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.

[Murray Rankin, NDP, Victoria, BC]

Thanks to all of the witnesses—so many witnesses, so little time.

I want to first, if I may, just do a shout-out to Professor Parkes, whom I won't have time to ask a question of. Congratulations on your editorial in The Globe and Mail yesterday on the impact of mandatory minimum sentences, particularly on indigenous people. It was great, and thank you for introducing the term “sentence creep” to our vocabulary.

Ms. Cirillo, I just want to say, as a proud alumnus of the Downtown Legal Services, I know first-hand the important work that you people do. Thank you for doing it and for shining a light on what, I agree with all of you, is an unintended consequence of Bill C-75, that's to say, essentially shutting you out of the provincial court where you do such great work.

In a moment, I'll come back to you with solutions I'd like to get your take on, but I want to remind people of the quote I took from your excellent submission:

The unintended consequence of Bill C-75 would further exacerbate the access to justice issues facing Ontario criminal courts. SLASS clinics have worked for decades representing individuals charged with criminal summary offences, providing effective and efficient representation for those who would otherwise find themselves unrepresented in the criminal justice system. This bill will put an abrupt end to this legacy.

I couldn't have put it better than that.

Ms. Taman, if I could, I want to ask you a few questions. Thank you for the chart you gave us. I wish we had it when we started this little odyssey a few weeks ago.

In respect of the hybridization issue, you talked about the 136 indictable offences being hybridized, and you made an argument that I don't think had ever been made to our committee before. You said that part of the bill is the potential to significantly limit the accused's existing statutory right to elect to be tried by judge and jury and the effective shifting of this choice from the accused to the Crown. I don't think we've heard that before.

Well, if I may, so what? I understand the accused would lose that choice, but isn't it arguably in his or her best interest to go to a trial with a lower maximum penalty? If the person were to be tried by a jury in a higher court, they would likely be gambling on a harsher penalty. Is that a fair comment?

[Markita Kaulius, President, Families For Justice]

Good afternoon. Thank you for inviting me to be here today.

The federal government is proposing changes to reduce penalties for many serious crimes in Canada. The proposed changes are part of Bill C-75, which contains more than 300 pages of sweeping changes to the Criminal Code of Canada. Some of the proposed changes are to offences that include acts related to terrorism, assaults, impaired driving, arson, human trafficking and much more. These lower sentences send the wrong message to criminals, victims, law-abiding Canadians and society.

For summary convictions that fall under the jurisdiction of the federal government, section 787 of the Criminal Code of Canada specifies that unless another punishment is provided for by law, the maximum penalty for a summary conviction is a sentence of six months of imprisonment, a fine of $5,000 or both.

We need to have effective deterrents in place that will actually deter these crimes from occurring. If and when they do occur, tough punishments must be in place so that individuals who break the law will be held accountable.

The justice minister says that Bill C-75 will improve the efficiency of the criminal justice system and reduce court delays, strengthen the response to domestic violence, streamline bail hearings and free up court resources by reclassifying serious offences.

Sadly, according to the legal community, this bill will not achieve any of those objectives. Under Bill C-75, the Liberal government has provided the option to proceed with a large number of violent offences by way of a summary conviction rather than indictable offences. This means that the violent criminals may receive no more than six months in jail, or a fine, after committing a serious crime.

Many who commit crimes already get a slap on the wrist for things like obstructing justice, assault with a weapon, abduction, participating in organized crime, impaired driving, and drug trafficking. These are all serious offences. Allowing these criminals back onto the streets with little to no deterrence makes even less sense. Canadians expect this government and our criminal justice system to be there to ensure that public safety is a priority and that criminals receive punishment for the crimes they commit. Public safety and national security should be top priorities for this government. While the Liberal government has said that public safety is a priority, this bill fails the test to keep Canadians safe.

Police officers will likely see themselves arresting the same people over and over again as criminals get lighter sentences in provincial courts or fines for summary convictions. We already have a problem with repeat offenders committing crimes over and over again in communities across Canada, and therefore the backlog will move from the courts to the policing community and back to the courts.

Bill C-75 is a terrible bill for victims and for public safety. We have criminals accused of horrendous crimes, including murder, incest and drug trafficking, who have had their charges dropped because of delays in the courtroom. These charges should never be dropped when a crime has been committed. The accused should still stand trial and not be released or have their charges dropped because it took too long to get to trial. This proves again that in Canada criminals have more rights than the victims.

The federal government needs to make changes to the laws, but please don't sacrifice appropriate sentencing just to speed up the court process by giving lower or no sentences in court cases.

The biggest red flag in this legalization is the hybridization of many indictable-only offences done by adding summary convictions as a sentencing option. Some serious crimes deserve serious penalties, and many of the crimes are classified as “indictment only” for a reason. They should not be punishable under summary conviction with a mere possible fine. That option should not be included in Bill C-75.

With the Liberal government's legalization of marijuana, Canadians are very concerned about impaired driving and now fear an increase in future drug-related impaired driving injuries and deaths. In Bill C-75, there are four drunk-driving related offences, which all become a summary offence instead of an indictable offence. This includes impaired driving causing bodily harm with a blood alcohol level over the legal limit, failure or refusal to provide a sample with causing bodily harm, and impaired driving causing bodily harm by negligence.

For the past seven years, Families For Justice has been asking for tougher impaired driving laws. In that time period, over 7,000 more innocent Canadians have been killed by impaired drivers. We submitted a petition with over 120,000 names signed by Canadians asking the federal government to implement tougher sentencing laws. Now this government wants to do the exact opposite and make the sentencing a summary offence.

We ask this government to make appropriate changes in the laws in an effort to enhance the criminal justice system while preserving the protection of Canadians. I emphasize “to enhance”, not to just make the system more efficient by speeding up the court process by sending cases to the provincial court level instead of the superior courts.

Although some of the amendments are welcome, others signal a significant shift in our criminal justice system. Change can be good; however, even the smallest change must be implemented towards a goal we all share: maintaining the fine balance between protection of the public and protection of the individual within the system.

We still need to place the rights of innocent victims ahead of offenders committing crimes. Members of the justice and human rights committee, we must not sacrifice one for the other.

Thank you.

[Sheri Arsenault, Director, Alberta, Families For Justice]

First off, I will mention my father George Marrinier. He submitted a brief statement to the committee earlier.

Thanks for the invite to speak today. Everybody here knows my personal tragedy, the horrific death of my son Brad and his two friends. I'm not a legal expert, and I know there are some at this table who are, but where my expertise lies is that I'm a victim. My tragedy alone involved over 30 court dates, and I've spent countless hours in courtrooms supporting victims all over Alberta.

Bill C-75 is an enormous bill, and it's intended to address the Jordan decision to reduce court delays.

I'm speaking specifically today to the reclassification of offences, the hybridization of 136 serious crimes, crimes that are identified as indictable offences such as terrorism, assault with a weapon, arson, advocating genocide, human trafficking, abduction of children, and that's just to name a very few.

