Debates of May 14th, 2019

[Erin O'Toole, Conservative, Durham, ON]

Mr. Chair, did the minister make inquiries with respect to the legal rights of Michael Spavor and Michael Kovrig and the lack of access to justice that our own citizens have in that country?

[David Lametti, Liberal, LaSalle—Émard—Verdun, QC]

Mr. Chair, again, it was a social evening. It was not a formal meeting. I was not seated next to that person.

[The Chair, Conservative, Bruce Stanton]

That will conclude this round. Resuming debate, the hon. member for Mississauga—Erin Mills.

[Iqra Khalid, Liberal, Mississauga—Erin Mills, ON]

Mr. Chair, I will be providing 10 minutes of remarks followed by some questions.

I want to begin my remarks today by thanking all members on the Standing Committee of Justice and Human Rights from all sides of the House. Together, over these past few years, we have worked on issues related to access to justice, medical assistance in dying, mental health supports for jurors, strengthening impaired driving laws, addressing the issue of human trafficking in Canada and so much more. Ultimately, we have worked hard to ensure that the communities we represent safer.

There have been many pieces of legislation that have passed through our committee, and today I would like to focus on Bill C-75, an act to amend the Criminal Code, the Youth Criminal Justice Act and other acts and to make consequential amendments to other acts.

One of the challenges I have heard about from my community and from Canadians across Canada is the issue of delays in accessing the justice system. I have also heard from constituents about the accessibility of the justice system, issues surrounding victims rights and the challenges faced by victims of intimate partner violence. The purpose of Bill C-75 is to address these very issues of our communities from coast to coast to coast.

This legislation is a key milestone in the government's ongoing efforts to transform the criminal justice system, keeping the government's overall goals at the forefront, which are to keep communities safe, protect victims and to hold offenders to account.

Canada's justice system faces numerous major and multi-faceted challenges. While the volume and severity of crimes have decreased over the years, criminal court cases are becoming more complex and trials are taking longer to complete. Delays in the criminal justice system impact the accused and his or her charter right to be tried within a reasonable time. They also impact victims and all those affected by crime in our communities.

The criminal justice system is a shared responsibility between federal, provincial and territorial governments.

The federal government is responsible for the enactment of criminal law and procedure, criminal prosecutions of all federal offences, certain offences in the Criminal Code and prosecution of all offences in the territories, as well as the appointment of judges for superior courts.

Provincial and territorial governments on the other hand are responsible for the administration of justice, including the prosecution of criminal offences in the provinces, the administration of police, Crown and court personnel and the appointment of provincial court judges.

At their meetings held in April and September 2017, federal-provincial and territorial ministers responsible for justice met to discuss actions taken and ways to strategically address delays in the criminal justice system. Discussions included identifying innovative and best practices as well as legislative reforms to resolve criminal cases in a just and timely manner. All agreed on the need for targeted and bold criminal law reform in the following key priority areas: bail, administration of justice offences, preliminary inquiries, reclassification of offences and judicial case management.

Ministers agreed on the importance of a collaborative approach with all players in the criminal justice system, and Bill C-75 is a true reflection of that collaborative approach with key criminal justice system partners.

Some reforms included in Bill C-75 would address issues that were identified by the Senate Standing Committee on Legal and Constitutional Affairs in its June 2017 report, entitled, “Delaying Justice is Denying Justice”. It included 50 recommendations, with a number of them relating to criminal law reform. The bill would address a number of these recommendations, namely on preliminary inquiries, case management, bail, administration of justice offences and the use of technology, including to facilitate remote appearances.

In addition, the reforms respond to the Supreme Court of Canada's decision in Jordan in 2016, which established strict timelines beyond which delays would be presumptively unreasonable and result in cases being stayed. In this decision, the Supreme Court also stressed the need for efforts by all those involved in the criminal justice system to reduce delays and increase efficiencies. Bill C-75 would address that.

One of the issues highlighted through our committee work is the overrepresentation of indigenous people in jail. The 2016-17 statistics indicate that 28% to 30% of custody admissions are indigenous. The numbers are even higher for youth at 50%, and women at 42%. Bill C-75 would help reduce the overrepresentation of Indigenous peoples and vulnerable populations in the criminal justice system.

Indigenous people and vulnerable populations tend to be disproportionately impacted by onerous and unnecessary bail conditions. They are also more likely to be charged with breaching minor conditions, and more likely to be caught in the revolving door of the criminal justice system.

The bill would help address these problems by enacting a principle of restraint in the bail regime to ensure that when there are no concerns about the accused coming to court or posing a risk to public safety, police officers and justices would release detained accused at the earliest reasonable opportunity; by requiring that conditions imposed by police be reasonable in the circumstances and necessary to ensure the accused's attendance in court or the safety and security of the victims or witnesses; and by providing that circumstances of the accused, in particular indigenous accused and accused persons from vulnerable populations, be considered at bail and in determining how to address a breach of conditions.

