Justice Committee on Sept. 18th, 2018

[Colin Fraser, Liberal, West Nova, NS]

Thank you.

Mr. Star, just sticking with you and your answer, based on your experience, we talked a minute ago about routine police evidence in this bill as proposed. Basically, the reason for that would be purportedly to expedite routine police evidence that could go in without the right of cross-examination automatically. Can you talk about your experience in dealing with Crown attorneys and how oftentimes things relatively simple, such as continuity of evidence, goes in by admission?

[Philip J. Star]

With respect, Mr. Fraser, the word “routine” makes me squirm. What is routine? We've all been involved in situations in which we're asked to admit continuity, as an example, in blood samples, drug cases, and so on.

Coincidentally, I had a case last week that involved alleged abuse on a senior in a seniors' home by a worker there. We got there and the Crown had asked me to admit continuity of a bib that this alleged victim was wearing. I said, “Before I can admit it, you have to provide me with the evidence surrounding it,” so I never did. I realize, as indicated by a previous witness, that this is very much anecdotal, but we got to trial and came to find out that the original bib had disappeared. The one that they presented to the court they got that morning, some 18 months after the incident, so we were asked to admit to stuff without any indication in the disclosure or otherwise.

It's a very slippery slope to get involved with. I'm not saying it can't be allowed in very limited circumstances. For instance, in regard to the serving of certificates, we already have those provisions in there. I don't think it increases the time involved very much, and I'm very concerned about allowing that to be spread too far.

[Colin Fraser, Liberal, West Nova, NS]

Thank you.

[The Chair, Liberal, Anthony Housefather]

Thank you very much.

Thank you to the witnesses. Because of the fact that we have panels that are going subsequently one to the other very quickly today, we can only do one round of questions. However, your testimony was enormously helpful. Thank you, and in particular, of course, thank you to Mr. Star for joining us by phone.

We ask that the next panel please come forward. We're going to recess briefly, but let's try to change very quickly so that we can get the next panel done in time.

[The Chair, Liberal, Anthony Housefather]

We will resume.

It is a great pleasure to have our second panel with us today. From the Association for Canadian Clinical Legal Education, we have Ms. Jillian Rogin, who is an assistant professor; and from the Canadian Alliance for Sex Work Law Reform, we have Ms. Kara Gillies, a regular at this committee by this point. Welcome.

We're going to go in that order, if that's okay, starting with Ms. Rogin.

[Prof. Jillian Rogin, Assistant Professor, Association for Canadian Clinical Legal Education]

Thank you.

My name is Jillian Rogin and I am an assistant professor in the faculty of law at the University of Windsor. I'm so honoured to be here today on behalf of the Association for Canadian Clinical Legal Education, or ACCLE.

I just want to take a moment to acknowledge that the land we're currently on is unceded territory belonging to the Algonquin Anishinabe people, and I'm really thankful for being allowed to be here today.

In addition to being an assistant professor and appearing on behalf of ACCLE, I'm also a criminal defence lawyer. Relevant to what we're going to talk about, I've worked as a duty counsel lawyer in the provincial courts. I was also a reviewing lawyer at a legal clinic in Windsor, Community Legal Aid, so I have experience in the provincial courts representing marginalized people.

To start out, ACCLE commends the intent of Bill C-75 insofar as it aims to reduce inefficiencies in criminal matters and it focuses on reducing over-incarceration of indigenous people and other marginalized people, but I want to focus on aspects of the bill and the proposed amendments that might undermine those laudable goals. Specifically, I'll be looking at the reclassification of offences and the impacts of that reclassification scheme both on law students and on the clients that legal clinics serve across Canada.

The increase in the maximum penalty, the proposed amendment to subsection 787(1), of course precludes law student representation, articling student representation, and representation by paralegals. All three will be precluded entirely from representing anyone any longer in any criminal matter in the provincial courts. This is of course because there's no corollary amendment to section 802.1 of the code.

To be frank, there is no stated rationale that I can find for this dramatic and drastic change to the legal landscape in Canada. There's no data I can point to that shows there is any difficulty with law student representation of people charged with minor criminal offences, and it's not clear what the legislative purpose is of eradicating that form of representation for marginalized people.

What we do know is that this eradication of law student representation will cause an access to justice crisis across this country. Legal clinics across Canada that for decades have been representing clients in summary conviction matters will suddenly come to a halt, and accused people will not have much-needed access to legal representation to answer to the criminal charges they're facing.