The sentences for indictable offences range from two to 10 years, but when changed to summary convictions, sentences would be reduced to a maximum of two years with the real possibility of a mere fine. It's a simple fact that by hybridizing indictable offences sentences would be much more lenient.

With all due respect to our prosecutors, bad decisions on these offences will set precedents and case law. Once precedent is set for lower sentences regarding serious crimes, our justice system goes officially backwards. This would weaken public confidence in our justice system and it would also be a colossal change that would take decades to correct.

Bill C-75 also proposes to reduce impaired driving causing bodily harm, refusing to blow, and blood alcohol over the legal limit causing bodily harm from indictable offences to summary conviction.

Why would this government, which just recently passed Bill C-46, which increased penalties for dangerous driving causing bodily harm from 10 to 14 years, now be weakening penalties for impaired driving causing bodily harm?

This government bill is telling Canadians loud and clear that impaired driving is not considered serious and, in fact, it's not even considered dangerous. As a victim and a voice for thousands of victimized families, I find that our government, instead of improving the Criminal Code by holding offenders accountable for serious offences, would be reducing and watering down penalties.

To reduce these offences to summary convictions sends an unthinkable message to victims and the general public, and it holds absolutely no accountability or responsibility to the offenders. When it comes to impaired driving, this bill is taking Canada's justice system 10 steps backwards.

We're all aware there's a high percentage of serious criminal cases before our courts, and that is troubling to everyone, but it's not because of inappropriate laws. It's more likely because of other government priorities. If more resources are allocated to our justice system, the prosecution of offenders could be much more timely.

It's beyond my comprehension as to how transferring indictable offences, which currently have a 30-month timeline, to summary offences, which only have an 18-month timeline, would help address the Jordan decision. Our already congested provincial courts' overworked prosecutors would be burdened with a greater number of cases and required to act in a much shorter time frame. As a result, many more lenient plea deals will occur and even more offenders will walk free.

The impact this bill would have on our overall justice system is unbelievable when applied to all 136 indictable offences. All crimes should be treated the same throughout the population regardless of race, religion, ethnic origin, age, gender, economic or social status. Judges, not prosecutors, are best to judge sentencing options, making adjustments for mitigating and aggregating factors, Gladue reports, etc.

Two of the most important sentencing principles are being ignored: deterrents, general and specific; and rehabilitation. The opportunity for rehabilitation of criminals, especially for substance abuse, will almost be non-existent. There would simply be no time with summary convictions.

To me, that would add to the revolving door and create even more victims, and it would crush existing victims. Clearing up the backlog in the criminal justice system should never be done at the expense of victims and public safety. Criminals should never take precedence over victims. It's the victims and law-abiding citizens who will suffer, certainly not the offenders.

[Ali Ehsassi]

I am here this afternoon in my capacity as chair of the All-Party Parliamentary Group for the Prevention of Genocide and other Crimes against Humanity, hereafter referred to as GPG. I am here to discuss Bill C-75, in particular, the hybridization aspects of the bill impacting subsection 318(1) of the Criminal Code, incitement to genocide.

Before I continue I should stress that while I am here in my capacity as chair of the GPG, my views do not necessarily reflect the views of the GPG as a whole, nor the views of its individual members.

I also believe that a brief summary of the GPG's history, operations and mandate will provide some context to our approach to Bill C-75 and subsection 318(1) of the Criminal Code.

The GPG was founded in 2006 by Senator Roméo Dallaire to provide members of Parliament and senators with a non-partisan forum for co-operation on issues of pressing humanitarian concern. Currently comprised of 36 members from across party lines, the GPG works to inform parliamentarians about ongoing conflicts, and through close collaboration with partners, experts and stakeholders, crafts strategies to help prevent genocide and crimes against humanity.

Since its inception the GPG has conducted studies and meetings on humanitarian crises in Burundi, Darfur, the DRC, Myanmar and Yemen, and it has established close working relationships with Amnesty International, the Montreal Institute for Genocide and Human Rights Studies, the Stanley Foundation, the Roméo Dallaire Child Soldiers Initiative and the Digital Mass Atrocity Prevention Lab, to name a few.

The GPG, in other words, has largely been a forward-looking and globally oriented institution. The fields of human security, human rights and atrocity prevention have always, rightly or wrongly, been largely oriented toward studies of foreign policy and related fields such as security studies, international law, international trade and international development. It is somewhat unusual, therefore, that our group has been asked to comment on what is essentially domestic legislation and jurisprudence.

However, the changes in proposed section 318 of Bill C-75 clearly relate to domestic genocide prevention and incitement to hatred laws. Although such relatively minor modifications constitute only a small part of the sweeping changes included in Bill C-75, we have a duty to examine the potential impact and side effects. Moreover, given the leadership role Canada has always observed in matters of human rights and genocide prevention, it is imperative that our laws relating to genocide and atrocity prevention remain second to none.

As you are aware, Bill C-75 seeks to modify the wording of subsection 318(1). The existing wording of the section reads:

Every one who advocates or promotes genocide is guilty of an indictable offence and liable to imprisonment for a term not exceeding five years.

The proposed revised wording would read:

Every person who advocates or promotes genocide is guilty of

(a) an indictable offence and liable to imprisonment for a term of not more than five years; or

(b) an offence punishable on summary conviction.

These changes are part of the hybridization efforts included in Bill C-75, which I broadly support, and which seeks to improve access to justice by giving the Crown the necessary discretion to elect the most efficient mode of prosecution evaluated on a case-by-case basis. Hybridization will reduce court time consumed by less serious offences while freeing up limited resources for more serious offences. Of course there are few offences more serious than advocating genocide, which is why these amendments must be taken very seriously.

The first of these changes, which substitutes “every one” with “every person” appears multiple times in Bill C-75 and merely appears to be part of a broader effort to modernize the language in the Criminal Code. It is difficult to see how this change would have any impact on Canada's genocide prevention regime.

The second and more substantive change seeks to hybridize incitement to genocide as punishable via summary conviction. This change, which represents one of approximately 170 clauses in the Criminal Code being hybridized or reclassified, will allow prosecutors to pursue summary convictions for offences that would have a shorter sentence.

The proposal hybridizes all straight indictable offences punishable by a maximum penalty of 10 years or less, which is why clause 318 was captured. It also increases the default maximum penalty to two years less a day of imprisonment for all summary offences and extends the limitation period for all summary conviction offences to 12 months from the current six months.

It is important to note that subsection 318(1) has rarely been invoked in Canadian courts. The practical impact of this modification may ultimately prove negligible. However, given the extremely serious nature of the issue at hand, as well as Canada's moral obligation to serve as a leader in the field of genocide prevention, this committee should support an amendment to Bill C-75 ensuring that incitement to genocide provisions are not included within the otherwise prudent attempts at hybridization and reclassification.

Moreover, there is precedent within this bill for not hybridizing specific elements of the Criminal Code. Offences that would be repealed in Bill C-39 and Bill C-51 are excluded from the hybridization process. Furthermore, nine other indictable offences that are currently punishable under mandatory minimum penalties would not be hybridized either.