Bill C-75 also includes measures that would positively impact victims of crime. These include the bail reforms, which would also better protect victims of intimate partner violence by creating a reverse onus at bail, and would expand the list of conditions that can be imposed by police, including conditions to protect victims.

The preliminary inquiry reforms, which would restrict the availability of preliminary inquiries to offences with penalties of life imprisonment, would prevent some victims from having to testify twice.

The proposed administration of justice offence changes would only apply in cases in which there has been no harm caused to a victim, whether physical, emotional or through property damage.

The bill would also provide reassurance to victims of intimate partner violence by imposing a reverse onus at bail for accused persons charged with an intimate partner violence offence if they have a prior conviction for violence against an intimate partner; by requiring courts to consider whether an accused is charged with an intimate partner violence offence when determining whether to release or detain the accused; by clarifying that strangulation, choking and suffocation are elevated forms of assault; by defining “intimate partner” for all Criminal Code purposes and clarifying that it includes current or former spouse, common-law partner and dating partner; by clarifying that the current sentencing provisions, which treat abuse against a spouse or common-law partner as an aggravating factor, apply to both current and former spouses or common-law partners and dating partners; and by allowing for the possibility of seeking a higher maximum penalty in cases involving a repeat intimate partner violence offender.

Lastly, the proposed reforms with respect to bail, administration of justice offences and the reclassification of offences support an approach that is expected to minimize the differential impact on marginalized populations in the criminal justice system, including indigenous peoples, through modernizing and streamlining processes, providing flexibility and creating appropriate tools for managing factors such as vulnerability, mental health and addiction.

It is important to note that these proposed Criminal Code amendments cannot address all social issues that impact those in contact with the criminal justice system. As such, operational changes in the courts or in the administration of justice at the provincial and territorial level may better address such issues. As well, training for criminal justice system actors, such as police, the Crown and judges, would support the bill's goal of making the criminal justice system more fair and accessible to all Canadians.

As mentioned earlier, opportunities to address delays also fall under provincial jurisdiction, as provinces have responsibility over the administration of justice. It is unfortunate that the Ontario provincial government has recently announced its decision to cut funding for the Ontario Provincial Police by $45 million. These cuts will impact the administration of justice.

The people of Ontario, and indeed all Canadians, have the commitment of the federal government that we will continue to work closely with the provinces and territories to identify further measures to reduce delays and improve the criminal justice system.

That said, I do have some questions for the minister, if allowed.

[John Brassard, Conservative, Barrie—Innisfil, ON]

Mr. Chair, on a point of order, could you confirm what time the committee of the whole will be ending tonight?

[The Acting Chair, Conservative, John Nater]

I thank the hon. member. I believe the committee of the whole will sit for four hours and will conclude at approximately at 9:49 p.m. this evening.

The hon. member for Mississauga—Erin Mills for questions.

[Iqra Khalid, Liberal, Mississauga—Erin Mills, ON]

Mr. Chair, one of the cases that keeps reappearing within our justice committee when we are talking about delays and the speedy admission of justice is the Jordan decision in 2016.

In 2016, in the Jordan decision, the Supreme Court of Canada called upon all criminal justice actors to do their part in reducing court delays. To that end, what measures does the minister feel are the most important to increase efficiencies in the criminal justice system?

[David Lametti, Liberal, LaSalle—Émard—Verdun, QC]

Mr. Chair, I thank the hon. member for her speech, her question and her work on the justice committee.

The answer is fourfold.

The first measure is law reform, and the hon. member has spoken at length about the changes brought forward in Bill C-75, which we feel will increase the efficiency of our justice system and reduce delays.

The second is funding for various programs. The indigenous court worker program is one example. By working with certain over-represented groups, we will be able to address delays in the justice system.

The third is collaboration with provincial and territorial governments to address delays, and the last one has to do with judicial appointments. As I mentioned in my speech, we have made over 300 appointments of a very high quality since taking office, and that is helping to reduce delays in the system.

[Iqra Khalid, Liberal, Mississauga—Erin Mills, ON]

Mr. Chair, since this place studied Bill C-75, on December 14, 2018, the Supreme Court of Canada rendered its decision on the victim surcharge found in section 737 of the Criminal Code. The court held that the mandatory victim surcharge is contrary to section 12 of the Charter of Rights and Freedoms, because it could result in grossly disproportionate punishment for vulnerable or marginalized offenders.

