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.

[David Lametti, Liberal, LaSalle—Émard—Verdun, QC]

Yes, absolutely. The federal government has that responsibility, but obviously it's not a responsibility that we carry out alone. As I mentioned, former Bill C‑75 was the product of co‑operation with the provinces and territories, and so was the bill we passed to amend the Criminal Code in relation to the rules of criminal procedure.

We are going to continue on that path. It's also important to consider the resources that the provinces have to do the work. Clearly, we are open—

[David Lametti, Liberal, LaSalle—Émard—Verdun, QC]

I don't accept that. Bill C-75 basically enshrined a number of Supreme Court of Canada decisions, which were already the law before that came into account. Bill C-75 added additional reverse onuses in the case of intimate partner violence, again helping victims in that regard.

The experts will tell you that the best thing in terms of helping the bail system is to help the overall efficiency of the criminal justice system. The primary function of Bill C-75 was to make the whole criminal justice system more efficient. It hasn't had time to do its work yet. We're still working. We've had a pandemic in the meantime.

It doesn't mean that Bill C-75 can't be improved. That's why we're here now. Fundamentally, it is a good piece of legislation. It made it harder to get bail and didn't change any of the fundamental underlying premises for bail that the Supreme Court had laid out.

[Rob Moore, Conservative, Fundy Royal, NB]

Minister, in 2019 you described the bail reform bill, Bill C-75 as “an outstanding piece of legislation that goes a long way toward improving the efficiency, fairness and speed...of our criminal justice system.”

You mentioned some of the stats. If we believe Statistics Canada—and I do— violent crime was up and gang-related murders were up in that time. In the last five years, Ontario police have seen a 72% increase in cases of serious violence involving accused persons reoffending while on release for a previous serious offence.

Minister, they lay the blame at the feet of your government and Bill C-75, which has made it more difficult to keep individuals and repeat violent offenders behind bars while they're awaiting trial. Do you accept the criticism that's coming unanimously from every premier in this country? They say that the Criminal Code changes that your government brought in had a negative impact on public safety.

[David Lametti, Liberal, Minister of Justice and Attorney General of Canada]

Thank you, Mr. Chair.

Thank you, as well, Mr. Fortin, for checking to make sure the proceedings flow smoothly.

First, I would like to acknowledge that we are on the unceded territory of the Algonquin Anishinabe people.

I want to thank Matthew Taylor, who is with me today.

I appreciate this opportunity to speak to the bail system in Canada and potential reforms to the system. I realize that it's an important issue and that Canadians are concerned. Ensuring that the laws are fair and effective, and keep Canadians safe while respecting the Canadian Charter of Rights and Freedoms is, of course, a priority for our government.

First, I would like to express my condolences to the families of Constable Greg Pierzchala, Michael Finlay and Katie Nguyen Ngo, and to all the victims of the disturbing incidents of violence across the country that we have seen in recent months. Each of these incidents has been a personal tragedy and a blow to our communities.

I'm pleased to see this committee undertaking a review of all aspects of bail in Canada. Canadians deserve to be and deserve to feel safe. We all have a role to play in protecting our communities.

I believe our bail system is strong and sound, but we are always open to suggestions for improvements, both in terms of law reform and ways in which we might better support the administration of justice and our police officers. The provinces have a key role to play in this issue. We have already seen British Columbia step up, and I am encouraged to see that Ontario and Manitoba are also taking steps to improve their systems.

I am looking forward to meeting with Minister Mendicino and with our provincial and territorial counterparts this Friday to discuss bail reform and how we can all work together, collaboratively, to make Canadians feel safe. I plan to present what we are considering at the federal level, and I hope to hear from my counterparts what they intend to do in their spaces.

In terms of the federal role, I want to reassure Canadians and emphasize that the law already tells us that, if individuals pose a significant threat to public safety, they should not be released on bail. There are no quick or easy solutions. That is why, at my direction, we began working on this issue months ago, again in collaboration with our provincial and territorial counterparts, to find solutions that will ensure the long-term safety of our communities.

It's important to note that there's a data gap that risks clouding the issue. On the one hand, we've heard the opposition cite data that crime is up, particularly from people released on bail. On the other hand, data from the Toronto police shows that between 2019-21, there was a decrease, both in the percentage of individuals granted bail and in the number of people rearrested while on bail.

