau decision all the way back in September 1990 when I was just starting grade 1, and yet almost three decades later, that inoperative section is still there in the Criminal Code.
The McCann family pleaded with the government to move forward. I stood with them. They are from my community of St. Albert. They cannot believe that almost two years later, Bill C-39, which would remove sections 230 and 159, is stuck at first reading.
Here we are, all because the government simply cannot get it done