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.

[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.

[John Muise]

Thank you.

Good evening. My name is John Muise. I am the volunteer director of public safety at Abuse Hurts, formerly the Canadian Centre for Abuse Awareness. It's a charitable NGO dedicated to the eradication of child abuse. Abuse Hurts provides support for survivors and victims. It does not accept government funding.

My professional experience is relevant to the topic at hand, so I'll note it briefly. I was a police officer with the Toronto Police Service for 30 years. I retired in 2006. I was a detective sergeant. I spent six of those years seconded to the Ontario government's Office for Victims of Crime, where we tried to help crime victims and, as an arm's-length advisory agency, provide policy advice to members of cabinet at the time. In 2009, I was appointed to the Parole Board of Canada as a full-time board member in adjudicating numerous parole decisions.

It's been a long day for all of you, and time is short, so I'll get right to the point. I want to address three areas of serious concern that Abuse Hurts believes are likely to potentially diminish public safety. I won't be talking about peremptory challenges.

First, I will address the proposal to hybridize a large number of indictable offences, thereby allowing for a Crown summary election option. There are a large number of serious crimes set for hybridization, including certain serious driving offences, terrorism-related crimes, and a criminal organization offence. I note that the government just appointed a new member of cabinet to address organized crime, and that's a good thing. However, for Abuse Hurts, the very last one on this long list jumps off the page, and that is the breach of a long-term supervision order. Most of you know what an LTSO is, but I would like to explain how an offender gets one of these orders.

He—and it is most often a “he”—must receive a sentence of two years or more, and there must be a substantial risk of reoffending. The court can make this determination if the offender has been convicted of one of a number of very serious sexual offences and has displayed a pattern of repetitive behaviour that shows a likelihood of causing death or injury to a person, or a likelihood of inflicting severe psychological damage, or by conduct that shows "a likelihood of causing injury, pain or other evil". The word “evil” is not my word; that's the word that's contained in the Criminal Code.

Many of these offenders are also identified by the court as having met the standard to be declared dangerous offenders; however, if the court determines there is a reasonable possibility of managing risk in the community, the offender must be sentenced as an LTSO.

An LTSO is a post-sentence supervision order for up to 10 years, replete with multiple conditions, federal parole officer supervision, and more often than not, particularly in the early years of an order, a residency condition. All of these conditions are imposed by the Parole Board of Canada.

Clearly, the legal bar to receive this designation is high, and with good reason. These are very serious sex offences, and serious offenders who pose an ongoing risk to innocence even while out on these LTSO orders, so when these kinds of offenders appear before a court for an LTSO breach—usually an early warning of a return to their serious offence cycle—they must be dealt with appropriately. In the view of Abuse Hurts, that should be by way of indictment.

These are the kinds of offenders for whom incapacitation through further incarceration safeguards innocents in the community. We all know that Crown attorneys work hard and constantly manage significant workloads. It is not appropriate or fair, for that matter, to allow this offence to be included in the basket of offences where a decision to proceed summarily might be taken because the Crown is under intense pressure from on high to reduce the number of trials in the Superior Court.

Abuse Hurts proposes to the committee to reconsider some of the serious offences on the list I noted earlier and consider removing them. Please, if you see fit, remove breach of LTSO from the list of offences to be hybridized.

Second, I'd like to speak to the judicial referral amendments. If you work in the criminal justice system, one thing is apparent. It's a well-known axiom that a small number of offenders commit a disproportionately large number of crimes, and many of these offenders routinely violate release conditions, fail to appear in court, and reoffend while out on one or more conditional releases or while at large on a warrant.

I think of the young man who, for all intents and purposes, executed a St. Albert police officer not that long ago in Alberta. He was this kind of offender.

These are the offenders who offend the sensibility of many Canadians, drawing criticism about the “revolving door” nature of our justice system. These circumstances can and sometimes do bring the administration of justice into disrepute, yet Bill C-75 proposes an alternative mechanism to deal with many of these offenders that I believe is less public safety-oriented. Anybody involved in the criminal justice system knows that there is very little coordinated information both within and outside jurisdictions to track criminals. Even critical documents, such as criminal records and CPIC entries, are routinely, and sometimes woefully, not up to date.

What's going to happen with these judicial referrals? At best, they might end up written out in court-stored information. How would that help anyone identify the real risk associated with a given offender?

As a former member of the Parole Board of Canada, I can confirm how difficult it is to get even the most basic police record information that is missing from an offender's file. Even if you are able to obtain this information, will the court view it in the same way as a criminal record? Obviously, it won't. As well, a possible unintended consequence of this extensive and detailed new judicial referral plan is that it might use up more court time.

