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.

Opposition Motion — Instruction to the Standing Committee on Public Safety and National Security

[Glen Motz, Conservative, Medicine Hat—Cardston—Warner, AB]

Madam Speaker, I rise today to speak to the Conservative motion by my hon. colleague from Charlesbourg—Haute-Saint-Charles.

The motion denounces the decision made by the Parole Board in Quebec that cost the life of a 22-year-old woman at the hands of a dangerous repeat offender. It seeks immediate action to review Parole Board nominations that contributed to putting a dangerous offender on the streets, and to have Parliament recommend steps so that this will never happen again.

Given the recent comments by the Minister of Public Safety on finding common ground with all parties to protect Canadians, I would think that he would be supportive of our motion. I imagine every member of the House will condemn the murder of a young woman by a man who beat his previous partner to death with a hammer, and who was released on parole with permission to seek out women in order to manage his sexual needs.

As one columnist noted, it appears the Parole Board's release plan assumed this offender's right to access a woman's body. Any man who cannot control his urges is not fit to be released back into society. Our country is founded on freedom and respect: respect for one another, respect for the law and respect for our values. In this case, the Parole Board's decision is reprehensible.

I will not pretend that this entire problem is the fault of the Liberal government or of any single previous government or decision. The problem we face is a parole and release system that favours offenders over victims. It puts the rights of offenders ahead of the safety of our communities.

This is a result of the current government's inaction, as well as previous governments' actions or inactions, court rulings and court precedents. None of that should prevent the House from challenging the status quo and moving toward a better system of preventing the release of those who are not ready to be law-abiding members of our society.

Let me be clear. We are not talking about anyone who has ever gone to jail. We are not saying that if people have done something wrong, as we all have at some point to different degrees, there is no redemption. I believe in redemption.

For those who have committed crimes, we lay out very clear ideas of what that looks like based on their efforts to reform, to rehabilitate, to seek to address their failings or challenges, to train and educate themselves for a post-release period and to never again be in trouble with the law. However, there have been too many instances like this one. There have been too many recent decisions by Liberal-appointed Parole Board members to release repeat dangerous offenders back into our communities without the adequate protections and information. That lack of accountability and of good, sound decision-making is why the House urgently needs to review and revise how it treats violent offenders.

Dangerous offenders are deemed by the courts. They are held for indeterminate prison sentences because of the malicious repeat offences they have carried out. Dangerous offenders have a pattern of behaviour and persistent aggression that makes them a threat to others.

It is not up to society to accept dangerous offenders. It is up to those dangerous offenders to accept the laws and values of our society in order to be released. However, the Liberal government seems too eager to defend the rights of dangerous offenders and others who are brought before the courts. Dangerous offenders get off too easily under the Liberal government.

Under Bill C-75, in order to address court backlogs, the Liberals reduced sentences and allowed sentences for more violent crimes to be reduced, even to fines. Under Bill C-71, Liberals went after law-abiding firearms owners for the actions of criminals and gangs. In national security laws, they increased red tape, put more effort into watching the public servants who defend Canadians and put less effort into monitoring known radicalized threats, returning ISIS terrorists and foreign threats.

Two years ago, we went through a very similar scenario. Canadians were outraged when Terri-Lynne McClintic, a woman who helped lure, assault, rape and murder eight-year-old Tori Stafford, was transferred to a lower-security healing lodge instead of staying in prison. The indigenous community not far from my riding did not want her there, as she was not indigenous. This raised many questions as to why she was being transferred in the first place. No child predator should ever be sent to a prison where children and families are present.

The Liberals said nothing was wrong, launched a months-long investigation and then determined that they were wrong. They slapped a minor edit on their policies and said everything was fine and would be fine. If the policies were applied properly the first time, that transfer never would have happened.

The offender at the centre of the tragedy is a violent, dangerous offender, whether the law puts that label on him or not. The Parole Board and the minister should have known and should have had the processes in place to prevent this latest tragedy. However, there is no accountability left for the minister or government. Did the Parole Board fail in its duty to Canadians in this circumstance? Yes, it did. Was it likely that former minister Ralph Goodale's decision to appoint fresh and untrained people in the position to make these decisions a factor? It certainly appears that way.

Under the Corrections and Conditional Release Act, the purpose of conditional release is to contribute to the maintenance of a just, peaceful and safe society that will best facilitate the rehabilitation of offenders and their reintegration into the community as law-abiding citizens. The act specifically notes that the paramount consideration by the Parole Board is public safety protection. The release of offenders who are deemed unable to stop themselves from harming others, who pose a risk to women or who have been instructed to break the law by hiring women for sex can in no way live up to the standards set out in law.

