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.

[Kendall Yamagishi, External Relations Committee Member, Society of United Professionals]

Thank you very much for the opportunity to speak to you today on behalf of our union, the Society of United Professionals, which represents more than 350 legal aid lawyers in Ontario.

Garrett and I are both duty counsel criminal defence lawyers. Today we hope to bring you our perspective as lawyers who work every day on the front lines for vulnerable and low-income accused persons.

We have decided to focus our submissions on police and judicial releases, as well as offences against the administration of justice. I'll begin by talking about the over-imposition of release conditions and how we believe that Bill C-75 could actually exacerbate this problem.

Section 11(e) of the charter guarantees the right to reasonable bail, and the Supreme Court of Canada has said that a key component of this right includes the conditions of release. Jurisprudence has established that there must be a nexus between the allegations and the conditions and that conditions should not be punitive, since everyone on bail is presumed innocent. We must keep in mind that individuals who are presumed innocent are often on these conditions for many months, if not years, while they wait for trial.

I'd like to recount a story that Garrett told me about one of his clients. This young man was released by the police and put on a curfew despite the fact that he didn't have a record and the allegations actually took place during the day. He was subsequently arrested for breaching the curfew condition and brought to court. With the assistance of duty counsel advocating on his behalf and the oversight of a trained justice, this arguably unconstitutional condition of a curfew was removed, but not until after he was forced to spend an extra night in jail and face a new charge for breaching his bail. Clients will agree to almost anything to get out of custody. In moments of desperation, I've literally had clients say to me, “Miss, I will do anything you ask me to; just please, I need to get out.”

Unfortunately, the relationship between the police and our communities is often one of a gross power imbalance. Our clients are people with brain injuries, addictions issues, mental health issues, and developmental disabilities, which means they bump into the law more than others do.

Within the law of bail, jurisprudence has developed that constrains the ability of the court to impose unreasonable and inappropriate conditions, but this bill, as it reads now, moves away from those standards. It allows police to impose conditions that could not be lawfully imposed by a judge or justice of the peace according to current jurisprudence. What’s worse is that police can impose these conditions without the same scrutiny that the courts are subjected to. There’s no lawyer standing beside you when an officer is typing up the undertaking they are going to hand to you to sign.

Police can already release a person on an undertaking, and they should be doing more of this. The proposed changes in Bill C-75 don't give police expanded release powers that they don't already have. They already have this power. Bill C-75, however, expands the power to impose additional conditions.

Our concerns about the over-imposition of conditions also extend to elements of Bill C-75 that deal with bail in the courtroom. As I mentioned previously, Supreme Court of Canada case law makes it clear that terms of release may “only be imposed to the extent that they are necessary to address concerns related to the statutory criteria for detention and to ensure that the accused is released.”

As Bill C-75 reads now, it appears the courts may no longer be limited by this principle when the accused person is facing a reverse onus situation. In our line of work, reverse onus is not a rare occurrence. It occurs, for example, when my client, who was out on bail for stealing a case of beer, is charged again with entering the same liquor store, thereby breaching his bail conditions. Bill C-75 states that when an accused is released on a reverse onus bail, “the new release order may include any additional conditions described in subsections (4) to (4.2) that the justice considers desirable.” This makes what the justice considers desirable the new legal standard. This, of course, is a far cry from the current standard in the jurisprudence, which is “only to be imposed to the extent they are necessary”.

While the amendment may not have intended to deviate from the standard of necessity, the language must be written in a way that does not invite an overly broad application of conditions. We've outlined some of our proposed amendments in our written submissions.

When it comes to reverse onus on domestic charges, we join the Barbra Schlifer Commemorative Clinic. In their submissions, staff expressed their concerns about the consequences this might have on female accused. I should note that Barbra Schlifer Commemorative Clinic is a clinic that provides services to women who themselves are survivors of domestic violence.

Domestic violence is about power and control. It therefore becomes dangerous to craft legislation around assumptions about who has power and control without accounting for who can leverage the power of the state.

We need to consider the over-prosecution of women whose voices are often forgotten: racialized women, indigenous women, those who are not in heterosexual relationships. As duty counsel, we frequently see women who are charged with domestic assault. Many of them are themselves survivors of domestic abuse.

I personally have had dealings with a female accused person whose abusive partner charged her as a means of psychological control. In shifting the onus onto the accused to justify why she should not be detained by the state, we're only exacerbating the power imbalance that she faces. While the reverse onus provision only applies when the accused has been previously convicted of an offence related to intimate partner violence, in our experience, unfortunately, self-represented false guilty pleas are common. There are many women who have convictions for domestic assaults from relationships in which they were not those in a position of power.

