House of Commons Hansard #62 of the 39th Parliament, 1st Session. (The original version is on Parliament's site.) The word of the day was workers.
Sue Barnes Liberal London West, ON
Mr. Speaker, whether I get the answer to my question now or at a later stage, I want to flag one thing in this bill, which is that two unsworn jurors will determine whether the cause of a challenge is true in a criminal procedure. I was wondering what the rationale would be for having unsworn jurors as opposed to sworn jurors.
Rob Moore Conservative Fundy Royal, NB
Mr. Speaker, I look forward to exploring in committee all areas of the bill and this question and all questions the hon. member may have, which can be put to our witnesses there. Some of the provisions dealing with jurors have dealt with not wanting to taint the sworn jurors when there are questions being put to potential jurors by crown attorneys and by defence lawyers. This is one area relating to jurors which we have to address to ensure that people get a fair trial.
Most of what is contained in Bill C-23 is there to streamline our judicial process, to make it more effective and to take out some of the ancient modes used in the past. Bill C-23 recognizes that we are living in a new era where we have to use a more streamlined system. It recognizes that technology has moved on, so we as a government have to move on in order to better protect society.
That is the main thrust of the bill. It is not to make major substantive changes. We have other bills, such as Bills C-9 and C-10, that make some very substantive changes to the Criminal Code. Bill C-23 is going to make our entire system more streamlined without making major changes to the code itself.
Sue Barnes Liberal London West, ON
Mr. Speaker, I rise to speak to Bill C-23, An Act to amend the Criminal Code, which is comprised of numerous unrelated amendments in relation to criminal procedure, language of the accused, sentencing, and some other matters.
From time to time this type of legislation is required to do a general cleanup of sections that need changes for either a practical reason, a legal reason or an administrative reason, and sometimes even for substantive modernization of sections of the Criminal Code.
This is a bill that should go to the committee for fine tuning and due consideration of each section. Amendments, where and if required, could be made at the committee.
This bill was read for the first time on June 22, 2006. I must say that in the past, briefings on new bills were provided to the opposition critics either shortly after the bill was introduced or upon request. It was always up to an opposition critic whether he or she wished to accept a departmental briefing. I certainly encourage the government to provide departmental briefings. As justice critic I had asked for a briefing on this bill back in June and again over the summer months. None was provided until the first week the House resumed sitting in mid-September.
I remind the government that it is a minority government supposedly wishing to pass legislation through this House.
When the government finally allowed access to the appropriate individuals who worked on this bill and were knowledgeable, they had been instructed that no paper briefing was required. Remember that there are 46 disparate parts to the bill.
The Minister of Justice in his first meeting at committee agreed that briefings are useful and we would be receiving them.
Briefings that are given to critics months after the request, or without some written information, are not as useful as they could be. I do not wish to leave any impression that those who provided the oral briefing from the Department of Justice were in any way unhelpful; they were not; it was more the timing and the documentation. This issue is more a political decision, certainly not a bureaucratic decision.
Since I have raised this more than once and I have tried to raise it privately, I am now raising it publicly because I believe it should be fixed for future bills. Most of us, and I would hope all of us actually, came here to do good policy work. There is no need to allow a political agenda to override working in the best interests of all Canadians, which does include full and timely briefings on procedures and for the bills that are laid before this House. I trust that this situation will now be corrected and will be rectified for future bills.
Today I pushed to have a briefing on a bill that is on the order paper for later this week and I was advised that it was done.
My point is that as a critic on government bills I should not have to be pushing to have a briefing from the government on a bill. The bureaucracy, the officials, the best known people working on that bill over a long period of time should not have to beg for this type of information. That information should be shared, especially if we are trying to move forward together on some of this implementation.
This bill, as I said before, includes 46 clauses. Not all are substantive amendments to the Criminal Code. For instance, the bill establishes the general rule that in criminal matters the service of any document and proof of service may be made in accordance with provincial law. This seems incredibly straightforward. I do not see problems with this. To reflect this rule, a number of the provisions of the code have been repealed.
Many of the provisions in Bill C-23 are as a result of consultation with the provinces and territories within the context of the Uniform Law Conference of Canada. Because many people in our system would not realize who provides input into these types of amendments, I thought I would put forward some of the information that I gleaned about this organization from its website and other places.
The Uniform Law Conference of Canada operates in two sections, one being the criminal section and the other being the civil section.
The criminal section unites prosecutors for federal, provincial and territorial governments with defence counsel and judges to consider proposals to amend criminal laws which are mainly under the federal authority of Canada through the Criminal Code of Canada. Since the administration of criminal justice is undertaken by the territories and provinces, they are the administrators of the systems.
The meetings of the criminal section give the provinces and the territories a chance to ask questions of the federal government and suggest ways to make the system better and reflect the challenges they come across in their day to day operations in performing that administration service. Often they suggest changes based on identified deficiencies or detect gaps in existing law, or it could be problems created by judicial interpretation of existing law. The annual meetings of this conference are not public ones but they are attended by persons designated by their respective governments at the federal, provincial and territorial levels.
The Uniform Law Conference is a volunteer organization. Its work over the years has been extremely useful to the justice system in the land, but it has been relatively unheralded. Like many volunteer organizations in Canada, it is important to recognize and acknowledge its valuable work.
I want to pass now to some of the examples of substantive changes contained in Bill C-23. The first one I will talk about is the default maximum fine for a summary conviction which is being increased from $2,000 to $10,000. Also, we have the realm of having bilingual trials warranted where they involve co-accused who understand different official languages. I also think that this is a good advance.
Marc Lemay Bloc Abitibi—Témiscamingue, QC
I rise on a point of order, Mr. Speaker. With all due respect to my colleague, I would like to be able to follow her speech, but there is no French interpretation right now. There has not been any interpretation for about five minutes. I hope that the interpreter is not dead or incapacitated. I am worried.
The Acting Speaker Conservative Royal Galipeau
I wish to inform the House, including the honourable member for Abitibi—Témiscamingue, that we realize that the simultaneous interpretation system has not been working for about five minutes. It is being worked on and will be fixed shortly.
The Acting Speaker Conservative Royal Galipeau
I said that the problem would be solved any minute and, as we can see, it has now been corrected.
The hon. member for London West.
Sue Barnes Liberal London West, ON
Translation is very important in this House.
