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.

[James Maloney, Liberal, Etobicoke—Lakeshore, ON]

Thanks, Mr. Chair.

I think everybody will agree with me that if we're going to amend legislation, we amend the right one. Clause 389 incorrectly proposed to amend section 5 of “An Act to amend the the Criminal Code”. The correct legislation references “An Act to amend the Criminal Code, the Youth Criminal Justice Act and other Acts and to make consequential amendments to other Acts” in Bill C-75.

This amendment would correct that error.

[Elizabeth May, Green, Saanich—Gulf Islands, BC]

This, Mr. McKinnon, is my last amendment, but thank you for your comment earlier for my penultimate amendment.

This act has a lot of novel provisions. It's appropriate in such legislation to have a review. This amendment proposes two time frames: that within one year of royal assent, the Minister of Justice provide a report to the House of Commons on how the bill is progressing and how the new provisions are being used; and that within five years, a full review be conducted of the operation of the amendments made to this act in C-75. A five-year review isn't unusual and I think it's very wise in view of the number of changes that have been made in this bill.

[James Maloney, Liberal, Etobicoke—Lakeshore, ON]

This motion reconciles amendments proposed in Bill C-75 and Bill C-59 to section 83.3, the provision governing the imposition of a terrorism recognizance with conditions. It also takes into consideration the fact that section 83.3 of the Criminal Code will sunset in October.

If C-59 is passed, it would re-enact section 83.3. As such, the motion would deem clause 26 of our bill to never come into force if section 83.3 sunsets and is not otherwise re-enacted through Bill C-59. If section 83.3 is re-enacted, this motion would ensure the new police release terminology is included in it.

[Ron McKinnon, Liberal, Coquitlam—Port Coquitlam, BC]

This is a consequential amendment to LIB-1.

As a result of LIB-1, clause 361 needs to be amended to remove the reference to “section 83.29” to ensure that the provision retains the use of the term “recognizance” after the coming into force of Bill C-75.

[Iqra Khalid, Liberal, Mississauga—Erin Mills, ON]

Thank you.

Bill C-75 proposes amendments to streamline and modernize the bail regime, including its documents. Clause 331 amended the schedule to part XXVII to reflect these changes. A reference to “undertaking”, which deals with fees that summary conviction courts or justices may charge, has been incorrectly added in item 8 of the schedule, and this amendment would remove that term, “undertaking”, from there.

[James Maloney, Liberal, Etobicoke—Lakeshore, ON]

Thank you, Mr. Chair.

By now I think everybody is well acquainted with the purpose of Bill C-75, so I won't go through that again.

Clause 329 is amending subsection 828(3) of the Criminal Code. However, the proposed subsection incorrectly no longer refers to “recognizance” and this amendment proposes to remedy that and put the word back in.

[Carole Morency, Director General and Senior General Counsel, Criminal Law Policy Section, Policy Sector, Department of Justice]

The issue has been discussed through FPT forums leading up to the introduction of Bill C-75 and since, as a result of criticism being raised after the tabling of the bill. They're still working through this issue from their perspective in the sense that they now have the power under section 802.1 to create and adopt a program.

A number of years ago there had been support through FPT forums to do something very similar to what this motion proposes in a bill that had been introduced but had not advanced. We remain hopeful that this will provide sufficient flexibility to provinces and territories going forward if they want to adopt a formal program, as some do now, for example, for indigenous court workers, or if they want to go with something that's less onerous and adopt criteria that will enable them to move forward with this.

We've talked about the timing, about how they may be able to do that. The committee will know that provision would come into force 90 days after royal assent, so there would be time for them to make some choices. Of course, in the interim we will continue to discuss with our PT counterparts, based on how the bill proceeds through Parliament.

[Ron McKinnon, Liberal, Coquitlam—Port Coquitlam, BC]

Thank you, Chair.

Bill C-75 proposes amendments to streamline and modernize the bail regime, including its documents. Clause 315 amends the schedule to part XXV of the Criminal Code to reflect these changes. In doing so, it inadvertently added the term “undertaking” to the document, over which the Ontario Court of Appeal has jurisdiction.

The proposed amendment would remove the term “undertaking” to maintain the current state of the law.

[The Chair, Liberal, Anthony Housefather]

We are reconvening our meeting on Bill C-75 clause-by-clause consideration. Again I want to thank the staff, the members of the Justice team, the members of the committee and everyone who's here on all sides for your incredible patience to get through this.

We have very little left. We should be finished in the next 25 minutes.

We were on LIB-19. It had been moved, but I had not called the vote on LIB-19.

Does anybody wish to speak to Lib-19? Mr. Hehr had already spoken to it and explained it.

(Amendment agreed to [See Minutes of Proceedings])

(Clause 313 as amended agreed to)

(Clause 314 agreed to on division)

(On clause 315)

That moves us to LIB-20 in clause 315.

Mr. McKinnon.

