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.

Motions in amendment

[Arif Virani, Liberal, Parliamentary Secretary to the Minister of Justice and Attorney General of Canada]

Madam Speaker, I confess to being surprised that the member opposite raised the plight of indigenous people, in light of the previous government's track record on indigenous reconciliation. I find it peculiar that he is criticizing our commitment to reconciliation, with the billions of dollars we have committed to the calls to action.

The member raised the question of how it addresses victims' rights. I will tell my hon. friend. When we stop the cycle of perpetually criminalizing individuals by piling charge upon charge on them, we stop the cycle of overrepresentation. That is what this bill would try to do. That is what the member for Kingston and the Islands highlighted in terms of the administration of justice offences. By taking people out of the cycle of criminal charge after criminal charge and penal sentence after penal sentence, we avoid over-criminalizing individuals, including indigenous and marginalized communities, and we avoid the types of crimes the member opposite is so concerned about in terms of the victims he rightfully defends. We stand by those victims, as does he.

I put it to you, sir. Do you not see a link between addressing the over-incarceration and overrepresentation of indigenous people in our system and the very crimes you seek to stop occurring?

[The Assistant Deputy Speaker, Carol Hughes]

The hon. parliamentary secretary knows full well that he is to address his questions to the Chair and not to individual members.

The hon. member for Battle River—Crowfoot.

[Kevin Sorenson, Conservative, Battle River—Crowfoot, AB]

Madam Speaker, that is a very sad question from the member. He stated that we should look at how the Liberals have helped indigenous people, and then he said that they have put billions upon billions of dollars into it. We have a government that believes that throwing billions of dollars at a problem is going to solve it. It is not going to solve the problem. What does the hon. member suggest? He suggests that when there is charge after charge for an indigenous offender, we do not charge that person for all the offences.

With all due respect to the member and the government, I see that as an affront to victims, to the people who have been victimized by those crimes. Liberals are saying that they are going to whittle this down because they think there are too many first nations in our penitentiaries, and they do not want them to have records that are quite so long, unfortunately.

[Linda Duncan, NDP, Edmonton Strathcona, AB]

Madam Speaker, the member's colleagues have stood in the House frequently to call on the government of the day to fill the vacancies for judicial appointments. As he is aware, as he was in the last Parliament with me, the Conservative government also failed to fill those vacancies and failed to respond to the pleas of the former Conservative attorney general of Alberta. I wonder if he could speak to that. There has been a languishing problem in that area for a long time.

I wonder if the member could also speak to the previous government's decision to impose minimum mandatory sentences. As the Criminal Trial Lawyers' Association has pointed out, that has been one of the major causes of clogging the courts. Why, then, is his party completely opposed to any kind of reform of that measure?

[Kevin Sorenson, Conservative, Battle River—Crowfoot, AB]

Madam Speaker, the former attorney general of Canada is sitting right here.

Very clearly, in the 10 years the Conservatives were in government, we filled those vacancies, and we filled them regularly. Yes, there were always openings, and we filled them as soon as we could. We see hundreds of vacancies now. We see very serious crimes, and criminals walking away because of those positions not being filled. That is one thing we took pride in.

This morning, the parliamentary secretary explained to us why Liberals have not filled those positions. He said it is because there is not a diverse enough population, and they want the top courts to be representative of Canada's population. It is a worthy goal, but it sounds to me like positions are not being filled because they cannot find indigenous people to fill them. I think he mentioned putting members of the LGBTQ community in judge positions. That is the reason there are so many vacancies.

[Anthony Housefather, Liberal, Mount Royal, QC]

Madam Speaker, I thank my colleagues.

As chair of the Standing Committee on Justice and Human Rights, I am very pleased to rise to talk about our work on Bill C-75. I want to thank the members of the committee for their hard work. I also want to thank the more than 60 witnesses who appeared before our committee to share their opinion on the bill.

I also want to thank the hon. member for Saanich—Gulf Islands, who proposed some very constructive amendments in committee, which we debated.

Overall, Bill C-75 is a good bill, and it is a bill the committee made better through its study. I want to talk a little about the amendments made by the committee.

The first amendment I am very pleased the committee made was to delete from the Criminal Code the provisions related to keeping a common bawdy house and vagrancy. We heard about these provisions from witnesses from the LGBTQ2+ community who came before us. My friend Robert Leckey, who was the dean at McGill, Tom Hooper and others told us that they had been disproportionately used in the 1970s and 1980s to charge, send to prison, and fine members of the gay community. For these convictions to be expunged under previous legislation the House and the Senate had adopted, we would need to have the offence under which they were charged repealed from the Criminal Code.