Mr. Speaker, for the benefit of my colleague from the Bloc, I will repeat that having a bilingual trial is warranted where it involves co-accused who understand different official languages. That is a very important part of the bill.
Orders of prohibition from driving are being made consecutive. I will talk about that a bit later.
Another area that is substantive is allowing a sentencing delay to enable the offender to receive some treatment. This is a positive development in the bill.
Another change in the bill is proposing that two unsworn jurors decide whether the cause of challenge is true. I asked the parliamentary secretary to provide information but I did not get a clear answer in the House. When the bill gets to committee, I suppose we will get the real information as to why they are unsworn. I heard a partial answer, but this still needs clarifying.
Clauses 23 and 24 of Bill C-23, An Act to amend the Criminal Code (criminal procedure, language of the accused, sentencing and other amendments) are concerned with changes to direct indictments. I believe we would want to hear more about these changes from criminal defence lawyers at committee. I would also like to hear some expert evidence on the area of the peremptory challenges which are affected by clauses 25 and 26 of the bill. Again, these are not matters that we have to debate at this stage, but I am flagging them so the government will be prepared to make sure these areas are contained.
With respect to subclause 8(3) of the bill which addresses consecutive periods of prohibition for driving, this may allow for extremely long prohibition times. This in turn could upset the balance in sentencing principles in section 718.2(c) of the Criminal Code. The court has an obligation to avoid unduly harsh or long consecutive sentences. We will have to take a look at this area.
I understand clause 37 of Bill C-23 has been proposed to address issues raised by some of the case law in the land. This clause adds a requirement for the court to explain to the offender the mandatory and optional conditions that the offender must meet as part of his probation. Does this mean that the judge should do this personally in court, or will delegation to court officials suffice? I had briefings in this area, but further explanation will be required. This would appear to revert to a former practice in the courtrooms in many years past.
Clause 9 of the bill changes the offence of possession of break-in instruments from an indictable offence to a dual procedure offence. That will obviously allow the prosecutor to make the choice to go with a summary conviction where it is deemed appropriate.
There are many more sections of Bill C-23 which I have not highlighted. The Library of Parliament has put out a very good summary for my colleagues to look at if they are interested in any of the specific sections of the bill. I think it is fair to say that the bill has been out since the summer time and I do not think it has attracted wide attention. I have consulted with some of the people who will have to use these sections in the courtrooms.
The bill quite rightly should go to committee. I encourage those most affected by the operations of these individual clauses to come to the committee as witnesses. We will have to deal with any piece of information or slight adjustment that may be required at that time.
In due course, if the House forwards the bill to the committee, which I believe it will do, we will have the opportunity to work further on sections of the bill. Unlike some of the other justice bills we are faced with in the House, this bill has less of an ideological bent. This is something that has been worked on over time by the provinces, territories and the federal government.
Many of these provisions take years to work through the system. Every once in a while this type of omnibus legislation is required where technical amendments are being made. Criminal law is a living statute. It benefits from being modernized by using our new technologies as has been suggested by some of the other speakers.
At this point, I see no real areas of ideological controversy or any other type of controversy. In due course, I could be corrected by experts who might come forward at committee stage and point out some serious flaws which at this stage of the game we have not seen.
I will be encouraging my caucus to move this bill forward to the committee stage. Each and every stage of a bill is important, but this is the preliminary stage and these changes could serve the justice system well in that administration.
Marc Lemay Bloc Abitibi—Témiscamingue, QC
Mr. Speaker, I listened carefully to my colleague and I am in complete agreement: Bill C-23, An Act to amend the Criminal Code (criminal procedure, language of the accused, sentencing and other amendments) needs some fine tuning.
I trust that my colleague believes, as I do, that this is probably one of the most interesting pieces of legislation tabled by this government in the past few months. However, I would have this to say. Unlike Bills C-9 and C-10, Bill C-23seems very interesting at first glance. I believe that we, the members of the Standing Committee on Justice and Human Rights, should spend some time on it as it really strikes me as very important.
This is the question for my colleague: does she know whether or not the Law Commission of Canada—which our current government has just cut or would like to abolish—helped draft Bill C-23 and made any recommendations? In addition, are these the recommendations found in Bill C-23? If yes, which ones are they?
Sue Barnes Liberal London West, ON
Mr. Speaker, I believe the Law Commission of Canada is a separate entity from the Uniform Law Conference.
The Law Commission of Canada that was just gutted in its financing is a different entity. It was a very valuable entity to helping modernize Canadian law in all fields and not just the criminal law field. The Law Commission of Canada has done superb work.
Actually, there is a matter of privilege before the Speaker because the Law Commission of Canada was established by statute of Parliament. What we just received with the Law Commission of Canada was the cutting of funding for this organization when in fact the Minister of Justice has to respond to the reports of the Law Commission of Canada. The Law Commission of Canada has a statutory authority to report to Parliament. Its reports are tabled in the House and the Minister of Justice has a statutory obligation to respond to those reports.
Over the years, the Law Commission of Canada has done amazing work on everything from immigration issues, to equality issues, and to issues pertaining to all of the workers of the land. If we look at its annual reports, we can see the breadth and knowledge of work being provided to the House.
In fact, I have tabled a motion in the justice committee that deals not only with the current minority government's decision to remove the financing from the Law Commission of Canada but also the court challenges program. These are two incredibly important and short-sighted decisions of the current government.
When the member asked me about the Canadian bar or anyone else, it raises the concept of consultation on government bills. I have no idea who was consulted on this bill. I think the provinces and the territories were consulted because we know of the input of the Uniform Law Conference. Therefore, there would have been wide consultations.
When we have wide consultations of the appropriate players, we generally get a bill that can be dealt with efficiently in the parliamentary process because a lot of the kinks have been worked out. A lot of the obvious problems have been worked through, people have come together to discuss solutions and so the legislation that is properly consulted and not merely ideologically driven comes to us in a better form for us to deal with.
Here we have an example of legislation. Even though it contains 46 different issues, we have an example of where we have had the broad consultation that was necessary. When that is done, our job as parliamentarians is much easier. We are not doing the same initial level of research, looking for the constitutional or other deficiencies that could easily show up in a piece of legislation, whether it is intended or unintended.
