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.

[Prof. Kent Roach]

Exactly. Mr. Rankin, 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.

[Prof. Kent Roach]

Yes.

Bill C-75, as it is, is going to add one more step to it. As I said, I'm very supportive of that, but you like to tinker and make things even better. I think that this one repeal would emphasize that we have to be very careful with plea comprehension to make sure it's voluntary and knowing, and also that there's a factual basis.

[Professor Kent Roach, Prichard and Wilson Chair in Law and Public Policy, University of Toronto, As an Individual]

Thank you very much, Mr. Chair. Thank you to the committee.

I start from the proposition that in 1999, the Supreme Court told us there was a crisis in our justice system when 12% of prisoners were indigenous. The most recent statistics, which are reflected in my brief, suggest that 28% to 30% of custody admissions are indigenous people: 50% of youth and 42% of women. Not only is this overrepresentation, but the murder rate of indigenous people is six times that of other homicide victims. The most serious crimes, those crimes that are most likely to be tried by juries, disproportionately involve indigenous people as accused and victims.

I've been commenting on and writing a book on the Gerald Stanley case as well as the Peter Khill case. Juries are here to stay. They are a symbol of the community that we are, and they are a symbol of the community we want to be. In this vein, I agree with Mr. Kettles that we should abolish peremptory challenges, which were used to exclude five visibly indigenous jurors in Gerald Stanley's case, but we need to do more. We need to do much more.

To that end, I will propose five amendments for the committee to consider. The first is to amend section 629 of the Criminal Code, which is essentially unchanged since 1892, to allow the prosecutor or the Crown to challenge the composition of the panel of prospective jurors, not only on the grounds of partiality, fraud or wilful misconduct, but also, I would propose, on the grounds of significant under-representation of aboriginal people or other disadvantaged groups that are overrepresented in the criminal justice system.

You've heard from the Criminal Lawyers' Association. They also propose a somewhat similar amendment to section 629. Although we don't agree on peremptory challenges, we agree on this issue. This would essentially set a higher standard in the Criminal Code than the Supreme Court had in the 2015 case of Kokopenace. It's well within Parliament's prerogative to set higher standards than the minimum standards that the Supreme Court sets. I would suggest that the Stanley case especially shows us the significant under-representation of indigenous people on our Canadian juries when they are so overrepresented among both accused and victims.

The language there picks up on other parts of Bill C-75, which makes specific reference to indigenous people and other disadvantaged groups that are overrepresented in the criminal justice system. This is not about a perfectly proportionate jury or jury panel that represents all, every personal characteristic, but it's about the people most affected by the criminal justice system.

Second, I would amend the disqualification of jurors, which in Bill C-75 would move from only forever permanently disqualifying those sentenced to two years' imprisonment. Right now it's one year. To me, I think that, for an otherwise qualified juror, it should not matter whether they had been sentenced to any time of imprisonment. Michael Johnston has also submitted a brief to you, and I'm in agreement with it in that respect.

This is in responding to concerns that some defence lawyers have raised about the abolition of peremptory challenges, that they will make our juries less diverse. I take those concerns seriously. I think one way to address that is to allow permanent residents of Canada to serve as jurors. You don't have to be a Canadian citizen to be a lawyer. I think a permanent resident of Canada shows enough attachment. Our jury system is designed so that judges educate jurors about the law.

As Justice Iacobucci discussed, I would also amend section 638 to allow otherwise qualified volunteer jurors from indigenous communities.

Moving on, the third amendment would be to give judges some more guidance and signals from Parliament about the need to screen jurors for racist bias. I propose, in my amendment number three, to amend section 638(b) in a way that is frequently done in the Criminal Code to encourage judges to pay special regard to the dangers of discriminatory stereotypes that may apply to aboriginal accused, witnesses and complainants, and those from other groups that are vulnerable to discrimination and to the difficulties of determining whether a prospective juror would act on discriminatory stereotypes.

I was counsel in the Williams case in 1998 that allowed the one blunt question. I'm a lot older now. Williams was decided in 1998. We know a lot more about racist bias, subconscious bias, implicit bias, but judges have been extremely conservative because of their concerns about efficiency and the privacy of jurors. I think Parliament needs to encourage the judiciary to allow more searching challenges for cause.

The fourth amendment I would propose is to amend section 633 where Bill C-75 will add to the judicial power to stand aside jurors, the ability to stand aside a juror to maintain confidence in the administration of justice. I agree with the Criminal Lawyers' Association that this is too vague as it is currently written, and I propose language with special regard to the fair representation of aboriginal people and other groups overrepresented in the justice system. Again, this would allow judges, as opposed to defence lawyers or Crowns using peremptory challenges, to try to ensure the representativeness of a jury in a more accountable way so we don't have a repeat of something like the Gerald Stanley case where, regardless of what you think of the verdict, the fact that five visibly indigenous people were excluded undermined public confidence for a significant number of the Canadian public.