Even if there was some justification for a dangerous, violent offender to be released, parole officers are overwhelmed with workloads. According to their union, workloads are insurmountable and there is a real risk to Canadians because they cannot keep tabs on parolees. With the Liberals releasing many dangerous offenders into the community, this issue is being compounded.

For example, Madilyn Harks, formerly known as Matthew Ralf Harks, is a serial rapist who has preyed on young women, with three convictions for sexual assault against girls under the age of eight. She was released into Brampton, one of the largest suburbs in Canada, despite posing a risk to the tens of thousands of children in that community. After public outrage and political pressure on local Liberal MPs, she was removed. Was she a risk to Canadians? Absolutely. Was she placed in a poorly chosen spot? Absolutely. It was only fixed, though, after political and public outrage.

Randall Hopley, a serial child predator, was released into Vancouver despite the Parole Board stating that it was unable to manage his risks to Canadian children. Peter Whitmore, who has many convictions for assaulting young boys, has repeatedly received light sentences for the rape and assault of children. After abducting two boys, tying them up and raping them, he has been locked up again. However, he is now eligible for parole, and it would seem only a matter of time before the Liberal's Parole Board will release him again, if we can believe it. There are many examples like this, more than time allows to mention here.

None of these crimes needed to happen and none of these victims needed to be put at risk and victimized. However, we can all agree that we presume innocence and that the taking away of freedoms under the Criminal Code should not be treated lightly. There are times when it is clearly the best and only course of action. The actions of the guilty are the fault of the guilty. There is no right to cause pain, harm and suffering to others. When the Parole Board sees a threat that is not manageable, there needs to be a mechanism to ensure that Canadians are not put at further risk. We do not need to accept the decisions of murderers, rapists, pedophiles or repeat and serial offenders as a foregone conclusion. However, once people have reached that state, it is incumbent upon them to show and act in a manner that enables their release, not the other way around. It is not beholden on Canadians to accept their intolerable and hateful acts. Criminals are not the victims.

In conclusion, my colleague's motion is justified in light of the many issues facing our communities. Public safety has been put on the back burner time and again by the government and its political manoeuvring. Reforming how we manage dangerous offenders would seem something that all parliamentarians can get behind and can contribute toward protecting Canadians.

However, I suspect that the Liberals will invent yet another excuse why action is not needed right now. They will respond by saying that they have an internal inquiry under way, a response we have heard many times. However, there is an inherit bias to defend the system by those in charge of making those very decisions. Another McClintic-style “sweep it under the rug” decision should not be tolerated.

It is time that other members of Parliament took the role that the minister is too timid to tackle. I encourage my colleagues to vote in favour of a study to strengthen and review the parole system, ensure the appropriate funding is in place and that the safety of Canadians comes ahead of any Liberal political concerns.

Justice

[David Lametti, Liberal, Minister of Justice]

Mr. Speaker, it was the federal government's view that the Interpretation Act and the case law provide that amendments to the jury selection process should have been applied as of the date Bill C-75 came into force. Federal prosecutors adopted this approach and we are happy that the Ontario Court of Appeal has agreed.

Given that there is litigation in issue, I have tasked my department and legislative drafters to ensure that temporal provisions are always considered as we move forward.

[Rob Moore, Conservative, Fundy Royal, NB]

Mr. Speaker, that is not good enough.

The Liberal government's poorly drafted Bill C-75 means criminals are now facing retrial and victims of crime will have to relive the horrific situations yet again in court. This is a significant failure of the Liberal government to protect victims. We already know that the sloppy implementation of the bill will lead to retrials in Ontario.

When will the Prime Minister act before more criminals go free?

[David Lametti, Liberal, Minister of Justice]

Mr. Speaker, I would first like to welcome back the hon. member for Beauséjour. I will go so far as to say that I missed his sense of humour.

We introduced a number of important changes in Bill C-75 to make our criminal justice system more efficient, more fair and more just. Among these were the ways in which juries were selected, to increase transparency and to address long-standing concerns of Canadians as regards this process.

We are aware of the Ontario Court of Appeal's ruling and we will continue to monitor the situation.

[Rob Moore, Conservative, Fundy Royal, NB]

Mr. Speaker, the Liberals carelessly rushed through changes to Canada's criminal justice system in Bill C-75. Conservatives raised concerns over the impacts of the bill and how it would impact and harm victims of crime. Legal experts warned the Prime Minister that his poorly drafted legislation would result in guilty verdicts being nullified. Now in Ontario we see that is indeed the case.