I am concerned when we get the other type of legislation which is the ideologically driven legislation and sometimes we get unintended consequences. That is especially true if we are trying to amend pieces of legislation that have deficiencies in them. In past years, we have sent some of the controversial bills before second reading to committee. This allowed the committee to do a better job at looking at the bill in total and making amendments to legislation that work for the betterment of the bill. When we do it the other way after second reading, it makes it much more difficult.
It really does set us up for all or nothing approaches, which is not helpful and not what is intended when parliamentarians from all parties come to this House to work for good policy or good administration, especially in the areas of justice.
This is a bill that has gone through sufficient consultation, the nature of it, but would it have been from the Law Commission of Canada? I am not sure at this point.
I do respond to my colleague, who currently also serves and works hard on the justice committee, by saying that I hope, and it is my wish, that we have good consultation on all bills that come to committee. Otherwise, what we have is just a deceptive practice of stacking numbers of bills high on the order paper with no intention of ever getting them through, doing it for a political agenda instead of a real work agenda. We on this side of the House are concentrating on the real work agenda for Parliament.
The Acting Speaker Conservative Royal Galipeau
I would like to advise the hon. member for York South--Weston that my glasses are foggy when he is not in his own seat.
I can now see and recognize the hon. member for York South--Weston.
Alan Tonks Liberal York South—Weston, ON
Mr. Speaker, I apologize. I have changed seats so many times that I had actually forgotten where I was supposed to be sitting.
I wonder if I could ask the member a question. Whenever we are dealing with provisions dealing with summary conviction, in my experience summary conviction legislation is to expedite court proceedings and allow the judge a little more flexibility with respect to a delineation of offences where summary conviction proceedings can apply.
Does the member have any problems in terms of prejudicing a co-accused? It has been the experience in the court that where charges are laid, those charges are dealt with, with the co-accused where there are two or more that have been accused of a particular crime.
I understand from this legislation that under summary convictions, where the co-accused does not appear, the judge has the flexibility to allow the proceedings to continue. I wonder if that is an element of the legislation that could be investigated at committee. I am given to understand that there may be some problems with respect to the nature of justice that would apply in those cases where that provision would be implemented.
The Acting Speaker Conservative Royal Galipeau
The hon. member for London West will want to know that there is less than a minute to respond.
Sue Barnes Liberal London West, ON
Mr. Speaker, in that case, I will compliment you on your discretion on having foggy glasses to allow my colleague to put his concern on the table, and say that in committee we will have noted his concern in this area and will talk about it because there are some provisions about the co-accused in this document.
I also want to clarify the point that summary conviction, where it is a lesser offence, is two years less a day. When there is a dual procedure offence, it could be the same charge, but the more serious would be proceeded with by way of indictment. The sanctions in sentencing would be two years or more.
Luc Harvey Conservative Louis-Hébert, QC
Mr. Speaker, I am pleased to rise today to recommend that Bill C-23, An Act to amend the Criminal Code (criminal procedure, language of the accused, sentencing and other amendments) be referred to a committee for review.
A number of members have already expressed their support for this bill, which seeks to meet current needs, to propose legislative amendments to address procedural anomalies, to make corrections and to clarify current ambiguities in some Criminal Code provisions. It also modernizes other provisions by introducing the use of communication technologies.
This bill is the result of proposals made in cooperation with the provinces, the territories, interest groups—such as the Uniform Law Conference of Canada—representing linguistic minorities and the Commissioner of Official Languages.
The changes to Bill C-23 affect three main areas, namely criminal procedure, language of the accused and sentencing. I am going to review some of the changes proposed in this legislation, beginning with those affecting criminal procedure.
The purpose of one of the proposed amendments is to reclassify the offence of possession of break-in instruments into a dual procedure offence, that is an offence for which the prosecutor may proceed by way of indictable offence, or by way of summary conviction. Currently, under the Criminal Code, the indictable offence route is the only option for possession of break and enter instruments. However, experience has shown that this offence often results in a penalty similar to that imposed in the case of an offence punishable on summary conviction. Under the circumstances, it is important not to impose on the prosecutor the more onerous indictable offence route, when the outcome of the whole process is similar to that for an offence punishable on summary conviction.
As well, we note that the offence of possession of break-in instruments is often committed in conjunction with a second offence, breaking and entering a dwelling-house. The Criminal Code already provides that this is a hybrid offence, and so the prosecutor has the flexibility of choosing the most appropriate procedure having regard to the facts of the case. When the two offences are committed in the course of the same criminal operation, the present scheme in the Criminal Code means that even if it were more appropriate to prosecute the two offences by way of summary conviction, given that the facts are not extremely serious, the prosecutor may opt to proceed by way of indictment, the more onerous procedure, to avoid holding two separate trials. The proposed amendment in Bill C-23 therefore offers prosecutors greater flexibility, while promoting more judicious use of the resources of the judicial system.
Another amendment is designed to clarify an ambiguity in the present wording of the section dealing with where in Canada an offence that was committed outside our borders may, in certain cases, be tried. The present wording of section 481.2 of the Criminal Code could be interpreted as meaning that any offence committed outside Canada could be charged in Canada. The disastrous repercussions that this kind of interpretation could have on the resources of our courts can easily be imagined, not to mention the enormous challenges that this would present for prosecutors.
However, our law does provide for some exceptions under which it is possible to charge certain offences in Canada that were committed abroad. Examples are sexual offences involving children and terrorism. The proposed amendment will clarify the wording of section 481.2 to specify that those few exceptional offences, and only those offences, may be charged in any territorial division of Canada.
Another amendment clarifies the role of the Attorney General in private prosecutions, that is, prosecutions that are not initiated by the state, where a private information is laid with the court.
The Criminal Code provides that a justice will hold a hearing to determine whether there is justification for issuing a summons or a warrant for the arrest of an accused. The Criminal Code also provides that the Attorney General may participate in that proceeding, including by calling witnesses and presenting relevant evidence. However, the Criminal Code does not specify which Attorney General, provincial or federal, may do this.
The amendment clarifies that the term Attorney General means the Attorney General of Canada, where the offence in issue falls within his jurisdiction and the proceedings could have been commenced at his instance. Another change relates to the jury selection process. That amendment will remedy a flaw in the procedures for replacing a juror before any evidence has been introduced.
