Justice Committee on Sept. 26th, 2018

[Arif Virani, Parkdale—High Park, Lib.]

I have about a minute and a half, so I'll go very quickly.

Thank you to all of the witnesses.

I want to direct some questions to Deepa Mattoo. Deepa, it's great to see you again. Thank you for all of your significant work with the South Asian Legal Clinic and now with the Barbra Schlifer clinic.

I have one quick point. You talked in your testimony about intimate partner violence. You appreciate that we are expanding that definition to include dating partners. Can you tell us briefly why you think that's important?

[Deepa Mattoo]

I think it is important to consider the fact that intimate partner violence is not necessarily the same as we used to understand intimate partner violence to be. Intimate relationships are changing. Therefore, we really welcome this change where you're expanding the definition, because in this time and age we know that intimate relationships are not necessarily monolithic in nature and not one kind.

[Arif Virani]

I want to build on what Mr. Boissonnault was asking you about the reverse onus provision. We're hearing a lot of different views on this.

Again, Jonathan Rudin was here saying that this will have a differential impact because of this dual-charging mentality that's out there. But the law itself—and correct me if I'm wrong—says the reverse onus is triggered on a bail application if there has been a previous conviction.

Are you saying that women are not only being charged but are being convicted and, therefore, on a second go-round they would be denied bail? Is that the specific concern you're raising?

[Deepa Mattoo]

Yes. That's exactly the concern we are raising. Most of the convictions we see, or most of the cases where we see that happen, are with women who don't know the language, who don't have access to justice, and who are coming from the most marginalized and most racialized communities.

[Arif Virani]

I have another brief question on the racialized communities. We've heard a lot about those communities, but not a lot of direct evidence.

One thing that was clear from Mr. Rudin's testimony was that ending the peremptory challenge model we've had for so many years would ensure better diversity of jurors and benefit the indigenous accused who are so overrepresented in our system.

Do you agree with that submission? Does that also apply to other racialized groups such as black Canadians in the system?

[Deepa Mattoo]

Yes, I think we agree with that particular provision. That's why we didn't address it. That would definitely help.

When we say “racialized” we are using the term in an all-encompassing way, which includes the indigenous population as well as black Canadians.

[Arif Virani]

Thank you very much.

[The Chair, Liberal, Anthony Housefather]

Thank you very much.

Mr. Rankin.

[Murray Rankin, NDP, Victoria, BC]

Thank you to all the witnesses.

I would like to start with Ms. Hendel. You pointed out in your summary that the prosecutor's side—in a rare feat of unanimity with the defence bar—is in “near unanimity” that preliminary inquiry reform won't fix the delay problem. I appreciated that, and I understood your arguments in reply to Mr. Cooper on hybridization.

Could you elaborate a little more about what you were trying to suggest we might specifically do about the administration of justice offences? You talked about small town, big city, but what would you do to fix this bill?

[Ursula Hendel]

How long do I have?

[Murray Rankin, NDP, Victoria, BC]

Specifically, I want to make sure we understand what you want to do about the AOJs. I couldn't understand your submission.

[Ursula Hendel]

We can definitely be looking at ways to encourage less charging. I have no problem with the principle of restraint. That's not problematic, but I think that the fact that there are so many administration of justice charges isn't what's at the heart of why the criminal justice system is so congested.

[Murray Rankin, NDP, Victoria, BC]

I would like to turn to B'nai Brith and Mr. Herman. I really appreciated your powerful and persuasive presentation. To my friend Mr. Fogel, I say the same. Thank you.

I thought your eight-point plan to tackle anti-Semitism is excellent. Of course, a lot of it, as you will agree, is not at the federal level, nor specific to Bill C-75, so I wanted to focus on those matters that may be pertinent here.

The first, and you referred to it, is the publishing of the Attorney General guidelines for sections 318 and 319 so that we have a better chance to know how to get on the right side of the law, if I can put it that way. But then you said that the prosecution process is currently opaque and open to charges of political bias. Could you elaborate on what that means?

[Brian Herman]

Thank you for the question.

I think the point we're making there, Mr. Rankin, is that the problem we have is with the hatred offences and the fact that they are already hybrid. The difficulty is obtaining Attorney General consent.

It has been our experience that attorneys general have been reluctant to consent to prosecution of these offences, even in clear-cut cases. That's one of the points we didn't address directly. We're concerned that increasing the maximum sentence from up to six months to up to two years for these offences will make Attorney General consent even harder to get.

[Murray Rankin, NDP, Victoria, BC]

Got it.

[Brian Herman]

There used to be a civil remedy to incitement of hatred. That was where I raised the point briefly about section 13 of the Canadian Human Rights Act, but we've lost that remedy. That's one of the concerns we have, but I realize that's outside the scope of the legislation.

[Murray Rankin, NDP, Victoria, BC]

Mr. Adler has escaped my clutches, so I'm going to have to ask either of you gentlemen, Mr. Fogel or Mr. Herman, about this point.

Prosecutorial discretion to decide whether to proceed by indictment or summary is one of those areas of virtually untrammelled discretion. I think that point was made very powerfully.

