Justice Committee on Sept. 17th, 2018

[The Chair, Liberal, Anthony Housefather]

Good afternoon, everyone, and welcome to this first meeting of the new parliamentary session of the Standing Committee on Justice and Human Rights, as we continue our study of Bill C-75, an act to amend the Criminal Code, the Youth Criminal Justice Act and other acts, and to make consequential amendments to other acts.

It is a great pleasure to welcome our new clerk, Marc-Olivier Girard.

Mr. Clerk, it is a pleasure to have you with us.

[The Clerk of the Committee, Mr. Marc-Olivier Girard]

Thank you very much.

[The Chair, Liberal, Anthony Housefather]

I also want to take this opportunity to thank Julie Geoffrion, our former clerk, who did extraordinary work when she was with us.

It is also a great pleasure to welcome Mr. Deltell as a guest to our committee today.

Welcome.

[Gérard Deltell, Conservative, Louis-Saint-Laurent, QC]

The Tony Clement of the day....

[The Chair, Liberal, Anthony Housefather]

You're much better looking, though, better hair.

It is also a great pleasure to welcome the witnesses from the Department of Justice.

Today, from the Department of Justice, we have Carole Morency, who is the director general and senior general counsel, criminal law policy section, policy sector. Welcome.

We have Matthew Taylor, who is the acting senior counsel, criminal law policy section, policy sector. Welcome.

We have Shannon Davis-Ermuth, legal counsel, criminal law policy section, policy sector. Welcome.

We also have with us Paulette Corriveau, who is counsel in the Criminal Law Policy Section of the Policy Sector. Welcome to you.

From the office of the director of public prosecutions, we have Don Beardall, general counsel in the drug, national security and northern prosecutions branch. Welcome.

This is the only panel where they are not offering opening comments. They are simply here to take our questions on the bill.

We will move to our ordinary rotation. We will start with Mr. Cooper.

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

Thank you, Mr. Chair.

Thank you to the officials for being here.

One of the aspects of Bill C-75 limits preliminary inquiries. The purported reason for limiting preliminary inquiries is to save time and speed up the process.

I was wondering if the Department of Justice has calculations as to the reduction in court time that this particular aspect of the bill is anticipated to save. Are there any statistics to back that up?

[Paulette Corriveau, Counsel, Criminal Law Policy Section, Policy Sector, Department of Justice]

I'll take that question. Thank you very much.

The statistics provided by Statistics Canada, from the Canadian Centre for Justice Statistics, do not allocate time to any procedure throughout the criminal justice process. Unfortunately, there aren't any statistics with respect to time.

There are a few statistics based on the number of preliminary inquiries. Juristat of February 2018 provides that number, and it relates to charges rather than cases. There are 34,698 charges, which ends up being 3% of provincial court charges.

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

Thank you for that.

There are no statistics on the amount of time that it will save.

The minister has spent a lot of time saying that the government consulted widely with the provinces and with a number of stakeholders and actors in the criminal justice system. I was wondering if a list of the organizations and individuals consulted in the drafting of Bill C-75 could be tabled.

[Carole Morency, Director General and Senior General Counsel, Criminal Law Policy Section, Policy Sector, Department of Justice]

I can answer that question.

When the minister was here in June and received that question, she indicated that she had consulted significantly with her provincial and territorial counterparts. They were all very much engaged at the ministerial level. Officials along the whole FPT spectrum were involved.

I believe she also mentioned that, through her various criminal justice system review round tables, she had engaged with numerous stakeholders across the board on a range of issues that included how to address delays in the criminal justice system.

Certainly, the results of those consultations at the criminal justice system review round tables have been posted on the Department of Justice website.

I can provide the summary of what we heard to the clerk of the committee, if that would assist.

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

That would be a good start.

Ms. Morency, I want to follow up on a question I had posed at an earlier meeting to get a handle on the reclassification of some offences from indictable offences to hybrid offences. I had asked the question, but I am still not clear on what the answer is. Perhaps you might try to help.

For example, how was it arrived at that the offence of impaired driving causing bodily harm has gone from an indictable offence to a hybrid offence where the maximum sentence, instead of 10 years, would be two years less a day, whereas an offence such as operating a motor vehicle dangerously would remain an indictable offence?

[Carole Morency]

The question was posed in June, and yes, both offences are proposed for hybridization. In fact, all of the transportation offences that were addressed through what was Bill C-46 included impaired.... There was a reform of the offences so that you moved from simpliciter to the next level of offences involving causing bodily harm to offences causing death. All of the ones involving causing bodily harm were hybridized by Bill C-46, including the one you reference.

Bill C-46 also increased the maximum penalty on indictment for those offences. They went from 10 years, which is where they were before Bill C-46, to 14 years, and then on summary conviction, to two years less a day.

Bill C-75 proposes.... The bulk of the hybridization being proposed by the government has coordinating amendments to the same provisions that are in Bill C-46—again, depending on which bill might come into force first, but the effect is the same. It was already hybridized by Bill C-46. All transportation offences that cause bodily harm were hybridized, including subsection 249(3) of the Criminal Code, which I believe you mentioned in June.

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

Thanks for that clarification.

How much more time do I have?

[The Chair, Liberal, Anthony Housefather]

You have 20 seconds.

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

Thank you, Mr. Chair.

[The Chair, Liberal, Anthony Housefather]

Thank you very much. We can come back for shorter questions afterwards.