To be more specific, I'm referring here to subsection 92(3), which relates to possession of firearms, knowing possession is unauthorized; section 99, which relates to weapons trafficking; section 100, which relates to possession for purposes of weapons trafficking; section 103, importing and exporting firearms; section 202, relating to bookmaking; section 203, placing bets on behalf of others; section 279.03, which relates to withholding documents; section 286, which relates to purchasing sexual services; and lastly section 467, which relates to the recruitment of criminal organizations.

Therefore, given both the practical importance and symbolic value of subsection 318(1), we feel that this section should be included amongst the carve-outs referenced above. The fact that section 318 has almost never been invoked in Canadian courts is a testament to our tremendous good fortune and our dedication to diversity, human rights and human security. This good fortune has allowed Canada to serve as a global beacon for genocide prevention efforts. While I have every faith that Canada will continue in this noble tradition regardless of the outcome of Bill C-75, amending the legislation before us to ensure that genocide advocacy remains an indictable offence would once again send a clear message that this heinous act is incompatible with Canadian values.

I thank you for your consideration of this matter. I look forward to any questions you may have.

[Emilie Taman, Lawyer, As an Individual]

Thank you, Mr. Chair.

My name is Emilie Taman. I'm a lawyer with expertise in criminal law. I have worked as legal counsel at the Supreme Court of Canada, as a federal prosecutor at the Public Prosecution Service of Canada for eight years, and for the last two years I have been teaching criminal law and advanced evidence to students at the University of Ottawa's common law section of the faculty of law.

I want to open by saying I cannot agree more with Professor Parkes in particular in her assessment of the need for comprehensive criminal justice reform.

My personal view is that re-establishment of a federal law reform commission is something that should be very seriously considered and pursued by this Parliament. I have a written brief that will make it to you shortly, but I did circulate a chart, which is in both official languages. I likewise have three main concerns when it comes to the reclassification of offences and the so-called hybridization of offences in Bill C-75.

I think it's important, though, that the members of this committee understand the consequences of a summary conviction versus indictable offences and the various discretionary choices conferred on both the Crown and the accused depending on the nature of the offence. I'm going to take most of my time today on that. I would, of course, very much echo the concerns in relation to access to justice by virtue of the raising of the ceiling for summary conviction offences by default to two years. Also I am very skeptical about whether this hybridization will have the desired impact of enhancing efficiency or expediency in the criminal justice process.

I would just put on my law teacher hat here and ask you to turn your attention briefly to what's noted as appendix A, which is an appendix to my brief, which you don't yet have. It attempts in a very clumsy way, given my lack of expertise with any kind of graphic design, to explain a little bit about the consequences of hybridization.

Essentially in the Criminal Code you have, generally speaking, three kinds of offences. You have what we would refer to as straight summary conviction offences. Those are statutory offences that can proceed only by way of summary conviction. On the other hand, you have what we would call straight indictable offences. Those would be statutory indictable offences. Then there are a large number of offences that we refer to as hybrid offences. Those are offences that can proceed either by way of summary conviction or indictably. The question as to which of the two ways hybrid offences will proceed is really all about the exercise of prosecutorial discretion. Early in the proceedings when it comes to hybrid offences, the Crown is asked to elect whether the matter will proceed summarily or by indictment. You see that with the green arrows in the chart, which are my attempt to show you the Crown's elective options.

Summary conviction offences all proceed in provincial court. If it's a straight summary offence, it goes to provincial court. If it's a hybrid offence in relation to which the Crown has elected to proceed summarily, it likewise can go only into the provincial court and the accused has no election in that regard.

On the other hand, in straight indictable offences or hybrid offences in relation to which the Crown has elected to proceed by indictment, the accused as a general rule can make one of three elections. The accused may elect to have his or her trial proceed in provincial court with a judge alone, because there are no juries in provincial court, or the accused can elect to have his or her trial in superior court presided over by a judge alone. The third option is that the trial can proceed in superior court with a judge and jury.

There are two statutory exceptions to the accused election set out in sections 553 and 469 of the code. Those are very limited exceptions. Certain enumerated offences do fall within the absolute jurisdiction of one court or the other. What I want to highlight here is the impact that hybridizing a large number—136 straight indictable offences—will have in particular when it comes to the accused's right to elect to be tried by jury.

As it stands with these 136 offences, because they are straight indictable, the choice lies wholly with the accused. I really want to underscore that it is common for accused to elect to be tried in provincial court. I wasn't, unfortunately, able to find the exact numbers on that, but I just want to make sure this committee understands that it is not presently the case that all indictable offences proceed in superior court. In fact, a significant number proceed by trial in provincial court.

By taking these 136 offences and making them hybrid, the Crown will now have a very important role to play in relation to the question of whether an accused can exercise his right to a trial by jury. If the Crown should elect at the outset to proceed summarily, the accused loses the ability to elect to have a trial by jury. This is something—again I don't know if this is an intended consequence or if it's an unintended consequence—that I do think is significant. I want to make sure that the committee fully understands that.

I am very concerned any time we take discretion away from a judge and put it in the hands of the Crown. Likewise, here we're taking a choice from the accused and at the outset conferring that decision on the Crown as to whether the accused will even be legally able to elect to be tried by a jury. The exercise of prosecutorial discretion is almost completely lacking in transparency and is not subject to review except at the very high bar of abuse of process.

I want to be clear in saying that this does not give rise to a technical breach of paragraph 11(f) of the Charter of Rights and Freedoms, which is the constitutionally protected right to trial by jury, because paragraph 11(f) is only triggered in the context of offences punishable by five years or more. In hybridizing these offences—offences that currently, as Professor Parkes noted, have statutory maximums of two, five, or 10 years—when the Crown elects to proceed summarily, by virtue of the new default maximum for summary conviction offences being raised to two years, the constitutional right will not, technically, be engaged. But it is the case that, for someone charged before this bill and someone charged after this bill with the same offence in the same circumstances, one of those accused will have the right to elect to be tried by judge and jury, and the other, in the case where the Crown elects to proceed summarily, will no longer be able to exercise that, at least, statutory right. It is an important consequence I want to highlight.

One other thing I want to briefly note about the impact of raising the statutory ceiling, the maximum penalty for summary conviction offences from six months to two years, is that it's important to understand that, as things stand, it is not the case that all summary conviction offences are punishable by a maximum of six months. That is the statutory default, but there are a number of offences, including assault causing bodily harm and sexual assault, for which, even where the Crown proceeds summarily, there is a statutory maximum of 18 months.

The effect of that, and I just want to build on what my colleagues from the student legal aid clinics were noting, is that currently, students and other agents—and it should be noted that a significant number of agents are neither law students nor articling students but paralegals and others—are currently authorized to defend persons charged with offences carrying a maximum punishment of up to six months, that is, not all summary conviction offences. That's why I would be concerned about attempting to address this, I think, unintended consequence of the bill by simply saying that agents can do all summary conviction offences.