As it currently stands, section 802.1, as you all know, allows for the provinces to enact orders in council. I'm going to speak briefly about why, in my respectful submission on behalf of ACCLE, that is not an appropriate or adequate response to the difficulty of the proposed amendments.

Firstly, it's a piecemeal approach, so it means that provinces may or may not act. You may have a situation where there are some provinces that act and some that don't. There's no obligation on any province to do so.

Secondly, which is most alarming to me, even if the provinces act, it's very unlikely that they will do so in a manner that's timely, to prevent a gap in representation. If Bill C-75 were enacted tomorrow and passed into law the day after or on the day, we would have to attend court and make applications to get off the record for the current clients we have. That would have to happen all over Canada. We would not be able to appear in court except to get off the record.

Thirdly, on that point, in a sense—and I say this with respect—it's misguided to suggest that the antidote to the massive decrease in the provision of legal services can derive from the provinces enacting orders in council. Respectfully, the question should be, why are we taking away the current law student representation that has been in effect for three decades? Of course, it's a very drastic change.

We know also that this can't be justified by efficiency. It's not more efficient to have more people in the provincial courts who are unrepresented, with no legal representation. We know that not only are unrepresented litigants at a disadvantage, but they tend to clog an already clogged system, and the purpose of the bill is to address delays. We know, as I referenced in our brief, that unrepresented indigenous people disproportionately plead guilty when charged with an offence. The lack of representation is an incentivizing force of guilty pleas, and that should be alarming for all of us, especially with the stated intention of the bill.

This access to justice crisis is a crisis not just for clients who are facing those criminal charges, but also for law student education. Exposure to working with marginalized people facing criminal charges, exposure to the community organizing that has been a hallmark of clinics for decades, exposure to the promotion of social justice issues and—perhaps most important to me as a mentor and as somebody who had wonderful mentors—the opportunity to work really closely under the direct supervision of a criminal defence lawyer is a foundational experience of law school education. In my opinion, it's crucially important, particularly in criminal law. It is a crucial part of that clinic experience.

The evisceration of law student, articling student, and paralegal representation has constitutional dimensions, and it may impact fair trial concerns pursuant to section 11(d) and section 7, and perhaps section 15, depending on who is being denied representation, and in what circumstances.

In terms of our clients, I'm going to address the increase in the maximum penalty. It has been stated that this is not a change in sentencing ranges; however, it is a direct intent to raise the maximum penalty for summary conviction offences. The idea that it's not going to have an impact on sentencing ranges, in my respectful view, is misguided.

I'm speaking from that experience of being in the provincial courts, being in the plea court when you have a client who has 1,000 convictions for theft under. They go before the judge and the Crown is asking for 30 days and the judge says, “I'm done with you, six months”, because that's the maximum. The idea that's not going to happen and isn't justifiable with legal principles is, respectfully, perhaps misguided.

In terms of court efficiencies, we know that the proposed changes are not going to alleviate delays in the lower courts, in the provincial courts. There's nothing to suggest that's the case. The provincial courts are already overburdened. Many lower courts across Canada are facing crisis levels of criminal cases passing through, as I've noted in our brief. Provincial courts currently, in a recent Statistics Canada report, are seized with 99.6% of all criminal cases in Canada, the superior courts secure 0.4%. In that sense, it's very difficult to imagine, in terms of the hybridization of offences, how the choice to proceed summarily is going to create further efficiencies for the Crown or for the criminal justice process.

I'll turn now to the recommendations that ACCLE is putting forward.

We're boldly asking that the proposed amendment to subsection 787(1) not be made at this point, not with a more thorough charter analysis of the proposed amendment having regard to who it might most impact. This includes perhaps looking for further ways to reduce court delays that do not disproportionately impact marginalized people. Alternatively, we're asking that if this does go through, then an amendment be made to subsection 802.1 that allows for the continuation of law student representation.

Thank you.

[The Chair, Liberal, Anthony Housefather]

Thank you very much.

Ms. Gillies.

[Kara Gillies, Canadian Alliance for Sex Work Law Reform]

Thank you so much.

Good afternoon and thank you for the opportunity to address you today.

The Canadian Alliance for Sex Work Law Reform is a coalition of 28 sex worker and allied organizations from across the country advocating for law reform that advances the rights and safety of people who sell or trade sex. Our member groups have expertise regarding the impact of criminal law on the lives and well-being of sex workers, so it's on those grounds that we submit our response to Bill C-75.