Mr. Fraser, go ahead.

[Colin Fraser, Liberal, West Nova, NS]

Thank you, Mr. Chair.

Thank you all very much for being here today.

Ms. Morency, I want to ask a question that has already been discussed in some way at this committee. There is a perhaps unintended result from changing the maximum sentences for summary conviction offences from six months to two years, which is that agents—law students and articling clerks—will no longer be able to appear on those because the maximum will change.

Could you tell us whether there was any thought given to that unintended consequence and how we could remedy that issue?

[Carole Morency]

Sure. I can start, and then I'll ask my colleague to continue.

I'll just give you some background as to why the Criminal Code currently restricts who can appear as an agent in a proceeding. It flows from an Ontario Court of Appeal decision in Romanowicz and concerns—from the judiciary in particular, but also from the Ontario government and the Ontario law society—about agents being able to appear for the accused, particularly in cases where it attracts serious consequences, as six months' imprisonment would. Currently, there are already offences in the Criminal Code on summary conviction that carry a maximum of 12 months; some have 18 months. Bill C-46, as I just mentioned, would increase that for all impaired transportation offences to two years less a day.

So yes, as we worked through this with our provincial–territorial colleagues, thought was given to what impact it might have. There is also a provision in there saying that if there is a concern about who appears as an agent and in what capacity—and, as you've described, the effect is that it would prevent them—then each province and territory can address that immediately, if they haven't already, through an approved program that would allow an agent to appear.

For example, in Ontario, the Law Society of Upper Canada will have practice directions for articling students working under the direction of a lawyer. However, you still have those criteria in the Criminal Code unless a province chooses to do otherwise.

I don't know if my colleague would like to add more on hybridization and the agents.

[Shannon Davis-Ermuth, Legal Counsel, Criminal Law Policy Section, Policy Sector, Department of Justice]

Thank you.

One other thing for the committee to keep in mind on this issue, Mr. Chair, is that section 802.1 of the Criminal Code applies to agents without defining them. Right now that would allow anybody to appear on behalf of an accused; it's not specifically allowing law students and articling students. It would mean that a family member or somebody else could represent them as well. If the committee were considering any other ways to approach this, with respect, Mr. Chair, the committee would also have to keep in mind that the term “agent” isn't just for some of these other professionals or people being supervised by lawyers.

[Colin Fraser, Liberal, West Nova, NS]

Just to follow up on that, is there any difference at all or distinction across the country between a law student or articled clerk appearing in court and a family member or ordinary agent, so to speak, or is it all the same right now?

[Shannon Davis-Ermuth]

The distinction right now would be that for the provinces that have orders in council with programs allowing certain people to do things, those programs would specify who it would be, whether it would be an indigenous court worker, a law student, an articling student, or a paralegal in Ontario. That could be different across the country. Right now, because anybody can appear on matters of up to six months, that would just apply to the summary conviction offences that have a maximum penalty of over six months.

[Colin Fraser, Liberal, West Nova, NS]

I would like some explanation about hybridization, generally speaking. I think there is a lot of confusion in some circles, and perhaps for lay people who aren't familiar with how the criminal justice systems works in Canada, as to the difference between an indictable offence and a summary conviction offence. There is a lot of confusion that summary conviction offences are this new thing that this bill is bringing in. I'm hoping you can explain how a hybrid offence works, who gets to make an election, and how that actually goes through the system. Could you please explain that?

[Shannon Davis-Ermuth]

Summary conviction offences exist in the code already. They are generally intended for less serious conduct, such as causing a disturbance or trespassing at night, for which the current maximum penalty is normally a $5,000 fine and a maximum of six months in prison. However, as Ms. Morency mentioned, over the years there have been some higher maximum penalties for that.

Indictable offences tend to be offences that are more serious matters. An example would be aggravated assault, robbery, or murder, and the maximum penalties range anywhere from two years to life imprisonment. Sometimes those can be combined as a hybrid. In that case, the Crown would have the election.

If it's a hybrid, it would be the Crown that would determine whether to proceed on summary conviction or by indictment. When they proceed on summary conviction, they would be limited and not be able to ask for more than the maximum penalty on summary conviction. When they proceed on indictment, their maximums are different from when they proceed on summary conviction.

Generally, there are more procedural protections available for the accused when they proceed on indictment, such as jury trials and preliminary inquiries, and the process can take longer because they are more serious offences.

The amendments would hybridize any current indictable offences carrying a maximum penalty of 10 years of less. The amendments are intended to be purely procedural. In terms of the maximum penalty available to the prosecution, the indictable penalty would not change. The amendments in this bill do not intend to change the sentences that anybody gets for a given conduct. The principles of sentencing would remain the same, and a proportionate sentence for the given conduct and the offender in the circumstances should result in the same if Bill C-75 were to pass. Offenders should be getting the same sentences as they would get prior to Bill C-75.

I know you had a few aspects about explaining hybridization. Was there another part that I missed?

[Colin Fraser, Liberal, West Nova, NS]

Most particularly, it's just that it is an election that the Crown makes in order to determine the best way forward procedurally for that particular case, but if I'm hearing you correctly, that has no impact on the sentencing outcomes similar to situations that existed before Bill C-75.

[Shannon Davis-Ermuth]

That's right.

[Colin Fraser, Liberal, West Nova, NS]

Thank you.