Evidence of meeting #104 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 bail.
A video is available from Parliament.
Liberal
Ron McKinnon Liberal Coquitlam—Port Coquitlam, BC
Yes, my question is for Ms. Deshman. I'd like to follow up on Mr. Ali Ehsassi's question regarding pretrial detention longer than the sentence. That's quite disturbing, and the fact that it leads to false pleas is also disturbing. People are getting criminal records for things that they probably shouldn't. I'm wondering if you have a solution for this. Go ahead.
Director, Criminal Justice Program, Canadian Civil Liberties Association
Yes, I have two proposed amendments. One would simply state that if there is little to no prospect that a person would be sentenced to jail time upon conviction, they should not be detained pretrial. Our pretrial process should not be more punitive than the sentence that someone would face upon conviction.
The second one is to amend section 525 of the Criminal Code. That's a review process for people who are in pretrial detention. If somebody is sitting there for three months and they're approaching the most likely sentencing range for their offence, they could apply to the court, a form of habeas corpus, to essentially say, this is about as much as you would be able to punish me if you proved all the underlying facts in my case, and I should not be in jail anymore waiting for a trial on this matter.
At least the first one was actually part of the original bail reform package. It was a problem. It continues to be a problem. It is not a new idea, but it really absolutely needs to be addressed.
Liberal
Ron McKinnon Liberal Coquitlam—Port Coquitlam, BC
Would you say, in regard to those amendments to section 525, that if you're in remand for a period that is likely as much as or perhaps more than you might be sentenced, the charges should then be automatically dismissed or discharged in some way?
Director, Criminal Justice Program, Canadian Civil Liberties Association
No, I don't think it has to go that far. I think there should be a recognition that you've been in a punitive environment for as much as you were likely to be sentenced to, but those charges could remain. It's still important, I think, to find out if somebody is guilty or not.
One remedy would be to stay the charge, but I think, actually, you could just release the person from jail pending their actual trial, and it would be a little less of an interference with the criminal justice procedure.
Liberal
Ron McKinnon Liberal Coquitlam—Port Coquitlam, BC
If you could release this person in advance of a trial because you would expect them to show up at the trial, why were they held in remand in the first place?
Director, Criminal Justice Program, Canadian Civil Liberties Association
Presumably that person is being held in remand because there were concerns about their showing up for the trial. But at the end of the day, if they don't show up for the trial they will be found guilty presumably. They're not presenting evidence and they will have already been punished for the crime that they were found guilty of committing because they spent the appropriate amount of time in jail already. I don't see it as an enormous impact on the actual fairness of the trial.
Liberal
The Chair Liberal Anthony Housefather
Thank you very much.
I want to thank all our witnesses. I wish you a good flight back home. It's much appreciated, your coming and your offering testimony.
Colleagues, we're going to take a brief recess. I'd like to invite the next round of witnesses to come up.
Liberal
The Chair Liberal Anthony Housefather
We will recommence. It's a great pleasure to resume our study on Bill C-75 with our fourth panel of the day.
It's a great pleasure to introduce, from Aboriginal Legal Services, Mr. Jonathan Rudin, who is the program director. Welcome.
From the Law Society of Ontario, we have Mr. Malcolm Mercer, who is the treasurer, or president; and Ms. Suzanne Clément, who is a lay bencher. Welcome to both of you.
We want to know what the term "lay bencher" is in French.
Liberal
The Chair Liberal Anthony Housefather
Perfect.
As an individual, we have Mr. Ronald Rosenes, who is a community health advocate and consultant. Welcome.
We're going to go in the order of the agenda, so we'll start with the Aboriginal Legal Services.
Jonathan Rudin Program Director, Aboriginal Legal Services
Thank you very much.
We are very pleased to have this opportunity to speak and provide our perspective on Bill C-75 to the Standing Committee on Justice and Human Rights. In the interests of time I will not speak extensively about Aboriginal Legal Services, except to say that our Ojibway name is Gaa kinagwii waabamaa debwewin, which translates as “All those who seek the truth”.
