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

[Some hon. members]

Oh, oh!

[The Assistant Deputy Speaker, NDP, Carol Hughes]

Order, please. I am sure the member from Niagara Falls is able to answer the question on his own.

The hon. member for Niagara Falls.

[Rob Nicholson, Conservative, Niagara Falls, ON]

Madam Speaker, the hon. member said that the Liberals had made appointments. Yes, they have made judicial appointments, but they should make them on time. What has the problem been in Alberta? I have been hearing for the last two years that they have not been able to make the appointments. I do not want to hear that they did not have qualified people applying. I do not buy that for one single second. There are qualified people in the province of Alberta. The Liberals should fill up the judicial vacancies. It should not be that difficult. It is that difficult, they should ask a couple of us on this side. We will have a look and make recommendations to them.

The hon. member talked about MADD and the sections of the previous legislation. I cannot wait to have representatives from MADD come before the justice committee so I can ask them what think of the Liberal proposal for impaired driving causing bodily harm, that people might just get a fine for that or there is a possibility they could just get a summary conviction. I will be fascinated to hear what the hon. member and his colleagues have to say. They probably will say that they are cracking down on impaired driving, that they are—

[The Assistant Deputy Speaker, NDP, Carol Hughes]

Order, please. I know this is a very passionate issue, but I have to allow for further questions.

Questions and comments, the hon. member for Victoria.

[Murray Rankin, NDP, Victoria, BC]

Madam Speaker, the member for Niagara Falls gave a passionate speech. I am sure, like us, he has consulted widely on the bill. I would like to ask if he has heard, as we have, about the futility of the amendments proposed on preliminary inquiries. We understand they account for only 3% of court time.

The bill would take away the right of people to have a dress rehearsal of a trial, which in some cases, according to the Canadian Council of Criminal Defence Lawyers chair Bill Trudell, would mean there would be “more wrongful convictions”. Has he heard from those with whom he has consulted about the futility of that change?

[Rob Nicholson, Conservative, Niagara Falls, ON]

Madam Speaker, I have heard just the opposite. I have given a considerable amount of thought over the last year or two to the whole question of preliminary hearings. It strings out some of these very difficult cases, literally, for a number of years. What it does is re-victimize the victim. When victims come forward and say that they were cross-examined on the stand, for example, about being sexually abused by the accused and then they had to do it again 18 months later, they feel victimized again. Therefore, it is not just a question of expediting the trial process within our criminal justice system. It is also about the victimization of people, about which the Conservatives are always worried. We stand by that.

It works on both levels. It reduces victimization by not always having the option of a preliminary hearing. It has been restricted in this legislation. At the same time, it would help expedite the process in the judicial system.

[Blaine Calkins, Conservative, Red Deer—Lacombe, AB]

Madam Speaker, I have a quick question for my colleague.

Is it mathematically plausible under the situation, should Bill C-75 pass in its current form, that a person could get a larger fine for failing to stop at a stop sign than for kidnapping a minor, for impaired driving causing bodily harm, or for participating in a terrorist activity?

[Rob Nicholson, Conservative, Niagara Falls, ON]

Madam Speaker, this is the part I have been quite bothered by since the very beginning of this.

We could have a debate on preliminary hearings, and I think it would be great to have that. There was one section that, quite frankly, I thought I had misread the first time I saw it. It was reversing the onus on somebody who has been convicted of assaulting his or her spouse. It had the reverse onus on bail. That actually helps out the victim. I asked myself whether I had the right legislation, coming from the Liberals. Indeed, it is there.

That being said, the idea that someone who commits a terrible crime, such as kidnapping a child under the age of 14, could be eligible for a fine or a very low offence is not right. Liberals will get this eventually; they will hear it from Canadians. They cannot say that it is just the Conservatives who want this. Canadians will agree with us that this is not right.

[Dave Van Kesteren, Conservative, Chatham-Kent—Leamington, ON]

Madam Speaker, I recall a time, not too long ago, when we were doing some battle with the Liberals on Bill C-51. I would just remind the House what that was in regard to. There was an attempt by the Liberals to take away the protection of places of worship. There was a long list of staggering and frightening changes that the Liberal government was proposing to make.

