Justice Committee on Sept. 26th, 2018

[The Chair, Liberal, Anthony Housefather]

Good afternoon, everyone. It is a pleasure to call this meeting of the Standing Committee on Justice and Human Rights to order as we continue our study of Bill C-75.

It is a pleasure to be joined by some distinguished witnesses on our panel, so let me introduce them. By teleconference, we have Ms. Debra Parkes, Professor and Chair in Feminist Legal Studies at the University of British Columbia. Welcome, Ms. Parkes.

We have with us today, Emilie Taman, who is an attorney. Welcome, Ms. Taman.

From the All-Party Parliamentary Group for the Prevention of Genocide and other Crimes against Humanity, we have our colleague Mr. Ali Ehsassi, who is the chair. Welcome, Mr. Ehsassi, in a different seat.

With respect to Families for Justice, we have with us Ms. Sheri Arsenault, Mr. George Marrinier, and by video conference, we have Ms. Markita Kaulius, who is the president. Welcome.

With the Student Legal Aid Services Societies, we have Ms. Lisa Cirillo, Ms. Suzanne Johnson, and Mr. Douglas Ferguson. Welcome.

My understanding is that Mr. Ferguson needs to catch a flight and you would like to go first.

Is that correct?

[Douglas D. Ferguson, Representative, Student Legal Aid Services Societies]

That's correct.

[The Chair, Liberal, Anthony Housefather]

We're going to let you go first then.

I will turn it over to the Student Legal Aid Services Societies for your brief.

Again, you all have eight minutes per group, but I don't cut you off until 10 minutes. At 10 minutes, I will stop you.

Go ahead.

[Douglas D. Ferguson]

Mr. Chair, we would like to thank the committee for this opportunity to appear today.

As you mentioned, sir, my colleagues are with me: Lisa Cirillo, from Downtown Legal Services at the University of Toronto; and right next to me is Suzanne Johnson, from the community and legal aid services program at Osgoode Hall Law School.

We are here today representing the community of student legal aid service societies. The SLASS clinics, as we are called, are partnerships between Legal Aid Ontario and the Ontario law schools. Programs have a dual mandate to provide free legal services to low-income persons in the community and experiential learning opportunities for law students.

We have filed a written brief with the committee, which you should have received earlier, that outlines our concerns in detail. We know that you have heard from a number of our colleagues on this issue, including our national clinical association called ACCLE, and Ms. Overholt from the Windsor SLASS clinic.

As the committee is aware, Bill C-75 does not directly address our programs, but in purporting to raise the maximum penalty for all summary conviction offences, it triggers the application of section 802.1 of the code. That section prohibits agents from appearing on charges where the possible sentence is greater than six months. Agents, in this sense, include our law students and articling students. If enacted as currently drafted, Bill C-75 will eliminate legal education programs across the country and, more importantly, will cut off access to representation for some of the most vulnerable criminal accused.

Given this government's stated commitment to improving access to justice for vulnerable Canadians, we don't believe that these consequences were intended. We urge the committee to revise the bill now so as to avoid these devastating results and not take a step backwards.

Clinical legal education programs like the SLASS clinics are a small but critical piece of the access to justice puzzle. These programs benefit, first our clients, secondly our students, and thirdly the justice system itself.

[Lisa Cirillo, Representative, Student Legal Aid Services Societies]

Thank you, Doug.

We'd like to talk first and foremost about the devastating impact the bill would have for the clients we work with at the SLASS clinics.

The clients we serve live in deep and persistent poverty. In addition to whatever presenting legal issue has brought them to us, they are also often dealing with other legal and non-legal problems, such as homelessness, food insecurity, low literacy, disability, unemployment, lack of immigration status and addiction and mental health issues.

In some of our clinics, large numbers of our clients do not speak either official language, and in others, a disproportionate number are indigenous. Many of them are living with the long-term effects of trauma. These are highly vulnerable clients who are not equipped to self-represent.

The clients we work with have no other options for free legal representation. We are legal assistance of last resort for them, literally their last hope. These are clients who need someone to walk with them on their journey through the criminal law system, someone to explain the charges to them, to help them understand their options and the consequences of these options on their immigration status, their employment prospects, their family law case and their housing. They need someone to insist that they are entitled to a fair process and to make sure their voice is heard.

Next we want to talk a little about the impact on our students. As detailed extensively in our written submission, all the SLASS clinics offer criminal law programs. As criminal law case workers, students will interview clients, negotiate with Crown attorneys, attend judicial pretrials, draft submissions, and if required, represent clients at trial. All of this work is done under the close supervision and mentorship of our supervising lawyers.

