Evidence of meeting #101 for Justice and Human Rights in the 42nd Parliament, 1st Session. (The original version is on Parliament’s site, as are the minutes.) The winning word was terms.

A video is available from Parliament.

On the agenda

MPs speaking

Also speaking

Carole Morency  Director General and Senior General Counsel, Criminal Law Policy Section, Policy Sector, Department of Justice
Nathalie Drouin  Deputy Minister of Justice and Deputy Attorney General of Canada, Department of Justice
Johanne Bernard  Assistant Deputy Minister, Management Sector, and Chief Financial Officer, Department of Justice

3:50 p.m.

Liberal

Ron McKinnon Liberal Coquitlam—Port Coquitlam, BC

That leads me to my next question. How are you supporting the Department of Canadian Heritage to implement this? When might we expect the renewed court challenges program to be operational?

3:50 p.m.

Liberal

Jody Wilson-Raybould Liberal Vancouver Granville, BC

My officials, the Minister of Canadian Heritage, and I have ongoing conversations. We had conversations leading up to the announcement of the reinstatement of the court challenges program in and around official languages and human rights. We had conversations in terms of the expansion of the program to address other charter rights.

I wish I could give you a definitive answer as to when the court challenges program will be up and running, but I know that the determination of the minister is to put that in place as soon as possible.

3:55 p.m.

Liberal

Ron McKinnon Liberal Coquitlam—Port Coquitlam, BC

Thank you, Minister.

3:55 p.m.

Liberal

The Chair Liberal Anthony Housefather

Thank you very much.

Mr. Rankin.

3:55 p.m.

NDP

Murray Rankin NDP Victoria, BC

Thank you.

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

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

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

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

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

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

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

3:55 p.m.

Liberal

Jody Wilson-Raybould Liberal Vancouver Granville, BC

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

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

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

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

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

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

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

4 p.m.

NDP

Murray Rankin NDP Victoria, BC

As a follow-up, you point out, I think, that some provinces' courts of appeal have upheld and some courts of appeal have not upheld mandatory minimums, creating, essentially, a patchwork system across our country for a law that is federal in nature. It's really quite disturbing to a lot of lawyers who practise criminal law that we would have such a patchwork develop. Isn't that yet another reason to move expeditiously, as you said you would, so that we would have had, I thought you said, in 2017, reform efforts? Now we have a private member's bill and a Senate bill. We have a 300-page bill that doesn't even mention it. Isn't it important that we grapple with this in a more timely way, given the patchwork that's developed, as you indicated?

4 p.m.

Liberal

Jody Wilson-Raybould Liberal Vancouver Granville, BC

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

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

4 p.m.

Liberal

The Chair Liberal Anthony Housefather

Thank you very much.

Mr. Fraser.

June 5th, 2018 / 4 p.m.

Liberal

Colin Fraser Liberal West Nova, NS

Thanks very much, Mr. Chair.

Minister, thank you for coming to our committee. As always, it's good to see you. I thank your officials as well for being here today to answer our questions.

I want to start with something you've touched on already, which is that budget 2018 put forward funding to implement the unified family courts in the provinces that don't already have them. I'm from Nova Scotia, and I was a practising lawyer there in the family system. I can tell you that this is going to be well received in Nova Scotia and I'm sure in the other provinces that this is going to be affecting. I know it will be standardizing rather than having two levels of court for family jurisdictions in those provinces. This is going to make a big difference for family law in those jurisdictions.

I'm wondering if you can touch on why it's so important that the unified family court system in Canada be standardized across these provinces that don't already have it, and on what it will mean for family law justice in Canada.

4 p.m.

Liberal

Jody Wilson-Raybould Liberal Vancouver Granville, BC

Again, we were very pleased to see the support for unified family courts in budget 2018. We're working toward ensuring that we can meet the needs and identify the judges, the 39 judicial appointments that were in the budget, in the four provinces that expressed a very real desire to expand their programs or to actually set up programs, as I said earlier, in Alberta, in Ontario, in Nova Scotia, and in Newfoundland and Labrador.

In terms of family law and access to justice in family law, the unified family courts, as you know, having practised in Nova Scotia, will create a space where individuals can go. We'll have within those unified family courts the ability of the so-called one-stop shop. We'll have specialized judges in family law in those courts. We'll have simplified procedures within those courts. We'll also have community programs and support services to assist individuals who are going through this. For most people, the only time they interact with the justice system is in family law. We want to ensure that we do everything we can to assist those individuals in gaining the necessary access to justice in a timely way and as efficiently and cost-effectively as possible.