Then finally I'm very happy that the government has recognized the growing problem of false guilty plea wrongful convictions, and is amending section 606, which applies before a guilty plea is taken, to require the judge to find a factual basis. I think this is a very warranted amendment to the Criminal Code. I praise the government for doing that, but I also think that subsection 606(1.2), which essentially says this is all optional for judges, must be repealed to make meaningful the factual basis requirement as well as the voluntary and knowing requirements for guilty pleas.

Thank you very much for your time and attention, and I look forward to your questions.

[Brent Kettles, Counsel, Crown Law Office - Civil, Ministry of the Attorney General of Ontario, As an Individual]

Thank you, Chair, and thank you for the opportunity to make a submission on Bill C-75.

I am Crown counsel at Ontario's Ministry of the Attorney General, but it's important that I make clear I'm appearing in my personal capacity, and that my views don't represent the Government of Ontario or Ontario's attorney general.

The focus of my submission is on section 271, which is the proposal to eliminate peremptory challenges from the Criminal Code. I'm supportive of the amendment. My view is basically summed up in three points. I will try not to make them very long.

First, peremptory challenges undermine both the representativeness and impartiality of Canadian criminal juries. Second, peremptory challenges undermine the public confidence in the administration of justice, and third, peremptory challenges can invite mischief associated with jury vetting in some cases.

My first point is that the requirements of having representative and impartial juries are crucial elements to ensure both the fair trial rights of an accused person as well as ensuring that the conscience of the community is represented in adjudicating on acceptable conduct. When I say representativeness, of course, I don't mean there has to be a statistically perfect cross-section, or that every possible group and demographic subgroup in society has to be represented on a jury.

However, juries are really only representative if they are randomly selected from a reasonably representative segment of the population. Similarly, impartiality is achieved both by excluding people who are not indifferent as to the outcome in a criminal case, but it's reinforced by what sometimes is referred to in the case law as the diffused impartiality that happens when you have a representative and diverse range of viewpoints on a criminal jury.

It's my view that peremptory challenges undermine both of these goals. They certainly don't further either one.

When we're looking at representativeness, when you have peremptory challenges, you're getting further and further away from the ideal of random selection, and instead of having random selection, what you actually do is introduce an element of selection bias, where you're replacing the random selection with assumptions about behaviour that are based primarily on stereotypical assumptions, and no real information about how perspective jurors might behave.

When you're looking at impartiality in the context of peremptory challenges, instead of excluding people on a good faith or rational basis that they are not impartial about the outcome, what ends up happening is that both Crown and defence counsel are invited to attempt to secure a strategic advantage in the litigation to which they are not really entitled.

No one is entitled to a favourable jury, only one that's impartial. It would be my view that if there is a realistic prospect, and a rational reason why a juror might be incapable of being impartial, then the remedy for that lies in having a challenge for cause that's established on evidence and ruled on by a trier of fact.

Moving to my second point, having peremptory challenges cannot help but lower the public confidence in the administration of justice when members of the public and perspective jurors watch perspective jurors excluded on the basis of no reason, on the basis of no evidence, and without any information.

When those exclusions are based basically on the gut feeling of who is likely to be sympathetic to one side or the other, then that doesn't give the public or perspective jurors a feeling that jury selection is happening in a way that is fair and impartial, and also represents the community. Of course, it can't help but create an assumption that the juror who has been challenged, again usually on the basis of no evidence and for no reasons given, is in some way incapable or incompetent to have been selected or to be impartial in the case.

My third and final point is simply that the existence of the challenge for cause mechanism invites a mischief in the form of jury vetting. Jury vetting is the process of finding out information about prospective jurors for the purpose of finding or divining their attitudes, beliefs and preferences with a view, potentially, to exercising a peremptory challenge to exclude them. The case law is full of cases where this has been done, both on permissible and more impermissible bases.

My overall point is that the peremptory challenge creates an incentive for both the Crown and for defence counsel to try to find out information about jurors' backgrounds. Many prospective jurors would be alarmed if they knew what Crown or defence counsel were trying to find, and it can, in some cases, be a violation of their privacy.

Just to sum it up, it's my view that the existence of the peremptory challenge mechanism invites abuse by creating a perverse incentive.

That's my submission. Thank you.

[Prof. Jillian Rogin]

I have a number of thoughts on administration of justice charges.

We commend Parliament's efforts to try to come up with a solution to what really can only be called a bail “crisis” in Canada. However, it's our position that there is a broadening of police discretion here that already exists without the option of a referral hearing.

My colleagues have written about—and I think are here making submissions about—the risk-averse culture that pervades the bail process. This allows a police officer to defer the decision to release or to lay a charge to somebody else, and that feeds into what the heart of the problem is. The police have always had the discretion to not lay a charge and they should use that discretion—and in many cases, they do.

The concern here is that very same concern we have with existing police discretion, which is, who benefits most from the use of that discretion and who is hurt by it the most? That fundamentally doesn't change with Bill C-75 and the use of the referral hearing.