The focus of our submissions today will be on four aspects of the bill that we think are steps forward, two that we see as significant steps backwards, and one glaring omission that represents a broken promise to indigenous people.
Let me start with the four provisions of the bill that we endorse. First, we are completely supportive of the elimination of peremptory challenges in jury trials. We have worked extensively on the issue of indigenous jury representation, or more precisely under-representation, for over 10 years. Government neglect and the use of peremptory challenges have had a corrosive impact on efforts to encourage indigenous people to act as jurors. We know that the committee will hear tomorrow from Professor Kent Roach on this matter and, having read his submissions already, we want to say that we support them wholeheartedly.
For that reason, we will leave peremptory challenges and move to the second area where we feel the bill provides a step forward, and that's effectively decriminalizing many administration of justice offences. Study after study has shown that indigenous people are significantly overrepresented among those charged with administration of justice offences. Penalties for these offences often result in jail.
As significantly, these convictions themselves are often bars to release on bail on subsequent arrest. This then leads to people pleading guilty to offences they did not commit just to get out of pretrial custody. You heard about that in the last session. The root problem in this area is the overuse of unnecessary bail conditions by judges and justices of the peace, at the urging, it must be pointed out, of Crown attorneys. Hopefully, the use of these conditions will diminish when and if it becomes clear that breaches of them will no longer result in further criminal convictions or jail.
Speaking of bail, that brings us to the third amendment we are very supportive of, and that's the amendment that enshrines the application of the Gladue principles to bail. Although courts in most parts of the country have arrived at this conclusion on their own, this will ensure that the law is applied evenly everywhere.
Finally, with regard to the victim fine surcharge, returning discretion to judges with regard to the imposition of the surcharge is long overdue. It is an important and much-needed change.
Now I will go to the two provisions that we feel should be rethought. The first is the reverse onus provision on bail applications for those charged with a domestic violence offence who have been convicted of such an offence in the past. ALS takes the issue of domestic violence very seriously, and we are all too aware of the impact of this violence on indigenous women and girls.
At the same time, we are also very aware that many well-meaning attempts to address the scourge of domestic violence not only fail but have unintended consequences that can be damaging to the very people they are supposed to help. In this context, we would point out the phenomenon of dual charging, which occurs when a man charged with domestic assault insists that his partner started it and should be charged. That has led to more and more women becoming enmeshed in the criminal justice system. One of the impacts of dual charging is that women end up with convictions for assault that they should never have had. If these provisions go through and their partner once again alleges abuse, then they may have trouble meeting the reverse onus. This means that they'll be detained, they will likely plead guilty, and the cycle will continue.
We need to be aware that over 40% of women in custody today in Canada are indigenous. The provision of this bill will make a shameful situation worse. If someone has a prior conviction for domestic assault and they are charged again with a similar offence, and then if there are concerns for public safety, whether for a particular individual or the community, bail should be denied. There is no need to resort to a reverse onus that will not end up accomplishing what its proponents hope, but will have dire consequences for indigenous women.
Our second concern relates to the increase in the number of what are now called super summary offences. We know from over 25 years of working in the criminal courts with indigenous people what will happen if the maximum penalty for summary conviction offences are raised. What will happen is that Crowns will insist on higher penalties and judges will impose those higher penalties, and one of the justifications for the higher penalties will be that it reflects the will of Parliament.
This is a perfect example of what criminologists call “net widening”. If there is a need to have some super summary offences where straight indictable offences now become hybrids—and I stress “if”—then perhaps their use can be justified. However, as it stands now, the promise of increased hybrid offences is being used as a Trojan horse to lead to widespread and unjustified increases to the maximum penalty for summary offences.
Finally, let me address what's missing from the bill. Given how comprehensive this bill purports to be and how many issues, big and small, it addresses, it is baffling to us how it avoids the issue that has to be the elephant in the room: the proliferation of mandatory minimum sentences and unjustified restrictions on the access to conditional sentences. This is the single largest change that's happened in our criminal justice system in the 21st century.