When we were going through all of our discussions and consultations with the provinces and with individuals, there was clearly a desire to ensure that in concert with unified family courts we're taking the necessary steps in terms of the reforms we've proposed in Bill C-78 around the Divorce Act and around two other pieces of federal legislation to also contribute to improving the family law situation in the country.

4:05 p.m.

Liberal

Colin Fraser Liberal West Nova, NS

Minister, I agree with you that in implementing the unified family courts along with the implementation of Bill C-78, which is currently before Parliament, this will have a big effect on the efficiencies in the family law system in Canada. With Bill C-78 it's the first time in over 20 years there's been a major overhaul and update in our divorce laws. That will really help a lot of families in Canada who are going through those challenging circumstances.

I want to turn now to Bill C-46, which was touched on earlier, and the provision in the bill dealing with mandatory alcohol screening. Our committee studied Bill C-46, and one of the things stated over and over again to our committee was that to reduce the incidence of impaired driving, there needs to be a fear of getting caught. That's really what will be important in reducing the incidence of people being impaired on our roads.

We've heard that mandatory alcohol screening in other jurisdictions has worked. I know that there has been some discussion about whether it's constitutional, but there are constitutional experts who have weighed in who believe that the provision is justified under the charter. The main reason for this is that it is of compelling public interest to reduce the harm of impaired driving on our roads.

I know that this bill is currently in the other place. It's before the Senate right now. The House of Commons has already passed that. What do you say about the importance of getting Bill C-46 passed by both houses of Parliament and into law, along with the provision of mandatory alcohol screening, to reduce the incidence of drinking and driving on our roads and impaired driving overall?

4:05 p.m.

Liberal

Jody Wilson-Raybould Liberal Vancouver Granville, BC

You reiterated that quite well in terms of other jurisdictions and the charter implications with respect to mandatory alcohol screening. With regard to Bill C-46, mandatory alcohol screening is the centre of our proposed renovation of the impaired driving laws in Canada. As you said, in other jurisdictions that have mandatory alcohol screening, those who would have gone undetected—going through a road stop, for example—are in the range of about 50%.

The idea of having mandatory alcohol screening as a reality would be a significant deterrent in terms of those individuals who think it's appropriate to get behind the wheel of their car when they have been drinking alcohol or are impaired by drugs. The objective with respect to mandatory alcohol screening is to ensure that individuals do not do that, that they do not get behind the wheel while impaired by any kind of alcohol or drug.

I was very disappointed when the senators voted to remove mandatory alcohol screening. This is, again, the hallmark of Bill C-46. We are determined to have mandatory alcohol screening contained within this legislation as it proceeds, because it will save lives. MADD Canada has backed mandatory alcohol screening, and 40-some jurisdictions throughout the world have proven, based on evidence, that this saves lives. This saves lives, and what could be more important than that?

4:05 p.m.

Liberal

Colin Fraser Liberal West Nova, NS

Thank you, Minister.

4:05 p.m.

Liberal

The Chair Liberal Anthony Housefather

I again will remind everyone that the minister needs to leave at 4:30. Any questions after that time will be answered by officials. We're going to try to get through as many as we can in our second round before the minister has to leave, so try to be quicker with your questions if you can, but it's great to hear the fulsome questions and answers.

Mr. Ehsassi, you're first in the second round.

4:10 p.m.

Liberal

Ali Ehsassi Liberal Willowdale, ON

Thank you, Mr. Chair.

Madam Minister, allow me to join my colleagues in welcoming you to this committee once again and also in thanking all your officials for being here.

I'd like to follow up on the approach taken by Mr. Fraser, just to ask about some of the changes we're seeing.

My first question is in relation to Bill C-74, which has to do with having new positions appointed for Ontario, Saskatchewan, and the Federal Court. Bill C-74 is still before the House, but as I understand it, under this bill there will be an additional complement of six positions for the Ontario Superior Court, one addition to the Saskatchewan Court of Appeal, and one addition to the Federal Court. I can tell you that this has been received very positively in the legal community.

I would ask you two quick questions. First of all, how did you arrive at these new numbers? Second, as a follow-up, how do you suspect that this will improve the efficiency of our judicial system?

4:10 p.m.