[Randy Boissonnault, Liberal, Edmonton Centre, AB]

In Bill C-75, do you like where we're going?

[Randy Boissonnault, Liberal, Edmonton Centre, AB]

Your answer leads me to my next question. You've put your finger on it. It's a highly criminalized community, and there's a crossover between the LGBTQ2 community and the indigenous population who are employed in and making their decision to be in the sex work trade. Do the administration of justice provisions in Bill C-75 help speed up the wheels of justice, in your alliance's analysis?

[Murray Rankin, NDP, Victoria, BC]

You had something else in your brief at page four that was even more disturbing, I think. You said that, "Research shows that self-represented litigants spend more court resources and time, face repeated barriers in understanding court procedures, make more mistakes"—and here's the punchline—"and as a 2002 study corroborated, sometimes plead guilty to minor offences just to get it over with."

Can you think of other measures in Bill C-75 that might incentivize pleading guilty to get it over with, measures that might disadvantage those without proper legal counsel?

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

Thank you, Mr. Chair. Thank you to Ms. Rogin and Ms. Gillies.

Ms. Rogin, my question is to you. Bill C-75, in terms of the hybridization of offences, is premised upon the idea that less serious cases will be processed more quickly at the provincial court level, but as you noted, 99.6% of criminal cases in Canada, according to Statistics Canada, are heard before provincial courts. It's very difficult to see, as you point out, how that's going to reduce backlog and create greater efficiencies. It seems like a wholesale downloading of cases onto already overburdened provincial courts. From the standpoint of Jordan, as you know, there is a 30-month timeline for matters before superior courts between the laying of charges and the conclusion of a trial versus 18 months in provincial court before delay is deemed presumptively unreasonable.

Is there not the risk that rather than reducing delay that, in fact, you're going to add to the delay and see even more cases thrown out of court, not less?

[Kara Gillies, Canadian Alliance for Sex Work Law Reform]

Thank you so much.

Good afternoon and thank you for the opportunity to address you today.

The Canadian Alliance for Sex Work Law Reform is a coalition of 28 sex worker and allied organizations from across the country advocating for law reform that advances the rights and safety of people who sell or trade sex. Our member groups have expertise regarding the impact of criminal law on the lives and well-being of sex workers, so it's on those grounds that we submit our response to Bill C-75.

I'm going to be really frank and say that we are very disappointed and frustrated that the Criminal Code provisions targeting sex workers and their personal and work relations are not slated for repeal or meaningfully addressed in Bill C-75. The Liberal and NDP parties of Canada voiced staunch opposition to the Protection of Communities and Exploited Persons Act, or PCEPA, when it was introduced. In 2015, the justice minister declared that she was “definitely...committed to reviewing the prostitution laws”, yet this review has stalled.

This isn't just a matter of principle or a matter of promises unkept. Each day that passes, sex workers' rights, safety and dignity are violated through the individual and collective impact of laws prohibiting the communication for, purchase of, material benefit from, procuring of and advertising of commercial sexual services. We are past the time for review, and we need action.

We believe that excluding the repeal of PCEPA from Bill C-75 was a gross missed opportunity, given the overall alignment of many the bill's principles and elements with those of sex work law reform.

First, Bill C-75 rightly repeals several Criminal Code provisions ruled unconstitutional by Canadian courts. In 2013, the Supreme Court found in Bedford that several criminal prostitution laws caused harms that violated sex workers' charter right to security of the person. The subsequent Criminal Code provisions enacted by PCEPA replicate these harms, and their constitutionality is similarly impugned.

Second, Bill C-75 rightly repeals the offences of anal intercourse and abortion that targeted sexual or reproductive activities and autonomy and that disproportionately impacted LGBTQ2S communities and women respectively. Prohibitions on sex work activities similarly undermine the rights to liberty, autonomy and security of the person and disproportionately impact women, indigenous and migrant communities, and other marginalized groups.

Third, Bill C-75 correctly proposes to attend to the discriminatory treatment and overrepresentation of indigenous and marginalized peoples in the criminal justice system. Sex workers and/or personal and labour relations reflect the diversity and inequality of social locations in Canadian society. For many, sex work prohibitions represent the criminalization of their poverty and perpetuate the over-policing and over-incarceration of indigenous and black peoples.

Sex work laws continue to be employed and enforced in a racist and colonial manner. Indigenous women are over-policed and under-protected. Asian migrant workers are targeted for investigation and deportation, and young black men who happen to be boyfriends or associates of sex work workers are labelled and prosecuted as pimps.