I am wondering whether the Liberal government has used this legislation as a back door to once again make that attack on places of worship.

[Rob Nicholson, Conservative, Niagara Falls, ON]

Madam Speaker, the hon. member is right.

When the Liberals introduced that bill, they did not even mention the fact that they were removing section 176 from the Criminal Code, the section that protects people at a religious service. It also makes it a crime to threaten or attack a member of the clergy. I had to ask the question, just before Canada Day, “Why are they doing this? What is their problem with this?”

I noticed that the Liberals did back off at that time, but I see that it has been added to the list and can be reduced. If someone wants to attack or threaten a member of clergy, there is the possibility of a summary conviction. The Liberals did not get rid of it, but I guess they said, “If we cannot get rid of it, at least let us reduce the possibility of a penalty on this.”

I do not get it. I said to them, and I thought it was good advice, to forget about section 176. It is a good section of the Criminal Code, and it should stay there. However, I guess the Liberals now have two pieces of legislation and are somewhat obsessed with this.

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

Madam Speaker, I want to give my hon. colleague an opportunity to reflect on some of the comments he has made about MADD Canada and its support for Bill C-46.

I note that on March 12, 2018, MADD issued a statement urging Canada's Senate to give its full-throated support to Bill C-46. I want the member to reflect on that statement, because yesterday it was a Conservative senator who put a block to that and tried to obstruct the passage of Bill C-46, which has been recognized as an effective piece of legislation to keep our roads safe.

Will the hon. colleague now join this side of the House and get that bill passed?

[Rob Nicholson, Conservative, Niagara Falls, ON]

Madam Speaker, I would say that the hon. member should have a look at the legislation tabled here before Parliament.

Let us just ask those organizations, MADD and others we have heard from over the years, which are quite concerned about impaired driving, how they like this Liberal idea that someone could get a summary conviction, the lightest possible sentence, if he or she is convicted of impaired driving causing bodily harm. How about that? Is there anybody in the Liberal Party who is saying that this is going to be a bit of a problem for the Liberals?

I will be neutral on it, to the extent that we should hear from the witnesses and see if they happen to agree with the Conservative Party. I bet they will.

[Murray Rankin, NDP, Victoria, BC]

Madam Speaker, I am pleased to rise today and contribute to what has been a passionate debate. Who knew that criminal justice could be that? Like the colleagues who have spoken before me, we, on the NDP side, have done an enormous amount of consultation with folks from the criminal defence bar, university prosecutors, deputy attorneys general, and the like. Regrettably, as a consequence of that, we have had to conclude that we must oppose this bill.

However, I want to make it clear to my colleagues that our goal is to work with the government, take it at its word, and offer our hand to see whether we can make this a better bill in the justice committee. After all, it is over 300 pages. It is an omnibus criminal justice amendment. We want to work constructively to make it better for Canadians and get it to committee as quickly as possible for that purpose.

Obviously, in any criminal justice reform, there are two goals. The goal of efficiency is clearly the government's stated objective: making our courts more efficient, doing away with the backlog, and dealing with the consequences of the Jordan case, in which the Supreme Court confirmed that we need to have speedy justice in this country. Efficiency is the government's stated objective, and I will come back to that. At the same time, we can never, of course, lose sight of the rights of the accused in our justice system.

With the research and consultation we have done, I want to say at the outset that we recognize there are some good things in this bill, which I will refer to, but there are also some deeply problematic things, which, in some cases, everyone we spoke to thought to be problematic. It is in that spirit that we engage in this debate.

For example, Ms. Sayeh Hassan, a Toronto-based criminal defence lawyer, summarized what many have told us when she wrote:

While there are parts of Bill C-75 that have the potential for improving the criminal justice system, many other parts will not only be unhelpful when it comes to reducing delay but will also wipe out numerous rights currently afforded to an accused person.

The big, ugly elephant in the room is the fact that the government chose to completely ignore what so many people have talked about, which is the need to get rid of mandatory minimum sentencing. That was a hope that people had the right to expect the minister to address. After all, justice writer Sean Fine of The Globe and Mail notes:

As far back as October, 2016, the Justice Minister told the Criminal Lawyers' Association in a speech that she would change the minimum sentencing laws “in the near future.” Days later, she told The Globe that new legislation would be coming soon, “certainly in the early part of next year.”

