Evidence of meeting #109 for Justice and Human Rights in the 42nd Parliament, 1st Session. (The original version is on Parliament’s site, as are the minutes.) The winning word was indictable.

A recording is available from Parliament.

On the agenda

MPs speaking

Also speaking

Douglas D. Ferguson  Representative, Student Legal Aid Services Societies
Lisa Cirillo  Representative, Student Legal Aid Services Societies
Suzanne Johnson  Representative, Student Legal Aid Services Societies
Debra Parkes  Professor and Chair in Feminist Legal Studies, Peter A. Allard School of Law, University of British Columbia, As an Individual
Emilie Taman  Lawyer, As an Individual
Ali Ehsassi  Chair, All-Party Parliamentary Group for the Prevention of Genocide and other Crimes against Humanity
Sheri Arsenault  Director, Alberta, Families For Justice
Markita Kaulius  President, Families For Justice
Tony Clement  Parry Sound—Muskoka, CPC
Ursula Hendel  President, Association of Justice Counsel
Brian Herman  Director, Government Relations, B'nai Brith Canada
Leo Adler  Senior Legal Counsel, B'nai Brith Canada
Shimon Koffler Fogel  Chief Executive Officer, Centre for Israel and Jewish Affairs
Deepa Mattoo  Director, Legal Services, Barbra Schlifer Commemorative Clinic
Arif Virani  Parkdale—High Park, Lib.

7:10 p.m.

Director, Legal Services, Barbra Schlifer Commemorative Clinic

7:10 p.m.

Liberal

The Chair Liberal Anthony Housefather

You have about two and a half minutes left. Can you just try to go slightly slower?

7:10 p.m.

Director, Legal Services, Barbra Schlifer Commemorative Clinic

Deepa Mattoo

Yes.

Eight minutes puts pressure on people, right? Okay, I'll try to be slow.

7:10 p.m.

Liberal

The Chair Liberal Anthony Housefather

That's why I'm giving you 10 and a half minutes. You're at eight now. We're giving you 10 and a half.

7:10 p.m.

Director, Legal Services, Barbra Schlifer Commemorative Clinic

Deepa Mattoo

Amazing. Thank you, Chair.

I would like to submit that, like many other advocates, we believe the bill also impacts women in what it fails to amend. Specifically it fails to amend and strike the Criminal Code to revoke the bawdy house, indecent act and vagrancy provisions. The Supreme Court of Canada acknowledged in Bedford that criminalization of sex workers puts women at an increased risk of victimization. These offences serve to simultaneously criminalize and victimize women, in particular racialized indigenous women, and the clinic submits that, to help end the cycle of violence that women face, these offences should be revoked.

Last, what I want to talk about is the serious criminality under the Immigration and Refugee Protection Act that creates inadmissibility provisions. We feel that Bill C-75 proposes to increase the maximum sentence for summary conviction offences, and an unintended consequence of this would be that women will find themselves in a situation where they're escaping domestic violence and intimate partner violence and getting caught in inadmissibility.

Due to the fact that there are a lot of women who come to this country dependent on their intimate partners, as in spousal sponsorship schemes, it is important that an impact assessment of what would happen to their cases and their situation be considered.

With that, I would say thank you for giving us this opportunity. I'm happy to take any questions or comments that you may have.

Thank you.

7:15 p.m.

Liberal

The Chair Liberal Anthony Housefather

Thank you very much.

We will now start with our round of questions.

Mr. Cooper.

September 26th, 2018 / 7:15 p.m.

Conservative

Michael Cooper Conservative St. Albert—Edmonton, AB

Thank you, Mr. Chair.

Thank you to the witnesses.

Perhaps I'll begin with Mr. Adler and your presentation respecting the hybridization of certain very serious offences, including subsection 318(1) of the Criminal Code. I've expressed concerns about the reclassification of what I think are nothing other than serious indictable offences under the Criminal Code.