I tried to put myself in the position of the people who drafted this bill and decided to make these offences of advocating terrorism or issues involving promoting genocide hybrid offences, and I tried to figure out why they did this. One has to assume that there was some purpose in doing so, rather than just sweeping them into this large category of hybrid offences.

As I say, you've been very powerful, so can I invite you to reflect on what might have led them to do this? Is it your view, like many of the other things we've heard about, that this was a law of unintended consequences, that it was not intentional but simply a lapse, and that we should fix it because it was unintended? Or could there have been an intent on their part to, for example, deal with those things which we see in situations in small towns where people make anti-Semitic slurs and so forth? They go unchecked in the criminal system precisely because they go by indictment, and that is sort of the heavy artillery. Some might say that if you use summary prosecution, you might find yourself bringing more people to justice for that activity.

I'm trying to put myself in the position of how this happened, the position of those who drafted this, and give them the benefit of the doubt and understand why they might have done this. Have you reflected on that?

[Brian Herman]

Thank you for the question, Mr. Rankin.

We have reflected on that. I must say that in all of this we do have a dialogue with Department of Justice officials where we sometimes discuss with them our concerns and some of the rationale for why they have drafted what they have.

This is where I go to the point that I made about the consistency of what we've been saying when it came to discussing amendments to Bill C-51 and to Bill C-59, and that is the signals that are sent and how in an effort to increase expediency in the system to deal with the charter concerns about efficiency and speed, sometimes there are certain provisions that get caught up in a broad basket of issues and that should not be there. We feel that these particular provisions are so serious as to warrant being kept strictly indicted.

[Murray Rankin, NDP, Victoria, BC]

I understand.

Mr. Fogel, I thought you made a very powerful point in your submission. You referred to it again orally today.

You've said that terrorism-related offences and advocating genocide constitute a minute fraction of criminal cases in Canada, and that recategorizing these crimes as hybrid offences will have a negligible impact on the current backlog. You could have added to this that if they go to the provincial court, which is already where 99% of our cases occur, it would even add to the backlog if they were to be proceeded with by way of summary conviction. It seems to me that's another point to the same end.

[Shimon Koffler Fogel]

I'll accept that, but with your permission I'd like to go back to a couple of the points you raised earlier. We have to be careful in the context of this discussion not to conflate hate crimes—major, minor, anti-Semitic or other racist graffiti, and so on—with these particular categories of crimes.

They present challenges. One of the suggestions apropos an earlier exchange that you had is that we waive or consider waiving AG sign-off on charges, and that might change the dynamic with law enforcement at the local level in terms of their discretion. Currently, the concern they express—not infrequently—is that the hoops they have to jump through in order to successfully get a charge laid are not worth the investment of effort on their part.

There may be other remedies for lesser offences than promotion of genocide and terrorism. I take your point about how it could actually exacerbate the challenge, given the provincial role.

For us, though, I'd be reluctant to use the phrase “unintended consequences”. That's more germane to the earlier presentation. I think it just fell through the cracks. I think that it is not frequent. It's not square on the radar in terms of the experience of the judicial system to deal with. In the desire to tailor something to address the challenges of speed and efficiency, this simply was caught up in the net.

By flagging it for you, we're asking that you give consideration to excluding it. It's not going to have a material impact on the intent of the legislation, and there is, as Leo Adler mentioned earlier, some weight to what it could represent in terms of signals to society.

[The Chair, Liberal, Anthony Housefather]

You are out of time, Mr. Rankin.

Mr. Fraser.

[Colin Fraser, Liberal, West Nova, NS]

Thank you, Mr. Chair.

Thank you all very much for being here. I appreciate it.

My question was actually going to be to Mr. Adler, but perhaps I'll expand it to Mr. Herman and Mr. Fogel. Thanks for your presentations.

With regard to the offences that you're talking about related to terrorism or advocating genocide or any of the others that you've touched on, has any examination been done of the sentencing? I take the point that instances where these will actually be prosecuted are relatively rare, but has there been an examination of sentencing decisions for these types of offences and whether or not any of them have ever attracted less than two years as a punishment?

[Shimon Koffler Fogel]

Speaking for us, we've not done that examination. I don't want to exaggerate the number of cases that there are to examine. You're talking about a very high threshold that has to be met even to contemplate charges in these cases. There's a pedagogical value as much as there is a judicial one in terms of how we approach them as a society and what we're saying about what such offences represent or how they offend the core values of our society.

[Colin Fraser, Liberal, West Nova, NS]

Mr. Herman, are you aware of any sort of review of what these types of offences will generally attract and whether any of them have ever been meted out less than two years?

[Brian Herman]

Our organization is not aware of any analysis like that, Mr. Fraser, but I go back to the basic point that we're making. That is to say, if you leave these sorts of offences as indictable, it is quite clear to those who are considering acting in this way—and to the public who would be affected—the serious nature of these particular provisions.

If you hybridize them and leave the sentencing issue aside, you are also sending a signal that there could be some flexibility in how the justice is administered. That would give people the impression that you are less serious. Both the policy issue aspect of the seriousness and the symbolic nature of the seriousness are affected here.