I'm going to be really frank and say that we are very disappointed and frustrated that the Criminal Code provisions targeting sex workers and their personal and work relations are not slated for repeal or meaningfully addressed in Bill C-75. The Liberal and NDP parties of Canada voiced staunch opposition to the Protection of Communities and Exploited Persons Act, or PCEPA, when it was introduced. In 2015, the justice minister declared that she was “definitely...committed to reviewing the prostitution laws”, yet this review has stalled.

This isn't just a matter of principle or a matter of promises unkept. Each day that passes, sex workers' rights, safety and dignity are violated through the individual and collective impact of laws prohibiting the communication for, purchase of, material benefit from, procuring of and advertising of commercial sexual services. We are past the time for review, and we need action.

We believe that excluding the repeal of PCEPA from Bill C-75 was a gross missed opportunity, given the overall alignment of many the bill's principles and elements with those of sex work law reform.

First, Bill C-75 rightly repeals several Criminal Code provisions ruled unconstitutional by Canadian courts. In 2013, the Supreme Court found in Bedford that several criminal prostitution laws caused harms that violated sex workers' charter right to security of the person. The subsequent Criminal Code provisions enacted by PCEPA replicate these harms, and their constitutionality is similarly impugned.

Second, Bill C-75 rightly repeals the offences of anal intercourse and abortion that targeted sexual or reproductive activities and autonomy and that disproportionately impacted LGBTQ2S communities and women respectively. Prohibitions on sex work activities similarly undermine the rights to liberty, autonomy and security of the person and disproportionately impact women, indigenous and migrant communities, and other marginalized groups.

Third, Bill C-75 correctly proposes to attend to the discriminatory treatment and overrepresentation of indigenous and marginalized peoples in the criminal justice system. Sex workers and/or personal and labour relations reflect the diversity and inequality of social locations in Canadian society. For many, sex work prohibitions represent the criminalization of their poverty and perpetuate the over-policing and over-incarceration of indigenous and black peoples.

Sex work laws continue to be employed and enforced in a racist and colonial manner. Indigenous women are over-policed and under-protected. Asian migrant workers are targeted for investigation and deportation, and young black men who happen to be boyfriends or associates of sex work workers are labelled and prosecuted as pimps.

We recognize that most of the PCEPA laws have been absented from Bill C-75 and thus cannot be repealed or otherwise altered through committee amendments. We note, however, that clause 111 reclassifies the material benefit offence as a hybrid offence and that clause 112 amends the sentencing provisions of the advertising offence. Because these two offences are addressed within the bill, if it's a procedural possibility, we strongly urge amending the bill to repeal these Criminal Code provisions in their entirety. By criminalizing the act of materially benefiting from another party's sex work, section 286.2 restricts sex workers' capacity to engage in supportive work relationships that enhance our safety and improve our work conditions. In fact, this provision reproduces the harms of the prior “living on the avails” offence that was struck down by Bedford for violating our section 7 charter rights.

Any proposition that the listed exceptions to the offence satisfy Bedford are false. All but one simply codifies jurisprudence that predates the Supreme Court's decision. Then there are exceptions to the exceptions, which further repress sex workers' autonomy and security. For example, paragraph 286.2(5)(e) prohibits a liability exception in the context of a commercial enterprise. This captures all escort agencies, massage parlours and any other sex work business that creates safe, structured indoor work environments.

While we appreciate that the exceptions may allow a worker to hire, say, a bodyguard or a receptionist, we are mindful that only a tiny number of highly privileged workers have the resources to do so. Instead, many of us seek out parlours and escort agencies because they offer services such as screening, secure venues and advertising without the upfront costs and overhead of independent work.

It is often the most marginalized and under-resourced workers, such as indigenous, poor, or migrant workers, who benefit from working for someone else. However, these same laws that prevent sex workers from ensuring our safety and rights are upheld, because we work for businesses, do so, ironically, because they effectively preclude us from accessing basic labour, occupational health and safety, or human rights protection. To make it worse, material benefits arising from the context of a commercial enterprise is considered an aggregating factor upon sentencing.

As with the former “living on the avails” provision, the material benefit sanction imposes an evidentiary presumption on anyone who lives with or is in the habitual company of a sex worker. In addition to reinforcing the false assumption that people, particularly women, who sell or trade sex can't be legitimate objects of affection, the threat of presumed criminality disrupts the security and autonomy of our personal relationships.