We heard from the Minister of Justice who came before the committee and said there really is no problem. She said it had nothing to do with sentencing and nothing to do with sentencing principles. It has nothing to do with, in any way, minimizing the seriousness of an offence. It is all about efficiency. It is all about providing prosecutors with discretion.

What would you say in response to that?

7:15 p.m.

Senior Legal Counsel, B'nai Brith Canada

Leo Adler

First, as was pointed out by Mr. Ehsassi earlier and by others, the number of prosecutions is so minimal that it has no effect on efficiency.

On the other hand, you don't give prosecutors discretion when it comes to crimes that are universally considered to be jus cogens crimes. Canada has signed on to the treaties, including the genocide convention, which by itself prohibits the promotion and glorification of genocide.

Leaving it to a prosecutor is like leaving to the Nuremberg prosecutors to say, “You know what, let's call this a summary conviction offence.” Can you imagine the prisoners in the dock being told, “Don't worry”? It's not the penalty. It's the title of summary conviction.

7:15 p.m.

Conservative

Michael Cooper Conservative St. Albert—Edmonton, AB

If we're going to treat offences like that as summary conviction offences and potentially hybridize them all in the name of giving prosecutors the greatest amount of discretion to look at the particular facts in each particular case, it begs the question of why we would have indictable offences at all.

7:15 p.m.

Senior Legal Counsel, B'nai Brith Canada

Leo Adler

That's a very good point.

The other point is, how are you going to...? Ursula and I have been in this business, combined, for over 60 years. I've been practising for over 40 years. I have yet to have one Crown attorney tell me why he or she is proceeding by way of indictment on a hybrid offence, and another one on the exact same type of charge is proceeding by way of summary conviction. There is no guideline.

Whatever the guideline is—for shoplifting, for stealing a car, or for common assault—we all understand, but when you're promoting a genocide or acts of terror, how could that be anything but the most serious of crimes? In my paper I talk about some of the penalties. Life sentences have been handed out. Twenty-year sentences have been handed out because it's the words that lead to the acts.

7:15 p.m.

Conservative

Michael Cooper Conservative St. Albert—Edmonton, AB

In terms of the election on the part of the prosecutor, you alluded to the idea that there is no transparency and no consistency. You're creating a patchwork of inconsistencies all across Canada.

7:15 p.m.

Senior Legal Counsel, B'nai Brith Canada

Leo Adler

That is one of the things that my colleague talked about, which is to at least get the guidelines done clearly. Frankly, if there's going to be hybridization for anything, let's make them clear.

7:15 p.m.

Conservative

Michael Cooper Conservative St. Albert—Edmonton, AB

Thank you, Mr. Adler, for that.

I'll move on then to Ms. Hendel. You made reference that in your opinion hybridization is not going to increase efficiencies. You didn't elaborate on it. Could you take this time to elaborate on some of the reasons for your conclusion that hybridization will not increase efficiencies in the courts?

7:20 p.m.

President, Association of Justice Counsel

Ursula Hendel

The concept behind hybridization was to allow for flexibility. In some jurisdictions the superior courts are more congested and in others the provincial courts are more congested. I think the thinking behind the bill was that allowing more offences to be hybridized would give the system participants more ability to juggle where the bulk of the workload falls.

The case still needs to be prosecuted. It's not going away. We may be making better use of existing resources, but we're not shortening trials, we're not providing additional resources and we're not, in large measure, improving on the efficiency of the proceeding internally. Those are the three things that I think we should be doing if we really want to tackle the Jordan problem.

7:20 p.m.

Conservative

Michael Cooper Conservative St. Albert—Edmonton, AB

Thank you.

7:20 p.m.

Liberal

The Chair Liberal Anthony Housefather

Thank you very much.

Next up we have Mr. Boissonnault and Mr. Virani, who are sharing time.

Mr. Boissonnault.

7:20 p.m.

Liberal

Randy Boissonnault Liberal Edmonton Centre, AB

Thanks, Mr. Chair.