Courts are already required to consider an accused person's criminal record, including past convictions for domestic assaults and the surrounding circumstances, when making a determination about bail, namely through the consideration of the secondary ground of detention. However, expanding the reverse onus provision is overly broad and inconsistent with the presumption of innocence. The burden should always lie on the state to deny a person's liberty. Rather than expanding the reversal of onus on the accused, we advocate for further reduction of the reverse onus provision.

The reverse onus provisions have particularly punitive effects on our clients, who often, due to disabilities and other vulnerabilities, incur frequent charges for minor offences and for drug possession for the purpose of trafficking for reasons that we have expanded on in our written submission.

I'll turn it over now to my colleague.

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

Thank you, Chair.

Thank you to the witnesses. I don't have a lot of legal experience, but I'm finding this study to be very fascinating.

We've heard again and again over the past three years I've been on this committee that our bail system needs reform. As it's outlined right now in Bill C-75, do you think it will address at least some of the challenges faced by our bail system? Will it reduce delays? Will it unclog the system in any way?

Mr. Doob.

[Murray Rankin, NDP, Victoria, BC]

This is a really eminent panel. I'm really grateful to all of you for being here. I'm well aware particularly, Dr. Doob, of your eminent career in criminology.

You started, Professor Doob, talking about your experience with the youth justice legislation, and moving it from aspirational to operational. You then said that you agree with the goals of Bill C-75, but you're not sure that it's actually going to change the behaviour. You said that we have to change the behaviour if we're going to make any difference, and then you said in some cases the bill simply restates what the case law is, for example Antic.

How do we do that in a meaningful way? You gave one example of how we could do that when you said that we could require reasons to be given if we're going to use more sureties, more conditions, or more onerous conditions. Isn't it, however, likely that will just amount to a judge checking a form or there will be some standard rote language, like what we have with jury charges and so forth? You check a box, you feel good, but nothing really changes.

I'm just giving you an example of one of your suggestions, and I'd love you to elaborate.

[Dr. Jane Sprott, Professor, Ryerson University, As an Individual]

Thank you.

I've been asked here to comment on Bill C-75 and the amendments related to bail and administration of justice offences, or failing to comply. Much of my research over the past decade has been around the Youth Criminal Justice Act and issues around bail and bail release conditions.

With respect to the amendments focused on the YCJA and bail within Bill C-75, the focus appears to be both on conditions placed on youths and on responses when a youth fails to comply with such conditions. Similar to my colleagues here, I think both issues desperately need to be addressed, and I applaud any efforts to try to address these problems.

The research tends to find that there are numerous broad-ranging conditions placed on youths, and many times those conditions appear to be crafted with broad social welfare aims that go far beyond the purpose of release conditions. Girls may be especially likely to be subject to such conditions.

The use of these broad welfare or treatment-based conditions is problematic for a variety of reasons, one of which is that the accused is legally innocent at this stage and very little is known about him or her, so however well intended these broad therapeutically focused conditions are, they're unlikely to achieve their desired goals and can actually do more harm in a variety of ways, one of which is setting the youth up for failing to comply. Not surprisingly, the more conditions placed on a youth and the longer the youth is subject to them, the more likely failing to comply charges will occur.

The thrust of the amendments within the YCJA is in the right direction. Bill C-75 aims to prohibit the imposition of bail conditions as a substitute for mental health or other social welfare measures. Bill C-75 also attempts to remind justices that bail conditions can be imposed only if it's necessary to ensure court attendance or for public safety, or if the condition is reasonable having regard for the circumstances of offending behaviour, or if the young person will reasonably be able to comply with such a condition. Bill C-75 also attempts to address responses to failing to comply with conditions, such that various alternatives to charging have been presented within proposed section 4.1.

This is all in the right direction, but again, similar to what both Professors Webster and Doob have said, I fear this may not achieve much change in practice. Learning from the successes of the YCJA, we see that for change to occur, as Professor Doob has mentioned, there needs to be education and training around the changes, and the changes need to be operational or directive, rather than somewhat vague aspirational goals. For local on-the-ground practices to change, people need to know about the changes and understand the intent of them.

Part of the reason why the YCJA has been so successful in selectively using court and custody was undoubtedly due in part to the fact that it was an entirely new piece of legislation. A new act signalled new practices. In effect, it forced a new mindset. In addition, there was considerable education with considerable training for those administering the law years before the act came into force. This was likely indispensable not only in ensuring broad buy-in for the act. It also likely helped ensure operational support from those on the ground administering the law. The same needs to be done here, or nothing is likely to change.