I salute all members of all parties, who listened to these witnesses and determined that it was only right, while these people are still alive and with us, to take action and restore a sense of fairness, a sense that they were charged with something they never should have been charged with in the first place. The members of the committee amended the bill to delete these provisions. I am very grateful, and I hope if the bill is adopted, which I imagine it will be, we will move forward quickly to adopt an order in council to allow these men to have their records expunged.

Second, we deleted the provisions in the bill related to routine police evidence and allowing police testimony to be entered by affidavit, as opposed to the police officer showing up in court. We heard from virtually all sides that this provision in the bill could easily be misunderstood and could harm those people who were trying to represent themselves in court and did not understand how to challenge the submission of routine police evidence by affidavit. We found that since any lawyer in almost any circumstance would challenge the idea that police officers did not need to show up to be cross-examined on their testimony in all matters, other than the most simple ones, this should be removed from the bill, and we have proposed to the House, in this reading, that it be removed from the bill.

We also listened carefully to those people who said that we should not hybridize the offences related to terrorism and genocide. I want to correct the record of what my colleague previously said. This was not done because the NDP and Liberal members of the committee were pushed into it by a Conservative amendment.

[Some hon. members]

Oh, oh!

[The Assistant Deputy Speaker, Carol Hughes]

Order. I just want to remind the members of the opposition that they are to wait until questions and comments to make any comments or put any questions forward.

I would ask the member for Mont Royal to continue with his speech.

[Anthony Housefather, Liberal, Mount Royal, QC]

Madam Speaker, as my friend from St. Albert—Edmonton well knows, the committee had discussions long before amendments were submitted about these issues. The committee members had all put forward the proposal that genocide and terrorism be deleted. Rather than vote against the clauses, which is what the committee had originally talked about doing, the Conservatives put forward amendments to retain other language that had been amended in the clause and to delete these provisions.

I wholeheartedly agree that genocide and terrorism are easily distinguishable from the offences that are hybridized, not necessarily because they are more serious offences, although they are incredibly serious offences, but because they are offences against groups as opposed to offences against individuals. They are easily distinguishable from ordinary charges under the Criminal Code. They are ones that impact society in a way that individual cases do not. I strongly supported removing them from the list of offences to be hybridized, and I am pleased that the committee did that.

I also note that when we talk about moving forward justice, one cannot argue that the handful of terrorism and genocide offences that go before our courts are ones that will slow down the court system by remaining solely indictable offences. Therefore, I wholeheartedly supported that.

What I did not agree with was the conclusion that by hybridizing an offence, we are automatically judging that offence to be less serious. When an offence is hybridized, it gives the prosecutor the discretion to choose to move forward with either an indictable or a summary type of conviction. It is true that a summary conviction carries a maximum sentence that is generally less than the indictable one, although in some cases, by only one day. It is true that if one chooses to proceed by summary conviction, the maximum sentence is less than if it was a maximum sentence under an indictable prosecution. However, presumably, prosecutors look at the facts of a case and determine whether the facts warrant a jail sentence longer than two years less a day. If they believe that the facts of a case warrant a jail sentence longer than two years less a day, they proceed by indictment.

By the way, there are many serious offences in the Criminal Code, such as assault, that are already hybridized. There is no weakening of the offence. There is no saying that an offence is less serious by agreeing that this type of offence could have different facts leading to a need to hybridize.

For example, an incredibly serious offence in the Criminal Code, one we would all agree is incredibly serious, is kidnapping someone under the age of 16. That is one of the offences that would be hybridized under this bill. However, we also understand that there can be terrible people out there who try to kidnap or solicit young people under 16 for the purpose of trafficking or for the purpose of seizing them away to commit crimes against them.

There can also be a situation where a non-custodial parent takes his or her own child to visit grandparents, against the will of the custodial parent. That is still kidnapping a child under the age of 16. Even though it is serious and a crime, to me it warrants a very different sentence than the person taking the 16-year-old for trafficking.

I also note that there were other offences, such as branding of cattle or stealing timber, for which there were Conservative amendments saying that we should not de-hybridize. Those offences are clearly offences that do not carry the same type of consequence, yet in the same way we could not distinguish between one and the other, we are saying that we do not need to hybridize these either.

Fourth, we made an amendment to protect students. As opposed to weakening sentences, one of the things we did was enhance summary sentences. Instead of a six-month average summary sentence, a six-month maximum, the maximum was changed to two years less a day. We actually strengthened sentences for many more offences in this country and set a general summary maximum sentence of two years less a day instead of six months. However, that would have a negative impact on students and agents who could only appear on cases that were six months or less. Therefore, we moved an amendment at committee to allow provinces to set general order in council rules that would allow different classes of agents to appear for periods of over six months. That was important.

We listened to witnesses. There are many issues in this bill that are clearly debatable and have good points on both sides, but the committee came back with a better bill.