Our government is always looking for ways to improve public safety and the efficiency of our justice system, so I feel it necessary to correct the considerable misinformation that has been put out regarding former 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, which emerged from Bill C‑75, is the product of lengthy and extensive co‑operation with the provinces and territories.

It codified the bail principles set out in binding Supreme Court of Canada rulings. I want to reiterate that the legislation did not make any fundamental changes to the bail system. It did not change the criteria under which an accused can be released by the court or the basic rules of the system. On the contrary, it created a reverse onus provision, making it harder for offenders to be granted bail when charged with certain offences, including intimate partner violence.

The claim that the recent tragic incidents we've seen in Canada are due to the statute arising from Bill C‑75 is just plain false. The issue is a lot more complex than can be addressed in a single piece of legislation, and to say otherwise is overly simplistic.

Our government's thoughtful examination of the bail system is ongoing, and we continue to work co‑operatively towards solutions that will protect our communities.

One measure that we are contemplating, which aligns with the request in the letter from the premiers, is to establish a reverse onus for additional offences. A reverse onus means that the accused will be denied bail unless they can prove to the court that their release would not pose a significant risk to public safety or undermine the public's confidence. This work is well under way.

I also want to note that there is already a reverse onus on a number of firearms offences, including where an accused who is subject to a weapons prohibition is charged with a firearms offence. However, it is worth considering carefully whether circumstances in which we impose a reverse onus should be expanded. I look forward to discussing this further with the provinces and territories later this week.

We've also heard calls from law enforcement for reform. I was pleased to have met with chiefs of police from across the country in February. I'm grateful for their recommendations based on their frontline experience.

Work is under way to develop legislative and non-legislative options to address the particular challenges of repeat violent offenders. I will also be raising these ideas with my colleagues on Friday.

We know that it will take more than a legislative reform to completely fix this problem.

Police need the necessary resources to monitor offenders who are out on bail and to arrest those who breach their release conditions. We have already provided significant funding and we are open to providing more where needed.

Also necessary are supports and services for mental health and addictions treatment. A social safety net is needed. The previous government cut social programs, and now we are seeing the very real and serious consequences of those cuts. Our government has made unprecedented investments in mental health, including $5 billion for the provinces and territories to increase access to care.

I commend our partners in British Columbia for the action they took on bail in November as part of their safer communities action plan, and in Manitoba for funding new prosectors to focus on serious firearms offences and violent crime.

I encourage all provinces to use the many existing tools at their disposal to ensure that bail laws are applied safely, fairly and effectively. I've already connected with a number of my counterparts on this issue, as well as with leadership from national indigenous organizations. I look forward to our continued discussions and collaboration.

Addressing the particular challenges posed by repeat violent offenders requires a comprehensive approach that crosses jurisdictions and levels of government. We will be acting at the federal level, and I hope that my provincial counterparts will be willing to do the same. The only way to solve this problem is by working together.

I'm hopeful that together we can build on months of joint work by federal and provincial officials and agree on a comprehensive plan forward.

We know there is no easy solution to such a complex problem. We strongly believe that we need to protect Canadians.

At the same time, we must ensure that any measures taken will not exacerbate the overrepresentation of indigenous peoples, Black or racialized Canadians in our jails. We must not further marginalize vulnerable people, including those struggling with mental health issues and addiction. It's a delicate balance, but one the government is committed to getting right.

Thank you.

Telecommunications Act

[Rob Morrison, Conservative, Kootenay—Columbia, BC]

Madam Speaker, in the last several months, we have seen accountability raise its head here in Parliament with Bill C-5, Bill C-75 and Bill C-11. Without accountability, it is as though the government does not actually care what we are doing because with a majority government, the NDP and Liberals can make decisions based on what they think is right and there is no accountability.

With Bill C-5, the evidence is not there. Bill C-21, taking legal guns from legal gun owners, is another non-evidence-based process. With Bill C-26, which we are talking about today, it is time that we start building in some processes for accountability so the government is actually accountable for what it is doing.

[Rob Morrison, Conservative, Kootenay—Columbia, BC]

Madam Speaker, it is always an honour to rise in the House, especially when I can talk about safety and security.

I always try to enhance safety and security for Canadians at home and abroad, for our corporations that are major contributors to our economic base, and of course, for government institutions. Today, discussing cybersecurity in Canada is an opportunity to enhance our country's ability to protect us from cyber-threats.