The effect of proceeding that way would significantly expand the offences that can be defended by students and agents, and I think there are concerns there. As far as remedies for that go, I would certainly be more on the side of Legal Aid Ontario's submission to have a schedule of offences that would be excluded from agent representation.

I've made some other points in my brief, which will be forwarded to you, but I'll leave it there for now. Thank you.

[Debra Parkes, Professor and Chair in Feminist Legal Studies, Peter A. Allard School of Law, University of British Columbia, As an Individual]

Thank you, and thank you for the opportunity to speak with you today.

I'm a professor in the Peter A. Allard School of Law at the University of British Columbia, where I hold the chair in feminist legal studies. My expertise is in criminal and constitutional law, with a focus on sentencing and imprisonment. I've published extensively on these issues, particularly with respect to the imprisonment of women and the growing overrepresentation of indigenous women in Canada's criminal and correctional systems.

Women are the fastest-growing prison population in Canada, and within that, indigenous women's imprisonment is growing at a truly alarming rate. This year, fully 40% of the women in federal prisons are indigenous. This percentage has gone up every year in the last decade. In provinces such as Manitoba, where I lived for 15 years until 2016, the rate of provincial incarceration for women increased by nearly 300% in the preceding decade.

I've been invited to present on the hybridization changes proposed in Bill C-75. These are the more than a hundred offences that are currently indictable with maximum punishments of either 10, five or two years. This bill would make them hybrid so that the Crown could proceed either summarily or by indictment.

Significantly, the bill also increases the maximum sentence for summary conviction offences to two years less a day from six months. The assumption underlying this change, as I understand it, is that it will make the prosecution of crime more efficient and timely, thereby responding to the constitutional issues and unreasonable delay identified by the Supreme Court of Canada in the Jordan and Cody decisions.

In addition to the backlog and delays in processing criminal matters, though, there is a crisis in our provincial and territorial correctional centres. The remand population—those awaiting trial—has grown explosively. Before 2004, the number of sentenced prisoners in provincial and territorial custody was consistently larger than the remand population. However, since that time, the remand population has been growing steadily to the point where prisoners on remand substantially outnumber sentenced prisoners. Again, in Manitoba, where I lived until very recently, 68% of all provincial prisoners are on remand. There are similar numbers in other provinces: 72% in Alberta, 70% in Ontario, etc.

The same 2016-17 statistics show that most adults committed to provincial custody spend less than one month there. Fifty-five per cent of men in provincial jail and 69% of women in provincial and territorial custody spend less than a month. This widespread and short-term use of detention does not promote public safety.

Of particular concern to me in my research is that those in remand or on short sentences in provincial and territorial jails include increasing numbers of women, many of whom are mothers. In addition to the evidence of harm done to children whenever a parent, particularly a mother, is incarcerated, there is considerable research about the profound, negative impact of short-term imprisonment, whether for remand or sentence, particularly to women. A short period in prison for many women usually triggers other significant life events that often spiral the women back into prison—they lose their rental suites, their kids are taken into care and they have a much more difficult time avoiding further criminalization.

Indigenous and racialized accused, those with mental health issues and addiction, and those who are homeless are the people who are filling provincial and territorial jails and remand centres.

Some of the changes that are being contemplated in this bill address bail and administration of justice offences. I'm not speaking to those today, but particularly with respect to bail, I do want to commend to you the submissions of Professor Marie-Eve Sylvestre of the University of Ottawa. Her submissions on the bail system are urgently needed to revise this bill and to make it actually address that issue.

With respect to hybridization, which I've been asked to present on, I'll make three points today. First, despite their good intentions, these changes are not likely to achieve the goal of bringing greater efficiency and fairness to our system. Second, these changes will have unintended negative consequences. Third, what is urgently needed is comprehensive criminal justice reform, and particularly sentencing reform.

With respect to the changes' not achieving their objectives of efficiency and timely trials, the vast majority of cases are already heard in provincial court. An astounding 99.6% are heard in provincial court and only 0.4% in superior court according to 2015-16 StatsCan statistics. Therefore, this change will not have the desired effect, but will have some negative unintended consequences, which I'll turn to now.

With regard to hybridization specifically, hybridizing offences effectively sweeps away important procedural protections. I believe Ms. Taman will be speaking to some of the ways that the Crown and accused elections work, and to the implications for accused persons, so I won't spend time on that.

As for the accompanying raising of the maximum sentence for summary conviction offences to two years, there are important access to justice issues that resolve from this change, and you have just heard about the issues around student representation. My greatest concern with respect to this change is that it will have an inflationary effect on sentences generally in the form of sentence creep. This is a phenomenon documented across many jurisdictions that have increased maximum sentences and even more so when you also have mandatory sentences, as we do in relation to a number of offences.

When there is sentencing room available—increasing the ceiling, and the floor, in some cases—it gets used. The increase in the maximum sentence for summary convictions to two years will also likely have disproportionate effects on women, who represent a small proportion overall of accused persons but are overrepresented among those accused of summary conviction offences, particularly property crimes such as theft under $5,000 and various fraud charges. Women are 37% of theft under charges and 33% of fraud.

There is also a very good reason to be concerned that this change will exacerbate the over-incarceration of indigenous people in prison—jail and remand—rather than alleviate it. Research shows that indigenous people are less likely than other accused to benefit from prosecutorial discretion. Research shows that indigenous people are also more likely to plead guilty than non-indigenous accused for a variety of reasons. There are also potentially drastic implications for foreign nationals and permanent residents, which I don't have time to go into in my time today, with respect to raising the summary conviction cap to two years less a day, from six months, because of the removal provisions in the Immigration and Refugee Protection Act.

In the few minutes I hope I have left I'll speak to my final point, which is that what is urgently needed is comprehensive criminal justice reform and, particularly, sentencing reform.

In recent decades, Parliament has made piecemeal changes to the Criminal Code that have massively increased the number of mandatory minimum sentences and restricted the availability of conditional sentences served in the community. This bill does not speak to that and it needs to—or our reforms need to speak to that.

We've seen a ratcheting up of the average sentence length for many offences, a massive growth in the overrepresentation of indigenous people in prison and jail, overwhelming evidence of our increasing use of imprisonment to address social problems as not delivering on the promise of public safety. Band-aids and piecemeal changes will not cut it. Increasing the maximum sentence for summary conviction offences certainly will not help. It only contributes to the ratcheting up and sentence creep. I urge this committee to recommend against any measures in the bill that would amount to increasing sentences or contribute to remand populations going up.

Beyond that, I urge this committee to recommend sentencing reform on an urgent basis. This includes eliminating mandatory minimum penalties and revisiting now discredited principles of sentencing such as deterrence. The evidence simply doesn't show that sentencing severity actually deters people.

There are also many upstream changes that could be undertaken without actual legislative reform. The federal government could work with provinces to change charging policies and culture, which is what was at issue in many ways in the Supreme Court's opinion in Jordan, to meaningfully invest in diversion programs and indigenous justice initiatives, and to substantially invest in housing, community mental health care and other government services that would decrease the number of people coming into contact with the justice system.

