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.

[Jody Wilson-Raybould, Liberal, Vancouver Granville, BC]

With respect to Bill C-39, as you say, it has now been put into Bill C-75, as has another very important piece of the legislation around victim fine surcharge and human trafficking.

In terms of time with regard to the passage or proceeding in the House, I'm not sure that's a question I can specifically answer. As to why we have put these bills into Bill C-75, it's to ensure that the important provisions that are contained within these proposed pieces of legislation are moved through. It makes sense to me, in terms of a thematic approach, to put these bills into Bill C-75, because they are all looking to amend the Criminal Code.

I hear the member in talking about the McCann family and the tragedy faced by the McCann family. We wanted to ensure, in then Bill C-39 and in Bill C-51 , that we do renovate the Criminal Code and that we do get rid of the unconstitutional provisions. I would look to the member, as well as to everybody on this honourable committee, to have vigorous debate and discussion about all of the provisions and proposals that are contained within Bill C-75. This committee and the legal and constitutional affairs committee of the Senate have been very diligent, and necessarily so, in terms of seeking that I and our government address delays in the criminal justice system. Bill C-75 does do that, as well as address the necessary changes we have proposed in terms of the victim fine surcharge to address indigent offenders, as well as get rid of the constitutional provisions beyond section 230, which the member talked about.

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

No, Madam Minister, I am not misrepresenting anything. I think I was quite clear that you are taking a sentence, under an indictable that is punishable by up to 10 years, and if it's prosecuted by way of summary conviction, the maximum is two years less a day, and it could be as low as a mere fine. That's not a misrepresentation; that's a fact.

I want to also ask you about Bill C-39, which was introduced on March 8, 2017. Lyle and Marie McCann of St. Albert were brutally murdered by Travis Vader. After waiting for justice for six years, the McCann family, just when they thought justice had arrived, found out that it had not arrived, because the trial judge applied an unconstitutional section of the Criminal Code, section 230.

To your credit, you did introduce Bill C-39 to repeal unconstitutional sections of the Criminal Code, but more than a year later, that bill is stuck at first reading. It has now been rolled into Bill C-75, which is a big bill. As you can see, it's a contentious bill. There is a lot of debate around it.

By contrast, with Bill C-39 there is no debate. I think there is a consensus, or near consensus, that we need to get unconstitutional sections of the Criminal Code out of the Criminal Code. I just don't understand, after more than a year, what the delay is and why it has been rolled into Bill C-39. Quite frankly, this could have been passed on a voice vote a year ago.

[Jody Wilson-Raybould, Liberal, Vancouver Granville, BC]

I will tackle the last question first, and then move backwards.

In terms of downloading onto the provinces, I want to be very clear. We have been engaged in a broad-based review of the criminal justice system since I became the minister and the Prime Minister asked me to engage in this. We have, through those consultations and discussions, been very actively participating in federal, provincial, and territorial meetings with my counterparts in the provinces and territories. In fact, because we share, as the member knows, the administration of justice in our responsibilities, we have come together on many occasions, as ministers and as officials in working groups, to propose what necessary bold reforms would be needed in order to address delays. This is not a matter of downloading onto the provinces. This is something that we have had many discussions about, proceeding by way of summary conviction.

All offences are serious—don't misconstrue my words—but by proceeding through provincial court, a case can proceed in a quicker fashion where the situation and the case are appropriate, and that would be determined by prosecutors.

The member talks about Canadians being astounded. I want to be very clear that the proposal we've put in place with respect to Bill C-75 and the hybridization of offences or the reclassification of offences in no way, shape, or form touches on the fundamental principles of sentencing. We are not changing those. This is going to continue to be the case. The judge is going to continue to have to assess the proportionality, the degree of responsibility of the offender. To misrepresent that we're doing something and changing the sentencing principles is a mischaracterization.

[Jody Wilson-Raybould, Liberal, Vancouver Granville, BC]

In terms of individual cases, individual charges, how a prosecutor decides to proceed by way of summary conviction or by way of indictment would be at their discretion. What we want to do is, based on the individual facts of a particular case—I'm not going to hypothesize or create a particular case—to provide prosecutors with the additional tools to exercise their discretion in that regard.

The objective with respect to the hybridization and/or the reclassification of offences is to assist in addressing delays, not necessarily in and of themselves, but broadly speaking in terms of what we have proposed in the bold reforms in Bill C-75.

[Jody Wilson-Raybould, Liberal, Vancouver Granville, BC]

Again, in terms of sentencing reform, this is something that we are going to continue to review. This is a priority, as you say. It's in my mandate letter. I will consider the public and the private member's bills when they come before me and will have discussions.