What is the Prime Minister planning to do now that criminals are being set free and victims will have to go through painful retrials due to the government's incompetence?

Criminal Code

[Anthony Housefather, Liberal, Mount Royal, QC]

Mr. Speaker, it is an honour and a pleasure to follow the remarks from the hon. member for Victoria and the hon. member for West Nova, both of whom have been outstanding members of the justice committee and will be missed in this place for their wisdom, sincerity, honesty and integrity. I will very much miss both of my colleagues.

I am pleased to rise to talk about the amendments adopted by the Senate at third reading on June 13, 2019.

First and foremost, I would like to thank all members of the other place for their thoughtful consideration of Bill C-75. In particular, I want to thank the Senate Standing Committee on Legal and Constitutional Affairs for its diligent and comprehensive examination of the bill.

This bill proposes major reforms to reduce delays by modernizing the criminal justice system and enhancing the effectiveness and efficiency of procedures, while ensuring the safety of Canadians and seeking to reduce the overrepresentation of indigenous people in the system.

The provinces and territories, along with many members and many stakeholders in the criminal justice system, are looking forward to the enactment of this legislation.

Bill C-75 introduced reforms in seven key areas: modernizing and streamlining bail; enhancing the existing approach to administration of justice offences, including for youth; restricting the availability of preliminary inquiries to offences with penalties of life imprisonment; reclassifying offences; strengthening judicial case management; improving the jury selection process; and implementing other additional efficiencies.

The other place has proposed amendments to the bill related to bail, reclassification of offences, the victim surcharge and preliminary inquiries.

Although the focus of my remarks will be on the other place's amendments related to the preliminary inquiry provisions of the bill, I would like to preface these by highlighting a few other areas that, cumulatively, will improve efficiencies and reduce delays.

Bill C-75 includes widely supported changes to bail provisions. They seek to enact a principle of restraint for the police and the courts to ensure that the earliest possible release of the accused is favoured over detention, while providing additional guidance to the police on how to impose the appropriate conditions.

The bill would improve the approach used for administration of justice offences, such as breach of bail conditions.

These offences represent a significant volume of Canadian criminal court processing. The creation of a judicial referral hearing would result in fewer charges for these offences being laid, given that the hearing would serve as an alternative for bail breaches and failures to attend court in cases where there has been no physical, emotional or financial harm to a victim.

I would now like to turn to the amendments proposed by the other place to the preliminary inquiry reforms in Bill C-75.

As introduced, the bill would have restricted the availability of preliminary inquiries to adults accused of the 70 offences in the Criminal Code for which they could be liable to life imprisonment. The government's objective has been clear from the beginning on this matter: to reduce the number of preliminary inquiries held in Canada to create efficiencies and limit the impact on those who would have to testify twice. In the jurisdictions that hold the majority of these hearings, the improved efficiencies in the criminal justice process could be significant.

Our committee, the House of Commons Standing Committee on Justice and Human Rights, and the Senate Standing Committee on Legal and Constitutional Affairs heard from many stakeholders from the legal community, including the defence bar and Crown attorney associations, such as the Canadian Bar Association and the Barreau du Québec, that opposed such a significant restriction on the availability of preliminary inquiries, arguing that they are vital in providing important evidence to the accused of the case against them.

As a result of these concerns, the committee in the other place moved an amendment that would expand the availability of preliminary inquiries, on a discretionary basis, to all other indictable offences, an additional 393 offences, in two situations. The first would be where one or both parties requested one and a justice was satisfied that appropriate measures were taken to mitigate the impact on victims. The second situation would be where only one party requested a preliminary inquiry, a justice was satisfied that it was in the best interest of the administration of justice that one be held and appropriate measures were taken to mitigate the impact on victims.

As proposed, the amendment would add a step in the criminal justice process to justify holding a preliminary inquiry. It could generate uncertainty for the parties as to whether a preliminary inquiry would be held and would likely result in litigation on the interpretation of the new complex criteria, ultimately leading to additional delays.

Even witnesses who came before our committee who believed that the proposals contained in Bill C-75 were too restrictive agreed that they could add to delays. For example, in her testimony before the Standing Committee on Justice and Human Rights, one of our most incredible witnesses, lawyer Sarah Leamon, from British Columbia, stated:

Now, we know that when a person does decide to go ahead with a preliminary inquiry, the matter will take significantly longer to conclude and is likely to use more judicial resources. That is supported by statistics from Statistics Canada, as well as The Canadian Bar Association....

