Justice Committee on Sept. 17th, 2018

[The Chair, Liberal, Anthony Housefather]

Mr. Rankin, go ahead.

[Murray Rankin, NDP, Victoria, BC]

Thank you, Mr. Chair.

Thank you to all the witnesses for being here today. I have a couple of general questions, and then a couple of specific questions. I don't know if time will permit.

We have before us today two groups that have submitted briefs, the Aboriginal Legal Services and the Law Society of Ontario, suggesting that Bill C-75 might actually make the crisis of overrepresentation of indigenous people in incarcerated populations worse. The provisions they address are about bail and about reducing the ability for agent representation.

What measures were taken to ensure that the legislation is based on policy that would address this crisis of overrepresentation of indigenous people and not perpetuate their victimization?

[Carole Morency]

Perhaps I'll take that question. It might go back to my opening response to Mr. Cooper's question, which is that the minister engaged in a significant collaborative process with provincial-territorial ministers, two dedicated FPT ministers, to look at the issues. That work was informed through the FPT forum by a review of all issues that have been under consideration or have been flagged by different bodies.

For example, the Senate Standing Committee on Legal and Constitutional Affairs concluded a significant report with many recommendations for reforms that would address delay. That report was considered. The Supreme Court of Canada's decisions in Jordan itself, in Cody, and in jurisprudence that has followed since those cases have also flagged a number of issues that have called for reforms. There are, of course, various reports and studies that have been conducted. We looked at data, and the committee may hear from our colleagues at the Canadian Centre for Justice Statistics, which may help to address some of the concerns. For sure, starting with Jordan, FPT ministers identified six core priorities, areas where they felt a law reform package could make a significant impact on addressing those concerns.

[Murray Rankin, NDP, Victoria, BC]

I have before me an email from the Association of Justice Counsel, which is the lawyers in the Department of Justice, suggesting that there is no evidence the amendments before us will shorten trials. Ms. Corriveau seems to have confirmed the lack of data in this regard. For example, the PPSC, which is represented here today and is responsible for the prosecution of drug offences, criminal organizations, terrorism, and environmental polluters, as well as the North, states that the impact will be negligible. They say the federal government has failed to adequately resource the Public Prosecution Service of Canada, and while the provinces kept pace by hiring additional prosecutors, the federal government has actually underfunded the PPSC, the result of which is that most offices have had to cut their budget by 7.5% and effectively freeze hiring. That means fewer rather than more prosecutors, and no impact, if not a negative impact, in respecting Jordan.

I'd like your response to that.

[Carole Morency]

Perhaps I'll start with a general comment about the bill, and then my colleague Mr. Beardall may be able to speak for the director of public prosecutions.

To remind the committee of the minister's remarks before this committee in June, Bill C-75 proposes a very broad set of reforms, which, taken together, seek to address delays throughout the criminal justice system at different points in the continuum. I think everyone will recognize that in some jurisdictions, some reforms will have a different or a greater impact than in other jurisdictions. A comment has been made about the number of preliminary inquiries. They're not held very often in many cases, but they are held more often in some provinces than in others. Where there are reforms to restrict preliminary inquiries, those will have some impacts.

[Murray Rankin, NDP, Victoria, BC]

On that point, the Barreau du Québec is telling us that “[t]here is no evidence, apart from anecdotal events, to conclude that preliminary inquiries create undue delays in the justice system, or the need to change the current rules surrounding them.” Do you disagree with that?

[Carole Morency]

I would harken back to the minister's remarks, which acknowledge that there will be a different impact of restricting preliminary inquiries. It will have different impacts in different parts of the country. That's part of the harmony of the federal and provincial criminal justice system. Federal law sets a framework; provinces then have flexibility within that framework to adopt practices and approaches that will more specifically meet their needs.

I recognize that there are witnesses who do take issue with whether preliminary inquiries in and of themselves will achieve significant savings in time. To the extent that there are fewer preliminary inquiries, particularly in those provinces that happen to hold more, that will have an impact. It will free up time in provincial courts.

[Murray Rankin, NDP, Victoria, BC]

Do you, then, reject the testimony of those who say that taking away preliminary inquiries will simply mean fewer plea bargains and less ability to sort things out before the full-meal-deal trial occurs? Do you accept that?

[Carole Morency]

I accept that they have a different view. I am saying that, at the end of the day, it may not be, in and of itself, the single most important aspect in the whole Bill C-75. It may be different for different provinces.

[Murray Rankin, NDP, Victoria, BC]

Which provinces would benefit from the reduction?

[Carole Morency]

If you look at who has the most preliminary inquiries to date, Ontario and Quebec have more, and the Maritimes have fewer. Ontario and Quebec are also good examples to look at because part of the harmony of our system is that they have adopted out-of-court processes that can help facilitate some out-of-court discovery, which provides another way to address some of the issues that are sometimes addressed through preliminary inquiries.

Sorry, I spoke more than my colleague.

[Murray Rankin, NDP, Victoria, BC]

No, that's fine. Thank you. I appreciate that it's not easy to answer questions quickly.

I'd like to ask you about clause 389 of this bill, which deals with human trafficking. Bill C-75 puts in force provisions of Maria Mourani's private member's bill, Bill C-452, which got royal assent in June 2015 but was never put into force by order of the federal government. Some of that bill is back before us today.

In your opinion, does the combination of consecutive sentences, with the presumption of exploitation, violate any charter rights?