The mandatory surcharge is a fixed amount that every offender must pay at the time of sentencing. It is 30% for any fine imposed or $100 per summary conviction offence or $200 per indictable offence.

I am aware that Bill C-75 proposed changes to this regime in order to provide some judicial discretion related to the imposition of the victim surcharge. Does the minister feel that these changes properly respond to the Supreme Court of Canada's guidance? Will the government be proposing any amendments to this bill to reflect this new Supreme Court of Canada decision?

[David Lametti, Liberal, LaSalle—Émard—Verdun, QC]

Mr. Chair, I thank the hon. member for her important question. As I have stated, we are committed to ensuring that Canada's criminal justice system meets the highest standards of equity and fairness.

The Boudreault decision on December 14 found, as the member has pointed out, that the victim fine surcharge violated section 12 of the charter because it could result in a grossly disproportionate punishment, especially for vulnerable and marginalized offenders. Indeed, the provinces and territories that use this fund to fund victim services have not used it since December 2014, or their courts have not used it.

We realize this has an important role. We thought Bill C-75 went a long way to following with that, but after consulting with provinces and territories, the federal ombudsperson for victims of crime, and stakeholders, we have decided to propose amendments to Bill C-75, presently in front of the Senate, that will grant judges additional discretion to determine when the surcharge should be applied. This aligns it with the Boudreault decision, while continuing to ensure that offenders are properly held accountable to victims and to society as a whole.

[Iqra Khalid, Liberal, Mississauga—Erin Mills, ON]

Mr. Chair, we work in a collective and a collaborative way with provinces and territories. As our Constitution has divided our responsibilities, the administration of justice falls within the purview of the provinces.

Can the minister please advise this House how important it is for us to work collaboratively in each of our roles within our respective governments, and how important it is to provide funding as well to officers of the court, such as police officers and court administrators, in order to have the effective, efficient criminal justice system that Canadians require and deserve?

[David Lametti, Liberal, LaSalle—Émard—Verdun, QC]

Mr. Chair, it is critically important that we co-operate. The administration of justice is, in a sense, a shared responsibility. For example, we name judges, while the provinces have the responsibility for administering the court system.

It is the same thing with legal aid across Canada, as another example. We share responsibility and financial responsibility with the provinces. The provinces furnish legal aid services, and we provide part of the funding.

Obviously cuts across Canada do concern me. We are studying the impact of cuts very carefully.

[The Chair, Conservative, Bruce Stanton]

Before we resume debate, for the benefit of other hon. members who may have a speaking slot coming up, I will remind them that they do not have to be in their own seats in order to present in committee of the whole. They can take the seat of their choice—on whichever side they wish, of course, but that is up to them.

Resuming debate, the hon. member for Milton.

[Lisa Raitt, Conservative, Milton, ON]

Mr. Chair, following up on the excellent questions of my learned colleague, the member forDurham, I wanted to get a bit further into this oral report that the minister received from his department that has allowed him to come to the conclusion that there is nothing to see here and everything went fine.

I would like to take the minister through some specific things that happened in the hearings that have transpired since November 23 of last year. Predominantly, this is about the fact that the documents were being sought so the defence could put together an abuse-of-process motion to have the charge dismissed because, the defence said, there was political interference and obstruction of the subpoena requests for documents.

With respect to the hearing, between December 12 and December 18, it was said that emails between a Crown prosecutor and legal counsel in the Privy Council Office, which is the government department that supports the Prime Minister, showed the Privy Council Office lawyer asking for updates on who had been identified as potential witnesses, what was discussed in judicial pretrial meetings and what the defence planned to argue in pretrial motions. Does this concern the minister with respect to administration of justice in his department?

[David Lametti, Liberal, LaSalle—Émard—Verdun, QC]

Mr. Chair, as I have stated, I am not going to make comments about the actual proceedings of the case in the past tense. It would be inappropriate for me to do that. There are always a lot of strategic moves that are made throughout the course of a trial.

What I can say is that the justice department's role in this matter was in fulfillment of third party document requests, for which my department specifically set up a process. That process was followed because of the complexity and the sheer number of the documents requested. The process was set up to evaluate the requests and to then decide whether those documents were covered by some sort of privilege or confidence.

Again, it is a complex process, and we delegated the final decision-making authority to a judge.

[Lisa Raitt, Conservative, Milton, ON]

The issue, Mr. Chair, is not whether the judge was to make the decision. We all know that at the end of the day she did not, because of the amount of delay that the current government allowed for.

What we do know as well from these trial dates and these hearings is that there were even problems with how they gamed the system in terms of the kinds of words that would trigger disclosure of documents.

