House of Commons Hansard #360 of the 42nd Parliament, 1st Session. (The original version is on Parliament's site.) The word of the day was yazidi.

Topics

Criminal CodeGovernment Orders

5:25 p.m.

NDP

The Assistant Deputy Speaker NDP Carol Hughes

I am going to get the parliamentary secretary to answer the question within one minute please.

Criminal CodeGovernment Orders

5:25 p.m.

Liberal

Kevin Lamoureux Liberal Winnipeg North, MB

Madam Speaker, my friend brings up an excellent issue. This is something that I should have made reference to. Think of a sexual assault victim going to a preliminary and reliving the incident. Under this legislation, this will be minimized in a very serious and tangible way. That is very good. I would think that all members would see the strength of that one argument in itself.

Listening to the member, whether he speaks on the bill or he poses the question, gives a vote of confidence in terms of how understanding the parliamentary secretary is on this issue.

Criminal CodeGovernment Orders

5:25 p.m.

Conservative

Tom Kmiec Conservative Calgary Shepard, AB

Madam Speaker, the parliamentary secretary provided an example in his opening of a case involving kidnapping, which is one of the charges that is being hybridized. In French we would call it un exemple farfelu. If I had a good Yiddish proverb I would say it too, but it is the most ridiculous example of all he gave to us. He is basically saying the prosecutor should make the decision. He does not trust a judge to hear the facts of the case and say, in this situation the charges do not apply, that justice would not be done for the child or for the parents involved.

It is an example of how the government tries to defend the indefensible in the bill, hybridizing a whole series of offences that should rightfully be heard by a judge. Why is it that the Liberal government does not trust the judges to rule on the cases?

Criminal CodeGovernment Orders

5:25 p.m.

Liberal

Kevin Lamoureux Liberal Winnipeg North, MB

Madam Speaker, I have confidence in the Crowns. The example I gave is a good reason why the member should be supporting the bill. That latter example is a good reason why the individual should not have to go before a judge. Having confidence in our judges and judicial system, absolutely, but I also have confidence in our Crowns.

Criminal CodeGovernment Orders

5:25 p.m.

NDP

The Assistant Deputy Speaker NDP Carol Hughes

I want to let the member know that he will not be able to have his full 20 minutes, and I will need to interrupt him at some point.

Resuming debate, the hon. member for Victoria.

Criminal CodeGovernment Orders

5:25 p.m.

NDP

Murray Rankin NDP Victoria, BC

Madam Speaker, when I made my speech on Bill C-75 at second reading, I mentioned that we were eager to work with the government to improve the bill. I am disappointed to report not enough was done to enable us to support this legislation. The government's stated goal was to reduce court delays in accordance with the Supreme Court's decision in Jordan and to continue with trial fairness imperatives. I am afraid the bill comes up short on both counts.

This was a 302-page bill so I will not be able to address in my short time the questions I wanted to. However, I would like to speak on four themes very briefly. First, the failure to address mandatory minimum penalties; second, the hybridization issues we have heard about; third, restrictions on preliminary inquiries; and fourth, the patchwork approach to agent representation. These are among the many issues we heard testimony on at the justice committee.

We heard testimony that the measures proposed would, in fact, make matters worse in many cases. I will elaborate. Most of the action in criminal justice in Canada takes place in the provincial courts, and hybridizing offences and pushing more cases onto to those courts is hardly a solution that is going to make things better.

However, I commend the government for a number of things. I commend it for deleting the routine police evidence provision that was agreed to be problematic at the committee. I am pleased we, at the committee, persuaded the government to change that odious provision. I am also pleased to have moved, along with my colleague, the hon. member for Edmonton Centre, a provision that would repeal the bawdy house provisions and vagrancy sections of the Criminal Code that have been used so often to criminalize consensual sexual activities, particularly among the LGBTQ2 community.

However, there were hundreds of amendments brought to the committee and a number of them were not accepted. For example, the New Democratic Party brought 17 amendments to committee designed to help vulnerable people impacted by our justice system. None of them were accepted by the government.

Every day there are real people who are self-represented. They cannot afford lawyers and there is not enough legal aid in this world to represent them. Who are these people? They are primarily indigenous, poor and marginalized. It is our submission that this bill simply does not do enough to address their realities.

Many of the stakeholders we consulted have told us that the key reforms in Bill C-75 are not evidenced-based at all. The stated objective of this bill is to respond to the Jordan judgment, with its mandatory time limits, yet there is considerable doubt the changes proposed would speed up the criminal justice system. Arguably, they would have the opposite effect.

The Liberals claim that this is somehow bold criminal justice reform, yet the elephant in the room is that they failed entirely to address former prime minister Harper's regime of mandatory minimum sentences, despite their political promises and public commitments to do so. Defence lawyers and legal academics agree the reversal of this practice would have been a huge step to unclogging the delays in the system, yet the Liberals failed utterly to even address the topic at all. We believe we need to deal with the root causes of the delays, things like addiction and poverty issues, which are really the root of the crime we are dealing with.