Liberal

Jody Wilson-Raybould Liberal Vancouver Granville, BC

Indeed, you're quite right in terms of the support for new judicial positions in the jurisdictions you referenced. How did we arrive at those numbers? I, my judicial affairs adviser, and my office have ongoing conversations with all jurisdictions and with my counterparts in the provinces and territories, as well as discussions with the chief justices in the provinces and my officials. In working with jurisdictions, we assessed it through ongoing conversations in building a business case for additional positions, and we have arrived at what was reflected in terms of our ask with respect to budget 2018.

On the second question about how this is going to improve efficiencies, we want to ensure that we have the necessary judicial resources in place, the necessary judicial resources that reflect the diversity of the country. In addition to these appointments, we are continuing to proceed with our renovated judicial appointments process, through which, as I said in my opening remarks, I was pleased to have appointed 179 judges to the superior courts.

We're going to continue to fill these vacancies and continue to work with the chief justices and the judicial advisory committees that review judicial applications, as we are doing on an ongoing basis, to proceed as quickly as we can to fill the necessary judicial vacancies with meritorious candidates who reflect the diversity of the country.

4:10 p.m.

Liberal

Ali Ehsassi Liberal Willowdale, ON

I will now switch to Bill C-16, which received royal assent in June of last year. Under that bill, the grounds for discrimination in the Canadian Human Rights Act have been broadened, namely, by adding “gender expression” and “gender identity” as well. Would you mind explaining to us what you think the impact of these changes will be on the commission? Is this in any way responsible for the increase in the number of complaints that have been received by the commission?

4:10 p.m.

Liberal

Jody Wilson-Raybould Liberal Vancouver Granville, BC

I appreciate the question. I will say from the outset that the commissioner, Marie-Claude Landry, would have the ability to answer that question specifically, I know, but with respect to Bill C-16, which was about gender identity and gender expression and adding those as prohibited grounds in the Canadian Human Rights Act, as well as amending the Criminal Code, it was an extraordinary process and bill to move through Parliament.

It was legislation that for years was advocated for by so many people who may express themselves differently in terms of their gender. It was an incredibly proud moment for me and I know for many Canadians across the country in feeling that there is recourse in terms of discrimination based on gender identity and expression.

In terms of the Canadian Human Rights Commission, I know that they have been engaged in information gathering in terms of providing educational materials on gender identity and gender expression, and they recognize that there will be an increase in terms of the cases that are before the Canadian Human Rights Commission. In terms of numbers and the substantive information, the educational exercises, and the engagements they've been having across the country, I would say that the commissioner would probably be better placed to speak to her important work.

4:15 p.m.

Liberal

Ali Ehsassi Liberal Willowdale, ON

Thank you, Minister.

4:15 p.m.

Liberal

The Chair Liberal Anthony Housefather

Thank you very much, Mr. Ehsassi.

Mr. Cooper.

4:15 p.m.

Conservative

Michael Cooper Conservative St. Albert—Edmonton, AB

Thank you, Mr. Chair.

Thank you to the officials.

Thank you, Madam Minister, for being here.

I want to first of all just follow up on an answer that you provided in response to a question posed by Mr. Nicholson. This deals with the hybridization of offences. You indicated that there really is no problem because all it is doing is giving prosecutors discretion to prosecute by way of summary conviction when, as you put it, the circumstances warrant. That's true: prosecutors would have the discretion through the hybridization. When would circumstances warrant going by way of summary conviction for, I don't know, arson for fraudulent purposes, for example?

4:15 p.m.

Liberal

Jody Wilson-Raybould Liberal Vancouver Granville, BC

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

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

4:15 p.m.

Conservative

Michael Cooper Conservative St. Albert—Edmonton, AB

Thank you, Minister, for that. I have to say that I think a lot of Canadians would be very surprised and couldn't think of any circumstances, whether they be for arson for fraudulent purposes, or participating in a terrorist organization, or kidnapping a minor, or advocating genocide, or perhaps material benefit from sexual services, in which any of those offences and a whole list of others would be suitable for prosecution by way of summary conviction, to go from a maximum sentence of 10 years to something as low as a mere fine. I think Canadians would be astounded by that.

You also just mentioned, with respect to the issue of delay, that that's one objective of hybridizing. We have the Jordan decision. Under Jordan a delay is deemed presumptively unreasonable after 30 months between the laying of charges and the conclusion of a trial for matters before superior courts and 18 months for matters before provincial courts. Prosecuting by way of summary conviction is to prosecute at a provincial court level, which would reduce the timeline to prosecute by almost half. How does that deal with delay? Isn't this just a case of downloading onto the provinces?

4:15 p.m.

Liberal

Jody Wilson-Raybould Liberal Vancouver Granville, BC

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

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

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

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