Moreover, although it's all in the right direction, the amendments are still somewhat vague, with little directive guidance. Again, learning from the success of the YCJA, the greatest successes have been linked to the sections that have the clearest operational directives, rather than aspirational goals. Assuming, for example, that police and Crowns already believe they're engaging in best practices and pursuing charges for failing to comply only when necessary, it's not clear if the proposed alternatives to charging within proposed section 4.1 will be enough to change those current practices, especially if there's little by way of education or training about the changes and the intent of them.

Similar issues arise with respect to the imposition of conditions. It's not clear if the proposed amendments related to the imposition of release conditions will lead to greater restraint. There's actually very little guidance or direction.

In this case the entry point for much of what has been happening with respect to release conditions is through the Criminal Code and the ability to add on any other reasonable conditions as the justice considers desirable. It's not entirely clear how the proposed YCJA amendment—with yet another statement that conditions be reasonable, having regard for offending behaviour—will reduce the number or range of conditions placed on young people. If there is a desire to restrain the imposition of conditions placed on youths, then Bill C-75 should probably directly address that.

Moreover, I share the same concerns as my colleagues with respect to the expanded police discretion. It's a question mark if they use it, but if they do, it may well lead to an increase in the use of conditions, the very thing that at another level there's an attempt to restrain.

I suppose my points are then threefold. First, if there's any hope of changing release conditions there has to be education and training. Do not think that if you pass law everything will necessarily change to fall in line with what Parliament intends. Second, if the desire is for restraint in the number and range of conditions placed on youths, then that should be directly addressed, rather than additional aspirations to be reasonable. If expanded police powers to impose conditions are provided for, they may actually be used. Building in more procedures around responding to “failing to comply” offences seems to me to be focusing a little more on the symptom of the problem rather than the problem itself, and that's the use of conditions.

Finally, as Professor Doob has mentioned, the limits put on bail conditions are much more specific for youths than that for adults. If putting on broad-ranging sometimes intrusive therapeutically based conditions is seen as inappropriate with respect to youths, I question why that's not also the same for adults. If it's important for justices to consider whether a youth can actually comply with a condition that's going to be imposed, why is that not also relevant for adults?

Similar issues exist in the adult system, but the problems are profoundly more difficult since the Criminal Code legislation is far less directive than the YCJA and, indeed, more ambivalent and at times, as Professor Doob has pointed out, contradictory with respect to bail.

There are very valid arguments that, again, following the YCJA example, it may be time to completely rewrite adult bail laws. That may necessitate the change in mindset and practice more so than the continued tinkering with amendments. Perhaps it's time to rethink what we want to accomplish with the use of conditions and engage with the evidence to date on the impact and collateral consequences of these conditions, but more generally you might want to learn from the success of the YCJA, which suggests if you really want to see change you need to be directive and you need to educate those administering the law about the change.

[Dr. Anthony Doob, Professor Emeritus, Centre for Criminology and Sociolegal Studies, University of Toronto, As an Individual]

Thank you very much.

In 1997 there were about 3,800 youths serving custodial sentences in Canada. By 2015 this was down to about 500. There are lessons to be learned from the changes in Canada's youth justice system that have relevance for the areas of Bill C-75 that you've asked us to speak about—namely, bail and the administration of justice charges.

In the mid-1990s, it was broadly accepted that we incarcerated too many youths, but it took us 20 years to get to where we are now. The goal in part was to screen minor cases out of the court system. It meant that the courts and youth corrections could deal more effectively with the more serious cases.

I suggest that one of the goals of the proposed changes in bail and administration of justice charges contained in the bill is to be more selective in the manner in which we deal with cases.

How did we do this with youths? First, there was a broad and growing consensus in this case about what the system should be all about. Second, the consensus was reinforced by legislative changes. Third, the legislative language in youth justice changed from what might be called “aspirational” provisions, where the intent was clear but the decision-maker was not required to change. It shifted toward what might be called “operational” directions, where more firm guidance was given. Fourth, governments reinforced the importance of changes in the legislation by instituting educational processes that ensured that people knew that a real change in approach was required—in other words, that the behaviour on the part of those in the criminal justice system had to change in order to comply with the intent of the change in law.

My concern regarding the proposals in Bill C-75 on bail and administration of justice offences is not that I don't agree with what I believe are its goals. It is that I don't think these goals will be achieved.

