Bill C-75 (Historical)

An Act to amend the Criminal Code, the Youth Criminal Justice Act and other Acts and to make consequential amendments to other Acts

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.

Criminal Code

[Kamal Khera, Liberal, Parliamentary Secretary to the Minister of National Revenue]

Mr. Speaker, as I said earlier, I am extremely proud of this piece of legislation as it moves forward with comprehensive justice reforms. One thing I am particularly proud of is how it would reduce the overrepresentation of indigenous people, people of colour, in particular black people, and other marginalized groups in our criminal justice system.

Could the hon. member elaborate a little more on this particular point, which I am sure my constituents of Brampton West and members of the House would appreciate?

[Colin Fraser, Liberal, West Nova, NS]

Mr. Speaker, I thank my hon. colleague for her excellent question and observation that this bill does include provisions that would certainly help reduce the overrepresentation in our criminal justice system of marginalized and racialized communities, which we have to come to terms with in our country.

The very important measures in this bill to deal with bail provisions, which currently have many people in the system being held awaiting trial on administration of justice offences, and which contribute to stigmatization of certain groups in our communities, will go a long way in helping to reduce the overrepresentation in our system.

We also know that in our criminal justice system today, we have Gladue reports that are used in sentencing, which should be taken into account properly to ensure that we reduce the overrepresentation of indigenous people in our prisons in this country.

I thank my hon. friend for her question, and I look forward to studying this while bearing that in mind at the committee.

[Sean Fraser, Liberal, Central Nova, NS]

Mr. Speaker, I would like to congratulate my friend and colleague for an excellent speech that laid out some of the positive features of Bill C-75.

In response to the last question he was asked, the member raised the issue of the administration of justice offences. Having spent time working in the courts as a lawyer, I cannot tell the House how frustrating it was when we saw cases get delayed, one after the other.

I am curious if the member would like to offer a few comments on how allowing judicial referral hearings, as opposed to a full-blown trial process, when dealing with these minor administration of justice offences, might help reduce that backlog and get more cases through.

[Colin Fraser, Liberal, West Nova, NS]

Mr. Speaker, I too, from having worked as a lawyer in the system and oftentimes in provincial courts, know that the burden on the court resources dealing with administration of justice offences is overwhelming. In fact, in many instances, at least half of the docket on any given day in provincial court is filled with these offences that could be dealt with in another way that would certainly not put the safety of the public at any risk and would hold the accused accountable, while actually allowing the court resources to be spent properly on the subject matter that brought the accused to court in the first place.

Canadians expect that we will deal with serious offences before the courts in a timely fashion. The measures in this bill to deal with the administration of justice offences will not only properly respond in some way to the Jordan decision, which we are all coming to terms with in the criminal justice system, but also make our system fairer for all involved.

[Kelly McCauley, Conservative, Edmonton West, AB]

Mr. Speaker, I would like to thank my colleague for his speech. We spent some time travelling together, and he truly is an honourable gentleman.

I appreciate a lot of what he is saying today, especially the sentiment behind reducing the number of marginalized and racialized people in our court system. However, there is nothing in the departmental plan, not one single measurable goal, going back four years, actually showing any tangible result or goal of reducing what has happened in the past.

Can the member square the conflict between saying that we want to address this issue while at the same time the departmental goal signed off on by the Minister of Justice does not show a single metric improving over the next several years?

[Colin Fraser, Liberal, West Nova, NS]

Mr. Speaker, I thank my friend and certainly appreciate his comments. There are many measures in this bill that deal with efficiencies in the system and that would ensure that people are treated fairly, whether the accused or victims of crime, in the criminal justice system.

I appreciate what he is saying with regard to dealing with racialized minorities or people who may be overrepresented in our criminal justice system. This bill does several of those things. Just in the short time I have, I can say that this government has restored the court challenges program, which will certainly allow people access to the courts. We have also increased funding for legal aid that will allow these people to get proper representation in our courts.

[Anju Dhillon, Liberal, Dorval—Lachine—LaSalle, QC]

Mr. Speaker, I will be sharing my time with the member for Whitby. I am pleased to rise to speak to the measures that will be beneficial to victims of crime included in 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 aim of the bill is to modernize the criminal justice system and reduce court delays.

As part of the criminal justice review, a round table for victims and survivors of crime was held in Ottawa in June 2017. During that event, a number of victims and survivors of crime expressed their concerns about the delays in the criminal justice system. These individuals emphasized that court delays and postponements have considerable negative repercussions on them and their families because of the continued stress and anxiety they feel in relation to the crime and the testimony.

