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.

[Christine Normandin, Bloc, Saint-Jean, QC]

Quickly, I have one last question for you.

We've heard a lot of information that tends to be empirical. On one hand, we've been told that the number of people granted release who then commit crimes has gone up significantly since Bill C‑75 came into force. On the other, we've been told that it has been much harder for offenders to be granted bail since the legislation came into force.

How can the data be compiled in order to accurately reflect what's going on, so that real—not anecdotal—evidence informs decision-making?

[Marco Mendicino, Liberal, Eglinton—Lawrence, ON]

You are correct. That's one of the things we did in Bill C-75. We took a look at the Supreme Court jurisprudence on the specific subject matter of bail and codified those principles so that we are using the criminal law as much as possible, and so that detention and the deprivation of liberty are a last resort and we otherwise look for ways to successfully rehabilitate.

For those who don't pose any risk and who are not violent offenders—those with mental health challenges and those with substance challenges—I think and I would hope that we can all agree that our resources should be invested in a public health approach to off-ramp. For those who do pose a serious violent threat to our communities, then yes, in some circumstances they will have to be separated from the community.

[Marco Mendicino, Liberal, Eglinton—Lawrence, ON]

Mr. Moore, obviously I share the concern that you do, that individuals who pose a serious to our communities, including through gun violence, should not be casually or easily released. That's one of the reasons we have committed to taking a look at the bail system.

I also want to say to you the following. I've spent the better part of a decade working on the front lines of the criminal justice system, and I've seen with my own eyes the consequences of the revolving door that you refer to. It is a metaphor that, yes, is deeply concerning from the standpoint of public safety, but it's also the concern of this government, and I hope you as well, Mr. Moore, that there are structural and systemic challenges within our criminal justice system that have led to the overrepresentation of indigenous people and racialized people in our criminal justice system. It is those twin-pillar objectives that we are striving to accomplish in Bill C-75: to clear the criminal justice system of non-violent offenders so that we can off-ramp them to get the treatment they need and they can be successfully reintegrated into communities; and to focus instead on the serious violent offenders who do, yes, pose a risk to our communities.

I would add one last thing, Mr. Moore. Bill C-75 essentially codified a number of legal precedents that were issued by the Supreme Court of Canada, so that we could provide clear guidance to the judiciary and to all the actors within our justice system, and so that the best possible decisions are taken. Is this an ongoing conversation? Yes. That's one of the reasons I'm here.

[Rob Moore, Conservative, Fundy Royal, NB]

Thank you, Minister.

I guess it's two very different things. I don't think there's anyone around this table who wouldn't accept that the tragic deaths that have taken place are just that: unacceptable.

What we need to hear is an acceptance of some of the criticism of the revolving-door justice system, including the criticism around Bill C-75. In fact, it would appear that your government's moving in exactly the wrong direction when it comes to firearms. Bill C-75 has made it easier for repeat offenders to get bail.

The Toronto police were here, and they provided this committee with testimony that said that there are individuals in Toronto who have been arrested on a firearms offence, receive bail, while on bail are arrested on a firearms offence and then receive bail again. Do you think in Canada that it's ever acceptable for someone who is on bail for a firearms offence to be arrested for a firearms offence and then get bail again? Is this what you're committed to addressing?

[Rob Moore, Conservative, Fundy Royal, NB]

Thank you, Mr. Chair, and thank you, Minister, for your appearance here today.

Minister, all 13 premiers rarely agree on anything, yet we have unanimity among all premiers in this country that your government's approach on crime is failing.

When your colleague, the Minister of Justice, appeared here to discuss this bail study that we're undertaking, he said, “I don't accept that,” when confronted with the claim made by all the premiers that Bill C-75, which changed the law when it comes to bail in this country.... Also, all the police testimony that we've heard has suggested that Bill C-75 has made it easier for criminals who should be behind bars to get bail and be back out on the street. The revolving door that has been put in place by this has caused great concern and has led to great tragedy in this country.