As Doug noted previously, education is the other half of our core mandate, and we take this responsibility very seriously. We provide extensive skills-based training on criminal law and criminal procedure, as well as supplemental education sessions on oral advocacy, drafting, case management and professional communication, legal ethics and working with vulnerable clients. In terms of the latter topic, our students are taught strategies for working effectively with low-income vulnerable clients, clients who have mental health issues and clients who have experienced domestic violence and who are living with trauma.

These programs are of enormous value to our students, not just in the moment but throughout their professional lives. Many of our criminal law students go on to pursue careers in criminal law as defence counsel, as Crown attorneys, in policy roles and as members of the judiciary. We are quite literally building the future criminal law bar.

[Suzanne Johnson, Representative, Student Legal Aid Services Societies]

Thank you, Lisa.

Finally, it's our submission that the justice system benefits from our programs. Although the number of clients we represent may seem a drop in the bucket compared to the total number of people in Ontario facing summary conviction charges, our clients, as we've already discussed, are the most vulnerable and the hardest to serve in the system.

Our clients miss court dates because they are homeless and can't keep track of their dates, or because they will lose their jobs if they take time off. Our clients agree to release conditions that they don't understand and can't comply with because no one has taken the time to properly explain the conditions to them. That then sets them up for further charges. Our clients take pleas without appreciating the full impact of the convictions on their other legal matters, jeopardizing their future employability prospects and sometimes even their ability to stay in Canada.

Forcing people who are incapable of meaningfully understanding the process to represent themselves brings the administration of justice into disrepute. It also grinds the mechanism of the criminal law system to a very slow pace.

Moving ahead with the bill as drafted will increase the number of self-represented litigants in court. This flies directly in the face of the stated legislative purpose of Bill C-75. One of the purposes is to reduce the chronic and systemic delays that have plagued the criminal courts. It also contradicts the committee's recommendation in the recent report on legal aid, “Access to Justice Part 2: Legal Aid”, which was introduced in October 2017. In that report, recommendation number five talked about recognizing the untapped potential of law students in increasing access to justice.

We acknowledge that section 802.1 of the Criminal Code leaves open the possibility that the provincial and territorial governments can step in and enact orders in council that would preserve the ability of law students to assist on summary conviction matters, but there are no guarantees that the other provinces and territories will do so. Delegating the issue to the provincial governments to fix will likely result in inequitable access to representation across the country.

This bill created this issue, and this bill should be amended to fix it.

In our submission, the easiest way to do so would be to introduce a parallel amendment to section 802.1 that would preserve the ability of law students. As you know, on page eight of our brief, we've drafted a recommendation of how it could be amended. Alternatively, we support Legal Aid Ontario's recommendation that section 802.1 be amended to include a schedule of the most serious summary conviction offences for which agents would not be permitted to appear.

Thank you, members of the committee, for the opportunity to address you on this important issue. Subject to any questions, those are our submissions.

[The Chair, Liberal, Anthony Housefather]

Thank you so much.

We're now going to go back to the order on the agenda. Our next speaker is Ms. Parkes.

Ms. Parkes, the floor is yours.

[Debra Parkes, Professor and Chair in Feminist Legal Studies, Peter A. Allard School of Law, University of British Columbia, As an Individual]

Thank you, and thank you for the opportunity to speak with you today.

I'm a professor in the Peter A. Allard School of Law at the University of British Columbia, where I hold the chair in feminist legal studies. My expertise is in criminal and constitutional law, with a focus on sentencing and imprisonment. I've published extensively on these issues, particularly with respect to the imprisonment of women and the growing overrepresentation of indigenous women in Canada's criminal and correctional systems.

Women are the fastest-growing prison population in Canada, and within that, indigenous women's imprisonment is growing at a truly alarming rate. This year, fully 40% of the women in federal prisons are indigenous. This percentage has gone up every year in the last decade. In provinces such as Manitoba, where I lived for 15 years until 2016, the rate of provincial incarceration for women increased by nearly 300% in the preceding decade.

I've been invited to present on the hybridization changes proposed in Bill C-75. These are the more than a hundred offences that are currently indictable with maximum punishments of either 10, five or two years. This bill would make them hybrid so that the Crown could proceed either summarily or by indictment.

Significantly, the bill also increases the maximum sentence for summary conviction offences to two years less a day from six months. The assumption underlying this change, as I understand it, is that it will make the prosecution of crime more efficient and timely, thereby responding to the constitutional issues and unreasonable delay identified by the Supreme Court of Canada in the Jordan and Cody decisions.