Court delays can also negatively impact victims' mental health at a time when they are trying to put the experience of being victimized behind them. If victims have health problems or are quite elderly, long delays can also interfere with their ability to testify.

Every time there is a delay or an adjournment, victims have to reorganize their schedule, take time off work, or spend more money on help at home to look after children or elderly parents, for example.

During the round table, several victims of crime also said they were very worried about court delays and especially the repercussions of the Supreme Court of Canada ruling in Jordan. Specifically, victims are outraged when delays result in a stay of proceedings and the accused not being held responsible for their actions. For example, let's put ourselves in the shoes of parents whose child was murdered. Imagine the criminal proceedings against the accused being stayed because of delays. No wonder parents lose faith in the administration of justice.

I am therefore very pleased that the government introduced Bill C-75 in response to these concerns. In general, this bill sets out measures that will make the criminal justice system more efficient and will have positive outcomes for the victims. Bill C-75 also includes several specific measures to address the concerns of victims and survivors of crimes. In particular, it would make changes to preliminary inquiries, the reclassification of offences, and intimate partner violence offences.

At present, a preliminary inquiry is held if a person is charged with an indictable offence, chooses to be tried by the Superior Court, and asks for such an inquiry. This procedural step determines if there is enough evidence to send the accused to trial. Over time, the preliminary inquiry has evolved and become, among other things, a means for the accused to be provided with all the evidence against him or her. However, with the constitutional requirement to disclose evidence to the defence, preliminary inquiries are becoming less and less prevalent.

During the preliminary inquiry, the crown and the defence have the opportunity to examine and cross-examine witnesses and to assess their credibility. Although the cross-examination is an essential element that guarantees the right of the accused to a fair trial, having to testify first at the preliminary inquiry and then at the trial, sometimes several years after the offence was committed, can be particularly difficult for the victims.

The reforms proposed by Bill C-75 would limit the holding of a preliminary inquiry to offences punishable by life imprisonment, such as murder, committing an indictable offence for the benefit of a criminal organization or terrorist group, and kidnapping.

The other amendments would also strengthen the powers of the justice presiding at the preliminary inquiry to limit the issues explored and the number of witnesses. The proposed changes to preliminary inquiries would significantly reduce the number of offences for which victims are called to testify multiple times.

This will reduce the impact on vulnerable persons, such as victims of sexual assault, who are often re-victimized during cross-examination. What is more, the changes will shorten the judicial process, which will help reduce the prolonged period of stress and anxiety for victims.

Bill C-75 will improve Criminal Code provisions in order to make victims of intimate partner violence safer. A definition of “intimate partner“ for the purposes of the Criminal Code will be created and will specify that it includes former and current spouses, common-law partners, and dating partners.

If the accused has already been found guilty of violence against a domestic partner, the bill would reverse the burden of proof during the inquiry on the interim release for a new offence of violence against a domestic partner. The amendments would also allow police officers to impose a wider range of conditions on the accused in order to protect the victims.

The courts will have to consider the fact that an accused was charged with an offence of violence against a domestic partner in determining whether the accused should be released or should be kept in detention. Furthermore, the proposed amendments would specify that choking, suffocating, or strangling constitute aggravated assault, in order to address concerns that the criminal justice system has a tendency to underestimate the seriousness of these actions.

Finally, Bill C-75 would allow a higher maximum penalty for a repeat offender found guilty of an offence involving intimate partner violence.

As the Supreme Court stated in Jordan, delays exacerbate the suffering of victims and prevent them from turning the page. The reforms proposed by Bill C-75 would transform the criminal justice system, making it more efficient, effective, equitable, and accessible while protecting public safety.

The different measures that I spoke about today will be beneficial for victims and survivors of crime because they will shorten the process and reduce the number of times victims will need to testify, preventing prolonged stress and anxiety.

I invite all my colleagues to support this important bill.

[Fayçal El-Khoury, Liberal, Laval—Les Îles, QC]

Mr. Speaker, if we read this bill in its entirety and analyze it properly, we see that it is a very important bill for human rights.

Could my colleague further illustrate how this bill would help with respect to intimate partner violence?

[Anju Dhillon, Liberal, Dorval—Lachine—LaSalle, QC]

Mr. Speaker, intimate partner violence and domestic abuse are scourges in our society, and were not taken very seriously until recently.

This bill would strengthen the way our criminal justice system responds to intimate partner violence by enacting a reverse onus at bail for repeat offenders, broadening the definition of intimate partner violence to include dating partners and former partners, and increasing the maximum sentence in cases that involve intimate partner violence.

[Kamal Khera, Liberal, Parliamentary Secretary to the Minister of National Revenue]

Mr. Speaker, I would like to thank my friend for the incredible work she has done as a lawyer, and now as a member of Parliament.