As you probably know, we have not been as successful in controlling the use of pretrial detention for youths as we have been with sentencing. The original restrictions in the Youth Criminal Justice Act on the use of pretrial detention were not as directive as the restrictions on the use of sentenced custody. Even though the legislation relating to pretrial detention for youths was improved in 2012, no apparent change in the decision-making process actually occurred. The law changed, but practice did not. In 2003 about 41% of the youths in custodial facilities were in pretrial detention. By 2015 this had increased to 56%.

Let's turn now to the proposed changes in the handling of administration of justice charges and bail. I read the proposed changes to section 16 of the Criminal Code with one question in mind: Will it be necessary for anyone to change what they're currently doing as a result of these changes?

Obviously, there are some sensible principles. It is useful to state clearly that primary consideration should be given to the release of the accused at the earliest reasonable opportunity and so on. But such a statement is not dramatically different from the current provisions. What in this legislation will force or at least strongly encourage police officers, Crowns or judicial officials to change the manner in which they determine what constitutes best practices?

I say this in the context that the police officer is encouraged to place conditions on an accused person that are reasonable to prevent the continuation or repetition of the offence or the commission of any other offence. This would seem to encourage extra conditions that are likely to lead to something discouraged in the legislation—namely, additional administration of justice charges when extra conditions are not followed. At the moment, the arrest and bail laws are complex and do not give clear direction.

My reading of the Supreme Court's decision in Antic was that the justices simply restated, in plain language, what the Criminal Code says. Plain language is good, but subsequent court decisions suggest that it may not be sufficient.

Proposed section 493.2 says that a judge or justice shall give attention to the circumstances of aboriginal accused and other vulnerable or overrepresented accused people. Later, in proposed changes to section 515, restraint is again mentioned. Clearly, the idea is that all people, especially indigenous and other disadvantaged accused, should be beneficiaries of restraint. Why not require that reasons be given for escalating the restrictiveness of release orders beyond a simple undertaking without conditions?

Similarly, if it is deemed necessary to impose conditions or a surety, why not require reasons? For indigenous and other disadvantaged people, why not require those suggesting or imposing the conditions to indicate why such conditions are both necessary and possible for the person to follow? In other words, if you want to focus the decision-maker's mind, say so. Require justifications for restrictions on freedom.

There's another problem, however. The Criminal Code, as amended in Bill C-75, would be giving directly contradictory messages. On the one hand, legislation would state that innocent people should not be imprisoned unless there is good reason to do so. However, at the same time, the list of the so-called “reverse onus” offences is being expanded in the bill.

When the current bail laws were put in place in the early 1970s, there were no reverse onus offences. The expansion of the list since the mid-1970s has been gradual, and I would suggest, without empirical evidence of the need for change. Most, if not all, of the reverse onus offences are ones that you would expect courts to take very seriously anyway. The problem in expanding the list, especially at this point, is that the message is clear. A decision to detain is the preferred and safest choice in the short run for those concerned about risk, notwithstanding sections such as the proposed statements concerning restraint.

These two areas of the Criminal Code—administration of justice charges and bail—clearly need attention. My most important worry about the current set of proposals is that they won't be effective in creating the intended changes.

I'll finish with some statistics that illustrate the importance of this issue.

In Ontario, in the year ending this past June, 46% of the 208,000 cases that were completed in Ontario's provincial courts started their court lives in bail court. As Professor Webster has just pointed out, bail cases are not necessarily all serious cases. In fact, only 31% of these bail cases involved crimes against the person.

Another indication that these cases are not necessarily serious is that 40,000 of these bail cases, or 42% of them, in the end had all charges withdrawn or stayed at or before trial. How serious could these cases have been if all charges are withdrawn or stayed?

I'm not confident the changes in Bill C-75 will make much of a dent in those numbers. I hope I'm wrong.

[Tony Paisana]

With respect to bail, we oppose the reverse onus predominantly for two reasons, but we don't disagree with the evidence you've heard, and there was testimony from earlier witnesses about the fact that this may encourage under-reporting, which is a troubling feature that we obviously take issue with.

Our primary consideration in opposing that amendment is that it's redundant, because the other amendment that Bill C-75 brings in is a mandatory consideration by the justice of whether or not that person has a record for this sort of thing already, and whether or not the allegation involves intimate partner violence. What that practically means is that the judge will be forced to turn his or her mind to those issues already, without the need for a reverse onus to highlight the particular importance of intimate partner violence.

We also say it's constitutionally vulnerable, because the cases that have upheld reverse onus provisions in bail have focused on different contexts, like drug trafficking, which encourages the accused—if they are legitimate drug traffickers—to violate the terms of their bail because it's very lucrative and sophisticated and hard to get out of immediately. That's not to say there aren't other considerations in the domestic violence context, but it's not an even fit in terms of trying to rely on those cases to justify this reverse onus.