It is now 2018, and here is a 300-page bill that does not even talk about that reform initiative, which would have dealt with the issue of delay in a much more effective way. I also note that it was in her mandate letter and was ignored in this 300-page bill. Although I have enormous respect for the minister, it needs to be pointed out that the absence of reform of mandatory minimum sentencing is a significant missed opportunity.

We all know we have a clogged-up justice system and so forth. As has been pointed out, we all know the serious injustices that have occurred. Just last month in Calgary, there was a high-profile case involving Nick Chan, an alleged gang member and leader, who was acquitted of charges of murder, conspiracy to commit murder, and leading a criminal organization. Why? Because of the inability to have a court trial resolved in a short period of time, according to the 2016 Jordan decision. All Canadians find that unacceptable.

The question that must be asked is whether this bill helps address that problem head-on. The argument from many is that it remains a serious problem. For example, in its position paper, the Criminal Lawyers' Association states:

Mandatory minimum sentences frustrate the process of resolving cases by limiting the crown’s discretion to offer a penalty that will limit the crown's ability to take a position that will foster resolution before trial.

Here is what happens. Defence lawyers have this mandatory minimum sentence, so they are not going to take a chance on the court's discretion, because the Harper Conservatives essentially took away the discretion that our trial judges had. The result is that we have people going to trial who, in the past, would not have chosen a trial; they would have pleaded to a lower charge. It is inexcusable that this issue did not even get addressed in this bill.

Another thing, which my colleague from Nanaimo—Ladysmith has spoken about numerous times, is that we have a crisis in Canada with the overrepresentation of indigenous women, in particular. My colleague has done that work as a member of the status of women committee. During testimony at that committee, Jonathan Rudin, of Aboriginal Legal Services, highlighted the government's inaction with regard to abolishing mandatory minimum sentencing and its effect on indigenous women. He said:

[W]e have to look at the fact that there are still mandatory minimum sentences that take away from judges the ability to sentence indigenous women the way [the judges] would like [them] to be sentenced. There are still provisions that restrict judges from using conditional sentences, which can keep women out of prison.

The first thing that he urged the committee to recommend was to bring in legislation to give judges that discretion, which the Liberals promised to do. The elephant in the room is that they did no such thing. In 2015, and it is probably worse now, the proportion of indigenous adults in custody relative to their percentage of the population was eight times higher for indigenous men and 12 times higher for indigenous women. Any measure that could address that problem head-on has to be looked at seriously, and the government's failure to address what the mandate letter by the Prime Minister told it to is a serious missed opportunity.

I promised I would focus on some of the positives in this bill, from the perspective of the NDP.

First, the elimination of so-called zombie provisions of the Criminal Code is a good thing. For example, the criminalization that has existed for anal intercourse could have been removed long ago, so we are pleased that finally the government has done it. I wish it had done that with other zombie provisions, such as water skiing at night, which remains an offence in the Criminal Code. Maybe the government will look at that one later.

Second, it is a good thing that the bill would restore the discretion of judges to impose fewer victim fine surcharges or not to impose victim fine surcharges at all. I commend the government for doing that. As I believe my Conservative colleague has also pointed out, broadening the definition of intimate partner violence is also a good step. Creating an alternate process for dealing with some of the alleged breaches of bail is another good step. Codifying the so-called ladder principle, requiring that the least onerous form of release be imposed, is a good thing.

I personally think that abolishing peremptory challenges is a good thing. Although I recognize there is disagreement among many on that, I think it is a good thing. I want to put that on the record.

On the other hand, here are some of the negative things.

Absolutely every single person we talked to said that the provision on admissibility of so-called routine police evidence is overly broad and could be problematic to marginalized people in particular. Everyone agreed that routine police evidence language has to be fixed. Many people were happy that the time of day when the offence occurred, the weather, or routine lab results would be made available. However, the way it is drafted, it could even include the ability of the crown to not have a police officer come and provide eyewitness testimony. I do not think this was intended by the government, but it is an example of what appears to be a hastily drafted bill that needs to be fixed. The irony is that most judges are going to allow cross-examination of police officers, so Sergeant Brown will have to be brought back at some later time, with more delay as a result. That is surely unintended. It is surely something we can work together to fix.