The Criminal Code provides that during jury selection, the prosecution and the defence are entitled to an equal number of peremptory challenges, that is, opportunities to reject a potential juror without having to state a reason. However, the Criminal Code is silent as to whether such challenges may be made when a new selection process is necessary to replace a juror who has been discharged before evidence was introduced. The proposed amendment provides that the prosecutor and the accused will each be entitled to one peremptory challenge for each juror to be replaced.
Another proposed amendment concerns jury selection and is designed to ensure the impartiality of jury members. Under certain circumstances, the jury selection process currently allows a prospective juror to be questioned in connection with his or her capacity to be impartial where the prosecutor and the accused are concerned. For example, questions may be asked regarding media coverage on the basis of which an individual might form an opinion as to the guilt or innocence of the accused.
Under the existing process, this questioning takes place in the presence of those already selected as jury members.
There is a risk that answers provided by a prospective juror could bring to the notice of jury members information that is likely to affect their impartiality. The amendment would therefore enable the judge to order that jury members be removed from the courtroom for the duration of the questioning.
Another amendment would allow a judge of the court of appeal to dismiss an appeal summarily without calling on any person to attend the hearing when it appears that the appeal should have been filed with another court. Here again, this will streamline a process which is otherwise unnecessarily tedious.
With respect to linguistic rights, I would now like to address the proposed legislative amendments designed to improve and clarify the linguistic rights of the accused in a criminal trial.
As hon. members know, the right of the accused to a trial before a judge, or judge and jury, who speak the official language that is the language of the accused has been recognized for years now. This guarantee is the product of successive stages that have brought about gradual but definite changes over the past 30 years.
However, studies carried out by the Commissioner of Official Languages and by the Department of Justice have confirmed that there are still obstacles to the exercise of those rights and to the achievement of their ultimate objective, which is equal access to justice in both of Canada’s official languages.
At the same time, our courts continue to interpret, sometimes with contradictory results, the exact meaning of the rights set out in the Criminal Code. This causes delays, sometimes results in unequal application of the provisions from one region of Canada to another and causes uncertainty for judges, lawyers and the accused.
These rights represent an important element of the Canadian identity. As the Supreme Court has stated, language rights “are basic to the continued viability of the nation”. For that reason, the federal government has a duty to take positive measures to ensure the enforcement of those rights.
It is for the purpose of advancing the language rights of accused persons, to reduce obstacles to the exercise of those rights and to put an end once and for all to problems of interpretation that we are proposing legislative amendments.
To improve the efficiency of proceedings, it is essential that the accused person’s choice of the official language for legal proceedings be established as early as possible at the start of proceedings. However, the current provisions of the Criminal Code only require a judge before whom the accused appears to inform the accused of the right to a trial in either official language if the accused is not represented by a lawyer.
As the report of the Commissioner of Official Languages confirms, the lawyer for the accused is not always aware of the language rights applicable to criminal proceedings and does not inform his client of them in all cases.
The commissioner has therefore recommended that all the accused be informed of their right to a trial in either English or French. That is exactly what we are seeking to do with the amendments proposed today.
The Commissioner of Official Languages has also pointed out in her study that it would seem somewhat illogical to grant the accused person the right to a trial in the official language of his or her choice but to refuse access in that same language to the documents by virtue of which the accused has been brought before the courts.
The amendments we propose in the bill would correct that shortcoming and would enable an accused person to ask for a translation into his or her official language of the criminal charge or indictment.
The application of the current provisions of the Criminal Code to so-called “bilingual” trials has given rise to countless debates in the courts. It appears those debates are due to the vague wording of section 530.1. The Supreme Court of Canada however has stated that the enumeration of language rights set out in section 530.1 of the Code which, on the face of it, applies to a trial “in the language of the accused” must necessarily be interpreted as applying equally to a trial taking place in both official languages.
Still, some lower courts continue to adjudge that none of the rights listed applies to an accused who takes part in a bilingual trial. The proposed amendments would put an end to such equivocations.
When we examine all the amendments proposed, we can see that they are adjustments to existing rights and not drastic changes to the justice system but will be of great importance for the accused.
Furthermore, the proposals put an end to the interpretation difficulties identified in both jurisprudence and various government studies that currently prevent the legislator’s aims from being met and trials from being managed efficiently.
In short the proposals will ensure better access to justice in both of Canada’s official languages.
I would now like to discuss the amendments proposed in this bill with respect to sentencing. Without reviewing all the changes, I propose to examine a few of them.
Some of the amendments respecting sentencing are fairly substantive. I would like to mention them briefly and then go on to some other more technical changes provided for in this bill.
At present, the maximum fine for a summary conviction is $2,000, when no other maximum fine is provided for in a federal statute for a summary conviction.
This amount has been the same since 1985, although other specific monetary limits have been adjusted over the years.
Bill C-23 proposes that the maximum fine that a judge may impose for a summary conviction offence be raised to $10,000.
This change will allow the prosecution to proceed by way of summary conviction in a larger number of cases, where justified by circumstances, even though it may recommend the imposition of a higher fine.
For some, this new maximum fine may seem high. We must bear in mind, however, that this amount is the maximum a court may impose on an offender at its discretion.
Also, the Criminal Code provides that, before imposing a fine, the court cannot impose the fine unless it is convinced that the offender is able to pay it or to settle it in whole or in part by using other assets or through work performed under a provincial program, where such programs exist.
Another significant amendment aims to allow The sentencing judge to issue an order prohibiting the offender from communicating with any victim, witness or other person identified in the order during the custodial period of the sentence.
The Criminal Code currently provides for this type of order at various stages in the judicial process. For example, a judge may impose such an order when an accused is released on bail, held on remand or under a probation order.
However, the Criminal Code does not currently allow for such an order to apply during the period of incarceration of an individual convicted and sentenced to prison.
The existing measures at correctional institutions regarding undesirable communication from inmates are generally effective, however, and such situations are addressed on a case-by-case basis, following the procedures and policies in place.
The proposed amendment offers an additional protective measure by granting sentencing judges the power to prohibit an offender from communicating with a victim, witness or other individual identified in the order, for the duration of the period of incarceration.
The amendment also creates the offence of violating that order, punishable by a maximum of two year's incarceration.
I would now like to move on to the technical amendments regarding sentencing.