In addition to the backlog and delays in processing criminal matters, though, there is a crisis in our provincial and territorial correctional centres. The remand population—those awaiting trial—has grown explosively. Before 2004, the number of sentenced prisoners in provincial and territorial custody was consistently larger than the remand population. However, since that time, the remand population has been growing steadily to the point where prisoners on remand substantially outnumber sentenced prisoners. Again, in Manitoba, where I lived until very recently, 68% of all provincial prisoners are on remand. There are similar numbers in other provinces: 72% in Alberta, 70% in Ontario, etc.

The same 2016-17 statistics show that most adults committed to provincial custody spend less than one month there. Fifty-five per cent of men in provincial jail and 69% of women in provincial and territorial custody spend less than a month. This widespread and short-term use of detention does not promote public safety.

Of particular concern to me in my research is that those in remand or on short sentences in provincial and territorial jails include increasing numbers of women, many of whom are mothers. In addition to the evidence of harm done to children whenever a parent, particularly a mother, is incarcerated, there is considerable research about the profound, negative impact of short-term imprisonment, whether for remand or sentence, particularly to women. A short period in prison for many women usually triggers other significant life events that often spiral the women back into prison—they lose their rental suites, their kids are taken into care and they have a much more difficult time avoiding further criminalization.

Indigenous and racialized accused, those with mental health issues and addiction, and those who are homeless are the people who are filling provincial and territorial jails and remand centres.

Some of the changes that are being contemplated in this bill address bail and administration of justice offences. I'm not speaking to those today, but particularly with respect to bail, I do want to commend to you the submissions of Professor Marie-Eve Sylvestre of the University of Ottawa. Her submissions on the bail system are urgently needed to revise this bill and to make it actually address that issue.

With respect to hybridization, which I've been asked to present on, I'll make three points today. First, despite their good intentions, these changes are not likely to achieve the goal of bringing greater efficiency and fairness to our system. Second, these changes will have unintended negative consequences. Third, what is urgently needed is comprehensive criminal justice reform, and particularly sentencing reform.

With respect to the changes' not achieving their objectives of efficiency and timely trials, the vast majority of cases are already heard in provincial court. An astounding 99.6% are heard in provincial court and only 0.4% in superior court according to 2015-16 StatsCan statistics. Therefore, this change will not have the desired effect, but will have some negative unintended consequences, which I'll turn to now.

With regard to hybridization specifically, hybridizing offences effectively sweeps away important procedural protections. I believe Ms. Taman will be speaking to some of the ways that the Crown and accused elections work, and to the implications for accused persons, so I won't spend time on that.

As for the accompanying raising of the maximum sentence for summary conviction offences to two years, there are important access to justice issues that resolve from this change, and you have just heard about the issues around student representation. My greatest concern with respect to this change is that it will have an inflationary effect on sentences generally in the form of sentence creep. This is a phenomenon documented across many jurisdictions that have increased maximum sentences and even more so when you also have mandatory sentences, as we do in relation to a number of offences.

When there is sentencing room available—increasing the ceiling, and the floor, in some cases—it gets used. The increase in the maximum sentence for summary convictions to two years will also likely have disproportionate effects on women, who represent a small proportion overall of accused persons but are overrepresented among those accused of summary conviction offences, particularly property crimes such as theft under $5,000 and various fraud charges. Women are 37% of theft under charges and 33% of fraud.

There is also a very good reason to be concerned that this change will exacerbate the over-incarceration of indigenous people in prison—jail and remand—rather than alleviate it. Research shows that indigenous people are less likely than other accused to benefit from prosecutorial discretion. Research shows that indigenous people are also more likely to plead guilty than non-indigenous accused for a variety of reasons. There are also potentially drastic implications for foreign nationals and permanent residents, which I don't have time to go into in my time today, with respect to raising the summary conviction cap to two years less a day, from six months, because of the removal provisions in the Immigration and Refugee Protection Act.

In the few minutes I hope I have left I'll speak to my final point, which is that what is urgently needed is comprehensive criminal justice reform and, particularly, sentencing reform.

In recent decades, Parliament has made piecemeal changes to the Criminal Code that have massively increased the number of mandatory minimum sentences and restricted the availability of conditional sentences served in the community. This bill does not speak to that and it needs to—or our reforms need to speak to that.

We've seen a ratcheting up of the average sentence length for many offences, a massive growth in the overrepresentation of indigenous people in prison and jail, overwhelming evidence of our increasing use of imprisonment to address social problems as not delivering on the promise of public safety. Band-aids and piecemeal changes will not cut it. Increasing the maximum sentence for summary conviction offences certainly will not help. It only contributes to the ratcheting up and sentence creep. I urge this committee to recommend against any measures in the bill that would amount to increasing sentences or contribute to remand populations going up.