It shouldn't take a tragedy, Minister, for a government to look at the obvious consequence of misguided legislation and accept responsibility for it.

Minister Lametti said, “I don't accept that.” I'll ask you the same question. Do you accept the criticism from 13 premiers and from law enforcement that says that Bill C-75 went too far and that the bail system has to be strengthened?

[Marco Mendicino, Liberal, Minister of Public Safety]

Good afternoon.

Mr. Chair, ladies and gentlemen of the committee, honourable members, thank you for inviting me today.

I am here to discuss Canada's bail system, an issue that has generated growing public interest in recent months.

I want to commend the committee for studying this issue. It is an important one. It is vital to our public safety. It is also very emotional subject matter, particularly for the families of those who have been impacted by violent crime and for offenders who are attempting to pursue their paths toward reform and reintegration. On both sides of the equation, it is terribly important that we undertake this study in a constructive and civil way, and I want to commend each of you for the work and the energy that you are putting into it.

As we know all too well, the consequences of violent crime in our communities cannot be overstated. We owe it to all Canadians to take concrete action to address and reduce crime, so that all Canadians can be safe.

This begins with smart policy and investments in our law enforcement, as well as upstream social supports for those who are most vulnerable and at risk. Ensuring that Canada's criminal justice system prioritizes rehabilitation and safe reintegration goes hand in hand with all of those efforts.

As Minister of Public Safety, I am responsible for Correctional Service Canada, and thus the agency in charge of the rehabilitation of offenders and their safe re-entry into the community.

As such, this issue is at the core of my mandate. We know that addressing the issue of repeat violent offenders is a very complex one, but it is essential.

It begins with taking a hard look at achieving rehabilitation and safe reintegration. Reintegration comes with its own unique set of challenges, which, if left unaddressed, will increase the likelihood of someone reoffending and, by extension, causing harm, grief and loss.

That's why, in June 2022, I tabled the federal framework to reduce recidivism. It was to break the cycle of reoffending, to support rehabilitation and to make our communities safer for everyone. The framework is an important step toward identifying factors that lead people to reoffend and determining how to overcome those challenges to support the safest reintegration into their respective communities.

Developed in consultation with a variety of stakeholders, the framework lays out five priority areas essential to reintegration. They are housing, education, employment, health and positive support networks.

By June 2023, we will have an implementation plan to ensure that the supports are sustained over time.

This framework is an important step, but we know there is no one magic solution to addressing repeat violent offenders. Addressing the root causes of crime is also crucial to its success, and in this vein, Mr. Chair, we have made concrete investments in terms of the social determinants that can often lead to a life of crime.

Since 2015 we have focused on the social causes of crime with programs like the $250-million building safer communities fund, so that we can tackle gun crime and support community-led projects. This is in addition to the over $40 million provided annually through the national crime prevention strategy, which invests in community-based efforts that prevent youth involvement in crime and help to address the risk factors that have been known to lead to criminal activity.

More recently, I announced $5.79 million in funding under the crime prevention action fund for 902 ManUp’s Black empowerment initiative, in Halifax.

This funding will help empower young Black people across Nova Scotia to make the right choices by giving them a strong foundation in education and in the pursuit of their career, and by reducing barriers to the types of services and supports they need, as led by the community itself.

Since 2018, the gun and gang violence action fund has also provided funding to provinces and territories to increase community resources and to get guns and gun violence off our streets.

In Ontario, for example, this funding has been used to funnel additional resources to local law enforcement, prosecutors and community partners to reduce illegal gun and gang violence. This is in addition to the over $450 million that we've allocated to the CBSA in the last two years alone to reinforce our borders and stop the illegal flow of guns into our country.

We realize, of course, that some individuals go on to reoffend, and that's why we provide annual funding to our provincial and territorial counterparts, helping to build their capacity to identify and monitor high-risk violent offenders, and equip them with better tools for prosecution and conviction.