First, an amendment to section 720 of the Criminal Code is proposed. This amendment aims to allow the court to delay sentencing, when deemed appropriate, to enable the offender to attend a treatment program approved by the province or territory under the supervision of the court, such as an addiction treatment program or a domestic violence counselling program.
Indeed, Canada has tribunals that specialize in treating problems of domestic violence and substance abuse. In certain appropriate cases, referral to such programs can allow offenders struggling with these problems to demonstrate to the court that they are willing to take concrete action towards their social reintegration.
A certain number of technical amendments also aim to make clarifications regarding sentences imposed for impaired driving offences.
In view of the different judicial decisions regarding the application of minimum penalties for impaired driving offences causing bodily harm or death, some clarifications are being made to clarify the real intent behind these sentences. To this end, a provision is added to specify that the minimum penalties for simple impaired driving offences—such as refusal or failure to provide a breath sample—can be imposed on persons found guilty of a more serious impaired driving offence causing bodily harm or death.
This amendment will also help to clarify the fact that conditional sentences cannot be handed down in the more serious cases of repeated impaired driving since the Criminal Code does not permit this when a minimum prison sentence is provided.
A second amendment to clarify the application of impaired driving penalties pertains to offenders who participate in a provincial alcohol ignition interlock device program. A number of provinces have these programs, which enable offenders who have been prohibited by the courts from driving for a specified period to operate a vehicle if it is equipped with an alcohol ignition interlock device and after the expiry of the minimum prohibition period provided under the Criminal Code.
In order to tighten up this provision, the amendment clarifies the fact that offenders are only authorized to drive during their prohibition period if they are registered in an alcohol ignition interlock device program and comply with the terms and conditions of the program.
Other more technical amendments allow courts of appeal to suspend a conditional sentence order until the appeal has been heard and disposed of. This makes it possible to avoid cases in which conditional sentence orders expire before the appeal is heard.
Another amendment would also enable courts of appeal that have suspended a conditional sentence or probation order to require the offender to enter into an undertaking or recognizance that includes conditions similar to those found in cases of accused persons on interim release awaiting appeal.
Marc Lemay Bloc Abitibi—Témiscamingue, QC
Mr. Speaker, with all due respect to the hon. Minister of Justice and Attorney General of Canada, CPC, I will put my first question to the hon. member who just spoke. It will probably also concern the minister, who is sponsoring this bill.
It is surprising that we have to wait a few weeks, or even a few more months, before debating in committee this legislation, which was introduced in June, because it is an important measure. I do not understand why the government waited like this. Considering that this bill does not reflect a right wing ideology, it should take precedence over Bills C-9 and C-10. However, there is one issue of concern to me, because I practised criminal law for 25 years and this is an interesting piece of legislation as regards criminal proceedings: how will the government ensure that the accused is informed of his right to be tried in one of the two official languages? That is the first question.
Secondly, how can the accused be sure to obtain a translation of all relevant documents, including those relating to the indictment and the preliminary inquiry?
Of course, this is not a problem in Quebec, but I am thinking of my clients in Calgary, Vancouver, Winnipeg, or in other places in Canada where English is the official language. As we know, in those regions documents are only translated in French when there is time to do so.
Before introducing this legislation, did we make sure that the constitutional right to be heard by a justice would be respected? This means the right to appear before a judge who can speak and understand French fluently—not someone who just took language courses on the weekend—and who can explain the principles that underlie this bill.
Luc Harvey Conservative Louis-Hébert, QC
Mr. Speaker, as my colleague said, he is a lawyer. He knows perfectly well that once a right is integrated into legislation and institutionalized, failure to respect that right is a procedural error. Therefore, because it is part of the legislation, it cannot be ignored, and there is no choice but to respect it.
Vic Toews ConservativeMinister of Justice and Attorney General of Canada
Mr. Speaker, I am pleased at the progress the bill is making in the House but some comments were made with respect to the Law Commission having some influence in respect to the drafting of the bill. I have checked with justice department lawyers and they have indicated that the Law Commission neither had any hand in drafting it nor influenced the bill in any way. I wanted to put that forward as a matter of correction on the record.
Marc Lemay Bloc Abitibi—Témiscamingue, QC
Mr. Speaker, there seems to be a lot of support for this bill because few questions and comments have been raised. At first glance, this is an interesting bill to which members of this House and litigants should pay close attention. This bill would have a direct impact on litigants like me.
I have been practising law for 25 years. For the past 10 or 15 years, I have focused on criminal law. Bill C-23 is therefore of great interest to me. It will probably also be of interest to my colleagues in the legal profession who specialize in criminal law or who have been practising it more and more over the years and have become very knowledgeable about it.
Bill C-23 is interesting. With all due respect to the Minister of Justice, I would have liked this bill—which is neither right-wing nor repressive ideologically—to have been introduced before bills C-9 and C-10. We are currently debating these bills in committee, and they seem to be based on repressive right-wing ideology. In contrast, Bill C-23 is interesting in many respects.
As I was saying, for 25 years I was a lawyer and argued all sorts of criminal cases. It is not unusual to have clients or cases where it is a matter of possession of break and enter instruments, as this bill addresses. Time and time again attorneys general in the various provinces—the Attorney General of Quebec who administers criminal law in Quebec as well as the Attorney General of Canada—have been told that this does not make sense. Our client was automatically accused of breaking and entering and possession of break and enter instruments. He was accused of a criminal offence because that act was automatically considered as such. This seems utterly unusual and unacceptable to us.
It seems that Bill C-23 will at least amend that—without removing it, of course—and will allow a person accused of breaking and entering and of possession of break and enter instruments to be tried by summary conviction.
In the Criminal Code there are two types of offences and that is what I want to talk about now. There are offences that can be tried by indictment; they are indictable offences. Murder, homicide and all sorts of offences are examples. There are a number of such offences in the Criminal Code. Other offences are called dual procedure offences. The Crown prosecutor filing the complaint can decide to try by indictment or by summary conviction. In summary conviction cases, if the person is found guilty or pleads guilty, he or she will receive a maximum fine of $2,000 or a six month prison sentence or both the fine and sentence.
This new bill, and I think this is important to point out, proposes a number of amendments. It is a large bill that deserves our time and attention and careful consideration as to how it will be debated in committee.
