Mr. Speaker, it is with great pleasure that I rise today to speak on behalf of the Minister of Justice and Attorney General of Canada to Bill C-75, an act to amend the Criminal Code, the Youth Criminal Justice Act and other acts and to make consequential amendments thereto.
This legislation represents a key milestone on our government's commitment to modernizing the criminal justice system, reducing delays and ensuring the safety of all Canadians. Delays in the criminal justice system affect public safety, undermine public confidence in the administration of justice, adversely impact the rights of accused persons and fails to provide Canadians good value for money.
When proceedings are stayed due to delays, the criminal justice system itself fails. Perpetrators are not held responsible for their actions, the innocent are not given the opportunity to truly clear their name and victims suffer.
Uses of delay in the criminal justice is not a new one. In the early 1990s, tens of thousands of cases were stayed due to delay following the Supreme Court of Canada's historic decision in the Crown and Askov.
As we know, the Supreme Court's subsequent decisions in Jordan and Cody set out a new legal framework for assessing delays. That framework included a transition period in assessing the cases for which charges had been laid prior to the release of the decision.
Given that this period will come to an end next summer, we have no time to lose. We must do everything we can to improve the efficiency of our criminal justice system.
Fortunately, we have many helpful studies and reports including the in-depth study of the Standing Committee on Legal and Constitutional Affairs. Its July 2017 report is entitled “Delaying Justice is Denying Justice”. After hearing from a sum total of 138 witnesses, the standing committee concluded that the causes of delays were wide and varied. It issued a call to the legal community, including judges and federal-provincial-territorial ministers of justice and attorneys general to “take decisive and immediate steps to address the causes of delays and to modernize our justice system.” It also called in the Minister of Justice to show leadership “in taking the necessary reformative action”.
I know the minister feels extremely privileged to have been entrusted with the responsibility to address this urgent issue, which also forms part of the mandate letter given to her by the Prime Minister. The Minister of Justice has taken several significant steps to improve the criminal justice system. In total, she has made now 240 judicial appointments and elevations to superior courts right across the country. In 2017 alone, the minister made 100 appointments, more than any other minister of justice in the last two decades. This year she is on pace to meet or exceed that number.
At the same time, the last two budgets presented by our government have allocated funding for an unprecedented number of new judicial positions, which are necessary to allow courts to respond to growing caseloads, including criminal matters. In all, our government has seen the creation of 75 new judicial positions over the past two years.
In fact, earlier this year, chief justices in Alberta and Quebec noted that for the first time in a long time, they were starting to notice positive trends in terms of delays. That is a very encouraging sign. The significant efforts made by judges, courts, governments and other actors in the justice system are paying off.
I will use the rest of the time that I have today to address our government's legislative response to criminal justice system delays.
I would like to thank the members of the Standing Committee on Justice and Human Rights for their thorough study of the bill.
The committee heard from 95 witnesses and examined a significant number of documents on a highly complex subject. There were 58 briefs submitted by various stakeholders, including representatives of police forces, Crown attorneys, defence attorneys, legal aid programs, victims' rights advocates, representatives of indigenous groups, and academics.
The discussion on the admission of routine police evidence by affidavit was particularly important, and our government was listening.
Although our intentions were commendable, we admit that our approach, as proposed, could have had unintended consequences, especially for unrepresented accused persons.
The committee gave that concern due consideration, and we accepted its amendment in that regard.
The reforms in this bill were also generally well received by all sides. There were some concerns heard regarding the provision, the proposed reverse onus, in the context of intimate partner violence due to operational issues that some had experienced with what is known as dual charging; that is where both perpetrators and victims are charged after a victim has had to use physical force to defend herself.
Supporting survivors of domestic violence and ensuring that more perpetrators are brought to justice was part of our platform in 2015, and the reverse onus provisions, which do just that, were maintained in the bill after the committee study.
We know, including most recently, from the Supreme Court of Canada decision in Antic that the problem is not the law itself but in how it has been applied. It is important to note that provinces and territories have developed policies and training in this area. We have a solid legal framework, yet a disproportionate number of indigenous and vulnerable and marginalized accused are being denied bail. Those who are being released are being required to follow too many onerous conditions, with a strong reliance on sureties in a number of jurisdictions.