In my opinion, these amendments will varnish the truth about offender behaviour, with important information no longer entered on the official record. How would this reinforce the public's faith in the administration of justice? How does it help quality decision-making? How is it good for public safety?

Abuse Hurts is aware that the federal government consulted a number of people and organizations about this proposal. We know there was significant support among a number of participants in the criminal justice system for an alternative to the charges of fail to comply and fail to appear.

Abuse Hurts proposes creating a mechanism to ensure that judicial referral entries appear on the right side of the criminal record, allowing for use when future decisions to release, refer or detain are being made by police, courts and parole boards.

There's policy that goes along with legislation, so if this committee is interested in looking at that, that might be the route to travel, coupled with regulations.

Third, Abuse Hurts would like to address proposed section 493.1. I'll just refer to it as the principle of restraint section in the new bill. The proposed section reads as follows:

In making a decision under this Part, a peace officer, justice or judge shall give primary consideration to the release of the accused at the earliest...opportunity and on the least onerous conditions that are appropriate in the circumstances, including conditions that are reasonably practicable for the accused to comply with, while taking into account the grounds referred to in subsection 498(1.1) or 515(10), as the case may be.

It's important to know what's in those two sections.

Subsection 498(1.1) instructs police officers about what to consider when releasing, either on the street or from the police station by an officer in charge. Considerations include establishing identity; securing evidence; preventing continuation or repetition of the offence or commission of another offence; ensuring the safety and security of a victim or witness; and considering whether the accused is likely to attend court.

Section 515 sets out the grounds a court must take into consideration when determining whether to release or detain. Grounds include, again, ensuring attendance in court; whether detention is necessary for the protection or safety of the public, including any victim or witness; and whether there is substantial likelihood that an accused will commit an offence or interfere with the administration of justice. An accused can be detained if it is necessary to maintain confidence in the administration of justice based on the apparent strength of the case; the gravity of the offence; circumstances surrounding the offence, including whether a firearm was used; and where the accused is liable on conviction for a potentially lengthy prison sentence.

It's pretty clear what all of those points speak to: public safety and the need for a properly and carefully administered justice system so as to ensure it doesn't fall into disrepute and lose the confidence of Canadians.

I believe that this new proposed principle of restraint in section 493.1 as written is going to trump well-established and, for the most part, long-standing safeguards. This section gives the principle of restraint primary consideration. The dictionary defines “primary” as “of first rank, of importance or value, of chief importance.”

I accept that this section was written with the best of intentions, but with the greatest of respect, I believe it overreaches. Abuse Hurts is particularly concerned about the risk it poses to public safety. Courts are already required to employ the principle of restraint in their release decision-making. The charter, criminal law and case law all tell them to do so. I believe it is wrong to give the principle of restraint primacy.

Abuse Hurts proposes including that principle of restraint section in your bill as written, but removing one word, the word “primary”.

Thank you for this opportunity. I look forward to answering any questions you might have. It's the first time I've appeared before a committee when I didn't have a brief prepared, and I apologize for that. There were circumstances beyond my control, but I've provided my speaking notes electronically to the clerk.

Thank you, sir.

[Marion Overholt]

Thank you.

We appreciate the invitation to appear before you on this important piece of legislation. It is an honour to do so.

I am the executive director of two legal clinics affiliated with the University of Windsor law school and Legal Aid Ontario. Both Community Legal Aid and Legal Assistance of Windsor have provided legal services to the low-income residents of Windsor and Essex County for over 40 years. Community Legal Aid services include representation on summary conviction offences. Legal Assistance of Windsor services include representation on immigration and refugee matters.

We have reviewed the briefs submitted by the Association for Canadian Clinical Legal Education and the Student Legal Aid Services Societies, and we support and endorse their recommendations.

There are three issues we would like to address with the committee today. First is the ability of law students to continue to represent financially eligible clients on summary conviction offences.

Second is the impact of increasing the maximum sentences for summary conviction offences on refugee applicants and permanent residents.

Third is the impact of increasing the maximum sentences for summary conviction offences on our communities.

The first issue I'd like to address is that the current maximum sentence for a summary conviction offence is six months, and the proposed legislation would increase the maximum sentence to two years less a day. As a result, and by the provision of section 802.1, law students would no longer be able to represent clients charged with summary conviction offences. The impact would adversely affect clients in accessing legal representation and would prevent law students from gaining important experience and training in the criminal justice system.

