Justice Committee on Sept. 17th, 2018

[Randy Boissonnault, Liberal, Edmonton Centre, AB]

Thank you, Mr. Chair.

My thanks to all the witnesses for joining us today.

My question is rather philosophical, but it deals with the fundamentals of democracy. You are the first representatives of a law society that we have had with us for this study. In your brief, you say this:

…the Barreau du Québec welcomes any legislative initiative that has the effect of strengthening the independence of the courts, fostering judicial discretion, and ultimately, giving full effect to the principle of proportionality of sentencing.

Why does the Barreau du Québec feel that those three factors are so important, even critical?

[Paul-Matthieu Grondin]

It has been that way for a long time. It is also a constitutional matter. Many of these factors are common to the Barreau du Québec and to other law societies in Canada. It must be said that we acknowledge that our system of justice is complex and expensive. We are always trying to improve ourselves in that respect. However, something we do very well in Canada is to have an impartial and independent judiciary.

As for minimum sentences, judges must be given the discretion to impose penalties that are not minimums, penalties that deliver justice and that help the accused with rehabilitation. Judges have that subtle knowledge of the cases. This is the proportionality of sentencing. Judges are in a better position to apply the principle because they hear cases every day. They are very experienced in the area. In general, Canada and Quebec have great statistics on the matter.

It is very good to try to improve our justice system, which, again, I describe as complex and expensive. There have been some great plans along those lines. That said, the one thing that we do very well throughout our entire justice system is to make sure that the judiciary is independent and impartial.

That is one of the reasons why we use those words.

[Randy Boissonnault, Liberal, Edmonton Centre, AB]

In your view, why is it important for our citizens that courts be independent?

[Paul-Matthieu Grondin]

Clearly, that is one of the bastions of our democracy. I cannot stress the importance of that impartiality enough. Sometimes we take it for granted, but others cannot. That is why it is important to preserve the impartiality.

[Randy Boissonnault, Liberal, Edmonton Centre, AB]

Thank you. You may even have a neighbouring province in mind, but let us move on.

Why is it important for the bill to repeal section 159 of the Criminal Code, which discriminates against young man in terms of the consent of those of the same sex?

[Nicolas Le Grand Alary, Laywer, Secretariat of the Order and Legal Affairs, Barreau du Québec]

We support this measure, which was proposed in two previous bills. It was withdrawn for reasons of parliamentary efficiency. This is a section of the Criminal Code that has been declared unconstitutional by several courts of appeal in Canada including the Court of Appeal of Quebec in Roy v. R. The discriminatory nature of the section is clearly the issue. We certainly support the repeal of section 159 of the Criminal Code.

[Randy Boissonnault, Liberal, Edmonton Centre, AB]

Great. So, according to the Barreau du Québec, the bill must address the issue of equality.

[Nicolas Le Grand Alary]

Yes. As the courts have found, the problem with this section is the discrimination against homosexual men.

[Randy Boissonnault, Liberal, Edmonton Centre, AB]

Great.

You are in favour of a hybrid offences. Can you tell us why the new hybrid offences work to the advantage of people before the courts?

[Pascal Lévesque]

Broadening the scope of hybrid offences gives more flexibility to front-line justice workers, especially to crown prosecutors.

New hybrid offences offer prosecutors certain possibilities. Let’s say that an offence is considered a criminal act, but defence counsel is ready for the client to plead guilty if it becomes a hybrid offence. If the facts warrant, that provides some flexibility. Of course, we are not talking about very serious facts that would get the accused a significant term of imprisonment. If the facts warrant, the limitation period can be waived and the prosecutor can then agree to an offence punishable by summary conviction upon a plea of guilty. At that point, you go before a judge and find common ground as to a penalty to suggest to the court. That helps to unclog the system, while still working in the public interest.

Basically, the Barreau is in favour of all measures that provide flexibility to those in the front lines.

[Randy Boissonnault, Liberal, Edmonton Centre, AB]

So hybrid offences allow for more fairness and for more offences to be dealt with.

[Pascal Lévesque]

Quite so.

The Parliament of Canada’s role is to define criminal law, but it cannot foresee every scenario that might arise as the law is being applied. So it is up to those working in the justice system, who come under provincial responsibility, to try to apply it as fairly as possible.

Let me give you an analogy that is often used. We must be as fair as possible in terms of penalties or offences. It has to be custom made as much as possible. There are also unique local factors. In remote areas, the judges end up knowing the people who come before them. The more tools we give to those in the first line, meaning crown prosecutors, defence counsel, probation officers and police officers, the more help we are providing to judges to ensure a more just society.

[Randy Boissonnault, Liberal, Edmonton Centre, AB]

So providing hybrid defences allows for more exact not just sentencing but also charging of offences. Section 159 removal is an equality move. Ensuring the independence of the judiciary is fundamental to democracy, and then we can bring everything into the 21st century with video conferencing.

Why is it important to be able to use video conferencing?