[Michael Cooper, Conservative, St. Albert—Edmonton, AB]

Madam Speaker, I appreciate the good work that the member for Mount Royal does as chair of the committee.

That being said, I take issue and respectfully disagree with his comments respecting the hybridization of offences. It is true in reference to certain offences such as stealing cattle or branding cattle, or whatever he referred to, but yes we oppose the reclassification simply on the basis that we said the government has taken a whole series of offences without any real consideration as to why Parliament treated them in the first place as indictable. Other than a handful of offences, there was really no evidence before the committee and we took the position that if the government wanted to reclassify certain offences, then it should introduce legislation focused on the reclassification with a basis or justification for doing so.

Unfortunately, that is not what the government did. It just took a bunch of offences, which is why genocide and terrorism-related offences were put into the mix. They should never have been there. I think the member would concede that, but the member mentioned there were witnesses who called on the committee not to reclassify those offences. It is true and they gave very impactful evidence, but also victims of impaired driving appeared before the committee. They pleaded with the committee not to reclassify the offence of impaired driving causing bodily harm.

We heard from witnesses that reclassifying does send a message. I wonder if the member for Mount Royal could speak to that issue.

[Anthony Housefather, Liberal, Mount Royal, QC]

Madam Speaker, I want to share my hon. colleague from St. Albert—Edmonton's compliments. His intellect and his work at the justice committee is always very much appreciated.

I know what he said about the government taking groups of offences and making them hybridized. I would note as well that the amendments offered by the Conservatives did essentially the same. As he notes, there were certain offences in there that were much less serious on the face of them than others and they proposed not to hybridize them either.

On the issue of impaired driving, I agree it is an incredibly serious offence and for those whose families are affected, the victims of impaired driving, there is nothing we can say to console those people. However, my view is that prosecutors will determine based on the facts of the offence whether they proceed indictably, which they will no doubt do in most cases, or whether it should be proceeded with summarily.

I will give an example. Someone who for the third time takes alcohol, goes on the road and then hurts someone severely and puts them in the hospital for weeks, is very different from the person who takes cold medication, is not aware of its effects, and backs out of a parking lot slowly, injuring someone's ankle, and yet they are the same offence.

[Arnold Viersen, Conservative, Peace River—Westlock, AB]

Madam Speaker, I have had some interactions with the justice committee with the member and I know that he runs a fair and honest ship over there.

I am interested to hear him on clause 106, which is material benefit from trafficking, and clause 107, which is the destroying of documents due to trafficking. Both of those have now been turned into summary or hybrid offences. I am wondering about the logic on that. The member said there is a range and I would like to see what his opinion on the range of issues could be with those. The material benefit from trafficking seems like a very serious offence.

[Anthony Housefather, Liberal, Mount Royal, QC]

Madam Speaker, I want to say that one thing that was desperately missing at the committee was the member for Niagara Falls who always added great weight to the committee.

As I only have a short time, I want to say again with regard to the intention of hybridizing an offence, there are many serious offences in the Criminal Code today, such as assault, that are hybridized. It is not to diminish the offence, it is simply to give the prosecutor a range of options with respect to the particular circumstances of the offence. It does not diminish the seriousness of the offence to hybridize it.

[Rob Nicholson, Conservative, Niagara Falls, ON]

Madam Speaker, I enjoyed my work on the justice committee for these past three years. It was very rewarding and very insightful.

With respect to Bill C-75, there are sections of the bill that we, on this side, are in favour of.

One of those is the reform of intimate partner violence cases, which will basically reverse the notice of bail on someone who has been convicted of assaulting or other crimes against their partner. I like the idea because it does give better protection. There are a number of procedural changes with respect to preliminary hearings and jury selection. Again, we will continue to review those changes here and get input from people.

As we heard from my colleagues on this side, we continue to be quite concerned about the hybridization of some very serious crimes.

I think most Canadians would agree with us in the Conservative Party that there are serious crimes that are currently listed as indictable offences with a maximum of up to 10 years and that it does reflect the seriousness of those crimes. Some of those offences include, but are not limited to: participation in a riot, or concealment of identity; breach of trust by a public officer; municipal corruption; selling or purchasing offices; influencing or negotiating appointments or dealing in offices; prison breach; assisting prisoner of war to escape; obstructing or violence to or arrest of officiating clergyman; keeping a common bawdy house; causing bodily harm by criminal negligence; bodily harm; impaired driving causing bodily harm; failure to provide sample and blood alcohol level over legal limit; material benefit from trafficking; withholding or destroying documents; and abduction of person under age of 14 or under the age of 16.

I think most Canadians would agree with us that these are very serious offences. Some others are marriage to someone under the age of 16, arson for fraudulent purpose and participation in the activities of a criminal organization.