Mr. Chair, smart policy on guns is also an essential policy and part of this plan. We have made historic strides in combatting gun violence through our recent firearms legislation. In 2020, our government banned over 1,500 models of assault-style weapons, and last year we expanded background checks to keep firearms out of the hands of criminals.

Bill C-21, which is currently being studied by Parliament at committee, will increase maximum penalties from 10 to 14 years for firearms-related offences and include new charges for altering the magazine or cartridge of a gun to exceed its lawful capacity. This is about tackling violent crime and preventing senseless tragic deaths.

We know that no single initiative can solve the complex problem that is gun violence. This bill is merely one facet of our comprehensive approach.

This legislative session, we agreed to strengthen public safety through the Criminal Code, with amendments targeting violent offenders and serious offences committed with firearms. I know this committee has also been seized with legislation that includes Bill C-75 and Bill C-71, and, as I said, our colleagues at the Standing Committee on Public Safety are also studying Bill C-21.

When it comes to bail reform, Mr. Chair, we are listening to Canadians; we are listening to the law enforcement community, and we are listening to victims and survivors.

I am working closely with the justice minister, Mr. Lametti, as well as with our provincial and territorial partners, to carefully examine how the bail system is structured and ensure that it takes into account the safety of all Canadians.

As you know, Mr. Chair, we recently met with our federal, provincial and territorial colleagues to talk about the ways in which we can make certain modifications to the bail system so that we can address specifically the challenges around repeat violent offenders who have used either firearms or other weapons. We have committed to undertaking this work within this legislative session, one in which we will work in close collaboration with our provincial and territorial partners as well as with all the members of this committee and all parliamentarians.

Mr. Chair, I am very much looking forward to the questions and comments from your committee. Thank you very much.

[Marie-Pier Boulet]

Particularly with respect to section 515 of the Criminal Code, all the reasoning is indeed in place for judges to rule on a case-by-case basis. At the end of the day, it will always be case by case, even when there is no reverse onus or when the onus is on the Crown. It is standard for an exit plan—a life plan—to still be presented to the judge. Everything is in place to rule later on the efficiency and sufficiency of the process within that framework. The legislative aspect is covered.

With respect to release for serious crimes, when we say that we will be prepared to challenge them, it's about wanting to always have access to the possibility of interim release. We understand that, in those cases, there is quite an uphill battle. It's important to know the current law well, because it already provides for a reverse onus.

Regarding former Bill C‑75, we did not at all feel that there was a wave of sudden releases in cases of serious crimes. Instead, the result was to eliminate unnecessary bail hearings where it was clear that the person could be released on conditions. It cleaned up the process and freed up more time to deal with more serious cases, such as serious crimes.

[Bronwyn Eyre]

That's an interesting question. From the federal perspective, in terms of Bill C-75.... Bill C-75 is very broad. There are a number of aspects that it touches on. In terms of the concerns and focus that we raised at the federal-provincial-territorial meeting, it was—as I've said a number of times repeatedly—more around the issue of repeat violent offenders as it relates to section 493.1 and the principle of restraint.

Bill C-75, as members will know, did also.... A part of its purpose was to address Jordan and the Jordan principle and, as you say, the adjournment pattern. I understand that. That's also a factor.

There are many factors in this discussion, many things to consider and many balances to weigh. That's certainly clear when it comes to bail and consideration of bail.

Our main focus, as provinces, was with repeat violent offenders, offences with weapons and random attacks, which are absolutely on the rise, and addressing them through the prism of Bill C-75, which is a very recent bill, and the effects it has had in that narrow area.

[Bronwyn Eyre]

I did make a few comments about that earlier, so I won't repeat myself. In the bail policy, which has now been made public, we state explicitly that it's not only appropriate, but necessary, that Crown counsel, in certain circumstances, take a more stringent approach to bail.