Further, when Bill C-75 comes here, I would be very happy to continue this discussion around sentencing reform and hear what, if anything, the honourable members of this committee have to say with respect to what's in Bill C-75 and perhaps what's not in Bill C-75.

[Jody Wilson-Raybould, Liberal, Vancouver Granville, BC]

I would start, Mr. Chair, by recognizing that I agree with my colleague that there is a crisis in terms of overrepresentation of indigenous people and other marginalized Canadians in the criminal justice system, and we need to do all we can to ensure that we address that overrepresentation.

As the member knows, we have taken many steps. The introduction of Bill C-75 was one of those steps in terms of how we approach administration of justice offences and how we look at bail reform, and with regard to indigenous people in terms of bail and the administration of justice.

I hear the question that has been asked about mandatory minimum penalties. I would, first of all, say that I applaud Brody and others in the audience for getting involved and engaged in discussions around how we can improve the criminal justice system.

With respect to mandatory minimum penalties, I am continuing to ensure that we look at sentencing and sentencing reform. Mandatory minimum penalties are not within Bill C-75. I want to proceed as expeditiously as possible to ensure that I introduced a bill that will tackle the delays in the criminal justice system.

That's not to say that looking at sentencing reform, including mandatory minimum penalties, is not important, because it absolutely is. As the member said, I've been very clear in terms of where I am and my views with respect to mandatory minimum penalties. My view is that judges certainly should be provided the necessary discretion to impose sentences appropriate to the offender in front of them.

That said, we need to ensure that we are going to be putting in place sentencing reform that will stand the test of time. As the member has indicated, mandatory minimum penalties are being litigated quite extensively. There are cases in which the Supreme Court has upheld the mandatory minimum penalty, and there are cases in which it has not. I want to ensure that I have taken all possible steps and diligence as we continue to be focused on our commitment around sentencing reform, and do it in a manner, as I said, that will stand the test of time.

With respect to the private member's bill and the public bill, I have had ongoing conversations with Senator Pate. I would welcome conversations with your colleague Sheri. These are considerations, when those bills come before me, that I will engage in discussions with my colleagues on.

[Murray Rankin, NDP, Victoria, BC]

Thank you.

Thank you, Minister, and thanks to your officials as well for being with us today. It won't surprise you that I'm going to ask about something that has been called the elephant in the room in your criminal justice reforms, namely, the failure to address mandatory minimum penalties.

As you know, call to action number 32 in the Truth and Reconciliation Commission's report called on you to “amend the Criminal Code to allow trial judges, upon giving reasons, to depart from mandatory minimum sentences and restrictions on the use of conditional sentences”. It pointed out that this would assist in particularly addressing the specific needs of indigenous offenders.

Indeed, to my astonishment, the correctional investigator of Canada last year stated that although the first nation population of Canada is about 5%, fully over one-quarter of prisoners are indigenous, and in respect of indigenous women, over one-third of our incarcerated Canadians are indigenous. It was suggested that to address mandatory minimums would have a very positive effect on what I call the crisis of overrepresentation.

Today I had a press conference with my colleague, member of Parliament Sheri Benson, who tabled a private member's bill, Bill C-407, which is similar, by the way, to Senator Kim Pate's recently tabled Bill S-251. I should add that bill was prompted by high school students from Saskatoon, who chose this important measure as their primary suggested change in Canadian law. In the audience today, I recognize Brody Beuker and Camilo Silva, who drafted that bill, who helped in drafting that important measure.

Last, Minister, it was reported that fully over two-thirds of all charter challenges in the courts—256 charter challenges in the courts—are mandatory minimum sentence challenges. Imagine how much time and money it's taking to address that issue alone.

Minister, you came to office almost two years ago, and in a Globe and Mail article in November, you promised that new legislation on mandatory minimums was coming soon, “certainly in the early part of next year”. That was in the early part of last year.

My question for you is, will you be moving forward in a timely way with your commitment to address this crisis in over-incarceration of indigenous Canadians by way of fixing the mandatory minimums? Also, will you commit today to adopt the bills that I referenced earlier—the private member's bill, Bill C-407 , and the Senate bill, Bill S-251—or perhaps include them in Bill C-75 so we can address this important issue?

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

Just to clarify, Bill C-46 proposes to hybridize what is currently a straight indictable offence of impaired driving causing bodily harm.

Bill C-75 proposes a consequential amendment, because Bill C-75 is proposing to hybridize a number of offences and in doing so it's using a particular approach and wording, so the only consequential relationship between Bill C-75 and Bill C-46 is that the wording that's proposed to be adopted as part of the broader package in C-75 would be reflected in the impaired driving causing bodily harm hybridization as well.