Given that the amendment was driven by concerns, which were also echoed by members across party lines in this chamber, that the availability of preliminary inquiries was being too severely curtailed by Bill C-75, and I must note that there were many members of our committee who wanted to try to find a way to amend the bill to expand the scope of preliminary inquiries, I am very pleased that the Senate proposed something. The government, in response, is offering a constructive alternative approach. This would involve making preliminary inquiries available for offences carrying a maximum penalty of 14 years or more of imprisonment.

Although this would expand the availability of preliminary inquiries to an additional 86 offences, it would be consistent with the objective of Bill C-75 as introduced as well as with the 2017 federal-provincial consensus to restrict them to offences carrying the most serious terms of imprisonment. This approach would be palatable to jurisdictions that would have further restricted their availability to the most serious offences in the Criminal Code, such as murder and high treason. It would also provide certainty as to which offences would be eligible for a preliminary inquiry and would avoid the risk of litigation inherent in the Senate amendment.

This proposal strikes an artful compromise and a good balance, and I strongly support it.

Overall, this important bill responds to the systemic problem of delays in the criminal justice system, while introducing innovative measures for driving a shift in culture, as noted by the Supreme Court in Jordan.

I ask all my colleagues to support this very good bill and the constructive approach of the government and the Minister of Justice, who I strongly support, to the amendments from the Senate.

[Colin Fraser, Liberal, West Nova, NS]

Mr. Speaker, I am pleased to join the debate considering the Senate amendments to 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.

Bill C-75 represents the government's legislative response to reduce delays, modernize the criminal justice system and facilitate the administration of justice by the provinces and territories.

The Senate proposed amendments to the bail, reclassification of offences, victim surcharge and preliminary inquiries provisions of the bill.

I would like to focus my remarks tonight on some of the amendments relating to the reclassification of offences, or hybridization as it is sometimes called.

The reclassification amendments are a key part of the legislative reforms identified by federal, provincial and territorial ministers of justice to reduce delays in the criminal justice system. They would also modernize and streamline the scheme for classifying offences in the Criminal Code.

There are two types of offences in the Criminal Code, those that proceed by summary conviction or by indictment. Some offences can be either. Summary conviction offences deal with less serious conduct, for example, causing a disturbance or trespassing at night, for which the current maximum penalty is normally up to six months imprisonment and/or a $5,000 fine. Indictable offences tend to be for more serious actions, for example, aggravated assault, robbery or murder for which maximum penalties range from two years to life imprisonment.

I failed to inform you, Mr. Speaker, that I will be splitting my time with the member for Mount Royal.

A hybrid offence allows the Crown to choose whether to proceed by indictment or summary conviction, recognizing that the severity of the conduct covered by the offence can vary greatly depending on the circumstances, for example, uttering threats, assault, dangerous operation of a motor vehicle.

Bill C-75 would hybridize 118 straight indictable offences that currently would be punishable by maximum penalties of two, five and 10 years imprisonment. It would also amend the Criminal Code to increase the maximum penalty for most criminal offences with a summary conviction penalty to two years less a day. The maximum penalties are being increased for summary conviction offences. The bill would also increase the current limitation period for all summary conviction offences from six to 12 months.

Indictable offences are often heard in Superior Court and generally take longer to process because of their associated procedural requirements, such as jury trials and preliminary inquiries, which can significantly lengthen the time it takes to complete a case. The reason for the availability of more procedural safeguards for indictable offences is that they carry the risk of much lengthier periods of incarceration.

However, there continues to be many straight indictable offences for which, depending on the circumstances, sentences in the summary conviction range are often appropriate and are in fact being imposed.

Cases involving straight indictable offences where the Crown is seeking sentences in the summary conviction range add unnecessary strain to Superior Courts because though they end up with a summary range sentence, they have been eligible for and have used complicated and time consuming processes to get there.

When an offence is hybrid, the prosecutor can elect to have the case heard either by summary conviction or indictment, based on the severity of the case, the circumstances of the offender and the best resources that fit that case. For this reason, provinces and territories have asked for many more straight indictable offences to be hybridized.

More cases being heard in provincial court would leave Superior Courts with more resources to consider more serious cases, thus speeding up the processing times.

Also, other proposed reforms in Bill C-75, such as restricting the availability of preliminary inquiries to only the most serious offences, will offset any additional workload on provincial courts that might result.

These proposals are not about downloading to the provinces and territories, as some have suggested. They are about providing provinces and territories with the additional flexibility they have asked for so Crown attorneys can choose the process that best aligns with the facts and circumstances of each case.

Some have claimed that changing the classification of offences will change how seriously these crimes will be taken by the system. This is simply not true.