We recognize that most of the PCEPA laws have been absented from Bill C-75 and thus cannot be repealed or otherwise altered through committee amendments. We note, however, that clause 111 reclassifies the material benefit offence as a hybrid offence and that clause 112 amends the sentencing provisions of the advertising offence. Because these two offences are addressed within the bill, if it's a procedural possibility, we strongly urge amending the bill to repeal these Criminal Code provisions in their entirety. By criminalizing the act of materially benefiting from another party's sex work, section 286.2 restricts sex workers' capacity to engage in supportive work relationships that enhance our safety and improve our work conditions. In fact, this provision reproduces the harms of the prior “living on the avails” offence that was struck down by Bedford for violating our section 7 charter rights.

Any proposition that the listed exceptions to the offence satisfy Bedford are false. All but one simply codifies jurisprudence that predates the Supreme Court's decision. Then there are exceptions to the exceptions, which further repress sex workers' autonomy and security. For example, paragraph 286.2(5)(e) prohibits a liability exception in the context of a commercial enterprise. This captures all escort agencies, massage parlours and any other sex work business that creates safe, structured indoor work environments.

While we appreciate that the exceptions may allow a worker to hire, say, a bodyguard or a receptionist, we are mindful that only a tiny number of highly privileged workers have the resources to do so. Instead, many of us seek out parlours and escort agencies because they offer services such as screening, secure venues and advertising without the upfront costs and overhead of independent work.

It is often the most marginalized and under-resourced workers, such as indigenous, poor, or migrant workers, who benefit from working for someone else. However, these same laws that prevent sex workers from ensuring our safety and rights are upheld, because we work for businesses, do so, ironically, because they effectively preclude us from accessing basic labour, occupational health and safety, or human rights protection. To make it worse, material benefits arising from the context of a commercial enterprise is considered an aggregating factor upon sentencing.

As with the former “living on the avails” provision, the material benefit sanction imposes an evidentiary presumption on anyone who lives with or is in the habitual company of a sex worker. In addition to reinforcing the false assumption that people, particularly women, who sell or trade sex can't be legitimate objects of affection, the threat of presumed criminality disrupts the security and autonomy of our personal relationships.

I will make a final comment on the material benefits offence. Although when we discuss it we typically describe it as benefiting from another party's sex work, the provision itself does not specify a third party benefit. Under the letter of the law, sex workers are ourselves captured in the material benefits provision. We are only granted immunity from prosecution via section 286.5. This is a clear illustration that PCEPA does indeed continue to construct those of us who sell or trade sex as criminal.

We therefore recommend that clause 111 of Bill C-75 be amended to call for the repeal of the material benefits provision, as a first step towards a more comprehensive sex work law reform.

Next I'm going to turn to Criminal Code section 286.4, which prohibits advertising paid sexual services. As with the prohibitions on communicating and purchasing, this provision undermines the safety benefits that sex workers derive from openly communicating terms and conditions with their clients, and establishing boundaries in advance of in-person contact.

Prohibiting advertising creates significant barriers to working indoors, which the evidentiary record in Bedford demonstrates is much safer than working on the street. Since the enactment of the advertising provision, many websites and newspapers will no longer publicize sex worker services. Those that do have often discontinued their virtual lounges that allowed workers to share safety and other valuable information with each other.

With these points in mind, we recommend that clause 112 of the bill be amended to call for the repeal of the Criminal Code section 286.4.

Continuing with the Criminal Code provisions addressed in the bill, we want to reiterate our opposition to Bill C-38 and Bill C-452, which is now incorporated into clause 389 of Bill C-75.

Bill C-452 introduced an evidentiary presumption that living with or being in the habitual company of an alleged trafficking victim is proof that the accused exercised control, direction or influence over the alleged victim's movements for the purposes of exploitation. Given the ongoing conflation of third party involvement with sex work and trafficking, we are concerned that, as with the reverse onus provision for material benefit, this presumption will further alienate sex workers from police and social services, as we continue to actively avoid implicating our colleagues and loved ones as traffickers.

We do support the bill's removal of consecutive mandatory minimum sentences for trafficking offences. However, like others who have responded to Bill C-75, we are perplexed as to why mandatory minimums have not been repealed across the board.

Other Criminal Code offences that are insufficiently addressed in the bill are the bawdy house, indecent acts and vagrancy sections. These have traditionally been used to condemn individuals and communities based on their sexual activities, relationships and identities, including people who sell or trade sex. The Prime Minister's 2017 apology to LGBTQ2S people should be buttressed by the repeal of these sanctions.

The alliance doesn't have a current position on the bill's Criminal Code amendments regarding intimate partner violence. However, we will note that intimate partner violence impacts our communities, not simply because sex-working women, like other women, experience intimate partner violence, but also because such instances of violence are often mislabelled and prosecuted as materially benefiting, procuring and trafficking. If criminal sanctions related to intimate partner violence were used instead of third party sex worker trafficking laws, where appropriate, we might be able to express support. However, we're concerned that they would be used as add-ons.

Additionally, we have potential concerns about increased sentences and reverse onus bail provisions, because we know only too well the effect of heightened criminalization and its disproportionate impact on the most marginalized among us. However, we have no specific recommendations on these points.