The proposed new process contained in Bill C-75 talks about judicial referral hearings, which will provide an off ramp for administration of justice offences that do not actually cause harm to a victim. This proposal has been supported enthusiastically, both by residents in my riding of Parkdale—High Park and by Canadians right across the country, who are concerned about the disproportionate overrepresentation of indigenous and racialized persons in our criminal justice system.
What we have advanced is a shining example of exactly what the Supreme Court of Canada and the Senate committee report were imploring when calling for “a cultural shift among justice system participants that moves them away from complacency and towards efficiency, cooperation and fairness.”
My colleagues will also recall that Bill C-75 includes two proposals in relation to preliminary inquiries. First, the bill proposes to restrict preliminary inquiries for adults accused to offences punishable by life imprisonment, for example, murder or kidnapping. Second, it will permit the judge presiding over the preliminary inquiry to limit the issues to be explored and the number of witnesses to be heard at the preliminary inquiry.
The approach in Bill C-75 with respect to preliminary inquiries reflects the extensive consideration and consultation on various options throughout the years and the best evidence available, and ultimately proposes a balanced approach between various interests at stake. It also proposes an approach that was endorsed and supported by the provincial and territorial ministers of justice during the extensive consultations undertaken by the minister with her provincial and territorial counterparts.
One topic that was a particular focus for the committee was the reclassification of offences. Reclassification will result in amendments to many provisions in the code, both for the purposes of hybridizing existing indictable offences that carry a maximum penalty of imprisonment of 10 years or less, and to create uniform maximum penalty of imprisonment on summary conviction of two years less a day.
The reclassification amendments were supported by the minister's provincial and territorial counterparts, who felt strongly that these amendments would give prosecutors much-needed flexibility based on the gravity of cases before them.
Notably, the reclassification amendments are procedural. They change how conduct that is not deserving of an indictable sentence range can be treated. It is already a well-known feature of our criminal justice system that prosecutors assess the facts of the case and the circumstances of the offender to determine which type of sentence to seek from the court.
Importantly, nothing in the bill proposes to lower the sentences that would be awarded under the law. These reforms would not change the fundamental principles of sentencing. We value the variety of perspectives and knowledge that the many witnesses contributed to the Standing Committee on Justice's study.
Bill C-75's proposed reclassification of indictable offences, punishable by maximum of 10 years imprisonment or less, does not treat these offences any less seriously for sentencing purposes.
Nonetheless, this is an important point. The justice committee heard compelling testimony from witnesses on the terrorism and advocating genocide offences. Our government recognizes that these are crimes against the state, against society at large for the purpose of advancing a political objective, in the case of terrorism. In the case of advocating genocide, these are crimes not just against society at large but crimes against humanity.
I say that with some experience in the area, as a former prosecutor at the UN war crimes tribunal for Rwanda. I know first-hand that there is no more reprehensible crime known to law then genocide, which is advocating for the destruction, in whole or in part, of a national, ethnic, racial, or religious group.
The standing committee unanimously recommended that these offences be carved out of the reclassification approach in Bill C-75. We thank the committee for its diligent work in this area, and agree wholeheartedly with this amendment.
On that note, we moved consequential government amendments to remedy an unintended error from one of these committee amendments in order to reflect the committee's objective of removing these offences from the list of those that were being reclassified.
We also welcomed the committee's amendments to section 802.1 of the Criminal Code to allow the provinces and territories to set criteria permitting agents, that is non-lawyers, such as law students, articling students and paralegals, to appear on summary conviction offences punishable by more than six months imprisonment and to allow agents to appear on any summary conviction offence for the purpose of an adjournment.
One of the unintended consequences of the proposal to reclassify offences in the Criminal Code is that agents would not have been able to appear for individuals on most summary conviction offences unless authorized by the provinces and territories. The justice committee helpfully amended section 802.1 of the Criminal Code to enable provinces and territories to establish criteria for agent representation on summary conviction offences with a maximum penalty of greater than six months imprisonment in addition to the current authority to create programs for this purpose as well as to allow agents to appear on any summary conviction offences for adjournments.
This amendment would address concerns over access to justice issues. It would maintain jurisdictional flexibility while also recognizing regional diversity in how legal representation is regulated across Canada.