The best indicia of the seriousness of an offence is its maximum available penalty. The hybridization amendments would not change any of the maximum penalties on indictment.

It is already a 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. They can already ask for fines and low or no jail time for most of the indictable offences that Bill C-75 proposes to hybridize. As I have already explained, they often avail themselves of summary range sentences.

I have full faith in our prosecutors to continue to seek appropriate sentences. At the end of the day, it will be the judge who decides. Nothing in Bill C-75 proposes to lower the sentences that would be imposed under the law as it is now. These reforms will not change the fundamental principles of sentencing outlined in section 718 of the Criminal Code, which requires proportionality.

The Senate made three types of amendments to address concerns about possible unintended consequences of the reclassification proposals. One of these further amended section 802.1, to also allow agent representation as authorized by the law of the province. However, this is problematic because we do not have any information about how this amendment would operate with existing provincial and territorial laws. As a result, I am not comfortable supporting this amendment.

I am satisfied that the amendment this chamber supported last December to address this issue gives the provinces and territories sufficient flexibility to quickly address any consequences of the reclassification scheme on agents.

I am pleased to be able to support the other two amendments that the Senate made to the reclassification provisions. These are technical and would amount to maintaining the status quo for the collection of DNA samples of convicted offenders and of fingerprints of accused persons. Discretionary DNA orders are currently available for Criminal Code offences with maximum penalties of five years or more when the Crown proceeds by indictment.

Police have expressed concerns that fewer DNA samples will be collected once the reclassification amendments of Bill C-75 come into force. Senate amendment 1 will maintain the availability of DNA orders for those five- and 10-year indictable offences that Bill C-75 proposes to hybridize.

A similar amendment was moved when the bill was before the justice committee, however, that proposal had been much broader and would have expanded the current availability of DNA orders. Senate amendments 11, 13 and 14 respond to police concerns that the hybridization in Bill C-75 will result in police being able to collect fewer fingerprints.

These amendments change the Identification of Criminals Act, to clarify that fingerprints can be taken for an accused who has been charged with a hybrid offence, even where the Crown has elected to proceed by summary conviction. As we can see, Bill C-75 includes many significant tools to reduce delays in the criminal justice system and to better equip its stakeholders and participants to meet the Jordan time frame.

I support the majority of the Senate amendments and I urge my colleagues to support the government's proposed approach to ensure that this much needed bill is passed before the summer recess.

The House resumed consideration of the motion in relation to the amendments made by the Senate to 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

Notice of Closure Motion

[Bardish Chagger, Liberal, Leader of the Government in the House of Commons]

Mr. Speaker, I wish to give notice that, with respect to the consideration of the Senate amendments to 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, at the next sitting of the House a minister of the Crown shall move, pursuant to Standing Order 57, that the debate be not further adjourned.

If there is a desire to find a better way forward, I look forward to those opportunities, but until then, it is with regret that I provide this notice.

Bill C-48—Notice of time allocation motion

[Bardish Chagger, Liberal, Leader of the Government in the House of Commons]

Mr. Speaker, I would like to advise that an agreement could not be reached under the provisions of Standing Order 78(1) or 78(2) with respect to the consideration of the motion in relation to the amendments made by the Senate to Bill C-48, An Act respecting the regulation of vessels that transport crude oil or persistent oil to or from ports or marine installations located along British Columbia's north coast.

Under the provisions of Standing Order 78(3), I give notice that a minister of the Crown will propose at the next sitting a motion to allot a specific number of days or hours for the consideration and disposal of proceedings of the bill.

Bill C-75—Notice of time allocation motion

[Bardish Chagger, Liberal, Leader of the Government in the House of Commons]

Mr. Speaker, I would like to advise that an agreement could not be reached under the provisions of Standing Order 78(1) or 78(2) with respect to the consideration of the motion in relation to the amendments made by the Senate to 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.

Under the provisions of Standing Order 78(3), I give notice that a minister of the Crown will propose at the next sitting a motion to allot a specific number of days or hours for the consideration and disposal of proceedings of the bill.

Criminal Code

[Murray Rankin, NDP, Victoria, BC]

Mr. Speaker, I was just making the point that the Criminal Lawyers' Association has made, about why mandatory minimum sentences are important. It is because if a criminal lawyer has the possibility, a zero-sum gain, that his or her client will get the minimum sentence that is there with no discretion of the judges to forge a penalty that is appropriate in the circumstances, the lawyer is not going to cut any deals. There will be no plea bargaining. There will be no efficiency. Therefore, the greatest single efficiency gain would have been what the Prime Minister promised us would happen, which is that mandatory minimum sentences, the way the Conservatives did it, would be eliminated. That was the promise that Canadians received over and over again, only to be completely thrown out in this bill.