[Paul-Matthieu Grondin]

It certainly is important. It is even a way of delivering justice in a territory or region. All these things are very important. Of course, if we were in 1950, we would perhaps not be having this discussion, but now the technology allows it. So, my answer to your question is a general yes. It is still important for some hearings to be held in person, but I say yes in general to video conferencing.

[Randy Boissonnault, Liberal, Edmonton Centre, AB]

Thank you, gentlemen.

[The Chair, Liberal, Anthony Housefather]

Thank you, Mr. Boissonnault.

Mr. Rankin, the floor is yours.

[Murray Rankin, NDP, Victoria, BC]

Thank you, Mr. Chair.

Welcome to the gentlemen from the Barreau du Québec. My congratulations on your brief, which is very useful for the committee. Well done, and thank you.

I have two questions.

The first is about the removal of the preliminary inquiry. On page 6 of your brief, you say:

In addition, the Barreau du Québec proposes an additional measure, to add to the Criminal Code the possibility of replacing, with the consent of the accused, the holding of a preliminary inquiry with out-of-court questioning. Pilot projects in this area have been set up in several judicial districts in Quebec and have proven their worth.

What are the results of those pilot projects? Did they really save time and protect the rights of the accused simultaneously?

[Nicolas Le Grand Alary]

Here is how it works. The accused agree to be committed for trial automatically, meaning they do not go to a preliminary inquiry. The questioning is then held outside court. It is important to note that the questioning is done in places other than courthouses, so without the accused present. In appropriate cases, cases with testimonial evidence, you can gather testimony that can be used at trial. This often means that delays are reduced and cases are better prepared.

Since the pilot projects are still underway, we do not have a complete picture and have not yet compiled the statistics on those cases to find out how many have been settled. In the places where this is being done, our members are finding that it is an excellent idea and a good way to replace, or at least complement, preliminary inquiries.

[Murray Rankin, NDP, Victoria, BC]

Thank you.

My second question is on page 8, where you talk about the definition of “intimate partner”. It says this:

We believe that awareness and information campaigns must continue to be organized to inform victims of domestic violence about the resources that exist to help them. Community resources, in turn, should encourage victims to report their abuser to the police. Finally, to prevent acts, or at least recidivism, we must also look at developing resources for people who have difficulty managing their aggression. Domestic violence, as a societal problem, should be everyone’s business.

I agree with that.

Which resources do you have in mind? Are they preventative measures? If so, are they in federal jurisdiction or do they come under the administration of justice provincially?

[Nicolas Le Grand Alary]

We mention this in the brief. In the past, we have taken part in hearings for the Plan d'action gouvernemental en matière de violence conjugale 2018-2023, which is a provincial initiative.

Spousal violence, or domestic violence in the broader sense, must be everyone’s business, both at provincial/territorial level and at federal level.

While respecting constitutional jurisdictions, each level of government should take measures to facilitate this. It can be either by funding groups or through more structural measures such as Bill C-78, which amends the Divorce Act and contains a whole section on domestic violence. That is a federal government measure in an area of law other than criminal law. But the fact remains that the federal level certainly has its place together with the provinces and territories.

[Murray Rankin, NDP, Victoria, BC]

Thank you.

[The Chair, Liberal, Anthony Housefather]

Thank you very much, Mr. Rankin.

We now move to Mr. Fraser.

[Colin Fraser, Liberal, West Nova, NS]

Thank you, Mr. Chair.

Thank you all for being here today, and for your brief, which is very useful for the committee.

I read in your brief that you are in favour of reclassifying certain offences. Can you explain to us why prosecutors will choose to proceed by summary conviction? Why is that option useful for prosecutors? I hope you will agree that it will reduce delays in our current system. Can you comment on that?

[Pascal Lévesque]

I'm going to go back to what I was saying earlier. Suppose a prosecutor is in a situation where charges were laid by indictment and the six-month time limit has elapsed. There could also be cases where the deadline has not expired, but where you are dealing with an offence for which the only option previously was to proceed by indictment. If you proceed in that way, the procedure is different. This implies that if the accused decides that he wants to have his case heard in superior court, it will be. However, in the regions, the superior court does not hear criminal cases every day. By having the possibility of proceeding either by summary accusation or by indictment, the prosecutor can decide, even if the offence is a serious criminal act, to entrust the case to the provincial court, if the facts warrant that.

As I was saying earlier, it is possible to go back to the other option. If the deadlines have passed, the defence lawyer can waive the time limitation, in exchange for which they would come back to the summary proceedings, in order to give the provincial court judge the jurisdiction. That is another possibility.

In doing that, we are giving the crown prosecutor an additional tool which can modulate the type of charge according to the facts of the case. When he has that discretionary power, he may lay a criminal charge or proceed by summary conviction. However, when the superior court has to have jurisdiction, that discretionary power is somewhat limited.

[Colin Fraser, Liberal, West Nova, NS]

Do you think there will be repercussions on sentencing, even if the facts and the criminal code sentencing principles remain the same? Do you think there will be changes? Some people say that even given the same facts, the sentences will be lighter. Does that concern you?