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.
Parry Sound—Muskoka, CPC
Then you don't feel that this bill meets any of the concerns that you have raised over the past number of years.
Director, Alberta, Families For Justice
No, this bill does the exact opposite. It's telling me, and the general public, that especially impaired driving but also crime in general, serious crimes in general, are not serious. It's heartbreaking that there's not even, what seems to me, the right amount of time for rehabilitation.
Parry Sound—Muskoka, CPC
Thank you, Ms. Arsenault.
Ms. Kaulius, I wanted to give you a chance as well to talk about your interaction with the current government—the pluses, the minuses, what your experience has been.
President, Families For Justice
I've been fighting for changes in the laws now for seven years. Members of the Conservative Party were very open to hearing what we said, but the Liberals—I'm sorry, I'm being honest here—the Liberal government has not been very welcoming. We've asked for meetings. We've been turned down. I've spoken to MPs when I've been back in Ottawa. I've been back to Ottawa five times now and I've met with MPs and asked them questions, and asked if they could get back to me, but I've never heard back from anyone.
Parry Sound—Muskoka, CPC
Thank you, both of you. I encourage you to keep advocating and keep fighting for what you believe in because I think it's very important that Canadians hear your voices. Thank you for all that you do.
I want to ask a question of Debra Parkes, if I could.
You said something, and Ms. Taman I think echoed it a little bit. Your point of view is that we need comprehensive sentencing reform, but what we're getting through hybridization actually won't achieve the goals and may make matters worse. I don't want to put words in your mouth, but is that in a nutshell what you're saying?
Professor and Chair in Feminist Legal Studies, Peter A. Allard School of Law, University of British Columbia, As an Individual
Yes.
I mean, it's this bill in the context of the last 15 years of piecemeal changes to criminal legislation. Taking into account all of the harms that are done through crime, through the criminal justice system, to victims, to everyone.... The thing I would say about that is that the reality, when you look at who is in prisons, is that the line between victim and offender is actually not a solid one, particularly when you look at women. Those women have experienced massive victimization and as well have then been perpetrators.
We need to, in our sentencing reform, look at all of that and at what actually works and what doesn't. We have a lot of evidence now about what doesn't work. Longer sentences, sentencing severity for deterrence, simply don't work.
Parry Sound—Muskoka, CPC
I'm going to ask you to put yourself in the shoes of an MP just for a second. Pretend you're on this committee and you're given this 306-page bill, and comprehensive sentencing reform seems to be a mirage in the present context. What would you do? Is this bill salvageable in any capacity? What would you do with this bill?
Professor and Chair in Feminist Legal Studies, Peter A. Allard School of Law, University of British Columbia, As an Individual
Others can speak and have spoken to the various parts of it, around the bail system and that sort of thing, and I think there are some good efforts there to address the remand situation. I think there are some good elements there. The view I take is different from that of other witnesses, but I think the evidence shows that any of the measures that are going to increase sentences, including increasing that ceiling for summary conviction offences, through hybridization....
We ought not to be increasing any penalties, because we've had this ratcheting up of sentences through various kinds of piecemeal legislation and we don't have the return that we want in terms of public safety. The cost is so high, in both human and fiscal terms, for everyone involved. We need a much more comprehensive sentencing reform that would involve all of the stakeholders and would involve looking at the evidence, starting with our sentencing principles, and see what's working and what's not. That, I think, is what needs to happen, rather than anything that would actually get us into a situation of increasing sentences.
Parry Sound—Muskoka, CPC
Thank you.
Apparently I'm out of time, but I thank you for your comprehensive answer.
Liberal
Liberal
Ron McKinnon Liberal Coquitlam—Port Coquitlam, BC
Thank you, Chair.
Let's talk about hybridization. I'd like to ask Ms. Taman a question.
We have a lot of hybrid offences now. What is the process that a prosecutor might go through in order to decide whether to proceed by indictment or summarily?
Lawyer, As an Individual
I've had to make that decision myself on a number of occasions.
There are several different factors. Often one factor that can operate is in relation to limitation periods. If a longer period of time has elapsed since the date of the offence, you may have missed a limitation period that would have allowed you to proceed in a provincial court by summary conviction, in which case you can proceed by indictment.
I think usually, though, the main operating consideration is the seriousness of the offence. We have a lot of offences in our code that are, by design, broadly defined, in the sense that they can capture a really wide range of conduct. An assault would be a really good example of that. An assault can be relatively trivial on the spectrum or it can be a very serious offence. In considering whether to proceed summarily or by indictment, one of the things you'd be looking at is the seriousness of the offence. Related to that would be the punishment that you intend to seek because of the statutory maximums being lower for summary conviction offences than for indictable offences.
I want to highlight as well that a relevant piece in the hybridization is that, for these indictable offences that are, let's say, punishable by up to 10 years, there's nothing that stops a judge from sentencing someone to six or 12 months. It's not necessarily the case that sentences will be reduced by hybridizing and proceeding summarily, because there are many examples of offenders who are sentenced to far below the statutory maximum, even for straight indictable offences.
Liberal
Ron McKinnon Liberal Coquitlam—Port Coquitlam, BC
For the purpose of achieving justice, is there any advantage to proceeding summarily instead of by indictment, apart from the limitation periods that you mentioned?
Liberal
Ron McKinnon Liberal Coquitlam—Port Coquitlam, BC
Are there cases in which justice would be better served by proceeding summarily rather than by indictment?
Lawyer, As an Individual
I can't really think of a reason why the quality of the justice would be impacted by the decision to proceed either summarily or by indictment.