Finally, on a general note, we are concerned that elements of Bill C-75 will impede access to justice and fair treatment for people in and associated with the sex trade who come in conflict with the law for any reason, and who are further marginalized by their social or structural locations.

Increasing the maximum sentence for summary convictions risks the continued over-incarceration of marginalized peoples, both through the increased maximum sentence itself and by restricting access to agent representations.

Permitting the written admission of routine police evidence risks undermining trial fairness by complicating defence access to cross-examinations that can expose cases of police error, impropriety or actual abuse, and which are especially vital to protect the rights of indigenous and black defendants.

Those are our thoughts and concerns. Thank you for taking the time to hear them.

[Prof. Jillian Rogin, Assistant Professor, Association for Canadian Clinical Legal Education]

Thank you.

My name is Jillian Rogin and I am an assistant professor in the faculty of law at the University of Windsor. I'm so honoured to be here today on behalf of the Association for Canadian Clinical Legal Education, or ACCLE.

I just want to take a moment to acknowledge that the land we're currently on is unceded territory belonging to the Algonquin Anishinabe people, and I'm really thankful for being allowed to be here today.

In addition to being an assistant professor and appearing on behalf of ACCLE, I'm also a criminal defence lawyer. Relevant to what we're going to talk about, I've worked as a duty counsel lawyer in the provincial courts. I was also a reviewing lawyer at a legal clinic in Windsor, Community Legal Aid, so I have experience in the provincial courts representing marginalized people.

To start out, ACCLE commends the intent of Bill C-75 insofar as it aims to reduce inefficiencies in criminal matters and it focuses on reducing over-incarceration of indigenous people and other marginalized people, but I want to focus on aspects of the bill and the proposed amendments that might undermine those laudable goals. Specifically, I'll be looking at the reclassification of offences and the impacts of that reclassification scheme both on law students and on the clients that legal clinics serve across Canada.

The increase in the maximum penalty, the proposed amendment to subsection 787(1), of course precludes law student representation, articling student representation, and representation by paralegals. All three will be precluded entirely from representing anyone any longer in any criminal matter in the provincial courts. This is of course because there's no corollary amendment to section 802.1 of the code.

To be frank, there is no stated rationale that I can find for this dramatic and drastic change to the legal landscape in Canada. There's no data I can point to that shows there is any difficulty with law student representation of people charged with minor criminal offences, and it's not clear what the legislative purpose is of eradicating that form of representation for marginalized people.

What we do know is that this eradication of law student representation will cause an access to justice crisis across this country. Legal clinics across Canada that for decades have been representing clients in summary conviction matters will suddenly come to a halt, and accused people will not have much-needed access to legal representation to answer to the criminal charges they're facing.

As it currently stands, section 802.1, as you all know, allows for the provinces to enact orders in council. I'm going to speak briefly about why, in my respectful submission on behalf of ACCLE, that is not an appropriate or adequate response to the difficulty of the proposed amendments.

Firstly, it's a piecemeal approach, so it means that provinces may or may not act. You may have a situation where there are some provinces that act and some that don't. There's no obligation on any province to do so.

Secondly, which is most alarming to me, even if the provinces act, it's very unlikely that they will do so in a manner that's timely, to prevent a gap in representation. If Bill C-75 were enacted tomorrow and passed into law the day after or on the day, we would have to attend court and make applications to get off the record for the current clients we have. That would have to happen all over Canada. We would not be able to appear in court except to get off the record.

Thirdly, on that point, in a sense—and I say this with respect—it's misguided to suggest that the antidote to the massive decrease in the provision of legal services can derive from the provinces enacting orders in council. Respectfully, the question should be, why are we taking away the current law student representation that has been in effect for three decades? Of course, it's a very drastic change.

We know also that this can't be justified by efficiency. It's not more efficient to have more people in the provincial courts who are unrepresented, with no legal representation. We know that not only are unrepresented litigants at a disadvantage, but they tend to clog an already clogged system, and the purpose of the bill is to address delays. We know, as I referenced in our brief, that unrepresented indigenous people disproportionately plead guilty when charged with an offence. The lack of representation is an incentivizing force of guilty pleas, and that should be alarming for all of us, especially with the stated intention of the bill.

This access to justice crisis is a crisis not just for clients who are facing those criminal charges, but also for law student education. Exposure to working with marginalized people facing criminal charges, exposure to the community organizing that has been a hallmark of clinics for decades, exposure to the promotion of social justice issues and—perhaps most important to me as a mentor and as somebody who had wonderful mentors—the opportunity to work really closely under the direct supervision of a criminal defence lawyer is a foundational experience of law school education. In my opinion, it's crucially important, particularly in criminal law. It is a crucial part of that clinic experience.

The evisceration of law student, articling student, and paralegal representation has constitutional dimensions, and it may impact fair trial concerns pursuant to section 11(d) and section 7, and perhaps section 15, depending on who is being denied representation, and in what circumstances.