Security is a significant concern for all Canadians. Lately, with the rise in organized crime and gang offences to the tune of a 92% increase in gang crime, I have to wonder when the government will be led by evidence, or in other words, provide evidence-based action. It is extremely important for our country to have cybersecurity to protect itself from threats, and I welcome Bill C-26. However, I am apprehensive about how successful this bill may be since accountability is a question that the opposition brings up every day in this House.

Bill C-26 is basically divided into two parts. The first part aims to amend the Telecommunications Act to promote the security of the Canadian telecommunications system. It aims to do this by adding security as a policy objective to bring the telecommunications sector into line with other infrastructure sectors.

By amending the Telecommunications Act to secure Canada's telecommunications systems and prohibit the use of products and services provided by specific telecommunications service providers, the amendment would enforce the ban on Huawei Technologies and ZTE from Canada's 5G infrastructure, as well as the removal and termination of related 4G equipment by 2027. Of concern is the time it took the government to react to enforce the ban on Huawei.

The second part aims to enact the critical cyber systems protection act, the CCSPA, which is designed to protect critical cybersecurity and systems that are vital to national security or public safety or are delivered or operated within the legislative authority of Parliament. The purpose of the CCSPA is to ensure the identification and effective management of any cybersecurity risks, including risks associated with supply chains and using third party products and services; protect critical cyber systems from being compromised; ensure the proper detection of cybersecurity incidents; and minimize the impacts of any cybersecurity incidents on our critical cyber systems.

The effects of this bill will be far-reaching, and there are some points to consider: The government would have the power to review, receive, assess and even intervene in cyber-compliance and operational situations within critical industries in Canada. There would also be mandatory cybersecurity programs for critical industries, as well as the enforcement of regulations through regulatory and law enforcement with potential financial penalties.

Under both provisions, the Governor in Council and the Minister of Industry would be afforded additional powers.

If any cybersecurity risks associated with the operator's supply chain or its use of third party products and services are identified, the operator must take reasonable steps to mitigate these risks. While the bill does not indicate what steps would be required from the operators, such steps may be prescribed by the regulations during a committee review.

The act also addresses cybersecurity incidents; a cybersecurity incident is defined as an:

incident, including an act, omission or circumstance, that interferes or may interfere with

(a) the continuity or security of a vital service or vital system; or

(b) the confidentiality, integrity or availability of the critical cyber system

touching upon these vital services. It does not indicate what would constitute interference under the act.

In the event of a cybersecurity incident, a designated operator must immediately report the incident to the CSE and the appropriate regulator. At present, the act does not prescribe any timeline or indicate how “immediately” should be interpreted. Again, there is an opportunity to address this at committee.

There are some concerns with Bill C-26 as it is presently drafted. What the government might order a telecommunications provider to do is not clearly identified. Moreover, the secrecy and confidentiality provisions of the telecommunications providers to establish law and regulations are not clearly defined.

As has been brought up today, potential exists for information sharing with other federal governments and international partners, but it is just not defined. Costs associated with compliance with reforms may endanger the viability of small providers. Drafting language needs to be in the full contours of legislation, and that could be discussed at committee as well. In addition, there should be recognition that privacy or other charter-protected rights exist as a counterbalance to proposed security requirements, which will ensure that the government is accountable.

Some recommendations, or ones derived from them, should not be taken up, such as that the government should create legislation requiring the public and telecommunication providers to simply trust that the government knows what it is doing. Of course, this is a challenge. Telecommunications networks and the government must enact legislation to ensure its activities support Canada's democratic values and norms of transparency and accountability.

If the government is truly focused on security for Canadians, should we not be reviewing our gang and organized crime evidence? Our present policies have failed. Should we not look at the safety and security of our bail reform in an effort to prevent innocent Canadians from becoming victims?

Bill C-26 is a step in protecting Canada from cybersecurity threats. What is the review process to ensure compliance and effectiveness, as well as that goals are met?

In terms of bail reform, even though the evidence clearly shows that Bill C-75 has failed, we see that the NDP-Liberal government is not interested in reviewing bail reform. Cybersecurity is important to our country's security; so are victims of crime after their safety and security has been violated.

I am concerned that the government is struggling with evidence-based information to review Bill C-26, as it has with Bill C-75 and Bill C-5. These bills are not supported by evidence. In fact, offenders and criminals have a higher priority than victims do. My concern is as follows: If Bill C-26 requires amendments and review, will the government follow up? It is so important to be flexible and to be able to address changes, especially in a cybersecurity world, which changes so rapidly.