[Jody Wilson-Raybould, Liberal, Vancouver Granville, BC]

I don't believe we've heard specifics on the hybridization of offences in Bill C-75. I would look to Carole.

[Rob Nicholson, Conservative, Niagara Falls, ON]

Have they taken a position on Bill C-75?

[Jody Wilson-Raybould, Liberal, Vancouver Granville, BC]

I was just looking over at Carole Morency. I do not know at this point about other jurisdictions. I'm happy to find out and answer that question for the member afterwards.

However, in terms of the hybridization and how a prosecutor would proceed, it would be based on the facts of each individual case and what would be necessary and appropriate given the gravity of the offence.

We'll follow up in terms of the answer, but we certainly will, in continuing to work with the provinces and territories and continuing our overarching review of the criminal justice system, ensure that the four measures that are contained within Bill C-75 will be monitored, will be further considered as we continue to work in a collaborative fashion with other jurisdictions.

[Jody Wilson-Raybould, Liberal, Vancouver Granville, BC]

I did hear the Minister of Public Safety speak in the House today. I believe what he was referencing is that, with the passage of Bill C-46, we will be among the countries with the toughest impaired driving laws in the world. I'm very hopeful that this bill is going to proceed through the other place.

In terms of the hybridization of offences, we've had the opportunity to have these discussions in a number of different forums. What we are doing with respect to the hybridization of offences is giving prosecutors the necessary discretion, as the member knows very well, to proceed by way of summary conviction or indictment, and this does not in any way touch on the sentencing, the fundamental principles of sentencing. This is, again, to provide the discretion to prosecutors to proceed in either fashion, recognizing that proceeding by way of summary offences, where the situation merits, will contribute to quicker processing or moving through the courts to address delays, in the comprehensive package that we've put in place with respect to Bill C-75.

I will say that, with respect to the impaired driving offence that Mr. Nicholson raises, the hybridization of that particular offence was something that was contained within Bill C-226 by his colleague Steven Blaney. This was something that was in that particular piece of legislation, as was something I'm very proud of that is contained within Bill C-46, mandatory alcohol screening.

[Rob Nicholson, Conservative, Niagara Falls, ON]

I'm sure it will be well received.

You talked about Bill C-75. You were quoted as saying that hybridizing these offences will not make them less serious or subject to lower sentences.

You may have heard your colleague Ralph Goodale today in question period. He said that with respect to impaired driving, your government, and indeed our government, has the toughest laws in the world, I think he said, in terms of that.

If this is hybridized, and somebody is convicted of impaired driving causing bodily harm, there will now be the option under Bill C-75 of having that as a summary conviction offence, with a penalty of 18 months, or even a fine, I believe. Do you not think that is actually lessening the penalties with respect to impaired driving causing bodily harm?

[Jody Wilson-Raybould, Liberal, Minister of Justice and Attorney General of Canada]

Thank you, Mr. Chair.

Thank you as usual to the members of the committee. I certainly appreciate the opportunity to be here before you to give some brief remarks, and then I will look to answer some questions.

As you indicated, I'm joined by Nathalie Drouin, deputy minister of justice and deputy attorney general of Canada; Johanne Bernard, assistant deputy minister, management sector, and chief financial officer; and Carole Morency. Joining us as well are François Daigle, associate deputy minister; and Elizabeth Hendy, director general, programs branch. I'm also joined by representatives of a number of the independent agencies and organizations that fall within my portfolio.

I would like to discuss how the Department of Justice intends to use the funds granted through the 2018-19 main estimates to promote and maintain a fair, transparent, and accessible justice system while providing high-quality legal services to the federal government. These include a wide range of legal advisory litigation and legislative services to government departments and agencies.

The Department of Justice has a total budgetary authority of $697.75 million through the 2018-19 main estimates, an increase of $42 million from the previous fiscal year. This additional funding is for major priorities, including federal support to the family justice system, immigration and refugee legal aid, and the indigenous justice program, among others.

Much of this year's authority will support the stewardship of the Canadian legal framework by directing funding to the provinces and territories with whom we share responsibility to administer justice.

The funding will help maintain and support a bilingual and bijural national legal framework. Funding through the main estimates will also support the department's ability to transform and modernize the justice system in keeping with the values of Canadians while protecting and maintaining the rights enshrined in the Constitution and in the Charter of Rights and Freedoms.

Our review of the criminal justice system is ongoing. It is intended to ensure that our criminal laws protect Canadians, hold offenders to account, meet the highest standards of fairness and equity, respect the charter, and demonstrate the utmost compassion to victims. These efforts will help strengthen public confidence in the justice system and judicial institutions. Our review, along with results of other consultations and government priorities, is already informing initiatives and reforms that we are introducing to modernize the criminal justice system.