In terms of our clients, I'm going to address the increase in the maximum penalty. It has been stated that this is not a change in sentencing ranges; however, it is a direct intent to raise the maximum penalty for summary conviction offences. The idea that it's not going to have an impact on sentencing ranges, in my respectful view, is misguided.

I'm speaking from that experience of being in the provincial courts, being in the plea court when you have a client who has 1,000 convictions for theft under. They go before the judge and the Crown is asking for 30 days and the judge says, “I'm done with you, six months”, because that's the maximum. The idea that's not going to happen and isn't justifiable with legal principles is, respectfully, perhaps misguided.

In terms of court efficiencies, we know that the proposed changes are not going to alleviate delays in the lower courts, in the provincial courts. There's nothing to suggest that's the case. The provincial courts are already overburdened. Many lower courts across Canada are facing crisis levels of criminal cases passing through, as I've noted in our brief. Provincial courts currently, in a recent Statistics Canada report, are seized with 99.6% of all criminal cases in Canada, the superior courts secure 0.4%. In that sense, it's very difficult to imagine, in terms of the hybridization of offences, how the choice to proceed summarily is going to create further efficiencies for the Crown or for the criminal justice process.

I'll turn now to the recommendations that ACCLE is putting forward.

We're boldly asking that the proposed amendment to subsection 787(1) not be made at this point, not with a more thorough charter analysis of the proposed amendment having regard to who it might most impact. This includes perhaps looking for further ways to reduce court delays that do not disproportionately impact marginalized people. Alternatively, we're asking that if this does go through, then an amendment be made to subsection 802.1 that allows for the continuation of law student representation.

Thank you.

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

Thank you, Chair.

Thank you to the witnesses for their testimony today.

Mr. Lacy, you spoke at length about the proposed jury selection process, and about getting rid of peremptory challenges in Bill C-75. Yesterday we heard from an indigenous organization that spoke in favour of getting rid of the peremptory challenges, but you outlined that it would not have the impact that we want it to have here in terms of diversifying the jury selection.

I'm not sure if you had the chance to go over what their arguments and reasoning were.

[David Field, President and Chief Executive Officer, Legal Aid Ontario]

Thank you for the opportunity to appear before this committee again. Legal Aid Ontario, LAO, is Canada's largest legal aid plan, and a significant funder and provider of services in every level of criminal court in Ontario. We have a pressing interest in the federal government's criminal justice reform initiatives.

LAO's submissions on Bill C-75 reflect our position and views, both as a funder focused on making the most cost-effective use of public funds, and as an access to justice organization dedicated to addressing the legal needs of our low-income and frequently highly vulnerable clients.

LAO has a particular interest in the bill's amendments aimed at addressing bail and remand issues. LAO would like to see a section added to Bill C-75 that ensures that the bail process outlined in the R. v. Tunney decision becomes the baseline procedure for bail. The bifurcated process requires the justice to consider the appropriate release after submissions by the defence counsel and the Crown before moving on to the suitability of a surety. This simple change of procedure makes the bail process faster and fairer, and the Criminal Code needs to be amended to reflect the Tunney decision and recognize that without direct procedural reform in bail court the new amendments will fall short of making the necessary changes to fix the bail process.

LAO supports many of the expanded police powers in Bill C-75, as they aim to address police concerns that may be preventing them from exercising their authority to release. LAO agrees with Justice Gary Trotter and others, who have made the point that expanding the powers of the police to impose conditions must be approached with caution so that the very reforms aimed at alleviating pressure in the justice system do not have the unintended consequences of adding even more people into the system.

A particular concern about expansion of police discretionary powers is the potential for disproportionate and discriminatory impact on particular groups. For these reasons, LAO recommends modest amendments to proposed subsection 501(3) of the bill, consistent with the principles of restraint and the goal that conditions can be reasonably complied with so the police are not given the authority to impose the following two types of conditions, which we believe are overly broad, unnecessary and likely to increase rather than decrease the number of remand detentions: conditions aimed at preventing the future commission of unnamed future offences, and curfews attached to residential conditions of release, in particular the requirement that a person present themselves at the entrance of their residence on request, which is a condition that is used sparingly even by justices, and when used is too often breached for innocuous reasons, resulting in further charges and detention orders.

Bill C-75 as drafted restricts the availability of preliminary inquiries to offences punishable by life imprisonment, which we've heard concerns about already. On its face, this would appear to be a cost-saving and delay-reducing reform, as it eliminates a step in the process. However, LAO's own experience and research conducted by prominent criminologists indicate that this is a more complicated issue that should be approached cautiously.

LAO is not convinced that this proposed amendment will reduce court system delays or costs. In fact, it may produce the opposite effect. There appears to be no evidence suggesting that preliminary inquiries are a major cause of delay in the system. At the same time, there is evidence that preliminary inquiries serve as a screening function that enables more matters to be resolved without the necessity of a trial.