On this point, I would underscore that access to justice informs not only the core aspect of the bill, but in all of the efforts we are undertaking at the justice ministry and the efforts made by the minister. The minister has brought this issue to the attention of her provincial and territorial counterparts so they will take the requisite prompt legislative action to set the necessary criteria for this important matter relating to access to justice.
I would also like to talk about the jury reforms proposed in Bill C-75. These changes will make major improvements to our jury selection process by abolishing peremptory challenges for Crown and defence attorneys, allowing judges to direct that a juror stand by for reasons of maintaining public confidence in the administration of justice, modernizing challenges for cause, empowering judges to decide challenges for cause, and allowing trials to continue with the consent of the parties in the event that the number of jurors is reduced below 10, in order to avoid mistrials.
The under-representation of indigenous peoples and visible minorities on juries is a major concern. This problem has been well-documented for years. We believe that eliminating peremptory challenges will significantly improve the diversity of juries.
Peremptory challenges give both the accused and the Crown the power to exclude potential jurors without having to provide a reason. They have no place in our courtrooms, given the potential for abuse. Once this bill has passed, Canada will join countries like England, Scotland and Northern Ireland, which abolished peremptory challenges in 1988.
We must remember that provincial and territorial laws and processes play an important role in determining candidates for jury duty and the methods used to compile jury lists.
The federal government is just one piece of the puzzle. However, I am pleased to see that federal, provincial and territorial government representatives are working together on a wide range of jury-related issues in order to make further recommendations on how to improve Canada's jury system. I believe that the questions raised during the committee's study of Bill C-75 will help with these deliberations.
I was also pleased to see that the committee was generally in favour of the more technical proposals aimed at reducing delays and improving efficiency in our system, in particular with respect to removing the requirement for judicial endorsement for the execution of out-of-province warrants, clarifying the signing authority of clerks of the court, and facilitating remote appearances.
As well, I wish to highlight the committee's unanimous support of the repeal of section 159 of the Criminal code, a proposal that has been well received in the LGBTQ community, as well as the proposed amendment to repeal the vagrancy and bawdy house offences, which have been historically and improperly used to target consensual adult sexual activity. These amendments continue our government's important work to address discrimination against LGBTQ2 Canadians.
Importantly the committee also supported Bill C-75's proposal to repeal the abortion offences that the Supreme Court of Canada struck down as unconstitutional in the Morgentaler decision in 1988. Our government will always protect a woman's reproductive rights and her right to choose what to do with her own body.
As I have already stated, Bill C-75 proposes comprehensive reforms that will help to ensure that an accused person's right to be tried within a reasonable time is respected and that all justice system participants, including victims and witnesses, do not face delays.
At the same time, we are deeply conscious of the need and have heard the call for sentencing reform, including mandatory minimum penalties. The minister remains committed to advancing change.
The courts have made it clear that many mandatory minimum penalties present serious challenges from a constitutional perspective. The minister has been clear that her view is that judges should be provided the necessary discretion to impose sentences appropriate to the offender before them.
That said, we need to ensure we put in place sentencing reform that will stand the test of time. Mandatory minimum penalties are being litigated quite extensively. There are cases in which the Supreme Court has upheld the mandatory minimum penalty and there are cases in which the court has not.
We want to ensure we have taken all steps and done our due diligence as we continue to work on sentencing reform so the changes we make will stand the test of time.
The bold reforms proposed in the legislation have been the subject of extensive discussions, consultations and collaboration with the minister's provincial and territorial colleagues. Our commitment to prioritize key legislative reforms that we felt cumulatively would have the biggest impact in reducing delays in the criminal justice system remains strong.
This discussion and the consultations have included extensive debate within this very chamber itself. The House has debated Bill C-75 for a total of 14 hours and 45 minutes thus far. Ninety-five witnesses in the course of 27 hours were heard by the Standing Committee on Justice and Human Rights during extended sitting hours. A total of 28 members of the opposition benches from multiple parties have spoken out on the bill.
Further to that, we have listened to the standing committee's recommendations and to key stakeholders who have committed to address the issues of delays in the criminal justice system. Bill C-75, as amended, is a result of this commitment and reflects the beginning of a culture change that the Supreme Court was calling for in its Jordan and its Cody decisions. I therefore urge all members to support this important legislation.