Thank you.

[Suzanne Johnson, Representative, Student Legal Aid Services Societies]

Thank you, Lisa.

Finally, it's our submission that the justice system benefits from our programs. Although the number of clients we represent may seem a drop in the bucket compared to the total number of people in Ontario facing summary conviction charges, our clients, as we've already discussed, are the most vulnerable and the hardest to serve in the system.

Our clients miss court dates because they are homeless and can't keep track of their dates, or because they will lose their jobs if they take time off. Our clients agree to release conditions that they don't understand and can't comply with because no one has taken the time to properly explain the conditions to them. That then sets them up for further charges. Our clients take pleas without appreciating the full impact of the convictions on their other legal matters, jeopardizing their future employability prospects and sometimes even their ability to stay in Canada.

Forcing people who are incapable of meaningfully understanding the process to represent themselves brings the administration of justice into disrepute. It also grinds the mechanism of the criminal law system to a very slow pace.

Moving ahead with the bill as drafted will increase the number of self-represented litigants in court. This flies directly in the face of the stated legislative purpose of Bill C-75. One of the purposes is to reduce the chronic and systemic delays that have plagued the criminal courts. It also contradicts the committee's recommendation in the recent report on legal aid, “Access to Justice Part 2: Legal Aid”, which was introduced in October 2017. In that report, recommendation number five talked about recognizing the untapped potential of law students in increasing access to justice.

We acknowledge that section 802.1 of the Criminal Code leaves open the possibility that the provincial and territorial governments can step in and enact orders in council that would preserve the ability of law students to assist on summary conviction matters, but there are no guarantees that the other provinces and territories will do so. Delegating the issue to the provincial governments to fix will likely result in inequitable access to representation across the country.

This bill created this issue, and this bill should be amended to fix it.

In our submission, the easiest way to do so would be to introduce a parallel amendment to section 802.1 that would preserve the ability of law students. As you know, on page eight of our brief, we've drafted a recommendation of how it could be amended. Alternatively, we support Legal Aid Ontario's recommendation that section 802.1 be amended to include a schedule of the most serious summary conviction offences for which agents would not be permitted to appear.

Thank you, members of the committee, for the opportunity to address you on this important issue. Subject to any questions, those are our submissions.

[Douglas D. Ferguson]

Mr. Chair, we would like to thank the committee for this opportunity to appear today.

As you mentioned, sir, my colleagues are with me: Lisa Cirillo, from Downtown Legal Services at the University of Toronto; and right next to me is Suzanne Johnson, from the community and legal aid services program at Osgoode Hall Law School.

We are here today representing the community of student legal aid service societies. The SLASS clinics, as we are called, are partnerships between Legal Aid Ontario and the Ontario law schools. Programs have a dual mandate to provide free legal services to low-income persons in the community and experiential learning opportunities for law students.

We have filed a written brief with the committee, which you should have received earlier, that outlines our concerns in detail. We know that you have heard from a number of our colleagues on this issue, including our national clinical association called ACCLE, and Ms. Overholt from the Windsor SLASS clinic.

As the committee is aware, Bill C-75 does not directly address our programs, but in purporting to raise the maximum penalty for all summary conviction offences, it triggers the application of section 802.1 of the code. That section prohibits agents from appearing on charges where the possible sentence is greater than six months. Agents, in this sense, include our law students and articling students. If enacted as currently drafted, Bill C-75 will eliminate legal education programs across the country and, more importantly, will cut off access to representation for some of the most vulnerable criminal accused.

Given this government's stated commitment to improving access to justice for vulnerable Canadians, we don't believe that these consequences were intended. We urge the committee to revise the bill now so as to avoid these devastating results and not take a step backwards.

Clinical legal education programs like the SLASS clinics are a small but critical piece of the access to justice puzzle. These programs benefit, first our clients, secondly our students, and thirdly the justice system itself.

[The Chair, Liberal, Anthony Housefather]

Good afternoon, everyone. It is a pleasure to call this meeting of the Standing Committee on Justice and Human Rights to order as we continue our study of Bill C-75.

It is a pleasure to be joined by some distinguished witnesses on our panel, so let me introduce them. By teleconference, we have Ms. Debra Parkes, Professor and Chair in Feminist Legal Studies at the University of British Columbia. Welcome, Ms. Parkes.

We have with us today, Emilie Taman, who is an attorney. Welcome, Ms. Taman.

From the All-Party Parliamentary Group for the Prevention of Genocide and other Crimes against Humanity, we have our colleague Mr. Ali Ehsassi, who is the chair. Welcome, Mr. Ehsassi, in a different seat.

With respect to Families for Justice, we have with us Ms. Sheri Arsenault, Mr. George Marrinier, and by video conference, we have Ms. Markita Kaulius, who is the president. Welcome.

With the Student Legal Aid Services Societies, we have Ms. Lisa Cirillo, Ms. Suzanne Johnson, and Mr. Douglas Ferguson. Welcome.

My understanding is that Mr. Ferguson needs to catch a flight and you would like to go first.

Is that correct?

[Julia Beazley, Director, Public Policy, Evangelical Fellowship of Canada]

Thank you, Mr. Chair and members of the committee, for the opportunity to participate in this study.

The Evangelical Fellowship of Canada is the national association of evangelical Christians in Canada. Our affiliates include 45 denominations, more than 65 ministry organizations and 35 post-secondary institutions. Established in 1964, EFC provides a national forum for Canada's four million evangelicals and a constructive voice for biblical principles in life and society.

Our approach to the issues we will address in Bill C-75 is based on biblical principles that teach respect for human life and dignity, care for the vulnerable, and freedom of religion, principles that are also reflected in Canadian law and policy.

Bill C-75 proposes a significant number of changes to the Criminal Code, including the hybridization of a number of Criminal Code offences. This would allow, as you know, some serious indictable offences to be treated as relatively minor summary offences at the discretion of the Crown. It's on this element of the bill that I have been asked to provide comments. Our concerns in this regard are limited to a few key areas.

Criminal laws give expression to the norms that undergird a society. They both express and reinforce the basic commitments that bind a society together. It is often said that the law is a teacher. Amendments to the Criminal Code can signal or imply a shift in our society's core principles or their interpretation, which is sometimes appropriate, but this also means we must carefully consider the implications of any changes we make.

The categorization of a criminal offence tends to indicate the seriousness of the conduct it addresses. Hybridization suggests that an offence can now be considered less of a violation of human dignity, less of a threat to society or social cohesion, and less harmful to the vulnerable among us. Respectfully, we submit that to hybridize some of the offences proposed in this bill would send the wrong message. We understand that one of the objectives of hybridization is to reduce delays in the criminal justice system, but to paraphrase what Mr. Geoff Cowper told this committee last week, our goal should be not to reduce delays but to deliver justice in a timely way that's responsive to the public interest, to the needs of the victim and to the community generally.