LAO's own data suggests that preliminary inquiries play an effective role in screening out charges and reducing the number of cases that proceed to trial. We looked at internal data related to cases funded through our big case management program between 2004 and 2014. Over this 10-year period, preliminary inquiries were held in 491 cases of 1,034 LAO-funded cases that did not involve life sentences; 75% of those cases did not result in setting a trial, providing a clear suggestion of the value of preliminary inquiries in reducing cost and delay. We believe that there is a strong case to be made for rethinking this proposed amendment.

Therefore, LAO recommends removing the restriction on the availability of preliminary inquires to offences punishable by life. At the very least, we believe there needs to be a process for requesting access to a preliminary inquiry on a case-by-case basis.

Another potential way to reduce some of the negative impacts of removing the preliminary inquiry screening function may be to broaden the scope of discovery to encompass some of the screening aspects of this process. LAO also strongly recommends further study on the issue.

LAO has significant concerns with increasing the maximum sentence for all summary conviction offences to two years less a day. This would open the door to harsher sentences for lesser offences. It would broaden the serious immigration consequences of a criminal conviction by rendering non-citizens potentially inadmissible to Canada or subject to deportation on the basis of a minor conviction.

It would also preclude law students and paralegals from assisting persons charged with minor offences. For LAO, and other legal aid plans, this proposed amendment would restrict our ability to meet our mandate by providing cost-effective access to justice for many low-income people who cannot afford a lawyer. Students and paralegals help legal aid plans to assist people who are facing summary charges that are serious enough to give them a criminal record and mar future employment or other life prospects, but are not likely to result in jail time.

Where the liberty test is not met, a person will be ineligible for a legal aid certificate in Ontario. As the committee knows, there are also stringent financial thresholds for certificate eligibility. Based on research, including our own independent analysis of eligibility and coverage, we know that those caught in this access to justice gap are statistically more likely to be women, members of a racialized community and indigenous persons.

The overrepresentation of indigenous and racialized persons in the justice system is a matter of record, and is of concern to both LAO and the federal government. Given their limited resources and restrictive coverage guidelines, LAO and other legal aid plans rely on services provided by students and paralegals to help fill the serious access to justice gap.

It is simply a fact that if the doors are closed to us by Bill C-75, more low-income and disadvantaged people will be representing themselves, thus contributing to, rather than alleviating, justice system delay. It is also likely that more will inappropriately be guilty, and may also be exposed to harsher sentences, thus growing the population of persons enmeshed in the criminal justice system as a result of a minor charge.

LAO recommends that subsection 802(1) be amended to ensure that law students and paralegals continue to be able to provide legal services to persons charged with minor criminal offences. This may be accomplished by either identifying specific exceptions, making it clear that these are offences to which agents like law students and paralegals may continue to provide services, or identifying serious offences where agents may not provide services, leaving it open for agents to represent individuals for the remainder of summary offences.

In closing, I would again like to thank the committee for the opportunity to provide our input. I would also like to mention that Stephanie Heyens, a senior litigator at Legal Aid Ontario, is presenting to the committee on the bill's amendments to the police affidavit evidence. LAO fully supports her brief.

Thank you very much.

[Philip J. Star]

Thank you very much.

This is my first time having the pleasure of appearing before this committee. I have to give some comments on or insight into at least some of the legislated changes contemplated by Bill C-75.

As a general prelude, I operate a general practice, but most of my work is as a criminal defence lawyer, mainly in small towns in rural Nova Scotia. One would surmise that even though the Criminal Code and the other related statutes that we all deal with are national and apply or should apply uniformly throughout the country, there clearly are differences in the manner in which the criminal laws are adjudicated upon. I am certain that other criminal defence lawyers here will echo my comments, not only from province to province, but even in different regions in each province.

The reason I referred to this is that part of the bill allows for the exercise of more discretion by Crowns as to the operation of preliminary inquiries, hybridizing more or most of the offences in the Criminal Code, and certain other things. My point today is not to mount an attack on Crown attorneys just because I'm a criminal defence lawyer. Rather, I propose to offer some general comments and some concepts that may have gone by the wayside. I'm certain a lot of this is going to be redundant or repetitive to what my colleagues will say here.

We've all read a lot of literature not only about Bill C-75, but also about many other suggested bills and amendments to the code, and this could be parliamentarians, legal scholars, newspaper reporters, Crown attorneys, defence lawyers, or members of the public. All this is under what I'll refer to as the rubric of making Canadians feel safer—I've seen the words “public safety” and “national security”.

Obviously we all want that, but I think it's important that we not lose sight of some of the most important concepts of criminal law that we at least used to take for granted, and I hope we still do: namely, the presumption of innocence and the concept of proof beyond a reasonable doubt. I know I'm speaking of a given here, or what's supposed to be a given, but I sometimes wonder, with the utmost respect, with respect to some of the amendments or proposed amendments, whether the pendulum is swinging way too far the other way.