Bill C-26 proposes compliance measures intended to protect cybersecurity in sectors that are deemed vital to Canadian security. Therefore, although late out of the gate, Bill C-26 is a start. However, since this bill proposes compliance measures intended to protect cybersecurity in sectors that are deemed vital to Canadian security, I would like to see individuals, corporations, and most importantly, the government held accountable. There should also be measures to ensure that the objectives of the bill are met and that there is a proper review process.

As I have stated, government accountability has not been a priority. For the proposed bill to succeed, there have to be processes for review and for updating the critical cyber systems protection act.

The failure of Bill C-75 on bail reform is clear with recent violent acts by murderers and individuals who should never have been out on bail. Today we are debating Bill C-26, and I would hope that there are lessons learned from our failure to review Bill C-75. In addition, we can learn from the failure of Bill C-5, as gang violence and organized crime rates are up 92%. Surely the government will open a door for review and making required changes to Bill C-26 on cybersecurity.

I am thankful for the time to speak on the responsibilities related to cybersecurity.

[Tako Van Popta, Conservative, Langley—Aldergrove, BC]

I'm going to ask you a question about statistics. You shared some statistics with us.

I don't know if this is available, but I would like to know the impact that Bill C-75 had on policing work in Ontario and across the country. Bill C-75 has been with us now for about four years. I think it received royal assent in June 2019. It amended some of our bail rules.

Do we have statistics on what policing work was like before and after that date?

[Chelsea Moore]

As you may or may not be aware, bail provisions in the Criminal Code had not been comprehensively amended since the Bail Reform Act of 1972. There were a lot of inefficiencies in the bail system, with police release or the forms of release, so Bill C-75 tried to improve some of those inefficiencies in the bail process. One of the provisions enacted, as we discussed, was the “principle of restraint” under section 493.1. This requires judges and courts to “give primary consideration to the release...at the earliest...opportunity and on the least onerous [grounds]”. They also have to consider the circumstances of indigenous accused in making any bail decision, as well as accused from marginalized populations.

There had been many calls for reform, and many studies done on inefficiencies in the bail system. The Standing Senate Committee on Legal and Constitutional Affairs did quite a comprehensive study on delays. They looked at the bail issue in their report, “Delaying Justice Is Denying Justice”. They specifically recommended the Minister of Justice prioritize reducing the number of persons on remand across Canada. The principle of restraint responded directly to that recommendation. There were also calls for reform from the Steering Committee on Justice Efficiencies and Access to the Justice System, as well as in several reports conducted.

The bail amendments were significantly informed by Supreme Court of Canada jurisprudence as well. We talked about the decision in Antic, but there was a history of decisions made. In Antic, specifically—which was a unanimous decision of the Supreme Court—now Chief Justice Wagner wrote, in that decision, that there was “widespread inconsistency in the law of bail”. He stated, “the bottom line [is] that remand populations and denial of bail have increased dramatically in the Charter era”. You'll see some data in the Senate report with respect to the remand situation. They heard from a witness from Saskatchewan, who said the remand population went up 97% over several decades. That's quite significant.

I could refer you to the legislative background around Bill C-75, which is available online if you have questions about it.

With respect to the implementation of Bill C-75 reforms, these came into force in 2019. In particular, the bail reforms came into force nine months after that, I believe, so the implementation coincided with the beginning of the pandemic. As you know, there were many disruptions to the court system during the pandemic. Many jury trials were adjourned. Officials are continuing to find ways to look at the data in order to try to measure implementation efforts.

There are a number of ongoing research projects by officials from the research and statistics division at Justice Canada. If you'd like more information on those, I can certainly provide them.

[Lena Metlege Diab, Liberal, Halifax West, NS]

Thanks very much, Mr. Chair, and thanks to our witnesses.

It is an important study. Obviously, we're studying it. There's a lot of public concern in Canada, but there are also a lot of discrepancies in how different provinces and territories are using this. It makes absolute sense for us, as parliamentarians, to take a look at this. I think we are all in favour of this study. I appreciate it, because I didn't do criminal law. I appreciate the “Criminals 101”. I did law school, but that was a long time ago.

I will start off with Bill C-75, which is where you ended with Mr. Brock, just now. It made certain reforms to the Criminal Code.