In March, I introduced Bill C-75 to help reduce court delays and to address the overrepresentation of indigenous peoples and vulnerable populations as both victims and accused in the criminal justice system. We anticipate the bill will come to this committee shortly.

In Bill C-75 we are proposing amendments to the bail regime and to how breaches of administration of justice offences are handled. In particular, these changes will help eliminate the unnecessary detention of individuals pending trial, will help eliminate unnecessary bail conditions, and will ensure that fewer people are needlessly charged and convicted of minor administrative offences that do not impact public safety.

These measures will have a particularly positive impact on indigenous and marginalized Canadians who are disproportionately represented in our remand population, and who are disproportionately charged and convicted of administration of justice offences.

We are encouraging the selection of juries that better reflect the diversity of our communities, and we are bringing in stronger measures to address the problem of intimate partner violence. We are also proposing measures that will avoid re-traumatizing victims by reducing the number of inquiries and issues for which they have to testify.

In addition, Bill C-75 will reclassify many offences in the Criminal Code to give our prosecutors the discretion they need to choose the most efficient and appropriate procedure.

Our government has also launched measures to better support indigenous people and vulnerable persons as they navigate the criminal justice system. We continue to fund the indigenous court work program with $9.5 million annually. Integrating indigenous culture, language, and traditions, these court workers provide direct services before, during, and after court. They also provide courts with crucial information to guide sentencing and bail decisions while connecting victims, witnesses, and family members to culturally safe assistance. In 2016-17, over 75,000 indigenous men, women, and young people in over 435 communities received these services.

We have stabilized funding to the indigenous justice program, with over $11 million per year ongoing, to increase the use of restorative justice and reduce the rate of indigenous incarceration.

Since 2015-16, we have continually increased our funding to the department's legal aid program to fund provincial and territorial criminal legal aid programs. This helps economically disadvantaged persons at risk of incarceration, and youth facing prosecution under the Youth Criminal Justice Act.

The department's youth justice fund supports projects with alternatives to incarceration, and encourages a more effective youth justice system. That includes just over $6.5 million towards 16 multi-year projects that focus on culturally relevant programming for indigenous youth in the criminal justice system.

We have also increased funding to immigration and refugee legal aid by over $14 million, with an additional $3 million in contribution funding for legal aid systems and access to justice services.

Mr. Chair, our government is committed to ensuring that victims of sexual assault and gender-based violence are treated with the utmost respect and dignity. The Department of Justice victims fund provides $27.4 million in grants and contributions, supporting 476 projects across Canada. This funding supports research, innovative pilot projects, and front-line services for victims and survivors of crime across Canada.

In 2017-18, more than 100 victims of human trafficking received case management and related services, and more than 450 women and girls at risk received information about services and assistance.

In budget 2017, our government introduced its gender-based violence strategy and over $100 million over five years. Budget 2018 contributed an additional $86 million over five years, and $20 million annually thereafter, to expand on the strategy, with my department as a key contributor.

Budget 2018 proposed $50.4 million over five years to address sexual harassment in the workplace, $25.4 million for boosting legal support funding across the country to support legal action by victims, and $25 million for outreach.

We have continued our efforts to promote and maintain a more diverse judiciary. Since 2015, I have made 179 appointments and elevations. Of these appointees, over half are women, eight are indigenous, 15 are visible minorities, 11 identify as LGBTQ2, and three are persons with a disability. We continue to fund the necessary training for a more culturally sensitive and responsive bench, as well.

Finally, last month I introduced Bill C-78, the first changes to the Divorce Act in more than 20 years. The proposed reforms will ensure that our family law system is focused on the best interest of the child, better supports the safety and well-being of individuals and families, and is more efficient.

Our commitment to improving family justice includes budget 2018 funding of $77.2 million over four years and a further $20.8 million ongoing to expand the unified family courts across the country. This measure will create 39 new judicial positions across a number of provinces, while enhancing access to justice and improving outcomes for families and individuals.

Again, Mr. Chair, I would certainly like to thank the members of this committee for their ongoing work, and I look forward to our discussions today.

Justice

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

Mr. Speaker, the Minister of Justice claims that Bill C-75 has nothing to do with sentencing. Bill C-75 makes serious indictable offences prosecutable by way of summary conviction. Therefore, instead of a sentence of up to 10 years if prosecuted by way of summary conviction, the maximum sentence would be two years less a day or as little as a mere fine. That is right. Under Bill C-75, a maximum sentence could go from 10 years to two years less a day.

Contrary to the minister's claims, Bill C-75 has everything to do with sentencing and everything to do with watering down sentences for the most serious of offences.

Bill C-75 is a terrible bill for victims, it is a terrible bill for public safety, and it is why Conservatives will work to defeat Bill C-75.