Our law students work under the close supervision of staff lawyers. Every aspect of their work is reviewed and approved. Clients who are denied legal aid because there is no likelihood of a jail sentence are referred to our clinic for representation. The accused are often first-time offenders who have made a mistake that results in criminal justice engagement.

Our clients are young mothers who have been charged with shoplifting—usually diapers and food from a grocery store—or they are the neighbours or family members whose breakdown in relationship has resulted in assaults or threats, which are often fuelled by mental health issues. Our students have the time to uncover the backstory that led to this behaviour. They can reach out to community agencies and professionals for appropriate support and intervention. A criminal offence does not occur in isolation, and addressing the intersectionality of poverty, housing, mental health and addiction issues allows our students the chance to develop professional and effective advocacy skills.

Last year, this committee's report on legal aid noted that students in legal clinics, when supervised by staff lawyers, provide appropriate and low-cost services to community members. This committee has recommended that the role of law school clinics be expanded to increase access to justice.

Without our participation, these clients will have to represent themselves, which will cause more delays in the criminal justice system, increase the probability of guilty pleas, and put more pressure and strain on Crown attorneys, judges and court staff. The results would exacerbate the problems you are trying to solve. Therefore, we request that the provisions of section 802.1 be amended to correspond with any amendments that you make to the definition of a summary conviction offence.

The second issue I would like to address is the impact of redefining summary conviction offences on permanent residents and refugees. The Immigration and Refugee Protection Act defines serious criminality as the conviction of an offence "for which the term of imprisonment of more than six months has been imposed". Under Bill C-75, all non-citizens of Canada would be at risk of a finding of inadmissibility, regardless of whether they are convicted of a summary or indictable offence. This appears to be another unintended consequence of Bill C-75.

We can certainly understand why Parliament would want to give Immigration the tools to consider the impact of granting residency where serious criminal acts have resulted in significant periods of incarceration. However, it has been our experience at Legal Assistance of Windsor that our clients sometimes brush up against the criminal justice system in their early years in Canada during periods of personal crisis and adjustment to Canadian society. Post-traumatic stress disorder is often a factor, and proper treatment of the condition removes the risk of repeat behaviour. The criminal justice system is capable of addressing those concerns without triggering the imposition of a loss of immigration status and residency. The proposed change also impacts the permanent residents' ability to appeal a loss of their status in Canada and any subsequent removal order. An amendment, therefore, is required to avoid these consequences.

The third issue we wish to address is the impact of increasing summary conviction sentences on the clients we serve. The increase in sentence would be a signal to the bench that it is the will of Parliament to increase sentences for summary conviction offences, and it would indicate that greater periods of incarceration are required. We all understand the importance of deterrence in sentencing. However, this change throws the balance between deterrence and rehabilitation out of sync.

Our communities are struggling with serious issues of homelessness and addiction. In Windsor, we have 4,700 people who are on the subsidized housing waiting list. If every person who is currently housed in subsidized housing moved out tomorrow, we would still have people on the list.

We have a mental health court and a drug treatment court that are able to help only a fraction of eligible clients/candidates because of a lack of resources. We have significant wait times for treatment centres, and often on discharge, the lack of secondary housing means that clients are forced to return to the same rooming houses and shelters where their addictions flourished. Therefore, they are placed at risk of recidivism. Longer jail sentences aren't going to address these problems. Indeed, we've seen the medical reports of clients who have been incarcerated, and the difficulty they have in receiving a consistent diagnosis and treatment only exacerbates their unemployability, and does not assist them in their return to being productive members of our community.

To conclude, our law students at the University of Windsor also have the opportunity to study at the University of Detroit Mercy, in Detroit, Michigan, and the stark contrast between the American and Canadian justice systems is poignant and provides an opportunity for us to learn from their mistakes. Longer incarceration periods for our marginalized populations are not productive, cost-effective or just.

We'd like to thank you for the opportunity to make this presentation this evening, and I would be pleased to answer any questions you have.

[Solomon Friedman]

Certainly. Last year, I was lead counsel on a first-degree murder trial. There were four accused. My client was a racialized young man charged with a fairly publicized homicide in a large urban area. There was a challenge for cause to address the publicity issue, but obviously I was extremely concerned that the generally overrepresented juror—that is, our white, older, affluent homeowner—not necessarily make up my 12-member jury. I used peremptory challenges to do everything I could to get young persons, to get minorities, to get immigrants, and to get people who might have different life experiences, or different experiences with the justice system, onto that jury. I used peremptory challenges, as my colleagues do all the time, to make the jury more diverse.