Beyond that, I urge this committee to recommend sentencing reform on an urgent basis. This includes eliminating mandatory minimum penalties and revisiting now discredited principles of sentencing such as deterrence. The evidence simply doesn't show that sentencing severity actually deters people.

There are also many upstream changes that could be undertaken without actual legislative reform. The federal government could work with provinces to change charging policies and culture, which is what was at issue in many ways in the Supreme Court's opinion in Jordan, to meaningfully invest in diversion programs and indigenous justice initiatives, and to substantially invest in housing, community mental health care and other government services that would decrease the number of people coming into contact with the justice system.

Thank you.

[The Chair, Liberal, Anthony Housefather]

Thank you very much for staying within the time limit. It's much appreciated.

We will now go to Ms. Taman.

[Emilie Taman, Lawyer, As an Individual]

Thank you, Mr. Chair.

My name is Emilie Taman. I'm a lawyer with expertise in criminal law. I have worked as legal counsel at the Supreme Court of Canada, as a federal prosecutor at the Public Prosecution Service of Canada for eight years, and for the last two years I have been teaching criminal law and advanced evidence to students at the University of Ottawa's common law section of the faculty of law.

I want to open by saying I cannot agree more with Professor Parkes in particular in her assessment of the need for comprehensive criminal justice reform.

My personal view is that re-establishment of a federal law reform commission is something that should be very seriously considered and pursued by this Parliament. I have a written brief that will make it to you shortly, but I did circulate a chart, which is in both official languages. I likewise have three main concerns when it comes to the reclassification of offences and the so-called hybridization of offences in Bill C-75.

I think it's important, though, that the members of this committee understand the consequences of a summary conviction versus indictable offences and the various discretionary choices conferred on both the Crown and the accused depending on the nature of the offence. I'm going to take most of my time today on that. I would, of course, very much echo the concerns in relation to access to justice by virtue of the raising of the ceiling for summary conviction offences by default to two years. Also I am very skeptical about whether this hybridization will have the desired impact of enhancing efficiency or expediency in the criminal justice process.

I would just put on my law teacher hat here and ask you to turn your attention briefly to what's noted as appendix A, which is an appendix to my brief, which you don't yet have. It attempts in a very clumsy way, given my lack of expertise with any kind of graphic design, to explain a little bit about the consequences of hybridization.

Essentially in the Criminal Code you have, generally speaking, three kinds of offences. You have what we would refer to as straight summary conviction offences. Those are statutory offences that can proceed only by way of summary conviction. On the other hand, you have what we would call straight indictable offences. Those would be statutory indictable offences. Then there are a large number of offences that we refer to as hybrid offences. Those are offences that can proceed either by way of summary conviction or indictably. The question as to which of the two ways hybrid offences will proceed is really all about the exercise of prosecutorial discretion. Early in the proceedings when it comes to hybrid offences, the Crown is asked to elect whether the matter will proceed summarily or by indictment. You see that with the green arrows in the chart, which are my attempt to show you the Crown's elective options.

Summary conviction offences all proceed in provincial court. If it's a straight summary offence, it goes to provincial court. If it's a hybrid offence in relation to which the Crown has elected to proceed summarily, it likewise can go only into the provincial court and the accused has no election in that regard.

On the other hand, in straight indictable offences or hybrid offences in relation to which the Crown has elected to proceed by indictment, the accused as a general rule can make one of three elections. The accused may elect to have his or her trial proceed in provincial court with a judge alone, because there are no juries in provincial court, or the accused can elect to have his or her trial in superior court presided over by a judge alone. The third option is that the trial can proceed in superior court with a judge and jury.

There are two statutory exceptions to the accused election set out in sections 553 and 469 of the code. Those are very limited exceptions. Certain enumerated offences do fall within the absolute jurisdiction of one court or the other. What I want to highlight here is the impact that hybridizing a large number—136 straight indictable offences—will have in particular when it comes to the accused's right to elect to be tried by jury.

As it stands with these 136 offences, because they are straight indictable, the choice lies wholly with the accused. I really want to underscore that it is common for accused to elect to be tried in provincial court. I wasn't, unfortunately, able to find the exact numbers on that, but I just want to make sure this committee understands that it is not presently the case that all indictable offences proceed in superior court. In fact, a significant number proceed by trial in provincial court.

By taking these 136 offences and making them hybrid, the Crown will now have a very important role to play in relation to the question of whether an accused can exercise his right to a trial by jury. If the Crown should elect at the outset to proceed summarily, the accused loses the ability to elect to have a trial by jury. This is something—again I don't know if this is an intended consequence or if it's an unintended consequence—that I do think is significant. I want to make sure that the committee fully understands that.

