Justice Committee on Sept. 17th, 2018

[Malcolm Mercer]

That would be not a preferred option at all, because effectively you would be moving independent paralegals who are separately regulated and separately trained into the supervision of lawyers. Why one would do that is entirely beyond me.

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

Right.

[Malcolm Mercer]

It is true that students are under the supervision of lawyers, so that option would address that aspect, but what we've had is long-standing use of paralegals—previously unregulated, now regulated—and you would eliminate that representation.

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

I take your point, and I agree with you. I raised it simply because in a number of the briefs that was a recommended amendment.

To that end, if we leave the one year for the offences up from six months, do you have any suggestion or proposal of an amendment that could be put forward that would allow agents to continue acting on behalf of clients on criminal matters?

[Malcolm Mercer]

As long as the Criminal Code limits agents' use to six months and there are no six-month offences, there's no good way through that.

The only possibility is having separate provincial regimes, but that doesn't work for a few reasons. First of all, as a law society, we believe in independence of the legal professions, and we think it would be wrong for the province, which is the prosecution arm, to also be the decision-maker on the scope of practice for the defence.

I used to think that our focus on independence of the bar didn't matter all that much, because we have a great, free and democratic society. As we look around, I think we should take greater concern about the frailties of our democratic freedoms and I think we should continue to focus on the independence of the legal professions from the state.

It would be possible to have the law society address who should be able to practise in the two-years-less-a-day category if you kept only that category. The problem is that we have designed a licensing regime, a training regime, for licensed paralegals that is based on offences up to six months, so the provincial government would have to rethink whether you change the nature of licensing, whether you have to have specialist licensing, whether you have to change education.... A myriad of different things would be necessary if the risk to the person was two years less a day as opposed to six months.

There would be the difficulty, and it may not be a surmountable difficulty, of creating a new class of paralegals who could do that work, but the other question is, why would you? There's no problem that needs to be addressed. We have a good system that works for the six-month category.

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

Thank you.

[The Chair, Liberal, Anthony Housefather]

Mr. Boissonnault is next.

[Randy Boissonnault, Liberal, Edmonton Centre, AB]

Thank you, Mr. Chair.

Ron, thank you very much for coming here. I'm really glad that the country has seen fit to honour your service with the Order of Canada, not only for your great work in the HIV/AIDS space but for channelling the love and passion for your partner, Kimble, into a whole life's work on behalf of the community. Thank you.

I know you're an activist, and activism doesn't stop, does it? So you need to be here again. I appreciate that.

I want to ask you a technical question.

There are legal scholars who say that if we could do a carve-out vote for the LGBTQ community, we'd have thought of it already, and that if we repeal bawdy house provisions, we would also repeal some parts of that law that still have an application in today's society.

What would you say to people who say we have to hang on to bawdy house provisions and we can't figure out the terminology to do a carve-out for LGBTQ people?

[Ronald Rosenes]

I'm going to start by saying I'm not a lawyer.

It does seem to me, though, that the law has become archaic through lack of use and application. I think the bawdy house laws in the last two years have only been used once or twice.

I would ask this question, and probably throw it back to you: What other remedies exist in the law?

When we look at other areas that I'm involved in, such as criminalization, we really see the broad overuse of the law. I personally think that we need to ensure that the laws we use are only those that can be put into effect in situations with true cause—consent is not given, harm occurs, there is non-consensual activity, and so on. I really don't see much use for the law as it relates to sex work anymore, but I do see a place for other laws, including possibly aggravated sexual assault for areas of non-consent.

I'm not sure if I've answered your question, but I think that there are other laws on the books that can be used and that this archaic law needs to be made to go away.

[Randy Boissonnault, Liberal, Edmonton Centre, AB]

You have indeed answered the question, so I appreciate that. Now I want to ask you a personal question, and then I'll get back to the technical pieces.

What would it mean for you to have that record from the Toronto Police Service removed and expunged?

[Ronald Rosenes]

It would remove a very difficult and distant memory for me, but I really come to the table saying it's not about me. I'm carrying all these other voices with me. It's on behalf of a much larger group who were wronged, and in many cases had their lives ruined. It's really not about me. It's about a much broader group of people who suffered far greater harm than I did personally.

I take my responsibility to the community seriously, inasmuch as I can support the LGBTQ community. I also understand that among people who work in the sex trade there are also many LGBTQ people who would benefit from the repeal of the law.

[Randy Boissonnault, Liberal, Edmonton Centre, AB]

You raised two issues. One is the repeal of the law, which is part of it, but let me ask you a question about expungement, because I know you've chatted with many colleagues about this and I know we'll hear from Gary Kinsman and others next week.

If we are able to repeal the law and get expungement legislation drafted, would it be important for you and the people you've spoken with for the posthumous provision to be there as well, so that a family could apply on behalf of somebody who was charged in the past but is no longer alive?

[Ronald Rosenes]

I think there are two things that are important. I think the posthumous provision is important. I would support that without question.

As well, I've done a lot of work with historians, who will be presenting in the future. When we presented on Bill C-66, I also said, “Look, I don't want to have my record at the Toronto Police Service or the Scarborough Court anymore, but I don't want to see my records disappear off the face of the earth, because I think it is important to preserve our history”, so I would also add to your point that I would very much like to see the preservation, with my express permission and with agreement, of our documents in the historical archives of such places as the Canadian Lesbian and Gay Archives in Toronto.

That is just one example. I would like to see the records preserved in that way, if possible, and under our express permission.

[Randy Boissonnault, Liberal, Edmonton Centre, AB]

So noted. That is one way to do it, with express permission from people, if that's in the legislation. The other way to do it with existing provisions is for an access to information request to occur before the record is expunged, and then you have both sets of data. That would require no legislative change in the current present form.