It is a gigantic reform initiative. To be fair, it is all pertaining to criminal law but is a gigantic effort with this gigantic problem completely ignored. It is not a problem that I alone identify as an obstacle to efficiency gains and to addressing the crisis that Jordan represents, of people walking free from very serious crimes because we cannot get a trial in a reasonable amount of time. For reasons that escape me, the Liberals completely ignored that and did a number of other things, some of which are commendable but do not do what the objective of the bill was to be, which was to address the issue of inefficiency. That is the problem that the Criminal Lawyers' Association pointed out.

The courts have been reduced to simply being, as some people call them, slot machines of justice. They have no discretion at all. If the facts are made out, the penalty is there. It is push a button. Some judges have complained to me privately that they feel like they are simply automatons. That is not what judges historically have done. The Conservatives rendered them in this position that is invidious and, frankly, embarrassing to many judges. What they thought they had the power to do, which was to render an appropriate sentence to fit the crime, was thrown out the window when mandatory minimums were imposed on so many of the sentences in the Criminal Code.

We also have a crisis in Canada with the overrepresentation of indigenous women in particular. To his credit, the Minister of Justice referred to this problem. We all are aware of it. It is another national disgrace. Jonathan Rudin testified to the justice committee. He is a very memorable witness. He is a lawyer with the Aboriginal Legal Services in Toronto. He highlighted the government's inaction with regard to abolishing mandatory minimum sentences and its particular effect on indigenous women. Here is what he said:

...we 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 [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 he urged the committee to recommend was to bring into legislation that judges have sentencing discretion, which the Liberals promised to do and did not.

I suspect the problem is much worse now, but in 2015 the proportion of indigenous adults in custody relative to their percentage of the population was eight times higher for indigenous men and a staggering 12 times higher for indigenous women. Any measure that could address this problem head-on has to be looked at seriously. The government's failure to address what the mandate letter from the Prime Minister told us it would do is a serious missed opportunity.

I would like to turn to preliminary inquiries, which the minister also referred to and was the subject of some of the reform proposals that the Senate brought forward. The Senate legal and constitutional affairs committee passed an amendment to Bill C-75 that would bring back the option for preliminary inquiries for hundreds of criminal offences. Since Bill C-75 was first introduced in the House, the NDP has been advocating that preliminary hearings be retained in criminal proceedings. The Senate is attempting to reverse the government's move to eliminate preliminary inquiries for all offences, except for offences carrying a sentence of life imprisonment.

Senator Pierre Dalphond, a former judge, passed an amendment to bring back the option of preliminary inquiries for most indictable offences, as long as the judge ensures that the impact on complainants is mitigated.

The Liberals argue that this will cost court time, but we heard at the justice committee over and over again testimony that, if we got rid of preliminary inquiries, time saving would actually be marginal and the potential for miscarriage of justice would be great.

While the government has accepted many of the Senate amendments, it is using its motion to continue to severely limit the use of preliminary hearings. We have opposed this measure since Bill C-75 was brought to the House, and our stance, I am confident, remains the correct one.

The Liberals at the House justice committee voted to allow preliminary inquiries only when the maximum sentence is life imprisonment. The other place amended this provision to allow far more judicial discretion, increasing the number of offences that could have a preliminary inquiry from 70 to 463. The minister pointed out that they tried to find some middle ground on this issue.

Overwhelmingly, we heard from witnesses at the justice committee that restricting the use of preliminary inquiries will not address court delays sufficiently and will sacrifice or could sacrifice the rights of the accused. For example, Ottawa criminal defence lawyer Michael Spratt said at the committee that preliminary inquiries occupy a very small percentage of court time but “deliver huge savings to the system. Preliminary inquiries deliver these efficiencies in a number of different ways.” They focus issues for trial, reducing trial length; they identify evidentiary or legal problems in a case at an early stage so the parties can ensure that these problems don't arise during the trial; and they can facilitate the resolution of charges.

He was not alone. Time does not allow me to list all the people who agreed with Mr. Spratt, but they include the Canadian Bar Association; the Criminal Lawyers' Association; the Alberta Crown Attorneys' Association, the prosecution side; various defence lawyers, such as Sarah Leamon, a criminal lawyer; Professor Lisa Silver of the University of Calgary, and on and on, yet the government did not want to go there. I cannot, for the life of me, understand why.