I am very concerned any time we take discretion away from a judge and put it in the hands of the Crown. Likewise, here we're taking a choice from the accused and at the outset conferring that decision on the Crown as to whether the accused will even be legally able to elect to be tried by a jury. The exercise of prosecutorial discretion is almost completely lacking in transparency and is not subject to review except at the very high bar of abuse of process.

I want to be clear in saying that this does not give rise to a technical breach of paragraph 11(f) of the Charter of Rights and Freedoms, which is the constitutionally protected right to trial by jury, because paragraph 11(f) is only triggered in the context of offences punishable by five years or more. In hybridizing these offences—offences that currently, as Professor Parkes noted, have statutory maximums of two, five, or 10 years—when the Crown elects to proceed summarily, by virtue of the new default maximum for summary conviction offences being raised to two years, the constitutional right will not, technically, be engaged. But it is the case that, for someone charged before this bill and someone charged after this bill with the same offence in the same circumstances, one of those accused will have the right to elect to be tried by judge and jury, and the other, in the case where the Crown elects to proceed summarily, will no longer be able to exercise that, at least, statutory right. It is an important consequence I want to highlight.

One other thing I want to briefly note about the impact of raising the statutory ceiling, the maximum penalty for summary conviction offences from six months to two years, is that it's important to understand that, as things stand, it is not the case that all summary conviction offences are punishable by a maximum of six months. That is the statutory default, but there are a number of offences, including assault causing bodily harm and sexual assault, for which, even where the Crown proceeds summarily, there is a statutory maximum of 18 months.

The effect of that, and I just want to build on what my colleagues from the student legal aid clinics were noting, is that currently, students and other agents—and it should be noted that a significant number of agents are neither law students nor articling students but paralegals and others—are currently authorized to defend persons charged with offences carrying a maximum punishment of up to six months, that is, not all summary conviction offences. That's why I would be concerned about attempting to address this, I think, unintended consequence of the bill by simply saying that agents can do all summary conviction offences.

The effect of proceeding that way would significantly expand the offences that can be defended by students and agents, and I think there are concerns there. As far as remedies for that go, I would certainly be more on the side of Legal Aid Ontario's submission to have a schedule of offences that would be excluded from agent representation.

I've made some other points in my brief, which will be forwarded to you, but I'll leave it there for now. Thank you.

[The Chair, Liberal, Anthony Housefather]

Thank you so much.

Next we have Mr. Ehsassi.

[Ali Ehsassi, Chair, All-Party Parliamentary Group for the Prevention of Genocide and other Crimes against Humanity]

Thank you, Mr. Chair.

In having been on the other side of this table for most of this study, it's obviously an honour for me to now speak to you from the opposing side. I should say it's an intimidating exercise, given the reality that you are all known, individually, to be the smartest members of Parliament.

[The Chair, Liberal, Anthony Housefather]

We're going to put that on the record and we absolutely agree with that contention.

[Ali Ehsassi]

You can take judicial notice.

[The Chair, Liberal, Anthony Housefather]

Exactly.

[Ali Ehsassi]

I am here this afternoon in my capacity as chair of the All-Party Parliamentary Group for the Prevention of Genocide and other Crimes against Humanity, hereafter referred to as GPG. I am here to discuss Bill C-75, in particular, the hybridization aspects of the bill impacting subsection 318(1) of the Criminal Code, incitement to genocide.

Before I continue I should stress that while I am here in my capacity as chair of the GPG, my views do not necessarily reflect the views of the GPG as a whole, nor the views of its individual members.

I also believe that a brief summary of the GPG's history, operations and mandate will provide some context to our approach to Bill C-75 and subsection 318(1) of the Criminal Code.

The GPG was founded in 2006 by Senator Roméo Dallaire to provide members of Parliament and senators with a non-partisan forum for co-operation on issues of pressing humanitarian concern. Currently comprised of 36 members from across party lines, the GPG works to inform parliamentarians about ongoing conflicts, and through close collaboration with partners, experts and stakeholders, crafts strategies to help prevent genocide and crimes against humanity.

Since its inception the GPG has conducted studies and meetings on humanitarian crises in Burundi, Darfur, the DRC, Myanmar and Yemen, and it has established close working relationships with Amnesty International, the Montreal Institute for Genocide and Human Rights Studies, the Stanley Foundation, the Roméo Dallaire Child Soldiers Initiative and the Digital Mass Atrocity Prevention Lab, to name a few.