When the Crown proceeds by indictment there are implications for that in terms of the accused elections. If the Crown intends to seek a lesser sentence and doesn't see a value in the more cumbersome procedures of a preliminary inquiry—should they be retained after this bill—or a jury trial, that could be a consideration that the Crown makes as well.
I'm not sure that there's a benefit other than perhaps the fact that matters in provincial court do tend to take a little bit less time from charge to completion.
Liberal
Ron McKinnon Liberal Coquitlam—Port Coquitlam, BC
You mentioned that an accused loses the right to elect trial by jury if the Crown elects to proceed summarily. On the other hand, the jeopardy the accused faces is far less. Jeopardy would be no more than two years less a day. Is losing the right to a jury for an offence that is two years less a day really a serious concern?
Lawyer, As an Individual
From the perspective of accused people, it is serious. That's why I tried to be clear in highlighting that it would not necessarily violate the charter for the reasons you explained. The charter sets the bar at five years to reflect that level of jeopardy. The reality is that there are people who are charged today with offences that are indictable, carrying statutory maximums of 10 years who have jury trials and are ultimately sentenced to less than five years.
One of the concerns I have is this kind of subtle chipping away. If we take away the preliminary inquiry and if we take away the statutory right to a jury trial, I'm very concerned about trying to give effect to the 11(b) rights of the accused in exchange for a bunch of other procedural protections. While it may be the case that no single measure violates the charter in its own right, I do have concerns about the constitutionality when taken comprehensively with abolishing the preliminary inquiry for all of these offences, along with the way we select juries and other things in their totality.
Liberal
Ron McKinnon Liberal Coquitlam—Port Coquitlam, BC
I also want to talk about deterrence.
Many people have spoken to the deterrent effect of higher maximums and the concern that the availability of a lower sentence, if proceeding summarily, would diminish the deterrence effect.
In the case of the existing hybrid offences, does the fact that they're hybrid affect the deterrence at all?
Lawyer, As an Individual
With the greatest of respect, the evidence really flies in the face of the notion that the length of a sentence has any deterrent effect at all.
Professor Parkes could probably speak to that with a little more data behind her. I think that's what Professor Parkes was getting at in the need for comprehensive sentence reform. A lot of the piecemeal measures that we have seen over the last 15 years have been premised on this faulty premise that lengthening the availability of a sentence has an impact.
What has a bigger impact is the likelihood of getting caught, for example. Unfortunately there is a real fallacy in that proposition.
Liberal
Murray Rankin NDP Victoria, BC
Thanks to all of the witnesses—so many witnesses, so little time.
I want to first, if I may, just do a shout-out to Professor Parkes, whom I won't have time to ask a question of. Congratulations on your editorial in The Globe and Mail yesterday on the impact of mandatory minimum sentences, particularly on indigenous people. It was great, and thank you for introducing the term “sentence creep” to our vocabulary.
Ms. Cirillo, I just want to say, as a proud alumnus of the Downtown Legal Services, I know first-hand the important work that you people do. Thank you for doing it and for shining a light on what, I agree with all of you, is an unintended consequence of Bill C-75, that's to say, essentially shutting you out of the provincial court where you do such great work.
In a moment, I'll come back to you with solutions I'd like to get your take on, but I want to remind people of the quote I took from your excellent submission:
The unintended consequence of Bill C-75 would further exacerbate the access to justice issues facing Ontario criminal courts. SLASS clinics have worked for decades representing individuals charged with criminal summary offences, providing effective and efficient representation for those who would otherwise find themselves unrepresented in the criminal justice system. This bill will put an abrupt end to this legacy.
I couldn't have put it better than that.
Ms. Taman, if I could, I want to ask you a few questions. Thank you for the chart you gave us. I wish we had it when we started this little odyssey a few weeks ago.
In respect of the hybridization issue, you talked about the 136 indictable offences being hybridized, and you made an argument that I don't think had ever been made to our committee before. You said that part of the bill is the potential to significantly limit the accused's existing statutory right to elect to be tried by judge and jury and the effective shifting of this choice from the accused to the Crown. I don't think we've heard that before.
Well, if I may, so what? I understand the accused would lose that choice, but isn't it arguably in his or her best interest to go to a trial with a lower maximum penalty? If the person were to be tried by a jury in a higher court, they would likely be gambling on a harsher penalty. Is that a fair comment?
Lawyer, As an Individual
The decision that an accused has to make when deciding whether or not to avail him- or herself of a jury trial is a complex one. There are a number of factors that have to be considered, especially in terms of the nature of the factual issues at play, because the jury is a trier of fact and not of law. As I said previously, just because it's a jury trial or just because it proceeds indictably and has a higher maximum doesn't mean the accused is in jeopardy of getting that higher maximum, depending on the circumstances of the offence.
It is a consideration that an accused would have to make, but the difficulty is that in this case it will now be the Crown that's making that decision in the first instance. So, yes, when the Crown elects to proceed summarily, the accused is exposed to a lower maximum penalty, that is true, but I think there are likely a number of accused who would prefer to have the jury trial and be exposed to the higher sentence, depending on the circumstances and the issues that are at play in their case.
NDP
Murray Rankin NDP Victoria, BC
Thank you.
You also talked about the fact that this election will now often go to the Crown and you talked about the virtually unreviewable prosecutorial discretion in our system, subject to this very high bar, if I heard you properly, of abuse of process. That lack of accountability concerns you greatly, I gather.