I have three questions for Ms. Mattoo.

First, we've heard from some LGBTQ2 organizations that it would be wise to add the definition to vulnerable or marginalized populations, specifically including the LGBTQ2 population. Is that something that you and your colleagues would support?

7:20 p.m.

Director, Legal Services, Barbra Schlifer Commemorative Clinic

Deepa Mattoo

Yes, absolutely.

7:20 p.m.

Liberal

Randy Boissonnault Liberal Edmonton Centre, AB

Thank you very much.

I have another question. When we were doing our study on human trafficking and vulnerable populations and sexually violent acts against women, we heard that often when victims have to be subjected to multiple preliminary hearings, they fall out of the process because they don't want to be revictimized. That reduces not just the charge rate, but the actual conviction rate. Is it the experience with the people you work with that preliminary hearings are an obstacle to justice?

If we removed them and went straight to trial, would that help protect the victims and speed up the process?

7:20 p.m.

Director, Legal Services, Barbra Schlifer Commemorative Clinic

Deepa Mattoo

I wouldn't necessarily say that removing the preliminary hearing and taking cases directly to trial would change their experience of the justice process. A preliminary hearing is a low-barrier access-to-justice space. They are able to actually go through a process that can sometimes help them to not go through the whole process eventually, depending on the direction the case takes. Repeating your story again and again and going through that whole retraumatization is definitely something I agree with in your question, but I don't necessarily think removing preliminary hearings will help, especially the clients we are discussing today, who are criminalized through the processes. I don't think that's something that will help.

7:20 p.m.

Liberal

Randy Boissonnault Liberal Edmonton Centre, AB

Thank you.

Could you clarify your comments on the reverse onus process? Are you in favour of what's written here or do you see it being used as a tool against marginalized and vulnerable women by the original aggressor?

7:20 p.m.

Director, Legal Services, Barbra Schlifer Commemorative Clinic

Deepa Mattoo

The population we're talking about in particular, I think, was missed from the equation when the bill was drafted. We are talking about women who are criminalized. Unfortunately, we are seeing these cases more and more. A few years back, we saw dual charging at one point, where the aggressor and survivor would both be charged.

Now we see more and more cases where the situation is manipulated and it's only the survivor who is charged. The reverse onus in those particular cases does not consider that the survivor, who is being criminalized, is the survivor. She's the one with a history of experienced abuse. We are making a submission that the experience of this population, which is primarily an immigrant and indigenous population, needs to be considered.

7:20 p.m.

Liberal

Randy Boissonnault Liberal Edmonton Centre, AB

I appreciate that. Thank you very much.

Ms. Hendel, you mentioned in your submission that some of the administration of justice charges are batched with the more serious offences. We heard from Mr. Rudin of Aboriginal Legal Services that in fact that would speed up the system. It would give judges and police the ability to not penalize somebody for missing a bail hearing because they didn't have money for the bus ticket or what have you. Are you saying you don't see that speeding up the system at all and helping? I'm curious.

7:25 p.m.

President, Association of Justice Counsel

Ursula Hendel

That's right. One of the chiefs of police testified that police already have discretion not to charge and already exercise it. As prosecutors, we also already have discretion in the code to bring somebody back before the bail court and seek changes to the person's bail conditions without bringing a fresh charge. They're not required to charge. We're not required to prosecute.

I don't know what the judicial referral hearing adds, and I find it particularly interesting that.... Maybe if there were value to a judicial referral hearing, it would place a kind of check and balance on the exercise of police or prosecutorial discretion, but it's at the request of the Crown that the judicial hearing is triggered. If we want to go ahead and lay the charge, then we do, and there's no judicial referral hearing. It doesn't appear to be a check on anybody's discretion. It just appears to be a new tool that we already have.

7:25 p.m.

Liberal

Randy Boissonnault Liberal Edmonton Centre, AB

Thank you very much.

I'm going to pass my time to Mr. Virani.