There is also a huge possibility that with taking preliminary inquiries away, there could be a risk that people will be wrongfully convicted. That is what Bill Trudell, the chair of the Canadian Council of Criminal Defence Lawyers, said. The government says we do not need them because we now have what are called Stinchcombe disclosure provisions, Stinchcombe being a famous case requiring the Crown to provide all the evidence available to the defence witnesses. The government says that, as a result, we do not need preliminary inquiries. That certainly is not what these people have said, and on a risk-benefit analysis they think it is just not right. The possibility of a wrongful conviction seems to be something we should all be worried about.

I know that time is running out quickly, but I said I would comment on some of the positive things in the bill, and I would like to do so.

First, there is the elimination of what are called “zombie” provisions of the Criminal Code, which criminalize things that are no longer illegal. These provisions have been found to be unconstitutional and have no place in the Criminal Code.

The bill would restore the discretion of judges to impose fewer victim fine surcharges or not impose them at all. I commend the government for that step as well.

I said in my question for the Minister of Justice earlier that I commend the government for broadening the definition of intimate partner violence. That is a good step. Creating an alternative process for dealing with breaches of bail is another good step. Codifying the so-called ladder principle, which requires that the least onerous form of release be imposed, is a good thing as well.

I agree with the government, and I confess not everybody does, that abolishing peremptory challenges is a positive step. Also, the routine police evidence provision has been amended for the good.

For the LGBTQ2+ community, the vagrancy and bawdy house provisions that were often used in the past to criminalize gay men have been rightly repealed. I am proud of the role that I played at the justice committee in moving those amendments, and I commend the government for finally repealing these discriminatory provisions.

I wish to be on record as saying that there is much in this bill that is commendable. It is the fact of the missed opportunity that is so disturbing.

I still have concerns about the many hybrid offences created in Bill C-75, because contrary to what the hon. Conservative member for Sarnia—Lambton said earlier, all this does is to push them down to the already overburdened criminal courts at the provincial level. The more hybrid offences, which proceed by way of summary rather than indictment, go to the provincial courts, where 95% of all criminal matters already take place. I have talked to people in my province of British Columbia who are very concerned about the impact of this on the administration of justice in that province. Jordan is perhaps not as much of a problem in the superior courts, but is a bigger problem in the provincial courts. Surely, that was not the intent.

I know that I have little time left, but I want to complete the point I made earlier about Madam Justice Marion Buller, the chief commissioner for the National Inquiry into Missing and Murdered Indigenous Women and Girls. She had the opportunity to go to the Senate committee with her report. A number of suggestions were made for reform in the other place and are now in the amendments before this House. I am very happy that that has happened. However, there are still serious problems with some of the legacies of residential schools and the sixties scoop that still need to be addressed.

I believe my time is almost at an end, so let me just say this. I wish we could support this bill. There is much in it that is worthwhile, but the failure to do what the Prime Minister told us they would do, deal with the mandatory minimums, and the inability to address the preliminary inquiries in a more manageable way, are the reasons we must respectfully oppose this bill.

[Murray Rankin, NDP, Victoria, BC]

Mr. Speaker, it is a pleasure to rise, albeit at this hour, to discuss Bill C-75 and the Senate amendments that have been brought to this place from there.

I agree with the thrust of the Senate amendments on behalf of the New Democratic Party, which supports the thrust of those amendments, but reluctantly have to say that, as amended, we must oppose this bill for the reasons I will describe.

I agree with the Minister of Justice, who spoke earlier, about some of the positive changes in this initiative. The bail reform provisions are exemplary. The intimate partner violence provisions are also very good. I am pleased that the Senate had the opportunity to deal with some of the recommendations by Judge Marion Buller, who, of course, chaired the inquiry into murdered and missing indigenous women and girls. She had the benefit of testifying before the Senate committee and, in turn, it had the ability to reflect her wisdom. That finds its way into the amendments before us tonight.

This improves the bill quite significantly, as I will describe, but there are some very significant issues that remain. I want to commend our colleagues in the other place for the work they have done to improve this flawed bill. We need to thank them for some of the work they had the opportunity to do.

We too, on the NDP side, have done an enormous amount of research and consultation, with people from the criminal defence bar, academics, prosecutors, former deputy attorneys general and others. We have done our homework on Bill C-75. After all, it is a mammoth initiative, the most significant criminal justice reform bill in a very long time. Regrettably, as a result of those consultations, we concluded that we must continue to oppose the bill, for reasons I will describe in a moment.

To be clear, we are in support of the amendments made by the Senate, yet decry the government's inadequate response to those amendments and ultimately have to therefore oppose the final bill as amended.