I will make a final comment on the material benefits offence. Although when we discuss it we typically describe it as benefiting from another party's sex work, the provision itself does not specify a third party benefit. Under the letter of the law, sex workers are ourselves captured in the material benefits provision. We are only granted immunity from prosecution via section 286.5. This is a clear illustration that PCEPA does indeed continue to construct those of us who sell or trade sex as criminal.

We therefore recommend that clause 111 of Bill C-75 be amended to call for the repeal of the material benefits provision, as a first step towards a more comprehensive sex work law reform.

Next I'm going to turn to Criminal Code section 286.4, which prohibits advertising paid sexual services. As with the prohibitions on communicating and purchasing, this provision undermines the safety benefits that sex workers derive from openly communicating terms and conditions with their clients, and establishing boundaries in advance of in-person contact.

Prohibiting advertising creates significant barriers to working indoors, which the evidentiary record in Bedford demonstrates is much safer than working on the street. Since the enactment of the advertising provision, many websites and newspapers will no longer publicize sex worker services. Those that do have often discontinued their virtual lounges that allowed workers to share safety and other valuable information with each other.

With these points in mind, we recommend that clause 112 of the bill be amended to call for the repeal of the Criminal Code section 286.4.

Continuing with the Criminal Code provisions addressed in the bill, we want to reiterate our opposition to Bill C-38 and Bill C-452, which is now incorporated into clause 389 of Bill C-75.

Bill C-452 introduced an evidentiary presumption that living with or being in the habitual company of an alleged trafficking victim is proof that the accused exercised control, direction or influence over the alleged victim's movements for the purposes of exploitation. Given the ongoing conflation of third party involvement with sex work and trafficking, we are concerned that, as with the reverse onus provision for material benefit, this presumption will further alienate sex workers from police and social services, as we continue to actively avoid implicating our colleagues and loved ones as traffickers.

We do support the bill's removal of consecutive mandatory minimum sentences for trafficking offences. However, like others who have responded to Bill C-75, we are perplexed as to why mandatory minimums have not been repealed across the board.

Other Criminal Code offences that are insufficiently addressed in the bill are the bawdy house, indecent acts and vagrancy sections. These have traditionally been used to condemn individuals and communities based on their sexual activities, relationships and identities, including people who sell or trade sex. The Prime Minister's 2017 apology to LGBTQ2S people should be buttressed by the repeal of these sanctions.

The alliance doesn't have a current position on the bill's Criminal Code amendments regarding intimate partner violence. However, we will note that intimate partner violence impacts our communities, not simply because sex-working women, like other women, experience intimate partner violence, but also because such instances of violence are often mislabelled and prosecuted as materially benefiting, procuring and trafficking. If criminal sanctions related to intimate partner violence were used instead of third party sex worker trafficking laws, where appropriate, we might be able to express support. However, we're concerned that they would be used as add-ons.

Additionally, we have potential concerns about increased sentences and reverse onus bail provisions, because we know only too well the effect of heightened criminalization and its disproportionate impact on the most marginalized among us. However, we have no specific recommendations on these points.

Finally, on a general note, we are concerned that elements of Bill C-75 will impede access to justice and fair treatment for people in and associated with the sex trade who come in conflict with the law for any reason, and who are further marginalized by their social or structural locations.

Increasing the maximum sentence for summary convictions risks the continued over-incarceration of marginalized peoples, both through the increased maximum sentence itself and by restricting access to agent representations.

Permitting the written admission of routine police evidence risks undermining trial fairness by complicating defence access to cross-examinations that can expose cases of police error, impropriety or actual abuse, and which are especially vital to protect the rights of indigenous and black defendants.

Those are our thoughts and concerns. Thank you for taking the time to hear them.

[The Chair, Liberal, Anthony Housefather]

Thank you both so much for your testimony.

Committee members, as we know, the bells will start at about 5:15. I'll ask everybody to keep it to six minutes for your questions, and if we get them to six minutes, we should get through this round just as the bells are starting.

Mr. Cooper, please go ahead.

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

Thank you, Mr. Chair. Thank you to Ms. Rogin and Ms. Gillies.

Ms. Rogin, my question is to you. Bill C-75, in terms of the hybridization of offences, is premised upon the idea that less serious cases will be processed more quickly at the provincial court level, but as you noted, 99.6% of criminal cases in Canada, according to Statistics Canada, are heard before provincial courts. It's very difficult to see, as you point out, how that's going to reduce backlog and create greater efficiencies. It seems like a wholesale downloading of cases onto already overburdened provincial courts. From the standpoint of Jordan, as you know, there is a 30-month timeline for matters before superior courts between the laying of charges and the conclusion of a trial versus 18 months in provincial court before delay is deemed presumptively unreasonable.