Let me start with mandatory minimums. This is one thing that would have increased compliance with Jordan and alleviated court burden from multiple charter challenges, and it is unfathomable why the Liberals ducked this issue. So many people came to our committee and talked about it. I do not have time to list them all but they included, from Barreau du Québec, Dr. Marie-Eve Sylvestre, who is a professor at the University of Ottawa, and Jonathan Rudin of Aboriginal Legal Services. I could go on and on. All of these people have spoken out about the failure to address mandatory minimums.

There are so many quotes I do not have time to address, but Jonathan Rudin, who is the program director for Aboriginal Legal Services reminded us that even the justice minister herself acknowledged the issues with mandatory minimum sentencing, saying, “This government knows that mandatory minimum sentences do not work.” She spoke eloquently on this issue on September 29, 2017, almost a year ago.

The justice minister said:

There is absolutely no doubt that MMPs have a disproportionate effect on Indigenous people, as well as other vulnerable populations. The data are clear. The increased use of MMPs over the past decade has contributed to the overrepresentation in our prison system of Indigenous people, racialized communities and female offenders. Judges are well-equipped to assess the offender before them and ensure that the punishment fits the crime.

There is nothing, absolutely nothing, in this bill to address that issue.

I am pleased that Senator Kim Pate has introduced Bill S-251, sponsored by my colleague, the member for Saskatoon West, which provides for judicial discretion to depart from the mandatory sentence when it would be just to do so. Then the opportunities for plea bargaining when judges have the discretion that they used to have, as all the experts have said, would go a great deal of distance to solve the issue of delays.

I do not have time to do much with the issue of hybridization. I think there has been enough said about that, and in the interests of time I will skip that.

I will say that Emilie Taman, one of the witnesses, a prominent lawyer in Ottawa, said this:

Indeed, of the 136 indictable offences that are to be reclassified as hybrid by virtue of Bill C-75, 95 are offences punishable by five or ten years. Consequently, this Bill now gives the Crown, rather than the accused, control over whether trial by jury is on the table for these 95 offences. This is problematic because the Crown’s exercise of discretion is done without transparency and is only reviewable on the very high standard of abuse of process.

In other words, we are giving the Crown counsel of the land the ability to make up their minds about which way to go in the privacy of their offices. Contrast that with judicial discretion, where in open court judges decide whether the penalty fits the crime. How different. How far we have come and how far away we are from justice. The potential for bias is real.

I believe that time will not allow me to do much more, but I am so enticed by what the hon. parliamentary secretary said about preliminary inquires that, in the interest of time, I want to address that issue head-on.

The government appears to believe that restricting preliminaries will save court time and protect vulnerable witnesses. The Canadian Bar Association, the Criminal Lawyers' Association, the Canadian Council of Criminal Defence Lawyers, and the Alberta Crown Attorneys' Association are among the witnesses that utterly disagree with the parliamentary secretary.

We heard considerable testimony about preliminaries actually reducing court delay. We heard extensive, compelling testimony that preliminary inquiries are a necessary tool to preserve trial fairness.

The Criminal Lawyers' Association of Ontario said:

Eliminating preliminary inquiries for all cases other than those for which a maximum period of imprisonment of life is available will not further the interests of justice or assist with the orderly and efficient administration of criminal justice. The Committee should recommend that these changes not be made.

I had a dozen quotes to give on this, but I think my favourite witness was Professor Lisa Silver of the University of Calgary's faculty of law. She said that we have to protect people from having a trial where none is necessary and that the “preliminary inquiry, at its core, exists as the legislative 'shield' between the accused and the Crown.”

She gave an example, a story which members may well remember, that of Susan Nelles, a nurse at the cardiac ward at the Hospital for Sick Children in Toronto, who was accused of murdering children. During the preliminary inquiry, they found a complete lack of evidence. The result was the charges were dropped. The result, in Professor Silver's view, was that preliminary inquiries are a vital step in ensuring due process and fair trials.

The other issue I want to talk about involves restricting agent representation. Upping the penalty for summary offences to two years less a day is going to have an adverse effect for agent representation across our country. I am talking about law students, paralegals and other agents that currently represent a large “gap population”, as they are called, in our country. There are many individuals who simply do not qualify for legal aid and are too poor to afford a lawyer.

The government has decided it is up to the provinces and territories to regulate what type of agent can represent what crime. This is not co-operative federalism; this is creating a patchwork effect to justice across Canada. Access to appropriate counsel should not depend on where people live, but now it will. We have student legal aid services, people such as Lisa Cirillo, Suzanne Johnson and Doug Ferguson, who asked the government to reverse the measure that would limit agent representation, and yet nothing appears to have been done on that point.

Let me be clear. An unrepresented accused will absolutely increase court delay and deprive that person of his or her right to a proper trial. It often forces the Crown and judges into an uncomfortable position where they must occasionally advise, assist and support the self-represented accused when this is contrary to their official role in the process.