The GPG, in other words, has largely been a forward-looking and globally oriented institution. The fields of human security, human rights and atrocity prevention have always, rightly or wrongly, been largely oriented toward studies of foreign policy and related fields such as security studies, international law, international trade and international development. It is somewhat unusual, therefore, that our group has been asked to comment on what is essentially domestic legislation and jurisprudence.

However, the changes in proposed section 318 of Bill C-75 clearly relate to domestic genocide prevention and incitement to hatred laws. Although such relatively minor modifications constitute only a small part of the sweeping changes included in Bill C-75, we have a duty to examine the potential impact and side effects. Moreover, given the leadership role Canada has always observed in matters of human rights and genocide prevention, it is imperative that our laws relating to genocide and atrocity prevention remain second to none.

As you are aware, Bill C-75 seeks to modify the wording of subsection 318(1). The existing wording of the section reads:

Every one who advocates or promotes genocide is guilty of an indictable offence and liable to imprisonment for a term not exceeding five years.

The proposed revised wording would read:

Every person who advocates or promotes genocide is guilty of

(a) an indictable offence and liable to imprisonment for a term of not more than five years; or

(b) an offence punishable on summary conviction.

These changes are part of the hybridization efforts included in Bill C-75, which I broadly support, and which seeks to improve access to justice by giving the Crown the necessary discretion to elect the most efficient mode of prosecution evaluated on a case-by-case basis. Hybridization will reduce court time consumed by less serious offences while freeing up limited resources for more serious offences. Of course there are few offences more serious than advocating genocide, which is why these amendments must be taken very seriously.

The first of these changes, which substitutes “every one” with “every person” appears multiple times in Bill C-75 and merely appears to be part of a broader effort to modernize the language in the Criminal Code. It is difficult to see how this change would have any impact on Canada's genocide prevention regime.

The second and more substantive change seeks to hybridize incitement to genocide as punishable via summary conviction. This change, which represents one of approximately 170 clauses in the Criminal Code being hybridized or reclassified, will allow prosecutors to pursue summary convictions for offences that would have a shorter sentence.

The proposal hybridizes all straight indictable offences punishable by a maximum penalty of 10 years or less, which is why clause 318 was captured. It also increases the default maximum penalty to two years less a day of imprisonment for all summary offences and extends the limitation period for all summary conviction offences to 12 months from the current six months.

It is important to note that subsection 318(1) has rarely been invoked in Canadian courts. The practical impact of this modification may ultimately prove negligible. However, given the extremely serious nature of the issue at hand, as well as Canada's moral obligation to serve as a leader in the field of genocide prevention, this committee should support an amendment to Bill C-75 ensuring that incitement to genocide provisions are not included within the otherwise prudent attempts at hybridization and reclassification.

Moreover, there is precedent within this bill for not hybridizing specific elements of the Criminal Code. Offences that would be repealed in Bill C-39 and Bill C-51 are excluded from the hybridization process. Furthermore, nine other indictable offences that are currently punishable under mandatory minimum penalties would not be hybridized either.

To be more specific, I'm referring here to subsection 92(3), which relates to possession of firearms, knowing possession is unauthorized; section 99, which relates to weapons trafficking; section 100, which relates to possession for purposes of weapons trafficking; section 103, importing and exporting firearms; section 202, relating to bookmaking; section 203, placing bets on behalf of others; section 279.03, which relates to withholding documents; section 286, which relates to purchasing sexual services; and lastly section 467, which relates to the recruitment of criminal organizations.

Therefore, given both the practical importance and symbolic value of subsection 318(1), we feel that this section should be included amongst the carve-outs referenced above. The fact that section 318 has almost never been invoked in Canadian courts is a testament to our tremendous good fortune and our dedication to diversity, human rights and human security. This good fortune has allowed Canada to serve as a global beacon for genocide prevention efforts. While I have every faith that Canada will continue in this noble tradition regardless of the outcome of Bill C-75, amending the legislation before us to ensure that genocide advocacy remains an indictable offence would once again send a clear message that this heinous act is incompatible with Canadian values.

I thank you for your consideration of this matter. I look forward to any questions you may have.

[The Chair, Liberal, Anthony Housefather]

Thank you very much, Mr. Ehsassi.

Now we will turn to Families for Justice. Ms. Arsenault, I understand that you're going to start and that you're going to take approximately half the time and Ms. Kaulius will take the rest.

Go ahead, Ms. Arsenault.

[Sheri Arsenault, Director, Alberta, Families For Justice]

First off, I will mention my father George Marrinier. He submitted a brief statement to the committee earlier.