When Bill C-75 proposes a greater maximum penalty for repeated intimate partner violence—and I hear the concerns of my co-panellists about recidivism—this communicates that this is an offence the government considers to be very serious, that violence is unacceptable and is to be deterred with severe penalty. This is a good message.

Conversely, when the bill proposed to hybridize offences related to human trafficking, sexual exploitation, or the assault of religious officiants, it sends the message, whether intended or not, that these offences are of lesser concern. Bill C-75 proposes to hybridize subsection 176(1) of the Criminal Code, which deals with obstructing or violence to an officiating clergy. Obstructing or assaulting a religious official who is about to perform religious duties strikes directly at the heart of religious belief and practice. Religious officials are not merely acting as individuals when they're carrying out their religious duties; they are representatives of the broader community of faith.

Last year, more than 65 interfaith leaders wrote to the Minister of Justice expressing our deep concern with the repeal of the section 176 protections that were proposed in Bill C-51. We wrote, “The deliberate assault of a religious official outside a house of worship is a different kind of offence from other public disturbances, assaults, threats or incitement to hatred. An offence against a people at worship reverberates through the community and touches every member.”

Offences against religious officials and people at worship are unique in character, in significance and in motivation, and in a climate of increasing incidence of hate, specifically at and against places of worship, we believe it's essential to maintain the focused protection that section 176 offers religious leaders. We are grateful that this committee heard the concerns of religious Canadians and recommended that section 176 not be repealed but instead be revised to be more inclusive of all religious officials. We ask the committee, in keeping with that same understanding and responsiveness to the concerns of religious Canadians, to recommend that this offence not be hybridized in Bill C-75.

You heard compelling testimony last night of the realities of human trafficking and all forms of sexual exploitation, and the devastating impact of these crimes on their victims. These crimes constitute a grave violation of human rights, including the rights of women and children to live free from violence, and it's essential that the gravity of these offences be consistently reflected in our laws and policies. We know and have known for years that in Canada it is mainly Canadian women and girls who are trafficked, and they're being trafficked into the commercial sex trade.

Ninety-five per cent of all cases in Canada in which trafficking charges have been laid in the last 12 years were domestic and primarily involved sexual exploitation. StatsCan's latest report says that 95% of trafficking victims are female, 72% are under the age of 25 and one in four victims is under the age of 18.

We're pleased that this government is taking action on human trafficking and is consulting on the development of the new national action plan. We're also eagerly awaiting this committee's report out of its study on human trafficking.

We're disappointed that Bill C-75 proposes to hybridize certain offences related to human trafficking and sexual exploitation. These other initiatives demonstrate that this government rightly considers these crimes to be worthy of significant legislative and policy focus, but the proposed hybridization of related offences seems to send a conflicting message.

In particular, we note the bill's hybridization of the following:

The first is section 210 on keeping a common bawdy house. This provision allows law enforcement to address the ownership and operation of brothels, which are often loosely disguised as spas, holistic centres or massage parlours, in which individuals are frequently held, exploited or trafficked. The naming and continued inclusion in the Criminal Code of such a place is significant, because the existence and operation of these places can legitimize the hold, power and influence of a pimp, trafficker or exploiter over the exploited.

As I was preparing for this, I spoke with a friend and colleague who has first-hand experiential knowledge of how these facilities operate. She explained that pimps and traffickers use places like holistic centres and massage parlours with the full knowledge of the owner, and that placing their girls in a licensed facility legitimizes the pimp or trafficker as part of a business. Individuals who use these places to exploit do so with intention, forethought and planning.

The exploitation that occurs in these facilities is rampant. We need access points to these places, and we need to be careful that we don't limit or restrict the ability of law enforcement to monitor, to search and to prosecute where needed.

Rather than repealing this section, as some have called for, or hybridizing it, as this bill does, we suggest the committee consider clarifying the definition of “bawdy house” in the Criminal Code. The current definition is imprecise, and that imprecision actually cloaks the exploitation that concerns us. We would support a definition which makes it clear that the offence targets situations of sexual exploitation where individuals are held, kept or exploited in a place where someone else is in control of their movement, their activity and quite often their finances.

Next are subsection 279.02(1), on material benefit with trafficking, and subsection 279.03(1), on withholding or destroying documents. These offences as they relate to the trafficking of a person under the age of 18 remain indictable. Our laws rightfully extend particular protections to children who are uniquely vulnerable in a number of ways.

However, this bill would hybridize these same offences as they relate to adult victims. This is problematic because exploited adults are quite often just exploited children who happen to turn 18. In fact, often the only thing about their circumstances that has changed is that they are now 18 and the severity of the abuse they have suffered or continue to suffer does not lessen when they turn 18.

Victims who become adults in the eyes of the law may already feel a bit left behind, because the system offers them fewer supports and services and treats the crimes committed against them as less serious. I would argue that even in cases where the exploitation begins or occurs when the victim is an adult, we do not want to send the message that this conduct is less serious. Human trafficking and the criminal offences associated with it must be considered very serious and be dealt with accordingly. As such, we recommend that these offences not be hybridized.

Finally, we have subsection 286.2(1), on material benefit from sexual services. This provision is clearly aimed at and I suspect applied almost exclusively to individuals who are benefiting, as the law says, from the sale of someone else's sexual services. It is clear that what the current laws aim to do is prevent the exploitation of one individual by another.

This offence and others covered by the Protection of Communities and Exploited Persons Act should not be hybridized. This act established an incredibly important shift in how our country addresses prostitution. It refocused our laws on the buyers and those who profit from exploitation while decriminalizing those who are selling or being sold. We believe these laws are a critical tool in the fight against trafficking and sexual exploitation because they seek to curb the demand for paid sexual services, which is what fuels sex trafficking and funnels women into prostitution.

The act has a mandatory five-year review built in. We strongly recommend that the government keep the current prostitution laws in place as they are, and that when that five-year mark is reached it conduct a thorough review of the laws and their effectiveness in order to determine how they may be strengthened or improved, with the clear objective of eliminating sexual exploitation.

Thank you.

[Maureen Basnicki, As an Individual]

Good evening, and thank you for your invitation to discuss Bill C-75.

My name is Maureen Basnicki. I am the co-founder of the Canadian Coalition Against Terror. I'm also the founder of the Canadian National Day of Service Foundation.

Over the years, I've had the opportunity to address both House and Senate committees re many topics concerning terrorism, counterterrorism initiatives, and advocating for victims of violent crime, which includes Canadians victimized by terrorists. I was one of the original recipients of the Queen's Diamond Jubilee Medal for my enduring dialogue on terrorism, and it is through this lens that I'm giving a brief today. I thank you for the opportunity to do so.

On September 11, 2001, my life changed forever when my husband Ken was murdered in the attacks on 9/11. He was a proud Canadian who worked from his home in Toronto. Ken was on his first trip to New York to network for his job. In the aftermath of the horrific attacks, I decided that I wanted to do something to ensure that no family has to go through what mine did, and I shared this with other victims.