We proposed a number of changes to increase jury representativeness. They were rejected. Professor Kent Roach talked about the shameful situation of juries, such as the failure to have any indigenous jurors on the Gerald Stanley case, and suggested, as did the Criminal Lawyers' Association that we have the ability to look at the jury and the judge given the discretion to decide whether it was representative or indeed embarrassing. That was rejected by my colleagues.

I am sorry I do not have time to say much more, but I will say this. There is a real opportunity lost. We do not do comprehensive criminal justice reform very often in our country. The Liberals brought in a 302-page bill. Some of the key issues I have addressed will only exacerbate the problem before us, making less justice and further delays. There are some things in this bill we like, but on balance we have to say, sadly, we cannot support it.

Criminal CodeGovernment Orders

5:40 p.m.

NDP

The Assistant Deputy Speaker NDP Carol Hughes

It being 5:40 p.m., pursuant to order made on Tuesday, November 20, 2018, it is my duty to interrupt the proceedings and put forthwith every question necessary to dispose of the third reading stage of the bill now before the House.

The question is on the motion. Is it the pleasure of the House to adopt the motion?

Criminal CodeGovernment Orders

5:40 p.m.

Some hon. members

Agreed.

No.

Criminal CodeGovernment Orders

5:40 p.m.

NDP

The Assistant Deputy Speaker NDP Carol Hughes

All those in favour of the motion will please say yea.

Criminal CodeGovernment Orders

5:40 p.m.

Some hon. members

Yea.

Criminal CodeGovernment Orders

5:40 p.m.

NDP

The Assistant Deputy Speaker NDP Carol Hughes

All those opposed will please say nay.

Criminal CodeGovernment Orders

5:40 p.m.

Some hon. members

Nay.

Criminal CodeGovernment Orders

5:40 p.m.

NDP

The Assistant Deputy Speaker NDP Carol Hughes

In my opinion the nays have it.

And five or more members having risen:

Pursuant to order made on Tuesday, November 27, the recorded division stands deferred until Monday, December 3, at the ordinary hour of daily adjournment.

Business of the HouseGovernment Orders

5:40 p.m.

Winnipeg North Manitoba

Liberal

Kevin Lamoureux LiberalParliamentary Secretary to the Leader of the Government in the House of Commons

Madam Speaker, there has been some discussion among the parties, and if you seek it, I think you will find unanimous consent for the following motion. I move:

That, notwithstanding any Standing Order or usual practice of the House, during the debate on the motion to concur in the 18th Report of the Standing Committee on Citizenship and Immigration, and during the debate pursuant to Standing Order 52, no quorum calls, dilatory motions or requests for unanimous consent shall be received by the Chair; and

That, at the conclusion of the debate on the motion to concur in the 18th Report of the Standing Committee on Citizenship and Immigration, the question be deemed put and a recorded division deemed requested and deferred to Wednesday, December 5, 2018, immediately before the time provided for Private Members' Business.

Business of the HouseGovernment Orders

5:40 p.m.

NDP

The Assistant Deputy Speaker NDP Carol Hughes

Does the hon. parliamentary secretary have the unanimous consent of the House to move the motion?

Business of the HouseGovernment Orders

5:40 p.m.

Some hon. members

Agreed.

Business of the HouseGovernment Orders

5:40 p.m.

NDP

The Assistant Deputy Speaker NDP Carol Hughes

The House has heard the terms of the motion. Is it the pleasure of the House to adopt the motion?

Business of the HouseGovernment Orders

5:40 p.m.

Some hon. members

Agreed.

Business of the HouseGovernment Orders

5:40 p.m.

NDP

The Assistant Deputy Speaker NDP Carol Hughes

(Motion agreed to)

Business of the HouseGovernment Orders

5:40 p.m.

Liberal

Kevin Lamoureux Liberal Winnipeg North, MB

Madam Speaker, on a point of order, I suspect if you were to canvass the House, you would find consent to call it 5:55 p.m., so we could commence Private Members' Business.

Business of the HouseGovernment Orders

5:40 p.m.

NDP

The Assistant Deputy Speaker NDP Carol Hughes

Is it agreed?

Business of the HouseGovernment Orders

5:40 p.m.

Some hon. members

Agreed.

Business of the HouseGovernment Orders

5:40 p.m.

NDP

The Assistant Deputy Speaker NDP Carol Hughes

It being 5:55 p.m., the House will now proceed to the consideration of Private Members' Business as listed on today's Order Paper.

The House proceeded to the consideration of Bill C-391, An Act respecting a national strategy for the repatriation of Aboriginal cultural property, as reported (with amendments) from the committee.

Aboriginal Cultural Property Repatriation ActPrivate Members' Business

5:40 p.m.

NDP

The Assistant Deputy Speaker NDP Carol Hughes

There being no amendment motions at report stage, the House will now proceed, without debate, to the putting of the question on the motion to concur in the bill at report stage.