This government knows that mandatory sentences, minimum sentences, don't work. The Minister of Justice has spoken on this issue. Almost a year ago exactly, on September 29, 2017, to be precise, this is what the minister said about mandatory minimum sentences:
There is absolutely no doubt that MMPs have a disproportionate effect on Indigenous people, as well as other vulnerable populations.... The data are clear. The increased use of MMPs over the past decade has contributed to the overrepresentation in our prison system of Indigenous people, racialized communities and female offenders. Judges are well-equipped to assess the offender before them and ensure that the punishment fits the crime.
One of the purposes of this bill is to increase efficiency and unclog the courts, yet there are many, many charter challenges currently under way and more being contemplated to mandatory minimum sentences. Having been involved in a number of those challenges, I can tell you that they take a lot of court time. Every day that the government fails to address the impact of mandatory minimum sentences, people are sent to jail who don't need to go there—every day.
How do mandatory minimums affect indigenous people? You can look to see the number of challenges brought to mandatory minimums by indigenous people, and you can listen to the words of the Minister of Justice. This government pledged to enact all the calls to action of the Truth and Reconciliation Commission that fell within its ambit. Call to action 32 reads, “We call upon the federal government 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.”
Members of the committee, it is past time to heed this call to action. If this bill is not amended to address the issue of mandatory minimum sentences and lack of access to conditional sentences, then it won't happen before the next election. If it doesn't happen before the next election, it will be years before it happens.
This government does not believe in the utility of mandatory minimum sentences. This government believes that they're not only ineffective, but that they contribute to inequality in the justice system. This government is completely right in those beliefs. There can be no excuse for waiting. There can be no justification for waiting. We all know what the right thing is to do, and we need to do it.
Thank you. Meegwetch.
Liberal
The Chair Liberal Anthony Housefather
Thank you very much for your testimony.
We will now move to the Law Society of Ontario.
Malcolm Mercer Treasurer and President, Law Society of Ontario
Thank you.
As indicated, I am the elected head of the Law Society of Ontario. Ms. Clément is an appointed bencher. Behind me is John Callaghan, who is an elected lawyer bencher. We thank you for letting us speak today.
The Law Society of Ontario regulates more than 53,000 lawyers. We regulate 8,500 licensed paralegals. We have a statutory duty to protect the public interest, to maintain and advance the cause of justice and the rule of law, and to facilitate access to justice. We are a public interest regulator of legal services.
Bill C-75 is very broad in scope, but our comments are focused on the issues within our authority as a law society and our independence. They are focused as well on the potential adverse impacts on access to justice, which we consider to be significant. We think the issues we raise are inadvertently caused by what is proposed in Bill C-75, and we think they are capable of correction.
As you know, agents are entitled to appear on summary conviction offences under the Criminal Code. That's why, in Ontario, paralegals have been regulated for the last decade. The Ontario Court of Appeal recognized the importance of doing that many years ago, and that was acted on in 2007.
Paralegals, law students, articling students and licensing candidates are agents. They can appear on summary conviction offences. However, section 802.1 limits the rights of agents to appear on offences that carry up to six months' potential penalty. As a result, we have what was described by Mr. Rudin a moment ago: super-summary offences on which agents can't appear, and the ordinary summary offences of up to six months' sentence on which agents can appear.
As you also know—it's been said to you by this and the preceding panel—eliminating the six-month category of summary offences and moving everything up to two years less a day has what we think is the unintended, but certainly very significant, effect of eliminating the ability of law students, articling students, licensing candidates, paralegals, and agents in other provinces to appear for people who are accused of summary conviction offences.
In Ontario, regulated agents play a significant role in the criminal law system. Paralegals are independent legal professionals who are licensed and regulated by the Law Society of Ontario. They provide a defined set of regulated services, including acting in criminal summary conviction matters. Overall, criminal and quasi-criminal law accounts for the largest area of legal services provided by paralegals in Ontario. Many report that they dedicate a significant portion of their practice to representing clients in criminal summary conviction matters.