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

Thank you, Chair.

Thank you to the witnesses for coming in today and for your very detailed briefs.

I'd like to ask the Canadian Bar Association a question. You talk in your brief about video conferencing and technology and the amendments to that. The idea behind Bill C-75, in my opinion, is to reduce delays in the court system.

You're recommending two amendments to those provisions. Can you explain your rationale behind that?

[Tony Paisana]

With respect to the choking, what we understand Bill C-75 will accomplish is to create a third route of liability for assault causing bodily harm and/or assault with a weapon—that's the way it's defined—and sexual assault. Instead of proving bodily harm and/or assault with a weapon, those offences would be made out by an act of choking, regardless of whether or not there was bodily harm, or a weapon used. It would be treated in a way akin to the way in which those offences are treated.

We say it's redundant because choking is already a form of assault. If the person has been assaulted by way of choking, they will be convicted of that offence under section 266. That will be deemed an aggravating factor at sentencing, just given the way the assault took place. Therefore, it is redundant to create a whole new offence at a time when we're trying to streamline and simplify the Criminal Code.

[The Vice-Chair, NDP, Murray Rankin]

Thank you very much. It's my turn.

I want to say thank you to all three of you for your excellent presentations and your great briefs. I want to, in fact, help drill down on a couple of recommendations that, understandably, you didn't have a chance to get to.

I would first like to say, to the Canadian Bar Association, that page one of your executive summary has quite a succinct summary of where you stand. You say, “other proposals, including those to curtail preliminary inquiries and introduce 'routine police evidence' by way of affidavit, would exacerbate, rather than alleviate, court delays, while simultaneously sacrificing important procedural protections”. I thought that was a very good summary.

In fact, to you, Ms. Pentz, your anecdote about preliminary inquiries in the province of Nova Scotia was precisely what Mr. Star, a defence lawyer in Nova Scotia, said to us yesterday. I thought that was very helpful.

As I said, I would like to talk about things that you didn't have a chance to talk to. The Canadian Bar Association has given us 17 recommendations. I'd like to talk about number 15, in which you recommend that the choking and so-called supermax penalties be deleted from Bill C-75. You say those are, “particularly unnecessary”. I wonder if you could elaborate.

[Michael Johnston]

My name is Michael Johnston. I am a citizen and a barrister-at-law and, as often as my clients' cases and causes permit, I am a jury lawyer.

Before speaking about Bill C-75 and jury selection, I did want to take a moment to thank you for extending to me this incredible democratic opportunity. Not every country gives its citizens a voice in the legislative process. Not every political system is prepared to hear evidence that may call into question the wisdom of a proposed course of legislative action. Providing citizens with a voice and providing citizens an opportunity to be meaningfully involved in acts of government bespeaks a vibrant democracy.

In spirit, Bill C-75 seeks to give citizens more of a voice. Bill C-75 seeks to put more citizens in the jury box, to have more citizens involved. Insofar as that spirit is in Bill C-75, it's to be acknowledged and celebrated. However, it takes more than good intentions to make good legislation. I think we all know that there's a saying about where good intentions alone might sometimes take you.

Bill C-75's measures with respect to jury selection seem a bit perfunctory. They require, in my respectful submission, greater deliberation and calibration to achieve the stated objective, and most importantly, in some cases outright elimination, because if you're going to do something, you must have evidence that there's a problem and have evidence that this is going to achieve the solution.

Trial by jury needs to be better understood in terms of how the provinces and the federal government interplay to achieve a representative jury role. There needs to be a better understanding of how challenge for cause informs and works with peremptory challenges.

Ultimately, trial by jury isn't something that just happened overnight. In many ways, trial by jury started before the Norman Conquest, with trial by compurgation. Over the last thousand years, trial procedure has slowly evolved through trial and error. The provisions that have persisted over time, I would suggest to you, aren't there just as historical vestiges, but stand the testament of time.

Bill C-75 with respect to jury selection comes along 48 days after the government's very public declaration of disagreement with a verdict. Forty-eight days to study provisions and otherwise come up with solutions, from my most respectful perspective, simply isn't enough time.

As a result, in my respectful submission, much of what Bill C-75 proposes in terms of jury selection is a legislative rush to judgment, and while the bill lacks a rational connection between its noble objectives and its actual measures, there nevertheless are some things that can be advanced here today, in my most humble opinion.