Professor Peter Sankoff of the University of Alberta went so far as to call this measure extremely dangerous and ineffective. It is not just we who are saying this.

We have heard a lot about hybrid offences today. I am sure the government would agree that there seems to be a need to change the hybridization offences aspect. As colleagues have pointed out, the downloading to provincial courts of many offences is only going to move the problem of clogged courts at the superior court level to the provincial courts because more cases will be dealt with as summary conviction matters. I wonder if the consultation with the provincial and territorial ministers has made that point clear. The provincial court in British Columbia already hears 95% of all criminal matters. I am sure it is not that much different elsewhere, so I would invite the government to consider how we can work together to address that problem of obvious downloading.

Another area of concern, perhaps a sleeper, is that the government intends to increase the maximum penalties for summary convictions. In practical terms, what that means is that agents like law students and paralegals, who are currently able to represent people accused of an offence with a maximum penalty of six months or less, will not be able to do so for a whole range of offences if these changes go forward. It is an unintended consequence, but it certainly has to be addressed, because we not only have a problem already with unrepresented people in the provincial courts and judges bending over backwards, appropriately, to help those people who cannot afford or obtain the services of a lawyer, but now they will also not be able to get paralegals or law students to represent them in some cases. That again is something that I would have thought the government did not want to occur, but it appears to be something that would occur.

Lastly, I want to acknowledge that increased funding was provided for legal aid in budget 2018. I think that is something everyone agrees was long overdue. I commend the government for doing it. However, in the province of British Columbia, as we saw in yesterday's Vancouver Sun, it is simply too little, too late. It is a gigantic increase compared to the past, but now, according to Mark Benton, the CEO of the Legal Services Society, “Many lawyers providing services to the poor are doing it at a loss—the tariffs too low for most to earn a living, and so low that LSS is having trouble attracting and retaining lawyers.” We have got to deal with that.

I talked earlier about the preliminary inquiry issue with my friend from Niagara Falls and I understand that there is a difference of opinion on this issue. However, the facts are that these proposed changes would only save about 3% of court time. While the government proudly said the legislation will reduce the use by 87%, which sounds great, it did not tell us that it is not going to save a lot of time. Then why do it? Why do it when there is a risk, according to the chair of the Canadian Council of Criminal Defence Lawyers, Bill Trudell, that there will be more wrongful convictions? Why would we take away a right? The government says we have the Stinchcombe disclosure and it is a different world from when we started with preliminary inquires, but what is the risk-benefit equation here? We are saving 3% of court time and we are causing perhaps a wrongful conviction. I do not think that lines up. It is overbroad. Therefore, I think it is something we need to worry about.

I commented on intimate partner violence and bail; in the interest of time, I will not say any more.

There is a concern about the impact of this bill on those who have suffered the legacy of residential schools and the like, such as in the sixties scoop. For example, the Criminal Lawyers' Association said as follows:

Sadly, intimate partner violence is one of the recognized legacies of residential schools and the 60s scoop. Creating a reverse onus at the bail stage and increasing the sentence on conviction will likely aggravate the crisis of the over-representation of indigenous people in our prisons.

A similar concern was echoed by Professor Elizabeth Sheehy, as well as Professor Isabel Grant, so I think we need to get our hands around this issue and figure out whether we can find another way, despite the fact that I believe it was well intentioned.

In conclusion, what I want to point out now are some of the things we think could be used to address some of these problems.

First, the government claims it has made judicial appointments, which we heard the Conservatives say as well, but there still appears to be a problem with judicial vacancies. I am not saying that is a singular solution, but it needs to be addressed as part of a comprehensive solution.

Second, as I have said, we wish the government would reconsider the failure to review mandatory minimum sentences.

Third, the NDP believes that decriminalizing small amounts of drugs in this opioid crisis that we are experiencing would definitely have an impact on the clogged courts that we face. Who are the people in our provincial courts often unrepresented? Disproportionately, they are people with mental health challenges, people with addictions, people who are poor and simply cannot afford a lawyer, and legal aid does not have the ability to look after them. That is what is clogging up the system.