Thank you, Ron. I really appreciate your testimony.

Mr. Chair, do I have a minute? I need to go to Mr. Rudin.

Mr. Rudin, I want to understand how decriminalizing the administrative provisions is so helpful to the community from the Aboriginal Legal Services' perspective. Also, with regard to applying the Gladue principles to bail, in which jurisdictions will that be able to be evenly applied? I'm referring specifically to administration of justice offences.

[Jonathan Rudin]

There are two points.

One of the things we know is that there's a huge use of unnecessary bail conditions. One of the most prevalent is the condition that prohibits someone who is an alcoholic from drinking.

As Ms. Deshman said, people will say anything to get out of jail. They're given conditions that don't actually relate to concerns about public safety and are not related to the offence itself but that allow them to continually be picked up and accumulate greater and greater criminal records. As I've said, the data shows—and there's a lot of data—that aboriginal people not only face more and more restrictions, but they are picked up for those restrictions. If we take away the jail option, then that makes a big difference. Ultimately, what I would hope would happen is that people would stop imposing conditions that are foolish.

In terms of the Gladue provision, there is recognition in some but not all provinces that Gladue provisions apply to bail. There is a division in the court in Saskatchewan about its application. It's not clear in Quebec. There has not been a major court case on that in Quebec either. This would clear up that issue. It would be very significant, because do know that in Ontario, where Gladue clearly applies to bail, indigenous people do receive bail because things like prior administration of justice offences are not held against them.

[Randy Boissonnault, Liberal, Edmonton Centre, AB]

Thank you very much.

[The Chair, Liberal, Anthony Housefather]

Thank you.

Mr. Rankin is next.

[Murray Rankin, NDP, Victoria, BC]

Thank you very much.

Mr. Rosenes, I don't have a lot of time, because we're running late, but I also want to salute you for your bravery. I want to congratulate you for your remarkable advocacy that led to your getting the Order of Canada, our nation's highest award. Your testimony today I found very moving and very effective.

I should say, however, that I'm very concerned about the ability of this committee to do what you properly ask us to. It would be my hope that we can recommend the repeal of subsection 210(1) of the Criminal Code. Indeed, clause 75 of Bill C-75 talks about that as an offence reclassified to two years less a day. You'd think we would be able to do what you suggest, or at least to recommend it. I'm advised by legislative counsel that it may be inadmissible for us to do that, so we're going to be looking to the chair to see if we can indeed do what you properly recommended.

I'd like to spend the time available with Mr. Rudin, if I could.

I found your testimony on the reverse onus on bail, particularly the dual-charging phenomenon that you told us about, to be very powerful. I have to repeat what you said: Over 40% of women in custody today are indigenous. You say this provision of the bill “will make a shameful situation even worse.”

That's a shocking thing to tell us. We therefore have to fix it. How would we do so?

[Jonathan Rudin]

This issue has come up repeatedly, and certainly the commission into murdered and missing indigenous women and girls has heard a lot of evidence about the impact of dual charging. We see this in our work all the time.

A man is charged. He says, “Oh, she did it too”, and then the woman is charged as well. If the woman doesn't have access to legal resources, if she has a prior criminal record, if she doesn't want to stay in jail, she will plead guilty and then what hangs over her is that any time a partner wants to allege that she was violent, she will now face a reverse onus. It will be incredibly hard for her to get out.

That's the reality. It's the reality that we don't think of when we have mandatory charging policies. Many police services have a mandatory charging policy on domestic violence. We put that in because police were not charging men, but what happens as a result is that whenever the man says she hit him, the police don't investigate; they charge. It's charge first and let the courts figure it out later, but if you don't get out of jail, if you're kept in custody, then the courts won't figure it out later because you're not going to wait that long.

[Murray Rankin, NDP, Victoria, BC]

Therefore, what is your recommendation for how we deal with this provision?

[Jonathan Rudin]

I don't think you need the provision. There are already provisions.

The secondary ground is whether the person is a danger to an individual or to the community at large. If someone has a prior conviction for domestic violence, then the Crown can say that they oppose the person's release because they've had a prior conviction. They don't need a reverse onus to accomplish that. They just need to do the work that Crowns should be doing.

[Murray Rankin, NDP, Victoria, BC]

Another very poignant part of your testimony today was what you termed—using your words—“the proliferation of mandatory minimums”. You referred to it as the elephant in the room in this bill, pointing out, I think, that the mandate letter of the Minister of Justice required her to be addressing this issue. We see nothing in this bill to deal with it, and then you quoted her virtually a year ago acknowledging...essentially making the very same points you did about its impact on racialized communities and particularly indigenous people.

The Honourable Irwin Cotler, who was the Liberal Attorney General, in 2015 suggested that there be what he termed an escape valve section, which simply gave judges the discretion, if they saw something for which that the imposition of mandatory minimums would shock the conscience of Canadians, with written reasons provided, to review that mandatory minimum and impose some more reasonable mandatory minimum sentences.

Would that be something you could support?

[Jonathan Rudin]

That certainly would be something we could support.

The advantage of that approach is that because they're written reasons, there would be appellate review. That, in fact, is the standard that judges are using when they are striking down mandatory minimums now. The difficulty we have now is that we're striking mandatory minimums down one at a time. That works for the one that's struck down, but all the ones that remain are still in force.

[Murray Rankin, NDP, Victoria, BC]

I believe we heard today from justice officials that they want to wait until it's all ready and there's a big bang theory or something, whereas we could do justice now, but they don't seem to want to go there.

[Jonathan Rudin]

We can't wait. This is the thing; we have clients every day who are facing mandatory minimums who shouldn't be going to jail. How long do we wait?