Criminal procedure sets out how to proceed in criminal cases. Let us take for example an accused who is to receive documents. If this bill is passed, it will provide for a means of telecommunications to be used to forward warrants for the purpose of endorsement and execution in a jurisdiction other than the one in which the search warrant was obtained.
In French, that means that if someone was arrested in Rouyn-Noranda and they wanted to search the person’s residence in New Liskeard, Ontario, the original document was required. They sent it by car, from one police officer to the next, until it got to Ontario, and that could take hours. If this bill were passed, it would be possible to send it by fax, for example, with the original document to follow by mail.
On reading the bill, I think that it would be possible to send it by Internet, by e-mail, so that it could be executed as soon as possible. That is a good thing.
Changes are made to the procedure for challenging jurors, among other things, to help to preserve their impartiality. This is also a very good thing, which the bill will bring in if it passes. In the jury selection process, particularly in terms of challenges, this means that we will be able to preserve and protect the impartiality of jurors, which is the very foundation of a jury trial.
There are also a host of other details, such as summary dismissal by a judge of the court of appeal where the appeal has been brought in error. Before, a motion had to be made, saying that it had been filed in the wrong place and asking the judge to dismiss it. Now this will be handled expeditiously.
Where it starts to get interesting is in an appeal to a court of appeal from an order of a superior court relating to objects that have been seized. For example, in the past, you could not move forward as long as the court of appeal had not ruled. You had to wait, but now you will be able to proceed.
Turning now to trials by way of summary conviction for a co-accused where the co-accused fails to appear. This avoids a lot of delay. Before, the accused appeared, but the co-accused was not present, for one reason or another. The judge then adjourned the appearance until the co-accused was located. Now, if this bill is passed, the accused could be tried much more expeditiously than before.
There are all sorts of things like this, and useful things. I mentioned earlier the reclassification of the offence of possession of break-in instruments to make it a dual procedure offence. That may be useful.
Certain things are even more useful, but would almost run counter to Bill C-9. We know that that bill would eliminate the possibility of suspended sentences for a host of offences.
We all hope that this bill will not come before this House again, as introduced by the hon. Minister of Justice. On behalf of the Bloc Québécois and probably many of my colleagues on both sides of this House, I would add that Bill C-9 does not really accomplish what justice demands: that judges have the opportunity to hand down individualized sentences.
Bill C-23 contains some interesting amendments. The bill provides for the power to order an offender in custody not to communicate with identified persons and creates an offence for failing to comply with the order, which increases protection for victims. We had long been calling for this. Defence lawyers had been calling for this. Often, our client in detention would receive telephone calls from victims who wanted to talk to him, and he would call them back. In future, offenders will be prohibited from doing so. If they do not comply with this order, they will be charged with a separate offence of failing to comply with a court order.
The clarifications with respect to the application of impaired driving penalties had long been called for.
Among other things, the possibility of using an alcohol ignition interlock device was raised. This device makes it possible for an individual found guilty of impaired driving to drive a car. The offender has the right to use this device after three months.
We can now provide clarification. Previously, the matter was very complicated, and it still is. For example, a taxi driver who also owned his own car would have to have two alcohol ignition interlock devices. If this bill is adopted, it seems that things will be less complicated. We might come to a consensus about placing the device only in the principal vehicle. It is starting to look interesting.
Probably two of the most important aspects of this bill are the suspension of a conditional sentence order or a probation order during an appeal.
Today, October 16, if an accused is found guilty by a judge, he is subject to a probation order or conditional sentence order and if the accused decides to appeal, the orders remain in force. Thus, even today we still have serious problems. I hope we will be able to change this quickly.
As criminal lawyers we tell our clients that we will appeal their sentence, but that the probation order is in force. The probation order may be for a term of two years and it might be one year before the appeal is heard. The individual would have been subject to a probation order for one year for nothing.
Henceforth, we can at least apply to the court of appeal and ask the judge, upon filing of the notice of appeal, if it would be possible to suspend the sentence. Even today, this can be requested. However, criminal lawyers who live, as I do, in a region such as Abitibi-Témiscamingue are ofter forced to go to Quebec City to do so. This results in additional expenses for the accused. Thus, we believe that this is a very useful amendment. I hope it will be adopted quickly.
One of the interesting comments and one of the even more interesting amendments, is the power to delay the sentencing proceedings so that an offender can participate in a provincially approved treatment program.
This is important and here is what it means. When judges hand down a decision and find an accused guilty, after a fair trial, they will very often delay sentencing, by asking, say, for a pre-sentence report. This is a report that establishes the circumstances of the charge, the circumstances of the offence and who the accused is. Generally a pre-sentence report is prepared at the request of the accused and most often in very important cases.
The accused may in fact have a long criminal record. For instance, he may be charged with manslaughter or found guilty of criminal negligence. These are often very serious cases. The following example comes to mind. An accused found guilty of, or who pleads guilty to, impaired driving causing bodily harm, or causing death, is automatically subject to a prison sentence. The court will generally hand down its decision.
However, under the proposed amendment, the court could delay sentencing until the accused completes his addiction treatment or another appropriate treatment program.
Take, for example, an accused who is sentenced for domestic abuse. He decides to attend a treatment program or violence counselling. The judge hands down his decision, stipulating that the accused must continue his therapy. The accused continues his therapy, but the judge does not know anything about it. Is the accused still dangerous?
So there were some cases—and we defended many—in which the judge, in a case of manslaughter or impaired driving causing bodily harm, handed down his sentence without knowing what the effects were on the accused and the victims.
If this amendment is passed, sentencing could be delayed. Sometimes it takes from three to six months before we get all the reports. Nowadays we do so by consent, but it is illegal.
So the proposed amendment could make it very interesting for the courts in their decisions.
Moreover I would like to urge the House to look very seriously at Bill C-23 with regard to anything to do with both official languages. I was able to take a quick look at the proposed amendments proposed to section 730.
It is proposed that section 720 respecting probation orders and treatment orders be amended. As far as probation orders are concerned, the accused is entitled to have the documents. So someone who has been found guilty must receive the documents and they must be explained in the official language of his choice. Let us take the example of a francophone accused who works in Calgary or Fort MacMurray. These are areas in which English predominates but someone who asks for his trial to be in French can get it.