Thanks for the invite to speak today. Everybody here knows my personal tragedy, the horrific death of my son Brad and his two friends. I'm not a legal expert, and I know there are some at this table who are, but where my expertise lies is that I'm a victim. My tragedy alone involved over 30 court dates, and I've spent countless hours in courtrooms supporting victims all over Alberta.

Bill C-75 is an enormous bill, and it's intended to address the Jordan decision to reduce court delays.

I'm speaking specifically today to the reclassification of offences, the hybridization of 136 serious crimes, crimes that are identified as indictable offences such as terrorism, assault with a weapon, arson, advocating genocide, human trafficking, abduction of children, and that's just to name a very few.

The sentences for indictable offences range from two to 10 years, but when changed to summary convictions, sentences would be reduced to a maximum of two years with the real possibility of a mere fine. It's a simple fact that by hybridizing indictable offences sentences would be much more lenient.

With all due respect to our prosecutors, bad decisions on these offences will set precedents and case law. Once precedent is set for lower sentences regarding serious crimes, our justice system goes officially backwards. This would weaken public confidence in our justice system and it would also be a colossal change that would take decades to correct.

Bill C-75 also proposes to reduce impaired driving causing bodily harm, refusing to blow, and blood alcohol over the legal limit causing bodily harm from indictable offences to summary conviction.

Why would this government, which just recently passed Bill C-46, which increased penalties for dangerous driving causing bodily harm from 10 to 14 years, now be weakening penalties for impaired driving causing bodily harm?

This government bill is telling Canadians loud and clear that impaired driving is not considered serious and, in fact, it's not even considered dangerous. As a victim and a voice for thousands of victimized families, I find that our government, instead of improving the Criminal Code by holding offenders accountable for serious offences, would be reducing and watering down penalties.

To reduce these offences to summary convictions sends an unthinkable message to victims and the general public, and it holds absolutely no accountability or responsibility to the offenders. When it comes to impaired driving, this bill is taking Canada's justice system 10 steps backwards.

We're all aware there's a high percentage of serious criminal cases before our courts, and that is troubling to everyone, but it's not because of inappropriate laws. It's more likely because of other government priorities. If more resources are allocated to our justice system, the prosecution of offenders could be much more timely.

It's beyond my comprehension as to how transferring indictable offences, which currently have a 30-month timeline, to summary offences, which only have an 18-month timeline, would help address the Jordan decision. Our already congested provincial courts' overworked prosecutors would be burdened with a greater number of cases and required to act in a much shorter time frame. As a result, many more lenient plea deals will occur and even more offenders will walk free.

The impact this bill would have on our overall justice system is unbelievable when applied to all 136 indictable offences. All crimes should be treated the same throughout the population regardless of race, religion, ethnic origin, age, gender, economic or social status. Judges, not prosecutors, are best to judge sentencing options, making adjustments for mitigating and aggregating factors, Gladue reports, etc.

Two of the most important sentencing principles are being ignored: deterrents, general and specific; and rehabilitation. The opportunity for rehabilitation of criminals, especially for substance abuse, will almost be non-existent. There would simply be no time with summary convictions.

To me, that would add to the revolving door and create even more victims, and it would crush existing victims. Clearing up the backlog in the criminal justice system should never be done at the expense of victims and public safety. Criminals should never take precedence over victims. It's the victims and law-abiding citizens who will suffer, certainly not the offenders.

[The Chair, Liberal, Anthony Housefather]

Ms. Arsenault, can I just point out that you're over five minutes, and I want to give Ms. Kaulius her five minutes. Can I ask you to wrap up so I can go to Ms. Kaulius?

[Sheri Arsenault]

Okay.

Serious crimes should remain indictable offences and not be reduced to summary convictions at the prosecutor's discretion. There should be no hybridizations of serious crimes.

Thank you.

[The Chair, Liberal, Anthony Housefather]

Thank you so much.

Ms. Kaulius.

[Markita Kaulius, President, Families For Justice]

Good afternoon. Thank you for inviting me to be here today.

The federal government is proposing changes to reduce penalties for many serious crimes in Canada. The proposed changes are part of Bill C-75, which contains more than 300 pages of sweeping changes to the Criminal Code of Canada. Some of the proposed changes are to offences that include acts related to terrorism, assaults, impaired driving, arson, human trafficking and much more. These lower sentences send the wrong message to criminals, victims, law-abiding Canadians and society.

For summary convictions that fall under the jurisdiction of the federal government, section 787 of the Criminal Code of Canada specifies that unless another punishment is provided for by law, the maximum penalty for a summary conviction is a sentence of six months of imprisonment, a fine of $5,000 or both.