We know that this piece of legislation will have a real effect on court delays, as it intends to bring a culture shift within the criminal justice system, something that the Supreme Court stressed in the Jordan decision is required. Can the member perhaps elaborate a bit on that, and comment on the effect this piece of legislation would have on bail hearings as well?

[Anju Dhillon, Liberal, Dorval—Lachine—LaSalle, QC]

Mr. Speaker, when there are delays in justice, the administration of justice is brought into disrepute. Therefore, modernizing and streamlining our bail system within this bill, including the principle of restraint in order to reduce the imposition of unnecessary conditions, would have the intended effect of reducing the overrepresentation of indigenous and marginalized Canadians in our criminal justice system. At this point, the statistics indicate that those who come from the indigenous and black communities are overrepresented in our criminal justice system and jails.

[Kevin Lamoureux, Liberal, Parliamentary Secretary to the Leader of the Government in the House of Commons]

Mr. Speaker, I appreciate the comments by my colleague, who I know puts a great deal of effort into the bills and issues she addresses on the floor of the House when representing her constituents. The question I have for her relates to how necessary this legislation is. We understand and appreciate how important it was that the department did a lot of consultations leading up to the introduction of the legislation. It is very important that we do this major overhaul and reform to modernize our justice system, which is long overdue, as she put it. Could the member provide some insight into just how important it is that we see this legislation today?

[Anju Dhillon, Liberal, Dorval—Lachine—LaSalle, QC]

Mr. Speaker, I also enjoy listening to my colleague when he speaks in the House. I always say that if this colleague were not in the House, then there would be no House.

This bill is extremely important. It has reviewed the last 10 years of changes made to our criminal justice system. We are going to be dealing with preliminary hearings and bail hearings more efficiently. Intimate partner violence will be taken very seriously. Repeat offenders will be brought to task with this bill.

For the last two years, there were many round tables that took place with our minister and our parliamentary secretary. It was very important to listen to the stakeholders. We listened to everyone from victims' rights advocates, to defence lawyers, to our provincial and territorial counterparts as well, and we got the big picture. Now this bill will make our justice system efficient.

[Celina Caesar-Chavannes, Liberal, Parliamentary Secretary to the Minister of International Development]

Mr. Speaker, I am going to start my speech by giving a few statistics. Indigenous people make up 4% of the Canadian population, yet make up 28% of the admissions to federal correctional facilities. Black Canadians represent 3% of the general population and account for almost 10% of the prison population. There has been a 70% increase in black Canadians in federal prisons over the last 10 years. Additionally, according to Statistics Canada's 2012 Canadian community health survey, persons with mental health disorders are about four times more likely to report being arrested than Canadians who do not suffer with mental health issues.

While these statistics are shocking, we need to keep them in mind.

To say that we need to reform the criminal justice system is an understatement. That is why I am pleased to contribute to today's debate on Bill C-75, an act to amend the Criminal Code and the Youth Criminal Justice Act, which proposes substantial reforms to our criminal justice system.

Today I would like to focus my remarks on a particularly challenging issue that I addressed at the outset, and that is the overrepresentation of indigenous people and marginalized groups within our criminal justice system.

Indigenous people are over represented, both as victims of crime and offenders in the criminal justice system. The rate of victimization is twice as high for indigenous people compared to non-indigenous people. Additionally, indigenous people, people of colour, people from marginalized groups, such as those who suffer from mental health or addiction issues, are also overrepresented in the incarcerated population. The data in this regard paint a bleak picture.

The following statistics have been mentioned in this place before, but they warrant repeating to ensure that there is a clear understanding of the magnitude of this problem. The figures I mentioned at the start of my comments have been increasing over the past few years and it is forecast that by 2025, one-third of the population in provincial and territorial custody will be indigenous.

The overrepresentation statistics are even more concerning when we think about indigenous women and we talk about intersectionality. In 2016, this group accounted for 38% of female admissions in provincial and territorial custody.

Indigenous youth are also overrepresented in our criminal justice system, being five times more likely to be involved in the correctional system than non-indigenous youth.

This overrepresentation of certain groups is a systemic issue that begins with the police or courts long before incarceration, and is a result of a failure of various support systems. The criminal justice system has been left to operate as an inadequate fall-back solution.

Bill C-75 proposes a series of measures that will help address the problem of overrepresentation of indigenous persons and persons from marginalized groups within our criminal justice system, particularly through amendments to the bail regime and improved responses to administration of justice offences.