We know that there is unfortunately a great problem and a tragic problem of overrepresentation of aboriginal people in our criminal justice system. Correspondingly, there is under-representation in the jury boxes. What is the correlation there? It is criminal records. Criminal records are used to exclude tax-paying citizens, citizens who have a right to vote in federal and provincial elections. Criminal records that don't disqualify them from those civic responsibilities and duties do disqualify them from sitting on a jury. Up to 3.8 million Canadians have a criminal record. Criminal records are used both by the provinces and by the federal government to exclude up to 10% of the population.

Now, if Bill C-75 wants to rid itself of discrimination in the jury selection process, this is the lowest-hanging legislative fruit. Get rid of criminal records as a vector for excluding citizens, and if you want to exclude citizens because you think they're biased, produce the evidence. We have provisions already in place to deal with that under paragraph 638(1)(b) of the challenge for cause provisions.

That being said, Bill C-75 is noble in its spirit. It already contemplates modifying paragraph 638(1)(c) to narrow the exception. It wants people who have gone to jail but who have served only one year of jail to be eligible for jury duty, thus changing it, obviously, from the one year that it currently is to two years.

Parliament wants people with criminal records to be involved. It wants to give these people a voice, but remember what I said about this interplay between the provinces and the federal government. Unfortunately, Parliament's intention to have people with a criminal record who have served one year in an institution, for example, is going to be frustrated by the fact that almost every province excludes people with a criminal record, for much lower reasons.

In Ontario, if you've been convicted of an offence that was prosecutable by indictment, that leads to automatic exclusion. Those are easy areas for the government to come into and create a basis whereby it says that across the country you can only be excluded for this reason.

Justice Iacobucci, in his report, actually appreciated the interplay between the two levels of government. He made a recommendation that I submit you can adopt and take one small step further. I'm suggesting that section 626 of the Criminal Code say that nobody in Canada—or no citizen—is subject to exclusion from jury duty merely because of a criminal record, or simply say that the criminal record exclusion should parallel that of the federal government. They did that with respect to provinces that were excluding spouses of doctors or other people who were otherwise ineligible.

I appreciate that I am almost at the end of my time. I have two other areas that I want to briefly address. Most importantly, I want to speak about challenge for cause in section 640 of the Criminal Code. This is a small provision that has otherwise been tucked away in this omnibus provision, and perhaps not many people have even spoken about it, but this is a criminal law provision that has existed almost in its exact form since 1892. Jurors who are either unsworn or sworn have been entrusted to decide if a challenge for cause is true.

This is also important in terms of giving citizens a voice and encouraging citizen involvement. Jurors pick themselves. When they ultimately determine that a juror can sit on a jury, the jury that ends up sitting is a reflection of the choices of the litigants and the jurors themselves. This piece of legislation proposes to have judges completely overhaul that situation and be the sole people to make that determination. There's no evidence that there was ever a problem with this challenge for cause procedure. There's no evidence that this is going to actually provide any form of meaningful solution or that it will even expedite matters at all.

In my most respectful submission, there is no good reason to interfere with the challenge for cause procedures. They fulfill a very important role in terms of ensuring for a defendant—for whom the right to trial by jury exists—that the body is an independent, impartial and representative one. I would most respectfully submit that this idea to change the challenge for cause procedures is totally unsubstantiated and without merit. It should be eliminated unless there's some reason offered in terms of continuing on with section 640 being modified.

Finally, l want to say something about peremptory challenges. As a jury lawyer, I'm somebody who is often in a situation where I'm facing unrepresentative jury pools or jury panels. There are many situations. Most recently, I ran a four-week judge and jury trial where my client was an Ethiopian Muslim, and his co-accused was a Muslim. There were not many blacks or Muslims on Ottawa's jury panel, I assure you. We had to exercise, almost to the full extent of our abilities, the challenge for cause and the peremptory challenges in order to get the 12th juror, who was the only visibly racialized juror.

I say that because peremptory challenges are important to protect the rights of the accused. Often what seems to be lost in all of this conversation is that trial by jury is a benefit that exists for the accused person. There are two reports that have been cited by the ministry of the Attorney General, when this legislation was tabled, seeking to justify this legislation. As a lawyer, however, I always like to look at the actual source. I commend to you to look at the Manitoba inquiry report, which is being cited as the basis for this removal.

In 1991, it was suggested that these peremptory challenges should be eradicated because of the discrimination that they allowed. At the time, however, it also made an additional recommendation. The additional recommendation was to change the way in which juries are selected so that there could be some greater questioning of potential jurors. You can't just nitpick, and I respectfully ask this committee to consider that.

If you are going to go so far as eliminating peremptory challenges, I would say that Justice Iacobucci, when he studied this in 2013, came to a non-partisan, determined and decided conclusion that it was good to keep them but to provide some oversight by way of something akin to an American-style Batson challenge.