I know it's only been around for a couple of years, but my question to you is this: Can you tell us—continuing with your response—how it brought the law in line with Supreme Court of Canada jurisprudence? In your opinion and expertise, what has it done, and has there been enough time to assess it, since it's only been a couple of years?

[Matthew Taylor]

Yes. In our opening remarks, we tried to speak to that point directly, which is that the Supreme Court cases you talked about and the reforms that were enacted in former Bill C-75 are principles that inform a process. They don't dictate an outcome. The outcome, in terms of detention versus release, is very clearly set out. You should be detained. A JP or a judge should deny bail if one of the three grounds has been established.

[Larry Brock, Conservative, Brantford—Brant, ON]

I'm going to stop you right there, because I have limited time. I thank you for that.

Do you share this belief?

I've talked with many judges—provincial court judges—and I've talked to many justices of the peace. We all acknowledge that the vast majority of JPs, for short, in Canada do not have a legal background. There's no requirement for them to have a legal background. However, both those JPs and judges feel that Bill C-75 really shackled their discretion. Bill C-75, in addition to the two Supreme Court of Canada decisions in Zora and Antic, has really forced them to consider release, regardless of the circumstances of the predicate offence, regardless of the criminal background and regardless of the number of “failed to attends” and the number of breaches. Default is the overriding principle.

Is that an issue for the department?

[Larry Brock, Conservative, Brantford—Brant, ON]

Thank you, Chair, and thank you to the witnesses.

I didn't think I was going to get a round, so this is an honour.

You obviously know my background. I'm not going to mention my background, because whenever I mention my background, I get my colleague Mr. Naqvi, who was my former boss, chiming in and adding his editorial.

I can inform you, sir and ma'am, that I come at this study with a completely different lens and a different perspective. Unlike my colleague and another prosecutor, Mr. Caputo, I spent a substantial amount of time—15 to 20 years—in bail court on a regular basis.

I want to know whether or not you agree with my assessment.

Prior to the release of Antic.... I don't know. Maybe the two of you weren't even lawyers at that point yet. I've been around for a long time. Prior to Antic, there was a general consensus that the overall pendulum with respect to serving the needs of the public, protecting the public and highlighting the protections under the charter for the accused was not balanced and that far too many people were being detained for really minor offences. There was a lack of focus in prosecutors around this country to argue for detention only on those serious cases that posed a risk, not only to a community's safety, but to that of the victim.

Antic tried to reinforce that the pendulum had shifted too far to the protection of society and the public. In my view, it moved that pendulum a little closer to the rights of the accused.

We then had Bill C-75, and we had another Supreme Court of Canada decision in Zora that reinforced those principles. Now we're left with this perception that the public has that this system we call the criminal justice system is not in balance.

Is that the theme? Is that a focus that you are hearing? Are you reading studies about this, and hearing experts and stakeholders talk about this? Is it a concern at the Department of Justice?

[Chelsea Moore]

As I mentioned, a risk assessment is done at the bail hearing. There is a provision under subsection 515(3) of the Criminal Code that was added through former Bill C-75 and that now requires judges, before making any bail decision, to look at the criminal record of the accused and at whether the accused was charged with domestic violence. I think the criminal record is really key to getting the history of offending and whether there's a pattern of violence there that is likely to be a risk to the public.

Often the Crown introduces occurrence reports if there have been charges laid but no conviction entered, and the Crown can have an officer testify about these reports to say there's been a pattern of behaviour.

[Frank Caputo, Conservative, Kamloops—Thompson—Cariboo, BC]

We have Bill C-75 and we have Antic and Zora. I'm not going to get into the nitty-gritty here, but the gist of Antic and Zora is to say that detention should be very rare. That's how I read those cases.

Do you agree with that?

[Frank Caputo, Conservative, Kamloops—Thompson—Cariboo, BC]

Yes. The point is that they have to show cause, not the Crown.

Probably before we get too deep into that line of thinking, I'm going to go to something a bit more germane, perhaps.

We have Bill C-75, and we have Antic, Zora and St-Cloud. Now, St-Cloud is a tertiary ground case, but it's a bail case. It's been a couple of years, but my reading of St-Cloud is that detention on the tertiary ground should not be rare. In other words, it is okay for detention on the tertiary ground to be frequent.

Did you take that away from the case, too?