I draw your attention to subsection 5 of section 732.1, where it is stated that a copy of the documents explaining the conditions must be given to the offender in order to ensure that the terms of presentation and so forth are respected. The following would be added to that subsection, “For greater certainty, a failure to comply with subsection (5) does not affect the validity of the probation order.” This subsection deals with the fact that when a court issues a probation order it gives a copy of the documents to the offender.
This casts some doubt on what the parliamentary secretary told us earlier when I asked him the question. We will have to pay extremely close attention when the amendments set out in Bill C-23 are being examined. It is fine to talk about bilingualism, but bilingualism has to be applied. To achieve that, it is necessary that a person not only receive all the information in his or her official language, but that he or she should understand the information and that someone should take the time to explain it.
On the whole, this is a very interesting bill. The amendments proposed in the bill could clarify the provisions of the Criminal Code and simplify some judicial proceedings.
Mr. Speaker, I see you signalling that I have only one minute remaining. I will proceed directly to my conclusions. The Bloc Québécois is especially pleased to see amendments that contribute to improving the work of judges by giving them greater discretion. These measures will give judges better tools to do their job, which is to determine the most appropriate sentence. And this will contribute to the objectives of deterrence and reparation, as well as an objective that is too often forgotten by our friends opposite in the government, which is that of rehabilitation.
In closing, the Bloc Québécois will be in favour of this bill and we hope that it can receive the support of this House as quickly as possible, in the interests of improving justice.
Derek Lee Liberal Scarborough—Rouge River, ON
Mr. Speaker, this is one of those bills where there is not very much in the way of partisan attitude. It comes across almost like a catalogue, and many members have spoken to the it. Running through its various sections, most of them seem fairly technical.
My remarks will be directed to what I think is the underlying purpose of the bill, and from where it came.
While most of the amendments look fairly technical, they have been generated through a great deal of consultation and meetings held across the country, not by the parties but by professionals in the various ministries. I am speaking of Crown prosecutors and in some cases consultations with police and defence attorneys. All of this has been focused on meetings of federal, provincial and territorial officials, then with the federal, provincial and territorial ministers, including the Minister of Justice. Each of these apparently small amendments is intended to improve the efficiency, fairness and efficacy under the Criminal Code operations.
I have noticed an underlying theme of the thinking and creativity on the part of law enforcement, Crown prosecutors and other counsel, in using the provisions of the code, as it has been updated every few years, to better address the problems of macro-organized crime such as gangs and organized crime groups. It is usually in the large cities where these things show up and in order to deal with big city problems, we have to get big city professionals together.
The Criminal Code has quite a number of useful provisions in it, which can be used if we can get the various parties to work together. Keep in mind that it is not one level of government that makes the justice system work. Both the federal and provincial governments have split the corrections piece, or the execution of sentences at the end of a conviction. The front end is where the federal government enacts the Criminal Code and puts in place basic criminal procedures, but the provinces handle the prosecutions and convictions in the courts. Therefore, provincial crown prosecutors carry most of that load. It is also a huge responsibility for our municipal police forces that do most of the work in responding to crime, investigating and laying charges and providing evidence.
The bill is an example of a collaborative amendment of our laws, but I could not help but note recently how authorities have come together to provide much better use of the bail provisions of the Criminal Code when it comes to gang activity. It takes a lot of work but in the end the product is a whole lot better.
I will speak of the Toronto experience. Police has been very successful in gathering intelligence, making arrests and prosecuting street gangs. We used to find that arrests would be made and gang members would be arraigned, but they would be released pending a trial. It takes three, six and sometimes nine months to get a complex trial organized in our large cities now, which means gang members are back out on the street on bail.
For the petty criminal that may work, he or she may stay close to home, show up for trial and justice will be done. However, police noted for many years that as soon gang members were back on the street, they would be right back into what they had been doing. Over time it became apparent that it was possible to use bail conditions as the mechanism for controlling the activities of these not yet convicted gang members, or alleged gang members, and the police and the prosecutors became very good at it.
In my neck of the woods, it all came down to what the police called bed checks. The arrest of gang members might involve five, 10, 15 or 20 members. In one case, it was over 20 members. The bail conditions imposed on the interim release were very strict. In many cases the individual had to be back in a specific home by seven, seven-thirty or eight o'clock at night.
It is one thing to set out the rule and the bail condition, but it was another to enforce it. Therefore, there was a need to craft the appropriate bail condition for the alleged offender, or the accused. Then there had to be the expenditure of police resources to go to a home every day or every second day to ensure that the accused person was complying with those conditions. Where the person was not compliant, that involved a subsequent charge and a tightening of the bail conditions. This took a lot of police work and expenditure of public funds, but it worked incredibly well. The bail conditions either worked, with the person off the street at night, or the bail conditions self-tightened, as there was a non-compliance, which ended up, in some cases, with the accused person being required to be in custody until trial.
The creative use of bail conditions began to work as a crime-fighting tool. I will not go into all the reasons why it was a crime-fighting tool, but from my perspective it was a good use of the judicial and police interface. While it was expensive, in terms of policing hours, it really worked. That type of police-prosecutorial collaboration is continuing, at least in the community I represent. I hope it is working similarly in other parts of Canada.
The bill is a reflection of efforts by the criminal justice community to produce legislation that is more efficacious in achieving these types of goals. Sometimes it is a cost efficiency, or a safety efficiency or a procedural efficiency.
The first one I notice sets out the power to make an order that an offender not communicate with identified persons while in custody. This does not involve a bail scenario, but it involve while a person is in custody. Frankly, it affects the circumstances where gang members issue threats or instructions while in custody. This is a new provision. It would allow the imposition of a restriction, which might under our charter, be seen as a restriction on free speech. However, it is clearly a restriction on people who are in custody from communicating with other specified persons. If they do so, it is a breach of the condition and a Criminal Code offence. This is a good thing if properly used by police authorities. I presume there is always room for abuse, but I am not even suggesting that would happen. The committee will have a chance to look at the intended operation of this provision. From this point of view, I like the look of it.
There are four other sections I wanted to make note of, in the same vein, and that is improving efficiency.
One is the increase in the summary conviction offence filing from $2,000 to $10,000. That is the maximum fine. Because the Criminal Code does not have an inflation escalator, that $2,000 fine looks awfully small for some offences now. Therefore, this is a good change.