I'm sure I've exceeded my time at this point, but I'm happy to answer any and all questions with respect to jury selection or anything else.

I thank you kindly.

[Kathryn Pentz, Vice-Chair, Canadian Bar Association]

Thank you.

As my colleague mentioned, we've made 17 detailed recommendations. Some are suggestions to slightly improve existing proposals and others reflect our more serious concerns. I'd like to focus my comments on two areas: the curtailment of preliminaries as well as the admission of what is called “routine police evidence”.

The restriction on preliminaries is said to be justified as a means to achieve court efficiencies, yet research has shown that at most 2% of all court appearances are used for preliminary inquiries. From the perspective of front-line practitioners—both Crowns like myself and defence counsel—we do not see a system overburdened with preliminary inquiries.

Further, the proposed amendment arbitrarily limits preliminary inquiries to those charged with offences carrying a maximum of life imprisonment. We say this is arbitrary because some offences that carry maximum penalty of life, like robbery, for example, are extremely broad and can encompass conduct far less serious than other offences precluded by this criteria, like aggravated assault, some firearms offences and offences related to organized crime. These offences can be far more serious than those that happen to carry a maximum of life imprisonment, particularly those that carry mandatory minimum penalties.

There are those who argue that in the era of full disclosure, preliminary inquiries are unnecessary. But the reality is that even with full disclosure, the viability of a Crown's case is not always readily apparent. What a witness says in a statement to the police or in a meeting with the Crown is not necessarily what that witness will say on the stand. The other reality is that accused often believe that witnesses will not testify, particularly if that witness is a close associate. There's no possibility of any discussion of resolution until the witness takes the stand.

To illustrate the value of preliminary inquiries, I have two examples. Recently in my jurisdiction, a preliminary inquiry was held in a sexual assault case. The victim was the only witness and her evidence was very strong. Defence counsel have now opened discussions for a guilty plea. The preliminary took about an hour and a half and now has a potential of resolving the case, saving a trial in Supreme Court, which would have taken in excess of a week.

In another case, again of sexual assault, the case rested on DNA evidence because the complainant could not identify her assailant. At preliminary inquiry, the defence cross-examination of the forensic evidence exposed some irregularities in the report. The problems did not preclude the admissibility of the report at the preliminary, but could well have been fatal if the Crown had only discovered it at trial. As it was, the Crown was able to correct the deficiencies and was successful in obtaining a conviction.

The preliminary inquiry is an important tool that makes an invaluable contribution to the effective and efficient operation of the criminal justice system. For example, it provides an opportunity to explore pretrial motions like section 276 applications and O'Connor applications that otherwise would be litigated mid-trial, running the risk of delays.

A second major concern we have is that Bill C-75 proposes to allow for routine police evidence to be introduced by way of affidavit or solemn declaration. If an accused wishes to cross-examine the police officer, then an application must be made.

We see this section as fraught with difficulties. The definition of “routine police evidence” is so broad that it would potentially allow the Crown to call virtually any aspect of an officer's testimony by affidavit. If the accused wished to cross-examine, as undoubtedly they would, they would have to give notice of intent. In the absence of an agreement, the court would then be called upon to adjudicate. In this process as well, the defence would necessarily have to expose aspects of its strategy in order to justify calling the witness.

Such a process would expend more court resources than simply calling the officer, and will have the exact opposite effect of what Bill C-75 hopes to achieve. It would add more delay.

There are also some practical problems with this proposal, which we highlight on page 13 of our full submission. Who will draft the affidavit? Will it be the already overburdened Crowns and police officers? How will the trier of fact weigh affidavit evidence that conflicts with viva voce testimony? How will juries be instructed to deal with affidavit evidence?

To conclude, the CBA recognizes the need to streamline aspects of the criminal justice system in response to Jordan. We believe that such reforms must be evidence-based and must be presented in a way that allows for meaningful debate by this committee, practitioners and the public. We offer slight improvements on existing proposals and oppose other proposals altogether.

With respect to some non-delay-related amendments in the bill, such as the jury selection process, we encourage further study.

Thank you for the opportunity to present. We will be happy to respond to any questions.

[Tony Paisana]

Thank you for the invitation to present the Canadian Bar Association's views on Bill C-75. The CBA is the national association of 36,000 lawyers, students, notaries and academics. An important aspect of our mandate is seeking improvements in the law and the administration of justice. It's that aspect of our mandate that brings us to you today.