I agree with Professor MacDonnell that we're starting from a really bad situation. It is bad. It's funny that, until I read Justice Giovanna Toscano Roccamo's report, I'd always go back to the office after picking a jury in Ottawa and say, “Why are all my jurors from Orleans? It's unbelievable. What is in the water that produces Orleans jurors?” We now know it's because when you come from the municipal tax assessment rolls, that's where you're going to be overrepresented.

I have used peremptory challenges, and we do it all the time to get more diverse jurors. Is it the best tool? Of course it's not, but right now it's what we have, and Bill C-75 doesn't give us an adequate substitute.

[Solomon Friedman]

Thank you.

Mr. Chair, Vice-Chair and honourable members, thank you for inviting me to testify on the amendments to the jury selection provisions contained within Bill C-75.

I'll say just a few words about myself so you know where I come from. I'm a criminal defence lawyer in Ottawa. I've had the privilege of picking juries across the province, including in first-degree murder trials. I've picked juries. I've exercised peremptory challenges, and I've exercised the challenge for cause provisions. I also lecture part-time in the law of evidence and criminal trial advocacy at the University of Ottawa. It's a pleasure to be here tonight.

I want to begin with the following general, broad observation.

We all know that Canadians expect laws to be passed that are legislated on the basis of sound policy. That policy will be formulated upon the consideration of empirical research and verifiable evidence. This is particularly important in the criminal law context, where amendments to the code and related legislation have profound impacts on the rights and liberties of accused persons. But most importantly, when it comes to process and procedure, unwise amendments, of course, risk eroding the protections that have been put in place to avoid wrongful convictions or other miscarriages of justice.

With that in mind, I look at the peremptory challenge and the proposal by the government to abolish it in Bill C-75.

I go back to February 4, 2018. In the aftermath of the not guilty verdict in the Gerald Stanley case in Saskatchewan, the justice minister issued a statement to the media. She stated, among other things, that she is concerned with the under-representation of aboriginal persons on juries. As you'll hear, of course, I share the minister's concerns. But then she turned to the topic of peremptory challenges. She stated that changes to the use of peremptory challenges would need to be "carefully studied and considered”. What are the results of that careful study and consideration? How careful and considered could that study have been, when two months later Bill C-75 was tabled, which proposes the wholesale abolishment of the peremptory challenge, most importantly without any meaningful substitute?

I note that the topic of juries, much less peremptory challenges, was not mentioned at all in the Justice Minister's criminal justice system review, conducted, pursuant to her mandate letter, between May 2016 and May 2017. Consider that among the dozens of suggestions for improvements to the justice system, there was not a word about the peremptory challenge.

The fact of the matter is that there is no empirical evidence whatsoever to suggest that the peremptory challenges used systemically exclude minorities or indigenous persons. The reality is this: There actually has been no objective research conducted by this government, or any other, on the use of peremptory challenges in the criminal justice system. There is, however, clear and convincing evidence that our criminal juries in general fail to represent the populations they serve.

Earlier this year, the Honourable Justice Giovanna Toscano Roccamo, a judge of the Ontario Superior Court of Justice, delivered her report to the Canadian Judicial Council on jury selection in Ottawa. It was about a jurisdiction that I'm very familiar with, right here. Her report was based on the statistical analysis of jury pools in Ottawa, and it compared them with the demographic makeup of the census tracks they were drawn from. In Ottawa, an individual living in Orleans Queenswood, a census track with a median income of $56,000, where 92% of the residents are homeowners and only 13% are visible minorities, is 10 times more likely to be chosen for a jury panel than is a person living in Ledbury—Heron Gate, where the median income is $24,000, fewer than 7% of people own their homes, and over 69% are visible minorities.

Her findings about aboriginal under-representation were even more stark. In her study of Hastings County, which includes both Belleville and the Tyendinaga Mohawk Reserve, she found that “not a single juror among prospective jurors on any panel list was drawn from the First Nations reserve.”

This is directly related to the way juries are chosen in Ontario and elsewhere in Canada. Bill C-75 does absolutely nothing to remedy that. Instead, this bill would abolish one of the few tools that counsel can actually use to improve the representativeness of the criminal jury.

I'm aware that the committee has heard some testimony. I heard it in the panel prior. I am more than happy to discuss my own experience.

You've heard anecdotal evidence about criminal counsel using peremptory challenges to exclude indigenous or racialized jurors in criminal trials. I'm here to tell you that the opposite is true.

Peremptory challenges are regularly used by counsel to improve the prospects of a more diverse jury. I have regularly used them this way, as have many of my colleagues.