I'm a very proud Canadian, as was my late husband Ken. Even though Ken was murdered outside our border, it is important for me to have my country send a proper message to the global community that my Canada will not tolerate anyone, either a Canadian citizen or a citizen from another country, deliberately trying to harm or murder innocent civilians. That is why I co-founded C-CAT, along with my friend and colleague, Danny Eisen. For those of you who are unaware, the Canadian Coalition Against Terror is a non-partisan policy research and advocacy body committed to seeking innovative legal and public policy strategies in the fight against terrorism.

In that context, I would like to speak to you about some of what is contained in this legislation that concerns me greatly.

The government has used the anodyne term “hybridization” to refer to more than a hundred changes they are making to sentencing provisions in the Criminal Code. However, it is clear that what is happening here is simply a reduction in sentences. I would particularly like to speak to clauses 16, 17, and 20 to 23. These are all provisions relating to terrorism.

Currently, providing property or services for terrorist purposes could be punished by up to 10 years in prison. Under this bill, the sentence could be as little as a fine. Currently, using or possessing property for terrorist purposes could be punishable by up to 10 years in prison. Under this bill, the sentence could be as little as a fine. Currently, participation in the activity of a terrorist group could be punishable by up to 10 years in prison. Under this bill, the sentence could be as little as a fine. Currently, participation in terrorist activities could be punishable by up to 10 years in prison. Under this bill, the sentence could be as little as a fine. Currently, leaving Canada to participate in a terrorist activity could be punishable by up to 10 years in prison. Under this bill, the sentence could be as little as a fine. Currently, advocating or promoting terrorism could be punishable by up to five years in prison. Under this bill, the sentence could be as little as a fine. Finally, harbouring a terrorist is currently punishable by up to 10 years in prison. Under this bill, the sentence could be as little as a fine.

The rationale provided by the government has been that there is a need to speed up the court system. On that point, I don't disagree. There are unconscionable delays in prosecuting criminals, and those delays have often led to criminals walking free on a technicality. However, one has to wonder if treating a terrorist in the same manner as someone who got a parking ticket is the best way to fix a broken system. I would say absolutely not. It sends the wrong message to victims and to Canadian society as a whole. It sends the wrong message to other countries and would-be terrorists, either homegrown or from outside our borders.

Terrorists, members of terrorist groups, and those who profit from them should face the full force of the law. I have to wonder, since this government is often very fond of consultation, what groups were asking for this. I can't imagine that any of the members of Parliament on this committee knocked on a single door where someone told them they were concerned the punishment for terrorists was simply too harsh.

I would recommend that this committee repeal all the provisions in this bill that lessen the penalties for terrorists. Unclogging the courts is certainly a noble objective, but there are many better ways to do this than have been attempted here. Victims have an important interest in the criminal justice system that is not delayed. Remedies that emphasize both the rights of the accused and the rights of the victims must be found.

I would like to close by stating Prime Minister Justin Trudeau's words when he was challenged by Canadians across the country with regard to the $10.5-million payout to satisfy the settlement regarding the violation of Omar Khadr's rights. He said:

The measure of a society – a just society – is not whether we stand up for peoples' rights when it is easy or popular to do so, but whether we recognize rights when it is difficult, when it is unpopular.... We are a society that stands up for peoples' rights and when governments fail to respect peoples' rights, we all end up paying and that is the lesson hopefully future governments will draw from this settlement.

I'd like to remind you that it's the safety and security of citizens that is the primary responsibility of our Prime Minister. Ensuring that there are laws and penalties in place that send a strong message of condemnation and act as a deterrent are of vital importance to Canada. I'm a Canadian who has been victimized by terrorism. I join many other victims of violent crime to say that, in our opinion, changing sentencing to minimum time in the case of heinous crimes committed by terrorists, repeat offenders, drunk drivers, etc., lessens the rights of victims.

Justice and accountability are not obtainable for all victims. However, when our security forces do get the perpetrator, I hope that our judicial system delivers the proper sentence that is fair to both the offender and the victim. I want my rights as a Canadian who has been victimized. Please do not decimate our criminal laws. That will send the wrong message.

Thank you, and I'll be pleased to take questions later.

[Nancy Roy, Executive Director, Association des familles de personnes assassinées ou disparues]

Thank you, Mr. Chair.

The Association des familles de personnes assassinées ou disparues is a non-profit organization with activities throughout Quebec. Its core mission is to break the isolation of victims' families by offering various resources and tools to help them rebuild their lives. The AFPAD's core mandate is to assist and support families affected by a homicide or a disappearance with an apparent criminal cause.

Since 2005, we have helped hundreds of individuals affected by a homicide or tragedy, right across Quebec, and helped them receive moral, psychological and legal support after the tragedy, so that they can cope with their loss and resume the course of their life.

The AFPAD wishes to thank the Standing Committee on Legal and Constitutional Affairs for the opportunity to submit our point of view. Making this presentation is very important to the AFPAD, to engage legislators about the fate of victims of crime so that they may in turn broaden the scope of this bill in the interest of victim safety, which is unfortunately severely weakened by the changes proposed therein.

Victims are often forgotten when legislative changes are made. It is not our intention to address all of the points today, but we want to draw your attention to two major points, the first being that we commend and approve the addition of the definition of “intimate partner” to section 2 of the Criminal Code of Canada.

Proposed subclauses 227(3) and 227(6), which amend section 515, introduce what we consider a major change by reversing the burden of proof in conditional release applications when an offender is charged with this type of offence. However, this provision applies only to a repeat offender previously convicted of an offence against an intimate partner. We are very concerned about the concept of a repeat offence, because many of our families have lost a loved one who was killed by an intimate partner, without this necessarily being a repeat offence. Violence between intimate partners is a tricky situation and is often kept quiet and overlooked, which should incite legislators to exercise greater caution toward potential victims and to take political and legal action. What is the opposite of protecting a life? An attacker's choice. This overly cautious interpretation involving repeat offences comes too late in the victim protection process. Those same victims are entitled to the protection established by the Canadian Victims Bill of Rights, so they must claim it. The concept of a repeat offender must be removed to achieve the worthy goal of protecting victims.

The second point that seems important to us is the bill's intent to modernize practices and procedures with regard to interim release. Bill C-75 proposes several changes aimed at modernizing practices and procedures around interim release. The bill reorganizes several provisions and modifies certain procedures to facilitate the quick release of persons charged under the least restrictive conditions according to the circumstances. We do not agree with these principles, which jeopardize the protection of victims. Can you name a single defendant or accused who would admit to the judge that they do not intend to comply with the conditions, however restrictive they are?

The will to reduce delays and administer justice as expeditiously as possible imperils the protection of victims. We are disappointed to see that legislators failed to take the opportunity to protect victims. It seems that the right of the alleged aggressors overrides the protection and safeguarding of a life and the rights granted by the Canadian Victims Bill of Rights. How do you intend to protect these vulnerable victims who are further exposed by this concept of quick release under the least possible constraints? I am worried today, because these victims, unfortunately, did not get a second chance.