The second item is the suspension of a conditional sentence order or a probation order during an appeal. There was a lack of clarity when a person appealed a conditional sentence or a probation order. There was a lack of clarity on both the part of the convicted person who was appealing and the part of police as to whether components of the order were in place while the appeal was under way. This simply clarifies that and it is a good idea.
The third item is an excellent addition to the code. After a person is convicted, this provision would allow a delay in the imposition of a sentence so the offender can participate in a provincially approved treatment program. What has happened up to now is that the judge, prosecutor or defence attorney would sometimes find a way under the rules to postpone sentencing until the offender could engage in some form of treatment to deal with an alcohol or drug dependency or other medical disability.
Now the code, if this passes, will allow the delaying of sentencing so that the accused or convicted person has an opportunity to participate in a recognized treatment program that would allow a judge to select the most appropriate sentencing following the treatment provisions. I do not know how much time would be involved but we will certainly scrutinize that in committee.
The last item I want to mention is the ability of the court to order the seizure of a computer that had been used in child luring on the Internet scenario. That makes good sense. We seize other private property where proceeds of crime situations are involved.
What I want to note for future reference, and the committee will certainly look at this, is that the seizure of computer hardware is one thing but computers now contain information on the hard disk. What is not clear is what happens to the data on the hard disk of a computer that is seized. Is it the intention that the data be rendered inaccessible or is it possible that the data can be accessed and used by the authority seizing the computer? Will the police have the ability to review that data without a warrant, make use of it and turn it into evidence or will it not be evidence? What about other personal and business data?
I do not think we have an answer to that and that should be clarified. What appears to be a simple seizure of a computer may actually be the seizure of a sizeable amount of information, some of which, in a child luring scenario, could be an indicator of further criminal activity by the person from whom the computer was seized. What should happen to that information? Should it be usable as evidence or should it not?
I applaud the many professionals in law enforcement, in the provincial ministries and in the federal ministry who would have collaborated on and assembled quite a good number of technical and administrative procedural changes in the code, which will make the code more efficient, more effective, just as fair and just as charter compliant but a better tool for use in tackling the criminal law problems that we have in many places across the country.
Pat Martin NDP Winnipeg Centre, MB
Mr. Speaker, I thank my colleague for his explanation of Bill C-23 I was most interested in his remarks toward the end of his speech when he dealt with evidence, the rules of evidence and the possibility that some evidence may be deemed inadmissible if it were I believe it is called fruit from the poisoned tree. If the source of which came into question it may preclude the possibility of that valuable evidence being used in some subsequent court hearing.
I would like him to answer a question but I would ask him to dumb it down as much as he can and speak in plain language for those of us who are not lawyers. The issue was raised recently in the House of reverse onus in two different contexts. The concept of innocent until proven guilty is being chipped away at and eroded. In one context that I can point to there was a private member's bill which did not succeed but a version of which did succeed in the province of Manitoba. In the event of the proceeds of crime being seized the onus is on the criminal to show that these are not in fact proceeds of crime. In fact, a Hell's Angel speed boat could be seized if that Hell's Angel could not actually show that he or she bought it with legitimately earned dollars.
I think where the member was going with his reservations about this bill is that if that evidence gleaned, which may be tainted and unusable, that we are getting toward a reverse onus situation and the party would have to demonstrate that it was in fact gleaned in a legitimate way.
Is that the connection that he is making reference to and does he have a comment on the proceeds of crime reverse onus situation?
Derek Lee Liberal Scarborough—Rouge River, ON
Mr. Speaker, yes, that is generally the envelope I was referring to in terms of the seizure of a computer that contained data. Even though the computer and the data is seized under an order, it is not clear that the judicial order contemplates the use of the information on the hard disk as possible future evidence and I think we should be careful about that.
Most people would say that if the guy has done something really wrong and his computer shows it, yes, it should be evidence. However, in our justice system we usually do not make inferences about people's guilt. Our system is based on a person being presumed innocent unless the state or the courts find the person guilty.
I am very reluctant, as a legislator, to alter that balance. The member properly makes reference to the increasing use of reverse onus situations which lowers the burden on the state to produce evidence to get to a certain type of proof.
I am surprised at the scenario that the member has mentioned. It sounds like it may be provincial legislation but normally we do not impose reverse onus situations. I know there are two or three of them in the code and in other pieces of legislation but we do so only reluctantly when there is a need that we could describe as, to use the words of the charter, demonstrably justifiable in a free and democratic society.
I think the courts would frown upon increasing the use of reverse onus situations simply because while most people in Canada would be in a position, in normal language, to rebut one of these inferences made by statute, there have to be many Canadians who could not on their own rebut the inference without the use of a lawyer or without someone else speaking for them. We must remember that there are Canadians with various levels of education and various levels of literacy. We must be careful that when we pass a law we have each of those persons in mind when it comes to making them bear the burden of a particular procedure in a statute.
Pat Martin NDP Winnipeg Centre, MB
Mr. Speaker, I thank the hon. member for the helpful remarks because they did flush out the reservations I had.
If an organized crime figure, who we knew full well had no visible means of support for the last 20 years but owned a mansion, a speedboat, a bunch of luxury cars and had all kinds of holdings, what would be so wrong if we had the power to simply say that unless that person could demonstrate that those were not the proceeds of crime, that we would seize them and use those assets to give our police officers more resources to bust more criminals? Does he not think that would be a justifiable way to use the reverse onus concept that most Canadians would support?
Derek Lee Liberal Scarborough—Rouge River, ON
Mr. Speaker, the hon. member has offered a scenario that prejudges most of the facts. In other words, we have an organized crime scenario. We have the classic accumulation of wealth by the individual, conspicuous wealth, and not many other facts to go with it. In that fact scenario it seems awfully easy to say that the person has $25 million worth of assets and no other visible means of support that can be shown, we will take the person's assets, sell them and turn the money over to the police.
It sounds all right except that if we take that rule and apply it to every other Canadian in every other fact scenario, it may produce some unfairness. It is at the wording of the procedure that I would want to look closely. If the member has some wording, we should talk about it and do something that is good for the public.
The Deputy Speaker NDP Bill Blaikie
It being 2 o'clock, the time for statements by members has now arrived. Two minutes remain in the question and comment period following the speech by the hon. member for Scarborough—Rouge River.