Articling students and law students are involved in court appearances. Articling students frequently attend court or tribunal hearings to speak to routine administrative matters—for example, unopposed adjournments, uncontested and consent motions, and set dates. Articling students conduct permitted hearings or trials regularly or frequently. These activities include participating in summary conviction matters. Whether or not these services can continue to be provided by the people who are providing the service is very important.
We acknowledge the common cause of the government and everyone here, which is to advance access to justice, reduce judicial delay and enhance fairness. We recognize that the bill includes provisions with that in mind and with that effect. However, this provision, the increase from six months for these summary conviction offences to two years less a day, raises three significant issues.
Ms. Clément will address the first two.
Advisor, Law Society of Ontario
First of all, since sentences may potentially be longer in summary conviction cases, we are reducing the options for representation, which impedes access to justice.
Currently, Ontario citizens who cannot afford a lawyer and are not eligible for legal aid can choose a more affordable option by being represented by a paralegal, a law clerk or a law student from a legal clinic. If that option is eliminated, it is likely that the most vulnerable people, who are facing longer sentences, will not have representation. Not only does this reduce access to justice, but because accused persons without representatives generally are less familiar with legal procedure, they tend to slow things down, which adds to the delays in the justice system.
Secondly, the proposed change could have an adverse effect on aboriginal and racialized groups, as our colleague mentioned earlier. These groups are already overrepresented in the justice system.
Research shows that when Parliament increases sentences, the courts conclude that this means that they should impose longer sentences. That is worrying, given that aboriginal and racialized persons already have much higher rates of incarceration.
Treasurer and President, Law Society of Ontario
I'd like to make this a little bit real. My daughter was a law student a year ago. She represented a person who was accused in a summary conviction matter. They were accused of switching a label on a bottle of hair shampoo, and they were accused of theft under.... My daughter, being a legal aid student in the clinic, was able to provide legal services to this person that would not otherwise have been available. If a law student cannot do that, if an articling student cannot do that, if a paralegal cannot do that, there is a real risk that people in those situations, who are not able to get legal aid and who are not able to afford a lawyer, will be rendered unrepresented in the criminal law system.
To take the point on immigration made in the previous panel—and this would be unlikely for these particular facts—if there were a seven-month instead of a six-month sentence imposed, that person would not be able to appeal to the immigration appeals division regarding a removal order. They would lose that right.
We have a system that, in the summary conviction area, has less serious and more serious offences. The risk here is taking away representation and increasing the consequences for that set of less important but nonetheless still important offences.
In Ontario we have a special concern as well. We have designed and implemented a system of paralegal representation. We have designed, based on the six-month maximum, education, training, and licensing conduct. We have created a system whereby licensed paralegals are able to provide these services, whether or not the licensing regime is based on the six-month limit. If we were to design a system for a two-year limit, in which everyone who was charged with an offence punishable by summary conviction had the risk of up to two years, we would have to revisit—or the provincial government, if it were given that authority, would have to revisit—the entire paralegal system in Ontario to be able to provide proper representation.
We consider it very important that, unless there is very good reason, people not be deprived of representation, that vulnerable people not be put in great risk, and that a well-established system that works not be disrupted for no apparently good reason.
We recommend essentially that the status quo be preserved by maintaining a set of offences that are punishable by up to six months and not more. We think that nothing you're trying to do to reduce delay is harmed by that. We think nothing that you're intending to do, from a public policy perspective, would be harmed by that. The status quo would permit good things that are now being done for people in the criminal justice system to continue.
Liberal
Ronald Rosenes Community Health Advocate and Consultant, As an Individual
Thank you and good evening. I really appreciate the invitation to be able to speak to you this evening.
I would like to thank the members of the committee for this invitation.
I will be speaking in English.
I'm really here tonight to speak very specifically about the impact of the bawdy house law on LGBTQ people over many years. While I applaud the proposed repeal of anal intercourse from the Criminal Code, it was certainly not the only law that was used to unjustly target LGBTQ people in my community.
I'd like to begin by telling you a story. I'd like to take you back to the night of February 5, 1981, which remains seared in my memory, despite my very best efforts to put what occurred behind me.