It says, “When a repeat violent offender is charged with an offence against a person or involving a weapon, Crown Counsel must seek that person's detention”—there's very similar language in B.C.—“unless they are satisfied, having regard to all of the circumstances, that the risk to public safety posed by the accused's release can be reduced to an acceptable level by bail conditions”, and so it goes.

It's important to point out that this builds on what is already considered in bail circumstances. The question, as I've said a number of times, is really about that repeat violent offender circumstance. That's really been the focus over the last few months, if not years, in terms of looking at that specifically, in relation to Bill C-75 and sections 493.1 and 493.2.

That's really been the concern. It was pretty united across the country that there was going to be a range of numbers, but overall, since that time, bail violations, as it were, have increased very significantly.

[Bronwyn Eyre]

Thank you.

Unfortunately, I'll probably have to go. I have to be back in the House in a few minutes, so if I suddenly disappear, you'll understand why. I apologize for whispering, too. I feel terrible about that. I wasn't on mute.

Before I answer about the programs, to your question, there was of course the Supreme Court case that Bill C-75 codified, and we discussed that at FPT. Of course, Bill C-75 was very broad, so the concern that was raised by ministers across the country was really specifically around the principle of restraint as it impacts repeat violent offenders, offences with weapons and random attacks.

Section 493.1, in codifying that principle of restraint in those cases, made the pendulum swing too far. As I say, we'll have read how the judge grappled with that in the Ontario provincial officer case, where he knew it was iffy based on the repeat violent offending but was sort of bound by 493.1 in that case too.

In terms of programs—

[Prof. Jillian Rogin]

I think the presumption of innocence, among many other constitutional issues, including the very right to reasonable bail in section 11(e), were at stake.

Prior to Bill C-75, the Supreme Court decisions really didn't introduce any new ideas. They confirmed codified language and existing jurisprudence. It was necessary because issues still persist post Bill C-75 such as delays in bail courts, onerous conditions and excessive overuse of sureties. All of these issues continue to plague us, I think, in our system. That's why Bill C-75 tried to at least send a strong message to justices, justices of the peace, Crowns and all of us that something needed to change.

In many ways, the law isn't followed. The bail laws in the code that are codified are often ignored, in my experience of appearing in the bail courts, blatantly ignored in many ways. We have yet to see whether Bill C-75 has had an impact on that. My understanding from many colleagues is that it hasn't necessarily, as Mr. Bytensky pointed out. I think, in his words, the law from above doesn't necessarily translate into what happens day to day in the bail courts.

[Randall Garrison, NDP, Esquimalt—Saanich—Sooke, BC]

Thank you very much, Chair.

Thanks to our witnesses for being here today.

I want to go to Professor Rogin. Since Bill C-75 was raised by other witnesses, can you talk a bit about why Bill C-75 was necessary in light of Supreme Court decisions in terms of the presumption of innocence?

[Prof. Jillian Rogin]

I think that we don't know yet. I don't think that we have any.... Bill C-75 is in the last number of years, and we really don't have much of an understanding of how it has operated. We know that there are certain aspects that I don't think are being made use of. Judicial referral hearings, for example, are not being made proper use of.

We don't know the impact of section 493.2 yet. The jurisprudence is still developing. It's very early to be considering further bail reform when a massive reform in Bill C-75 has just occurred not too many years ago.

[Lena Metlege Diab, Liberal, Halifax West, NS]

Can you describe, in your opinion, what Bill C-75 did and the impact on the bail system?

[Bronwyn Eyre]

Yes, I would. I think that was a culmination and an impetus in terms of the tragic events involving Officer Pierzchala, but I believe it certainly has been on the radar. In my remarks, I pointed to some of the statistics we're seeing in Saskatchewan around bail violations—a massive increase. I think it's fair to say that, while numbers range among provinces, there is an absolute acknowledgement, particularly post-2019 and Bill C-75, that the numbers have gone up exponentially. I think that is something we have to deal with, so—