[Kent Hehr, Liberal, Calgary Centre, AB]

Bill C-75 proposes amendments to the bail regime to streamline and modernize...including its documents, and clause 313 amends sections 763 to 768 of the Criminal Code to reflect these changes.

[Iqra Khalid, Liberal, Mississauga—Erin Mills, ON]

In the meantime, then, I guess I will speak to it.

I think that one of the main objectives of Bill C-75 was to address the issue of juries, and peremptory challenges are a big part of that. We had a really fulsome discussion with our witnesses with respect to how we could have a better representation on juries. The removal of this would address the issue of maybe perhaps unconscious bias, etc.

I believe that a fulsome approach, including the provinces and territories, as well as the elimination of peremptory challenges, would address that issue of diversity and inclusion on our jury pools.

I cannot support this motion. Thank you.

[Elizabeth May, Green, Saanich—Gulf Islands, BC]

This amendment comes from the testimony of someone who—I know him personally—has an amazing legal mind, Professor Kent Roach, who looked at the situation and said in his own evidence:

...I spent a lot of time this summer looking at all of the jurisprudence from the courts of appeal and the Supreme Court on jury selection. Frankly, judges are somewhat conservative on these issues. My worry is that, as the amendment is now written—which, as you noted, simply adds “maintain confidence in the administration of justice”—it doesn't guide the exercise of judicial discretion. Different judges will exercise the discretion differently.

Just as we saw with the sentencing provisions, and as we see in other parts of Bill C-75 relating to bail, it behooves Parliament to give judges a signal that we are concerned about the overrepresentation of indigenous and other groups in our criminal justice system.

That is why it is highlighted here, to ensure that the judiciary in applying Bill C-75 has strong consideration of the fair representation of our aboriginal people and other vulnerable populations overrepresented in our criminal justice system.

[Iqra Khalid, Liberal, Mississauga—Erin Mills, ON]

I agree that Mr. Fraser really articulated it well. The inclusion of routine police evidence would lead to delays and possible abuses and violations of rights of individuals, specifically the accused. For this reason, I think it should not be part of Bill C-75.

[Elizabeth May, Green, Saanich—Gulf Islands, BC]

Thank you, Mr. Chair.

This amendment is similar to the one that was submitted as PV-15. It's to eliminate the possibility of triggering a judicial referral hearing where a charge has been laid for a failure to comply with release conditions. If charged, it should go through a bail hearing system. As a corollary to that, the judge's powers under proposed subsection 523.1(4) to dismiss a charge after a judicial referral hearing would then be moot.

This deals with the risk of confusion or redundancy if a judge or justice must dismiss the charge, no matter what decision they make in the judicial referral hearing. This is similar to the government's intent in the summary of this bill, that the goal of the referral hearing was to provide “an additional tool to direct certain administration offences to a hearing, as opposed to laying new charges”.

This is one that I think actually clarifies C-75 to more perfectly meet the government's intent as described in the summary.

[Elizabeth May, Green, Saanich—Gulf Islands, BC]

Okay.

Green Party-28 would remove the reverse onus on the accused with prior records of intimate partner violence. This received a lot of testimony, from the association of legal aid lawyers, from the Canadian Bar Association, etc. The concern was that subsection 515(3) already requires the consideration of factors related to intimate partner violence in consideration of release.

The concern was the proposed change in Bill C-75 would likely lead to litigation. Previous court decisions upholding the constitutionality of reverse onus do not offer features that could be held in common with these.... The intention is clearly a good one: that there would be a reverse onus. But in testimony from women's advocacy groups, Aboriginal Legal Services, the Society of United Professionals, which is the legal aid lawyers group, practising lawyers spoke of this phenomenon of dual charging, where a partner in intimate partner violence, usually the man, is accused of domestic assaults and insists that the partner who has been assaulted is also charged and should be charged because they started or are implicated in the offence.

The Canadian Civil Liberties Association in particular said, and I'll just read this because it makes it quite clear:

Mandatory or pro-charging and prosecution policies, while effective in increasing the number of abusive partners brought before the criminal justice system, can also have the effect of criminalizing victims who are caught in an abusive relationship.

The effect of the bill before us—and we have a lot of expert evidence—is that as much as it might initially seem counterintuitive, abusive partners can use the reverse onus provisions to discourage the victim from reporting and the reverse onus might also discourage victims from coming forward if they are trapped in a relationship where they are financially dependent on their abuser.

Again, there's a lot of evidence and testimony on this point. I agree it's a very difficult one. You've already had a prior record of abuse of your partner, and a reverse onus would increase the burden on the accused to defend their actions. However, the threat that can be used, and in real life can happen, to criminalize the victim, and thus discourage reporting and increase the risk of mostly women being trapped in an abusive relationship, is a very serious one. Obviously, that's why Mr. Rankin brought forward a similar amendment. Even if it takes time to struggle with this one, I hope the committee will find a way to remove the reverse onus in the interests of protecting women at risk.