To begin with, why was Bill C-75 initiated? The Minister of Justice was clear about that in his remarks earlier. He alluded to the Askov case in the Supreme Court of Canada, and then, of course, the Jordan decision. The court said that there has to be a trial within a timely period, and it set down very specific limits for both indictable and summary conviction cases.

The objective was one of efficiency. It was to try to make our courts more efficient to deal with the enormous and, quite frankly, embarrassing backlog we have with our court cases, and to deal with the consequence of the Jordan case. As we know, often people who are guilty of offences walk free because the courts are not able to give them a trial within a reasonable period. That has to be an embarrassment to all Canadians.

Efficiency was the goal of this bill. However, after the consultation I just described, the debate in the House, and the work I was part of on the justice committee, where we heard a great variety of presentations, we concluded it is simply not an adequate response to the Jordan problem.

As I alluded to earlier, there are some good things in this bill, which I will also refer to later. However, sadly some of the deeply problematic things continue in the bill. I want to talk, by way of giving illustrations, of the general concerns that the criminal justice bar has had with this bill. I will start Ms. Sayeh Hassan, who is a Toronto-based criminal defence lawyer. By way of summary, she said, “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. We had a reasonable hope that it would do so. After all, the Prime Minister told the former minister of justice that it was part of her mandate. Nothing happened.

Sean Fine, of the Globe and Mail, wrote:

As far back as October, 2016, the [former attorney general] 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 never happened.

Our colleagues in the other place made a similar observation. It is the fourth item on their list of formal observations. I think it is worth repeating what they summarized. Under “Mandatory Minimum Sentences”, it says:

In its Delaying Justice is Denying Justice report, the Committee recommended that the Minister of Justice undertake a thorough review of existing mandatory minimum sentences in order to: ensure a reasonable, evidence-based approach to when they are appropriate; and consider whether persons with mental health issues should be considered for alternative sentencing options or treatment when faced with mandatory minimum sentences.

During its study of Bill C-75, some witnesses expressed significant disappointment that it does not include any reforms to the mandatory minimum sentencing provisions in the Criminal Code. In the Mandate Letter to the Minister of Justice...of 12 November 2015, [the Prime Minister] stated that the Minister...was to “conduct a review of the changes in our criminal justice system and sentencing reforms over the past decade.” In the Minister’s letter to the Chair of the committee, he stated that the Government “is committed to advancing sentencing reform” and that it is “committed to reviewing the mandatory minimum penalties in the Criminal Code with an eye to eliminating many of them and restoring judicial discretion.”

The committee [of the Senate] observes that the Government of Canada has had four years to bring forward amendments to these provisions in the Criminal Code and that, to date, no legislative action has been taken.

I join with my colleagues in the other place in noting that the government's failure to address the often unconstitutional mandatory minimums cannot be understated. It is a serious problem.

This led the Criminal Lawyers' Association to write in its position paper that “Mandatory minimum sentences frustrate the process of resolving cases by limiting the Crown’s discretion to offer a penalty that will limit the crowns ability”—

[Marilyn Gladu, Conservative, Sarnia—Lambton, ON]

Mr. Speaker, I find that the Liberals are always consulting but never listening, where the Conservatives are consulting and listening to what people are saying. As I posted the information on Bill C-75, I saw huge activity on social media. There were a huge number of petitions and letters and emails from Canadians saying that was not what they wanted. When people have committed serious crimes, they need them to be put in jail and kept there. They want the prison sentence to fit the crime. They do not want murderers and rapists walking away because their case has been before the court for too long. Therefore, I think Canadians recognize there is a problem. This bill does not address the problem. That is the point I was making tonight.

[Marilyn Gladu, Conservative, Sarnia—Lambton, ON]

Mr. Speaker, there was quite a bit to that question.

With respect to it being a great time to be a criminal under the Liberals, I am sure many people have seen on Facebook the comparison that says would it not be great if we put seniors in prison because then they would receive the medical care, the food, the shelter and the attention they need. In some cases, we are treating criminals better than we are treating seniors.

This move to focus on less punishment for the criminals and to ignore the victims rights or to take away the funding for victims services is a disservice.

With respect to equality under the law, I absolutely believe in equality under the law and we need to do what we can, but we need to address the root causes of why we have overrepresentation from some groups in prison.

On intimate partner violence, although I want to see intimate partner violence reduced, we see this increasing. Many people coming into the country are coming from places where intimate partner violence is very common and considered part of everyday life. We need to educate those people so we can prevent this from happening. However, we need to recognize that in Bill C-75 there is a total discrepancy between working on intimate partner violence, but allowing forced marriage, especially forced marriage of children.