Indigenous people and people of marginalized groups are disproportionately impacted by the existing bail process. The groups are disproportionately represented in the group of accused persons being detained before trial, often because of their inability to obtain a surety, which is essentially like having a co-signer on a loan, or inability to provide a residential address.

When released, these populations are also disproportionately impacted by bail conditions, such as a curfew or alcohol consumption restrictions. Many of these bail conditions are not necessary to ensure attendance in court or to ensure the safety of the public. Indigenous people and people from marginalized groups are therefore more likely to commit administration of justice offences by breaching these stringent conditions. This cycle of injustice leads to individuals being caught in the revolving door of the criminal justice system.

Right now in Canada, as in many countries, accused people are routinely remanded in custody unnecessarily or are burdened with impractical bail conditions that are unrelated to public safety. This is one of the primary ways that indigenous and marginalized offenders are caught in the web of the criminal justice system.

Bill C-75 directs police and judges to use the principle of restraint when it comes to making decisions on interim release and bail. When a condition is breached, judges are invited to look more closely at the reason for that breach and possible ways to resolve the situation absent of laying a charge. Judges must also give particular attention to the circumstances of indigenous accused and those from other vulnerable groups, like the black community.

Our government is doing this because we know that accused who do not have access to the needed supports and services, including housing, health care, and social services, are at higher risk of breaching bail conditions. These breaches can result in bail being revoked and needless incarceration while awaiting trial.

The principle of restraint proposed in the bill will also require that police and courts impose the least onerous conditions that are appropriate to ensure an accused's attendance in court and to ensure the safety and security of victims and witnesses. The principle of restraint requires that primary consideration be given to the imposition of conditions with which the accused can reasonably comply.

All too often, an inability to comply with onerous and unfair conditions causes a downward spiral of repeated contact with the criminal justice system. This self-perpetuating cycle is difficult to escape and disproportionately affects indigenous peoples and people from marginalized groups.

The codification of the principle of restraint in Bill C-75 would eliminate, at the outset, the imposition of irrelevant, unreasonable or unnecessary conditions to help to reduce instances where persons needlessly would become further involved with the criminal justice system by committing administration of justice offences, while maintaining public safety. These changes will improve the efficiency of our justice system and will reduce the overrepresentation of people most impacted by this vicious cycle.

Bill C-75 will also require, throughout the bail process and in determining how to address breaches of bail conditions, that police and the judiciary give particular attention to the circumstances of indigenous accused and to the circumstances of accused from a marginalized group that is overrepresented in the criminal justice system and that is disadvantaged in obtaining bail. Again, I draw attention to those in the black community. This includes persons who do not have the financial resources to secure their release, do not have residential addresses, do not know anyone who can act as a surety, or those who suffer from mental health difficulties and are unable to obtain the resources they need to comply with their conditions once released.

Bill C-75 also introduces a new judicial referral hearing to which the principle of restraint and the requirement to give particular attention to the circumstances of indigenous or vulnerable accused would apply. The judicial referral hearing is a new tool for police officers faced with an accused individual who they believe has breached a condition without causing harm to a victim or property damage. Instead of being limited to laying a charge or to doing nothing, police could refer the accused to a judicial referral hearing to have his or her bail conditions reviewed by a judge without laying a new charge.

This new tool would help address overrepresentation in two ways. First, the hearing itself would provide an alternative to laying a charge for breaching bail conditions. Second, the principle of restraint and the requirement to give attention to the circumstances of indigenous or marginalized accused would apply to this hearing.

Finally, Bill C-75 would amend the plea provisions of the Criminal Code, which would have a particularly positive impact on indigenous persons and persons from marginalized groups.

Multiple complex factors can lead to guilty pleas, including an innocent accused being denied bail and wishing to avoid waiting for trials; unreasonable or unnecessary bail conditions; social vulnerabilities, including inadequate housing, addiction and mental health; and factors unique to indigenous culture or marginalized communities, including distrust of the system. These factors often interact and contribute to false guilty pleas from vulnerable individuals.

With these amendments, Bill C-75 takes important steps in addressing the overrepresentation of indigenous peoples and marginalized groups in the criminal justice system. I urge all members to support this very important bill.

[Cathy McLeod, Conservative, Kamloops—Thompson—Cariboo, BC]

Mr. Speaker, I listened to my colleague and what I heard was a terrific amount of concern for people who have committed crimes. I know there have been many cases, and there has been one recently in my riding, where victims simply feel that justice has not been done.

I would like the member to explain how she can talk about some of the sentence reductions that would happen for very serious crimes and how she can face people in her riding who might be victims of these crimes and say that it is more important we deal with compassion for the people who commit the offences than those who are the victims.