The government has backed down on a couple of those issues. They are the ones related to terrorism and genocide. The problem I have with the government is that we told them a long time ago that Canadians are not going to agree with hybridizing and reducing the possible penalties for criminal activities like genocide and terrorism. We were very clear that it is a mistake to go forward with this. It took the government a long time, approximately a year, before it would back down on this.

A piece of advice I would give to the government is that just because an idea comes from the opposition does not mean that it is a bad idea. Some time ago we started pointing out that a person who is convicted of murdering, torturing and raping a child should not be then transferred to a healing lodge. We told the government that it was a huge mistake. All we got was pushback from the government and the minister saying no.

However, I found out a few minutes ago that Terri-Lynne McClintic has been transferred out of a healing lodge and placed back in prison where she should be. All I can say to the government is that this idea is no better than it was when we told the Liberals a long time ago about these things. I had said it was a mistake to put genocide and terrorism in as hybrid offences, and again, we were right.

I remember, in June 2017, the government came forward with another omnibus justice bill, and part of it was to remove the protection of members of the clergy and the protection of people disrupted during a religious service. We told the government it was a mistake. I remember standing here, telling some of my colleagues to please go home this summer and ask constituents, even if they do not go to a religious service, if they think it is a good idea that we would repeal this section.

It took about a year, but then finally the government did agree with us. Unfortunately, I see that threat against a member of the clergy is now part of the hybridization, so the government has reduced the penalty for this. Again, I believe this is inconsistent.

We hear the Prime Minister and others saying we have to protect religious institutions, synagogues, churches, temples and mosques. However, at the same time, the government's record, now on two occasions, is to reduce or, in a sense, eliminate the specific penalty dealing with that. It is completely inconsistent, and I think it is a mistake.

I was going to ask my colleague a question, since he gets overwhelming support at elections and is very in tune with what his constituents say. I was going to ask, “Are any of your constituents saying that we should open up the possibility of a lower sentence for people who traffic in children under the age of 14? Did anybody say that to you, or say that we have to go easier on these people?” The hon. member says that nobody came forward to ask for that.

We talk about the challenges with respect to impaired driving. Now the government's priority this year has been to legalize marijuana. Everyone in this chamber knows that this is going to make it more complicated, with respect to impaired driving and the associated challenges. Yet, at the very same time, the government has legislation that says that if people are driving impaired and they cause bodily harm, they now have the possibility of facing a summary conviction offence, which would result in something even as low as fine. I would say that nobody wants something like that.

On the section on trafficking in persons, the justice committee is doing a study right now on human trafficking. We heard from Canadians across this country, different groups and individuals saying what a terrible problem this is and that it has to be addressed. However, at the same time, the government is reducing the penalties.

One of the things I heard from the government over a year ago, when it introduced this, was that it would speed up the criminal justice system. I say, “Sure, if you are a terrorist.” If somebody says they have the possibility of getting a fine of $1,000, they will ask where they can sign up for that. That is great news for them. Let us not hold up the justice system.

My point is these are very serious crimes. They were treated as such when Conservatives were in government. As my colleagues have said, we always stood up for victims of crime to better protect victims and to increase people's confidence in the criminal justice system. When somebody who has committed a horrific crime is let off, when they get the minimum possible sentence, it does not increase people's confidence in the criminal justice system. It has the exact opposite effect.

We had a very good run at this. We stood up for law-abiding Canadians. We stood up for victims. We wanted the system to work. I am very proud of all that we have done. My advice to the government is, when the Conservatives have good ideas that the Liberal members can run by their own constituents and they agree with them, the government should adopt those, and it should not have to wait to change its mind.

[Arif Virani, Liberal, Parliamentary Secretary to the Minister of Justice and Attorney General of Canada]

Mr. Speaker, I have one brief comment and one question. I appreciate the comments from the member opposite and his experience in this matter.

I would put it to him that to question our commitment to fighting religious discrimination is puzzling in the wake of the strong position we have taken against anti-Muslim hatred, Islamophobia and anti-Semitism based on yesterday's apology in this House, and the monies we have dedicated thereto.

The member did state that he agrees with our position on intimate partner violence and victims who suffer intimate partner violence. I thank him for that. I think that is an important area of common ground.

What I would say to the member is that there are areas where other victims are also addressed in this bill. I would solicit his view on the disconnect that existed when his party was in power. There could be a consensual sexual relationship between people between the ages of 16 and 18 who are heterosexuals, and that was perfectly valid under the Criminal Code of Canada, but until this legislation, in the same situation, consenting minors in sexual activities who are 16 to 18 years old and who are part of the LGBT community would be criminalized.

This bill will change that. Would the member opposite say that is a step in the right direction? Perhaps he could elaborate as to why his government did not make that change when it was in power?