Given the overrepresentation of aboriginal persons and racialized minorities as accused in our criminal justice system, at present the peremptory challenge is often the only tool counsel can use in order to ensure that the jury, even in some small way, is representative of the accused. Remember that in Canada we have struck a particular balance when it comes to jury selection. Unlike many other jurisdictions, we do not allow our jurors to be questioned extensively about their backgrounds or potential biases. Instead, a combination of the peremptory challenge and a very regimented challenge for cause process strikes this balance between juror privacy and the need to determine the impartiality of the triers of fact in a criminal proceeding.

Removing the peremptory challenge without any suitable substitute upsets this balance. To do so without any objective data as to how peremptory challenges are presently being used—or misused, as some would allege—flies in the face of the evidence-based decision-making we've heard so much about.

That's not to say that our system is perfect or immune to review or improvement. In my respectful view, there are a number of simple measures this committee should consider with respect to jury selection.

Number one, as recommended by the Law Reform Commission report on the jury in 1980, all potential jurors on the panel should be given a detailed, standardized questionnaire in order to provide the judge and counsel with substantive information upon which to justify the exercising of challenges or stand-asides.

Number two, this questionnaire could also be retained and anonymized in order to serve as the basis for academic research about the makeup and biases of our jury pools. Moreover, basic statistical research should be conducted about how peremptory challenges are being exercised. In other words, we need to answer the simple question: Are peremptory challenges being misused? The last time this matter was studied by the federal government was in 1980. Policy decisions about the trial process are too important to base on anecdote and innuendo. Real research and hard data should be the basis of criminal legislation.

Number three, in my respectful view—and I will correct Professor Roach—recommendation 15 of the Iacobucci inquiry does not call for the abolishment of the peremptory challenge. Justice Iacobucci calls for imposing a "modified Batson challenge", an American challenge modified for our system that requires individuals who appear to be exercising the peremptory challenge on a discriminatory basis to explain to the judge what their non-discriminatory basis for using it is. That was Justice Iacobucci 's recommendation.

Number four, section 629 of the Criminal Code should be amended to allow either party to challenge the jury panel on the ground of unrepresentativeness, as found by successive studies and judicial inquiries. This is in line with what was proposed by the Criminal Lawyers' Association and by Professor Roach.

I close with this thought. Peremptory challenges have existed in our common law for nearly a thousand years. They have been a constant in the Canadian jury selection process since the very first Canadian Criminal Code. They're part of this careful balance that's aimed at preserving the fairness and integrity of the jury trial, which is a right guaranteed to all accused persons charged with serious offences.

Jury selection can no doubt be improved. Bias and discrimination can be removed from the process. Juries can be made more representative, but nothing in Bill C-75 as presently drafted would accomplish any of that. Judges, lawyers, jurors, and all justice system participants deserve better.

Thank you very much for your time and your kind attention.

[Ali Ehsassi, Liberal, Willowdale, ON]

Thank you, Mr. Chair. As you indicated, I will be sharing my time with Mr. Virani.

Professor Roach, thank you for your testimony and for the very detailed brief you sent us.

Do you believe that Bill C-75 is a significant step in the right direction?

[Prof. Kent Roach]

One thing the Manitoba aboriginal justice inquiry recommended, in light of the Helen Betty Osborne case, where six visibly indigenous people were excluded by the defence, much as Mr. Kettles has already mentioned, was that we should get rid of peremptory challenges.

The other thing Justice Sinclair and Justice Hamilton recommended was that the judge determine issues of impartiality of prospective jurors. That's also what Bill C-75 does. The Criminal Lawyers' Association has a problem with this; I don't.

This is belated law reform. Certainly, people argue that this was a quick reaction to the Stanley case. I think that's unfair. The government is drawing on a 1991 report, both with respect to peremptory challenges and with respect to allowing judges, as opposed to the last two jurors or two random people taken from the jury pool, to decide whether a juror is impartial if he or she is asked questions on a challenge for cause.

[Prof. Kent Roach]

Exactly. Mr. Rankin, I spent a lot of time this summer looking at all of the jurisprudence from the courts of appeal and the Supreme Court on jury selection. Frankly, judges are somewhat conservative on these issues. My worry is that, as the amendment is now written—which, as you noted, simply adds “maintain confidence in the administration of justice”—it doesn't guide the exercise of judicial discretion. Different judges will exercise the discretion differently.

Just as we saw with the sentencing provisions, and as we see in other parts of Bill C-75 relating to bail, it behooves Parliament to give judges a signal that we are concerned about the overrepresentation of indigenous and other groups in our criminal justice system.

[Prof. Kent Roach]

Yes.

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

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

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

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

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

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

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

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

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

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

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

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

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

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

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

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