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

Thank you, Mr. Chair. I'll direct my first question to Mr. Sewell.

You made reference to different types of routine police evidence. One of the issues with Bill C-75 is that routine police evidence is pretty broad, as it's defined. It includes everything from observations, to identifying or arresting an accused, to the gathering of physical evidence. That doesn't sound to me like routine police evidence. That sounds like it could be the entire case in terms of evidence.

[Joel Hechter, Barrister and Solicitor, As an Individual]

Thank you.

Thanks for inviting me to make these submissions.

These days, it can sometimes feel a bit like the world's going to hell in a handbasket and there's nothing you can do about it. I suspect each of you ran for office because you wanted to do something about it. You want to make things better for your families, just like I do. I'd be a terrible politician, but as a lawyer and a father, I'm here to try to help so that the Canada my son grows up in has the best possible system of criminal justice.

Because I have only a few minutes to address you in these opening submissions, please forgive my bluntness. There are a few good measures in Bill C-75, but much of it, from where I sit, appears arbitrary. I'm very concerned that if it passes in anything close to its current form, it will do far more harm than good, which is really too bad.

In respect of the consultation that's taken place, I have been looking at some of the evidence you guys have already heard, and I've read some of the briefs that have been submitted to the committee. Had this been the process before the bill was tabled, I suspect it would have come out quite differently. The government would have had the benefit of thoughtful submissions from criminal lawyers who spend every day dealing with these issues. Now that it has passed second reading, however, the government has poured a lot of political capital into it, and I worry that despite your commitment to do what is right, what I'm about to say may fall on deaf ears.

My principal recommendation is this: Don't rush this.

When you step back and take a look at this bill from a distance, a pattern emerges. Bill C-75 gives greater discretion to police officers and Crown prosecutors, restricts the discretion available to accused persons and their representatives, and fails to restore the discretion that was taken away from judges by the Harper mandatory minimums.

On that last point, we all know that Senator Kim Pate managed to draft what I think is a fairly simple fix to the mandatory minimums several months ago in Bill S-251. You take out the preamble and the explanatory notes, and that bill's three pages long, including both official languages. It's simple, elegant, drafted to stand the test of time. As you know, a week later, your colleague Sheri Benson, NDP member for Saskatoon West, proposed a similar solution with Bill C-407.

I was really disappointed to see that after nearly three years of studying this issue the government has not tabled anything in this bill to deal with those mandatory minimums. I say this with a bit of sadness, but also with respect. I submit that the government's actions may speak louder than the words they're using to describe this bill. What does this action, this Bill C-75, say? It says that a lot of trust is being reposed in police officers and Crowns, which in certain circumstances is perfectly reasonable.

But let's look at what that actually means. If the bill passes in its current form, officers will have a lot more discretion for dealing with breaches, for example. Permitting officers to give evidence in writing, which Mr. Sewell was just talking about, maybe without even being cross-examined is a breathtaking expression of trust. For their part, Crowns are going to be entrusted to decide what procedural protections are available to accused persons in a much wider scope of cases.

I'm not pulling this trust thing out of thin air. As parliamentary secretary, Mr. Mendicino, who is no longer part of this committee but was until recently, made it clear in the House that Bill C-75 is meant to increase the Crown's ability to exercise informed discretion on a case-by-case basis. That's one big reason why the government is hybridizing so many more offences.

He said this shortly after suggesting in the House of Commons on the same day—and this was June 5, 2018, in response to a question from Elizabeth May about routine police evidence—that defence counsels suffer from bad judgment and quibble over immaterial things.

Now, don't get me wrong. I'm not saying that Crown discretion is a bad thing. We know that Crown discretion is a key part of a properly functioning judicial system, of a criminal justice system. But as the Supreme Court made clear in a case called Bain back in 1992, basic rights cannot depend on the continuous exemplary conduct of the Crown. That case, interestingly enough, was about peremptory challenges and stand-asides. At the time, the Crown had significantly more opportunities to affect jury composition than the defence. The Supreme Court said that this was inconsistent with subsection 11(d) of the charter.

By contrast to all that additional discretion granted to agents of the state, Bill C-75 takes away from my colleagues and me basic tools that we use to ensure that justice is done fairly. Our role as a check against abuse is significantly constrained. To be clear, abuse does sometimes happen. That's why in my brief, which I know you all got this morning and so you may not have had a chance to read it, I recommend enacting a criminal provision prohibiting non-disclosure.

The justifications for this bill that I see in Hansard don't make a lot of sense in a free and democratic society. Take this idea of sparing witnesses from having to testify twice. If you take that to its logical conclusion, complainants would be spared even more if we moved straight from arrest to conviction without the need for a trial. We'd also save a lot of time and a lot of money, but that's not what a fair system of criminal justice does.

If we look south of the border, the United States Supreme Court talked about the need to ensure the integrity of the fact-finding process through things like appropriate cross-examination. This is from a case, Coy v. Iowa, from 1988 in the Supreme Court. It said that while the process “may, unfortunately, upset the truthful rape victim or abused child...by the same token it may [also] confound and undo the false accuser, or reveal the child coached by a malevolent adult.” The court concludes that passage by saying, “It is a truism that constitutional protections have costs.”

Our system of criminal justice is not exactly the same as the Americans', nor should it be, but that case says something universal. We don't have trials because they're convenient. They're not. Nor are they generally much fun for the people involved. They can be expensive and in rare cases they can take a long time.

I can assure you, despite what you may have heard, that the defence bar is not complacent about that. The overwhelming majority of accused persons want the whole process over as quickly as possible, but not at the cost of injustice.

While cases with a preliminary inquiry often do take longer than those without, that's no reason to abolish most preliminary inquiries. It's simply a reflection of the fact that more complex cases tend to be the ones that require prelims to ensure that the subsequent trial is fair. Every Canadian accused of a crime, not just those facing a life sentence, rightly expects to have a fair trial.

Perfection is always going to be unattainable, but procedures that support fair trials are critical to preventing wrongful convictions. In many Canadian criminal cases, a well-conducted prelim is what makes the subsequent trial fair. Cross-examination as a right is a cornerstone of fairness in free and democratic societies around the world, so I urge you to carefully consider the consequences of passing Bill C-75 as is. It will take years of expensive litigation to undo the damage, during which time a number of innocent people will almost certainly lose liberty as a direct result of the bill. Fix it now and you can prevent that.

Thank you.

[The Chair, Liberal, Anthony Housefather]

Hello, colleagues. I want to apologize to our third panel of the day for being late. Votes in the House of Commons sometimes are things we cannot control.

It is a pleasure to welcome our third panel of the day on Bill C-75. We're joined by Mr. Joel Hechter, barrister and solicitor. We're also joined by the Canadian Association of Crown Counsel represented by Mr. Rick Woodburn, president. By video conference from Kelowna, British Columbia, representing the Toronto Police Accountability Coalition, we have Mr. John Sewell.

Welcome.

Mr. Sewell, because you are here by video conference, we're going to you first. You have eight minutes. I turn the floor over to you.