People can never really truly appreciate the safeguards and high standards of our system until they or a loved one is facing a criminal charge. I find it amazing when I am representing a police officer now, or a Crown, or a judge, or a family member of one of those persons, how people start carrying the torch for these safeguards if a family member or a friend is in the unfortunate position of facing a serious criminal charge.

At the risk, once again, of being redundant or repetitive, I'm going to speak briefly about some of the preliminary inquiry amendments and some of the purported reasons or justifications for the reduction or elimination of preliminary inquiries that I respectfully submit are just simply not borne out by the statistics. I won't refer to the statistics specifically. We talk about the number of matters that go to preliminary inquiries and so on. We talk about saving victims or not revictimizing victims by having them testify more than once. We talk about trial efficiency and efficacy, and the 2016 decision of the Supreme Court in Jordan. In actuality, I submit that Jordan was to a large extent a reaffirmation of what courts have been telling us or trying to tell us for a long time.

Paragraph 11(b) of the charter was enacted in excess of 36 years ago, in April 1982. It was not meant to be mere window dressing, so the actors or participants—i.e., the Crown, the defence, the police and the judges—have been told to get their act together.

The preliminary inquiry serves a unique and instrumental purpose in the system, not just for the defence but—it's important and I'm going to emphasize this—for the Crown. It allows both the Crown and the defence to test witnesses as to their actual observations and recollection of events that happened in the past. It permits both the Crown and the defence to identify often crucial issues that may not otherwise be noticed in the disclosure: i.e., the RCMP reports, statements and so on provided by the parties.

It allows both the Crown and the defence to see not only what somebody says in a written statement, but how they say it: the nuances, the body motions and the inflection of the voices. To use a blatant example, if someone is asked if they consented to sexual relations, a transcript might show them saying, “No”, when it's either “No!” or “Um...no.” On paper, they look the same. These are but small examples of just how much benefit can be provided not only to the defence or the accused but also to the Crown.

In my experience, preliminary inquiries result not only in a committal to trial, but often in a weeding out of cases that should not be proceeded with, either by having the Crown withdraw the charges or, certainly more so, by having a resolution of charges after both the Crown and the defence have had an opportunity to have a true view—one might say, a dry run—as to what the case consists of. They're incredibly helpful, not only to the accused, but to the Crown and ultimately to our system, by cutting down on delays and costs, at least in my experience, not just in rural Nova Scotia, but in a lot of other areas. I'm in Halifax virtually every week, and I find the same up there.

I'm just coincidentally involved in two very serious cases, one of which, last week, was dangerous driving causing death. A day-long preliminary inquiry probably saved us a trial of a week and a half because the case was resolved. I realize you can't look at one case and use that as the cornerstone, but I think it's important to highlight that, because I'm certain all of us could speak from similar examples in our experience.

A lot of this has already been addressed by Parliament by reducing the time in preliminary inquiries by enacting section 540 and related sections of the code. The Jordan timelines, I note, allow for another year for indictable offences.

There are other things here, but at the end, what I have left is certainly the most crucial aspect of what I propose to comment on today. I prefaced my remarks earlier by referring to the hallmarks, the cornerstones, if you will, of our criminal justice system: the presumption of innocence and the concept of proof beyond a reasonable doubt.

In my view, removing a procedural safeguard such as preliminary inquiries will almost certainly lead, at least indirectly if not directly, to more wrongful convictions. Canada, in my respectful view, has a criminal justice system that, although not perfect, is likely among the best, if not the best, on this planet.

Having said that, we have skeletons in our closets, the Donald Marshall Juniors of Nova Scotia and the Guy Paul Morins, to name but two people who have gone into infamy because of serving lengthy periods of incarceration for crimes they did not commit. That time cannot be given back to them. This is irreparable.

The system was not good previously. I look at the rape shield laws, where there was an open season on alleged victims before, and the pendulum swings. I think it's important to remember that the pendulum should not swing too far the other way. We should not allow legislation to be passed that could have the direct effect of leading to more, perhaps many more, Donald Marshall Juniors.

There's a mention of the need for robust initiatives, transparency and a culture shift by all, but we should not and cannot erode, undermine or sacrifice these benchmarks of our criminal justice system at the altar of public safety and\or national security.

Thank you very much.

[The Chair, Liberal, Anthony Housefather]

We're going to call this meeting of the Standing Committee on Justice and Human Rights to order as we continue our study of Bill C-75, an act to amend the Criminal Code, the Youth Criminal Justice Act and other acts and to make consequential amendments to other acts.

Today, we are joined by the Criminal Lawyers' Association, represented by Mr. Michael Lacy, president, and Mrs. Apple Newton-Smith, vice-president.

Legal Aid Ontario is represented by David Field, president and chief executive officer, and Mr. Marcus Pratt, director of policy and strategic research.

Welcome. It's a pleasure to have you all here.

On the telephone, we have Mr. Philip J. Star, who is a criminal defence attorney at Pink Star Barro. Mr. Star, welcome to the committee.