Is there not the risk that rather than reducing delay that, in fact, you're going to add to the delay and see even more cases thrown out of court, not less?

[Prof. Jillian Rogin]

That is our position, yes. It's an overburdening coupled with a decrease in legal representation, and I don't think that those two things can be separated in many ways. You're talking about further matters that are going to be going to the provincial courts at the same time as people will have less access to being able to assert their rights.

Another aspect of hybridization that I'm not sure has been raised before is that this means, by virtue of section 34(1) of the Interpretation Act, all hybrid offences are deemed indictable until the Crown elects. That means that section 524 proceedings can be triggered upon a greater number of offenses—524 being the section that can cancel a person's bail—and that a greater number of cases will be a reverse onus in bail proceedings pursuant to section 515(6).

Therefore, there are corollary consequences to the hybridization of criminal offences, and, absolutely, it's very difficult to imagine further overburdening of the provincial courts in my view and in my experience both as duty counsel and in the legal clinic system.

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

Thank you for that.

I want to move on to the issue of section 802.1, and the fact that as a result of increasing the maximums for a whole host of summary conviction offenses from six months up, that this is going to preclude law students and paralegals from acting on behalf of criminal defendants. You had suggested an amendment, which is to amend section 802.1 to provide that law or articling students under the supervision of a lawyer could represent these criminal defendants, but what about paralegals? That was a question that I posed, and the Law Society of Ontario said it won't work because you're going to leave out paralegals.

What's your response to that?

[Prof. Jillian Rogin]

First, I want to thank you for the question, and I want to clarify our position. I only mentioned some of our recommendations today, but in our brief, as you may see, we're asking for further consultation with legal clinics and the clients who access legal clinics before any amendment is made with respect to 787(1). In the alternative, if 787(1) is going to go ahead, we are asking that allowance be made for agents—paralegals, students, law students, articling students—to appear.

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

What would that amendment look like?

[Prof. Jillian Rogin]

Despite subsections 800(2) and 802(2), a defendant may not appear or cross-examine or examine witnesses by agent if he or she is liable, upon summary conviction, to imprisonment of a term of no more than two years less a day.

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

They'd just increase it from six months to two years less a day.

[Prof. Jillian Rogin]

Yes.

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

You don't see any issues with that.

[Prof. Jillian Rogin]

Yes, there are issues with that.

The issues with that are vast, which is why we want consultation. My colleague mentioned summary conviction offenses and the two years less a day maximum penalty. He referenced them as minor criminal offences. Respectfully, with two years less a day there will no longer be any minor criminal offences.

We're asking for consultation because we want a national conversation across Canada among lawyers, law clinics, law students and the lawyers who supervise them about what's appropriate for student and agent representation. We're asking for section 802.1 as an alternative because it's the second best choice. Maybe we can try to have those conversations province by province. That's less ideal than having a national conversation about what law students should be appearing on and what they shouldn't. Right now, as the code currently exists, there are limits to what law students can appear on.

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

I asked the Law Society of Ontario yesterday. They didn't have numbers. Do you have any idea of the scope of the number of law students, articling students and paralegals in the province of Ontario who are currently acting on criminal matters?

[Prof. Jillian Rogin]

No, we don't have exact numbers. We do know there are seven law student clinics in Ontario that represent marginalized clients in criminal law matters. The number of students per clinic would vary, but it could be likely hundreds.

[The Chair, Liberal, Anthony Housefather]

Thank you very much.

Mr. McKinnon.

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

Thank you, Chair.

I'd like to talk more about the super summary offences. We've heard a number of panels speak of these and they seem to be generally considered a problem.

In particular, you're mainly concerned about paralegals and regulated agents and so forth. Do you see it as possible and reasonable to amend section 802.1 to accommodate those kinds of people to be able to represent people in these offences that have a higher maximum?

[Prof. Jillian Rogin]

I'm not sure I understand the question.

If clause 787(1) becomes law then there will be no super summary offences.

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

Sorry. I meant, in terms of the offences that would become two years less a day and the fact that there would be no more six-month offences, is it possible to amend section 802.1, which I understand provides for regulated agents to represent clients in certain cases? Can that be modified to accommodate cases with minimums of two years less a day instead of six months?