That night, I found myself at the Roman baths on Bay Street. For those who don't know, that's a club for men seeking to meet other men for consensual sex. It's a place that I had visited on several occasions as a 34-year-old out gay man seeking to enjoy my new-found sexual freedoms in a supposedly safe space. However, what happened that night really was my first-ever encounter with the state and a police force that took it upon itself to enforce the archaic bawdy house law that still exists on the books and in the law to this day. It's a law I would very much like to see repealed in Bill C-75.
That night, we were rounded up brutally. We were called “dirty faggots” and arrested as “found-ins in a common bawdy house”. The police may have suspected that money was being exchanged for sex, but this was never proven in court. The premises were ransacked at all of the city's bathhouses that night, and several closed their doors permanently as a result.
In his apology last fall to the LGBTQ community, the Prime Minister specifically mentioned the bathhouse raids and the bawdy house law in his apology, but those of us arrested using these provisions were left out of the most recent bill, Bill C-66, which was the expungement legislation. I again provided witness testimony to the senators, who seemed reluctant, in retrospect, to tackle the issue, perhaps—this is something we can discuss—out of concern that the bill would not get passed before the summer break. For us and for me, Bill C-66 became a lost opportunity in terms of providing an opportunity for the repeal of the bawdy house law.
I'd like to also remind everyone that more than 1,300 men were charged with this offence for being in a gay bathhouse between the years of 1968 and 2004. I feel as though I carry their voices into this room with me.
We were dragged through the courts and publicly humiliated. I ended up being put on the stand, where I admitted that I had been at the Roman steam baths that night—yes, I got on the stand and I told the truth—and I became one of some 36 men, out of over 300 who were arrested, who were actually convicted, and I was made to pay a fine. In my case it was an insignificant amount. It was insignificant, really, compared to the sense of shame that I and many other men were made to feel as our names were read out in open court and dragged through the press at the time.
In my case, I was fortunate. My own self-esteem has remained intact. I have benefited from a number of advantages—a loving family, loving partners, a good education—but I can never forget what happened that night. I was wrongfully arrested and convicted, having committed no crime.
Others were not so fortunate. Many lives were ruined that night by exposure in court and the press. Bathhouses at the time were often frequented by men who went home to families who were unaware of the sexual orientation of their spouse, their father, or their brother, and many were from cultures in which homosexuality was frowned upon.
Those of us who were arrested in the bathhouse raids are now dependent on the repeal of the bawdy house law. To this day, it shocks me how traumatizing and stigmatizing that night was and the bathhouse raids proved to be. At least two men are known to have taken their own lives. To this day, I'm one of the few people among those who were arrested who is willing to talk about the bathhouse raids and that night publicly.
The unrelenting power of stigma continues to cast a shadow over many lives. For that reason, I'm here today to appeal to the legislators to ensure that people like me with records, people who were wrongfully convicted of being found-ins in a common bawdy house, are treated on an equal basis in the proposed legislation. We missed out on Bill C-66, but I would like to be treated no differently from all of my LGBTQ sisters and brothers who were either hounded out of the civil service or dishonourably discharged from the military.
Now we are dependent, as I said, on repeal of the bawdy house law in order to apply for expungement of our wrongful convictions and, in some cases, criminal records. Certainly it was clear from Bill C-66 that an offence had first to be repealed before it could be added to the list of offences that qualify for expungement, so the law needs to come off the books.
It came to me as quite a surprise, through a request for information from the Toronto Police Service in December of 2017, that a record of my arrest and a supplementary report could still be found in their files. I suspect that if this is true for me, it's true for others. Therefore, I'm here today really on behalf of all of us to ensure now that we're included in Bill C-75. People who were wrongfully arrested in the bathhouse raids, I believe, have every right to request inclusion under the same law that offers expungement to others and to feel part of the government's apology. The bawdy house laws were among the laws used, in the words of MP Randy Boissonnault, “to victimize LGBTQ2S+ people systematically”, to give you the proper quote.