We need to have effective deterrents in place that will actually deter these crimes from occurring. If and when they do occur, tough punishments must be in place so that individuals who break the law will be held accountable.

The justice minister says that Bill C-75 will improve the efficiency of the criminal justice system and reduce court delays, strengthen the response to domestic violence, streamline bail hearings and free up court resources by reclassifying serious offences.

Sadly, according to the legal community, this bill will not achieve any of those objectives. Under Bill C-75, the Liberal government has provided the option to proceed with a large number of violent offences by way of a summary conviction rather than indictable offences. This means that the violent criminals may receive no more than six months in jail, or a fine, after committing a serious crime.

Many who commit crimes already get a slap on the wrist for things like obstructing justice, assault with a weapon, abduction, participating in organized crime, impaired driving, and drug trafficking. These are all serious offences. Allowing these criminals back onto the streets with little to no deterrence makes even less sense. Canadians expect this government and our criminal justice system to be there to ensure that public safety is a priority and that criminals receive punishment for the crimes they commit. Public safety and national security should be top priorities for this government. While the Liberal government has said that public safety is a priority, this bill fails the test to keep Canadians safe.

Police officers will likely see themselves arresting the same people over and over again as criminals get lighter sentences in provincial courts or fines for summary convictions. We already have a problem with repeat offenders committing crimes over and over again in communities across Canada, and therefore the backlog will move from the courts to the policing community and back to the courts.

Bill C-75 is a terrible bill for victims and for public safety. We have criminals accused of horrendous crimes, including murder, incest and drug trafficking, who have had their charges dropped because of delays in the courtroom. These charges should never be dropped when a crime has been committed. The accused should still stand trial and not be released or have their charges dropped because it took too long to get to trial. This proves again that in Canada criminals have more rights than the victims.

The federal government needs to make changes to the laws, but please don't sacrifice appropriate sentencing just to speed up the court process by giving lower or no sentences in court cases.

The biggest red flag in this legalization is the hybridization of many indictable-only offences done by adding summary convictions as a sentencing option. Some serious crimes deserve serious penalties, and many of the crimes are classified as “indictment only” for a reason. They should not be punishable under summary conviction with a mere possible fine. That option should not be included in Bill C-75.

With the Liberal government's legalization of marijuana, Canadians are very concerned about impaired driving and now fear an increase in future drug-related impaired driving injuries and deaths. In Bill C-75, there are four drunk-driving related offences, which all become a summary offence instead of an indictable offence. This includes impaired driving causing bodily harm with a blood alcohol level over the legal limit, failure or refusal to provide a sample with causing bodily harm, and impaired driving causing bodily harm by negligence.

For the past seven years, Families For Justice has been asking for tougher impaired driving laws. In that time period, over 7,000 more innocent Canadians have been killed by impaired drivers. We submitted a petition with over 120,000 names signed by Canadians asking the federal government to implement tougher sentencing laws. Now this government wants to do the exact opposite and make the sentencing a summary offence.

We ask this government to make appropriate changes in the laws in an effort to enhance the criminal justice system while preserving the protection of Canadians. I emphasize “to enhance”, not to just make the system more efficient by speeding up the court process by sending cases to the provincial court level instead of the superior courts.

Although some of the amendments are welcome, others signal a significant shift in our criminal justice system. Change can be good; however, even the smallest change must be implemented towards a goal we all share: maintaining the fine balance between protection of the public and protection of the individual within the system.

We still need to place the rights of innocent victims ahead of offenders committing crimes. Members of the justice and human rights committee, we must not sacrifice one for the other.

Thank you.

[The Chair, Liberal, Anthony Housefather]

Thank you very much.

Now we're going to go to questions, and we're going to start with Mr. Clement.

[Tony Clement, Parry Sound—Muskoka, CPC]

Thank you, Chair.

Thank you to all the deponents here—not opponents, but deponents. I just want to make that clear. It's great to have you here to help us build a better bill, hopefully.

I want to say in particular to Ms. Arsenault and Markita that I appreciate your comments about the hybridization. We have been hearing these concerns about the impact it will have on the ability to have just sentences.

I'll have a couple of questions for Ms. Parkes a little bit later, but I will start with Ms. Arsenault. I want to get a sense of your advocacy and whether you feel you've been heard appropriately and adequately by the current government. How do you feel about that?

[Sheri Arsenault]

That's a simple no. I've been trying for four years to meet with the current justice minister. I sent letters to every MP, Liberal MP, not once but twice, every single one, and I got probably less than a half dozen responses back. I've had a hard time to even get anyone to talk directly to me about the problems I see out there.