[Matthew Taylor, Acting Senior Counsel, Criminal Law Policy Section, Policy Sector, Department of Justice]

I'll take that question. Thank you.

As the charter statement outlines, the combination of the mandatory consecutive sentencing that exists for human trafficking offences and the requirement of the former private member's bill, Bill C-452, to impose mandatory consecutive sentencing is where the charter concern arises. It's the result of the stacking of consecutive sentences, which are also mandatory sentences, that raises the charter concerns.

I think I answered your question, but you mentioned something about presumption as well.

[Murray Rankin, NDP, Victoria, BC]

That's right.

[The Chair, Liberal, Anthony Housefather]

You can come back to it in the next round.

[Murray Rankin, NDP, Victoria, BC]

Yes. Thank you.

[The Chair, Liberal, Anthony Housefather]

Thank you.

Mr. McKinnon, go ahead.

[Ron McKinnon, Liberal, Coquitlam—Port Coquitlam, BC]

Thank you, Chair.

Thank you, all, for being here again.

My question is about peremptory challenges.

We know that Canada's jury selection process, particularly through some high-profile cases in the spring, has been a subject of discussion, particularly with respect to the issue of under-representation of indigenous persons and other marginalized Canadians on juries. Bill C-75 proposes amendments to improve jury selection and eliminate peremptory challenges.

Can you comment on the rationale behind these changes and how they are intended to create more representative juries?

[Matthew Taylor]

That will be me as well.

You mentioned some high-profile cases. Certainly those have brought to light the issue of peremptory challenges and representativeness in Canada's criminal justice system. It's important for the committee to know that the issue of peremptory challenges and the role they play in our justice system has been flagged for many years, many decades in fact, going back as far as 1991 and the Aboriginal Justice Inquiry, led by Senator Sinclair, recommending that peremptory challenges be abolished.

You asked about the rationale for doing so, and whether or not removing peremptory challenges would improve representativeness. Certainly the goal of the proposal to remove peremptory challenges is to ensure they cannot be used in a discriminatory way. Providing some form of peremptory challenges creates the possibility for their use in a discriminatory fashion. Abolishing them eliminates that possibility, and doing so is consistent with what other jurisdictions have done as well, including the United Kingdom, Scotland, and Northern Ireland.

[Ron McKinnon, Liberal, Coquitlam—Port Coquitlam, BC]

At least some lawyers, defence lawyers in particular, object to this because they feel they can get a more representative jury by challenging it. Can you comment on that as well?

[Matthew Taylor]

Certainly that is the position of some counsel. They have indicated that the use of a peremptory challenge can play a role in fostering representativeness on the jury. However, going back to my previous comments, while peremptory challenges are maintained, it still creates the risk of their discriminatory use in one particular case or another.

[Ron McKinnon, Liberal, Coquitlam—Port Coquitlam, BC]

Thank you.

I'm going to segue now into reverse onus.

I am referring to the brief by the Aboriginal Legal Services. One of their concerns 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. They note that one of the circumstances that arise in cases of domestic violence is that one person will claim that the other person started it, and both end up being arrested. Sometimes both end up being convicted. According to the brief, one of the impacts of dual charging is that women end up with convictions for assault they should never have had. If these provisions go through and their partner alleges abuse once again, they may have trouble meeting the reverse onus. This means they will be detained, they will likely plead guilty, and the cycle will continue.

I'd like some comment on why we need a reverse onus provision. What is the benefit of that? If you could comment specifically on this concern it would be helpful. Thank you.

[Shannon Davis-Ermuth]

There are two aspects to your question. One is in relation to what's referred to as “dual charging”: The police arrive, it seems that both people have engaged in violence, and both get charged. The brief you're referring to suggests that this is because there is no flexibility, so the police have to charge that way. This is something that is not affected as much by the Criminal Code amendments themselves, but is a matter that is often addressed by prosecution policies. It's a phenomenon that prosecution officers are aware of and have policies to address. It's dealt with differently in different jurisdictions.

In relation to your question about a reverse onus in cases of intimate partner violence, this is partially addressed in the charter statement. The rationale there explains its purpose in terms of the constitutionality of it. A reverse onus in bail departs from the general approach in bail. It presumes that bail should be denied and that the accused should be detained pending trial. It requires the accused to demonstrate, on a balance of probabilities, why he or she should be released pending trial, with regard for the statutory grounds for pretrial detention: flight risk, public safety, and public confidence in the administration of justice.

There are other existing reverse onuses in the bail provisions in the Criminal Code. In terms of why the government is proposing to amend the code and add a reverse onus in the case of intimate partner violence, first of all, by restricting it to cases where the offender has a previous conviction, it's curtailing it a bit so that it would apply to the most serious cases, to the offenders who have been convicted of this type of conduct and are again before the court, allegedly having done it again. As a group, these individuals have been found to pose an elevated risk of violence, escalating the risk of reoffending toward their intimate partners. Often, when charges are laid, it can be a very volatile time in a relationship, when an intimate partner can be at greater risk. This is being proposed to increase safety in those types of situations at these very charged moments in time.

[Ron McKinnon, Liberal, Coquitlam—Port Coquitlam, BC]

Thank you.

[The Chair, Liberal, Anthony Housefather]

Thank you.

By the way, I was remiss and didn't welcome Mr. Virani to the committee as the new Parliamentary Secretary to the Minister of Justice and Attorney General of Canada.

Welcome, Mr. Virani.