Bill C-75 now gives you the opportunity to correct this oversight. I think it would be a grave miscarriage of justice to ignore this opportunity and to deprive us, all of us, of our right to equal justice under the law. I think it's time to put 19th century notions of indecency behind us. Only those acts that are non-consensual or that cause harm to others should be prosecuted under more appropriate sections of the Criminal Code.
Also, I would like to say that I stand in solidarity with people in the sex-work community because I understand first-hand the harm that was caused by the bawdy house law. I also stand with others in recommending that the bill be amended to repeal laws that have been unjustly used against our communities, including laws related to obscenity, immoral theatrical performance, indecent exhibition, and nudity. I know that next week my colleagues will be speaking further to some of these issues.
It's essential, in my view, that we create some closure around these painful moments in our history. There are those who will say the raids came about as a result of attitudes and opinions—that is to say, prejudice against and fear of homosexuals and homosexuality that were prevalent in society at the time and persist to this day. Laws do not necessarily change prevailing attitudes, but they are absolutely necessary, in my view, for the protection of our human rights. They represent a necessary step in the ongoing struggle to promote tolerance and respect for difference in Canadian society.
While you're addressing delays in the judicial system and looking at the matter very broadly through this legislation, I hope you will take this opportunity to remember those of us who were arrested back in 1981 and over the years from 1964 into the 2000s, and that you will ensure this time around that the bawdy house law is repealed in Bill C-75.
Thanks very much.
Liberal
The Chair Liberal Anthony Housefather
Thank you very much for coming here, telling us that poignant story, and having the courage to do so.
We will now move to questioning from Mr. Cooper.
Conservative
Michael Cooper Conservative St. Albert—Edmonton, AB
Thank you, Mr. Chair.
My question is for Mr. Mercer or Ms. Clément with respect to what I think is a serious issue in terms of paralegals and law students, who would be precluded from acting in virtually all criminal matters as a result of the changes that are in Bill C-75. I just want to get my head around the scope of this situation. In the province of Ontario, how many paralegals and law students are there who are currently representing individuals who are facing criminal charges?
Treasurer and President, Law Society of Ontario
It would be nice to be able to give you good, reliable statistics. One of the things that is unfortunate about our system is that we don't have great statistics.
We know that articling students are very commonly used by criminal lawyers in the defence bar. I'm confident that a very significant amount of work that is done in respect of set dates and other matters is done by students now.
We know that there are significant and very valuable legal aid clinics, student legal clinics, that are established at all of the Ontario law schools: Toronto, Osgoode, Windsor, Western, Queen's, Ottawa, and Lakehead. I hope I haven't missed one, but just by that, you can tell what a number of really valuable services are being provided by law students under the supervision of lawyers.
We have 100 to 150 paralegals who say that a significant portion of their practice is criminal law. What I'd like to be able to tell you is exactly what they do, but our data is not good enough to answer that question.
We certainly think anecdotally that students and paralegals together have a significant effect. I can't give you more than that.
Conservative
Michael Cooper Conservative St. Albert—Edmonton, AB
Thanks for that.
I presume that if we don't address the issue with section 802.1, one of the consequences you've cited is reduced access to representation, but also, from the standpoint of backlogs and delays, I presume every law student who is acting on a matter would have to go to court and apply to withdraw, so you would have that issue as well, would you not?
Treasurer and President, Law Society of Ontario
The most significant issue—and of course I agree with you—is that if you talk to judges, you find that self-represented persons, whether they're in the criminal law system or the civil law system, cause problems in the system. They cause delay. That's just clear. Not only are they not able to get as just a result, because we know that's true, but they clog up the system, waste time, and waste court resources that could otherwise be available. It seems entirely ironic that in an attempt to deal with delay, we would take away the representation that in fact makes the system more efficient.
Conservative
Michael Cooper Conservative St. Albert—Edmonton, AB
It's the position of the Law Society of Ontario that the status quo be maintained—in other words, we would set aside a category of summary conviction offences for which the maximum sentence would be six months. I understand your position in that regard, and recognizing that you prefer that option, would a second option be to amend section 802.1 to provide that agents who are acting under the supervision of the practising lawyer can represent clients in criminal matters?