Our section's membership represents a balance of Crown and defence lawyers from all parts of the country. Personally, I predominantly practise in criminal defence in Vancouver. I have become particularly interested in issues affecting court delays after acting as counsel for Barrett Jordan at the Supreme Court of Canada. I am joined by Kathryn Pentz, a chief Crown attorney from Nova Scotia who also acts as vice-chair of the criminal justice section in our organization.

We have provided the committee with an executive summary of our comprehensive 40-page submission. It can be found by clicking on the hyperlink included in our executive summary. I commend this larger document to you. Its thorough analysis of the 300-plus pages in the bill could only be briefly summarized in the 10 pages of the executive summary. This larger document includes detailed references to source material, statistics and explanations for our 17 recommendations.

My opening statement will focus on two overall perspectives that have informed aspects of our position on Bill C-75. First, we say that evidence-based reforms are far preferable to hurried, or what some may even characterize as knee-jerk, criminal law policy. Second, omnibus bills like Bill C-75 hinder the ability of important bodies like this one to investigate and study each proposal. They also negatively impact the public's ability to understand and participate in this important debate.

Let me begin with evidence-based reforms. For any practitioner or experienced committee member, it becomes fairly clear fairly quickly, I would suggest, when a proposed amendment is evidence-based as opposed to hurried in response to a public outcry. As you will see from our submissions, we applaud the government for making meaningful reforms to several areas, including in particular the bail process and the administration of justice offences regime. These reforms are connected to empirical study, they are consistent with recent case law, and they are logical.

Other proposed reforms, however, such as nearly abolishing the preliminary inquiry and introducing police evidence by way of affidavit, are very different. They are different and largely indefensible because they are not evidence-based, they are inconsistent with case law, and they lack internal logic, in our respectful view. For example, watching the testimony of officials earlier this week, it struck me as rather remarkable that no meaningful data could be offered to justify the curtailing of preliminary inquiries. Similarly, no study or evidence could be cited to explain why or how the introduction of what has been suggested to be routine police evidence is causing delays currently. These sorts of reactions to Jordan, with respect, do not pass the smell test, and quite rightly have been criticized by various stakeholders who have come before you.

The second general point I will address concerns the omnibus nature of Bill C-75. As we did with the previous government, the CBA is critical of this government's use of omnibus legislation. The bill is quite large. In our brief we address no less than 14 different areas of the system affected by this bill. There are substantive and procedural changes to various topics, ranging from abolishing peremptory challenges—a subject that on its own is so important that you might expect a bill devoted to it alone—to simple changes related to technology in the courtroom. Some reforms are front and centre. Others are buried in the bill, such as the coming into force of a highly problematic rebuttable presumption in human trafficking cases.

The other problem we've identified with omnibus legislation is that it does not allow for incremental implementation and change, something that might be very useful in trying to reform court delays without unduly eroding protections afforded to the accused.

There are indeed great reforms in this bill, which, if correlated with ongoing efforts to resolve delay, may well alleviate the pressure on the system without having to cast aside important tools that have proven their worth over time and that, if cast aside, will only lead to further and new charter challenges and pretrial applications—in other words, more delay. There are smart, focused reforms available to address delay that do not require the wholesale removal of procedural protections.

We offer two such suggestions here in our submissions on Bill C-75 related to elections in murder cases and electronic appearances for non-contentious hearings.

We are happy to address other proposals the CBA has offered, most recently on the Senate study on delay, and we have brought with us our brochure or pamphlet of the top 10 ways to reduce delay that was offered to that committee. These included proposals related to reforming sentencing law, suggestions regarding whether Crown approval standards should be implemented nationwide and other practical solutions that can address the problem at hand.

With that general introduction, I now turn to my colleague to address some more specific concerns that we have identified with respect to Bill C-75.

[The Chair, Liberal, Anthony Housefather]

I call the meeting to order. Good afternoon, everyone. It is a great pleasure to welcome you all here as the justice and human rights committee continues its study of Bill C-75.

Today we have an incredible group of witnesses. For our first panel, I am very pleased to welcome the Canadian Bar Association, represented by Tony Paisana, the L and LR coordinator.

Welcome. You'll have to tell me what L and LR stands for.

[Randy Boissonnault, Liberal, Edmonton Centre, AB]

With regard to the amendments in Bill C-75, many provisions deal with people who faced human trafficking. Did your organization have any comments on those provisions?

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

Thank you, Mr. Chair.

Thank you to the witnesses.

Mr. Muise, it's good to see you back. You touched on the issue of hybridization. You made submissions to record some of your concerns about hybridization. Would you elaborate?

As you noted, there are a number of offences, including participating in a terrorist organization, kidnapping a minor, and impaired driving causing bodily harm, that under Bill C-75 would be hybridized.