If we look at it from that end of the telescope, we would make truly important reform efforts. Jagmeet Singh has made a bold statement that decriminalizing small quantities of drugs is something we need to give serious thought to as part of the solution to our clogged-up courts. Not criminalizing these issues, but treating them as mental health issues and health issues generally is the way to go. We have to find a better way.

In Vancouver and Victoria we have drug courts and some creative ways to address this problem, but they have not been adequate. We still have serious problems.

By criminalizing people, we give them criminal records. What does having a criminal record mean? It means people cannot get a job in many cases. Are we thinking about that? It is really important.

I have talked in the House many times about the injustice of thousands of Canadians having criminal records for possession of small quantities of cannabis. There are still people who are unable to find a job because they are still being charged under the current law, which is about to change. I commend the member of Parliament for Hull—Aylmer for his intention to implement a bill that would see these records expunged. I do not think that goes far enough, but I will certainly join with him in that initiative.

Finally, we would offer greater social supports. They are at the core of this issue. We need greater funding for legal aid, which would surely cut down on the number of unrepresented individuals and ensure that more accused people would have access to much-needed resources.

Earlier today, I referred to an excellent summary about the consultations that the government undertook in this regard, a March 2018 report of the Department of Justice entitled “What we Heard—Transforming Canada's Criminal Justice System”. I want to read into the record its fundamental conclusion and ask the House whether the bill does the job.

It says:

Almost all roundtable participants stressed the same major concern. They said that most people who come in contact with the criminal justice system are vulnerable or marginalized individuals. They are struggling with mental health and addiction issues, poverty, homelessness, and prior victimization. Most felt the criminal justice system is not equipped to address the issues that cause criminal behaviour in these groups, nor should it be. Participants felt these issues are worsened by an over-reliance on incarceration.

We are very much in agreement, and I hope that my hon. colleagues will consider these concerns and work with us at the justice committee to make the kinds of changes to our criminal justice system that are so obviously needed.

[Marco Mendicino, Liberal, Parliamentary Secretary to the Minister of Justice and Attorney General of Canada]

Madam Speaker, I want to begin by thanking my hon. colleague for his comments, which I found to be very constructive, and for his recognition of the fact that Bill C-75 is about addressing systemic barriers for marginalized people, for vulnerable people, and for victims.

To build on that, with regard to the comments he made about preliminary inquiries, I hope on reflection he will acknowledge that by reducing the eligibility of offences for preliminary inquiries, what we are trying to do is avoid unnecessary retraumatization of victims of intimate partner violence.

I would also encourage him to reflect on the fact that when he cites one particular statistic with regard to 3% of charges, it is charges, not court time. It may be 3% of charges, but it represents disproportionately much more expenditure of court time and resources.

The last thing I would like him to do is to expand on his personal support for the abolishment of peremptory challenges, which are inexorably linked the difficulties and the challenges that we have had around under-representation of indigenous peoples and other marginalized peoples on our juries. It is very important that we move closer to a more open and transparent jury selection process. I hope he will take the time and effort to expand on why he supports the abolishment of peremptory challenges.

[Murray Rankin, NDP, Victoria, BC]

Madam Speaker, there are two points.

First of all, my understanding on the preliminary hearings is that they account “for only about three per cent of all court time.” Maybe we have a difference in terms of the statistics here, but if that is all preliminary hearings do, then I think most people would agree that on a benefit-cost analysis, they are not effective. I would point out that there is still the ability to have preliminary inquiries on some of the more serious matters.

In terms of re-victimization and the trauma of having to testify, I completely agree that there are cases in which that aspect is indeed relevant. We heard in the justice committee about human trafficking and some of the trauma that victims face when they have to testify not once but twice. I am sensitive to that, but I think drafting can provide better discretion to deal with that problem head-on. It is an issue, and I acknowledge that issue, but in terms of a time saver, it troubles me greatly, and it should trouble all members of the House, when an experienced criminal justice lawyer like William Trudell, head of the association, says that it is going to result in more wrongful convictions. I have to say that I find that very troubling.

I understand that greater disclosure is possible now, unlike when we first brought preliminary inquiries into our system, but that is not a sufficient answer to look the witness in the eye, recognize that they are going to be a terrible witness in trial, and in fact not have a trial because we realize that it would never stand up with that witness.