It was revealed in the trial that access-to-information requests in 2017 returned no results. In the entire Mark Norman case, when meetings were going on day after day and information and surveillance was going on, there were no results in all of the Department of National Defence, and guess why. It was because a witness came forward and asked for protection from his own government so that his name would not be disclosed after he told Canadians that code names were used in order to ensure that there would be no response in the documents.

Why does the minister not think that this is something that needs to be looked into further?

[David Lametti, Liberal, LaSalle—Émard—Verdun, QC]

Mr. Chair, once again I will not comment about the various back-and-forth details about the case. That was managed by the director of public prosecutions and the Public Prosecution Service of Canada, independently of the Government of Canada. Both the director of public prosecutions, on at least two occasions, as well as the prosecutor in question have stated that.

The Department of Justice had a role to play in the production of documents. As I said, 144,000 documents were identified as being potentially relevant. That number had to be assessed and analyzed, and it was boiled down to 8,000. Ultimately, those documents were in the process to go to a judge to be evaluated for privilege and that sort of thing. The Department of Justice has fulfilled its obligations in this case.

[Lisa Raitt, Conservative, Milton, ON]

To recap, Mr. Chair, we have now heard that the Crown prosecutor was talking to legal counsel in the Privy Council Office. We have heard that they were asking for updates on who has been identified as potential witnesses. We now know that ATIPs were being deliberately avoided.

Now we move on to another one. Also heard in testimony during that hearing in December was the fact that federal government lawyers, who would be these ministers' lawyers, inappropriately intervened in the defence's access to witnesses and in giving witnesses bad information.

Does the minister think that this is enough of a problem to warrant an investigation?

[David Lametti, Liberal, LaSalle—Émard—Verdun, QC]

Mr. Chair, the comment was taken completely out of context. I have no way of commenting on it, nor should I.

The prosecution service and counsel on each side are going to undertake to defend their clients as best they can in the ordinary course of proceedings, requesting documents, defending against those requests, etc.

The role of the Department of Justice, as I have made clear, was in the production of third-party document requests. We set up a process in response to the defence counsel, in particular, in that case. We set up a process that was fair and took into account the quantity and complexity of the documentation as well as the fact that there would be solicitor-client cabinet confidence and litigation privilege attached to a number of those documents.

[Lisa Raitt, Conservative, Milton, ON]

Mr. Chair, the government's documents collection was atrocious. It was to the point that the minister should know that the chief of the defence staff, although he learned in December that code names were used to avoid the production of documents, did not check in on it until the third week of January. Nobody in that four-week period of time thought to go back and actually do a further search. I think that is something else that needs to be investigated.

As well, as we tuned into hearings between January 29 and February 1, even more information came out, most importantly the fact that one of the lawyers who would be working for this minister, a lawyer in bed with the Department of National Defence, was alleged to have given advice to a former assistant to the Minister of National Defence with respect to what she needed to disclose in her search. She said she had two phones, a government-issued Blackberry and a personal iPhone. However, she took the advice of the Department of National Defence and did not search her personal emails and did not know whether her Blackberry messages were included in the search.

There was not a sufficient search. It was advised by a lawyer from the Department of Justice. Does the minister think that is enough to warrant an inquiry?

[David Lametti, Liberal, LaSalle—Émard—Verdun, QC]

Mr. Chair, again, I am not going to comment on the veracity of any allegations that are made or the sources they came from. What I can say is that the process we envisaged and used in the justice department included email, personal devices and that sort of thing for those potentially relevant documents.

[Lisa Raitt, Conservative, Milton, ON]

Mr. Chair, what is interesting is that there is actually someone within the justice department who gets this, because justice department counsel Robert MacKinnon told the court in those hearings that it does not matter where the government-related business is being handled. Whether it is in personal emails or personal data, they are covered by the subpoena, and he would be following up to make sure that actually happened.

Does the minister agree with that comment made by his own lawyer, and should this be followed up on?

[David Lametti, Liberal, LaSalle—Émard—Verdun, QC]

Mr. Chair, I will not comment on specific allegations or their veracity.

What I can say is that the process we did set up was meant to include potentially all kinds of documents, including those contained on devices.

I will also point out that the judge thanked us at the conclusion of the trial for our hard work in producing documents.

[Lisa Raitt, Conservative, Milton, ON]

Mr. Chair, I assure members that Vice-Admiral Norman, with his gigantic legal bill, which is now going to be paid by the taxpayers of Canada, does not thank the government for the shoddy work it conducted throughout this entire process, which caused so much pain and so much cost, either because it maliciously wanted to ensure that these documents did not come forward or because it was simply inept. Either of those two reasons means that there should be an inquiry in that department by this minister by his own hand.

I will ask the minister again. Will he be conducting a real inquiry, one that is written on paper, not an oral version, so that Canadians can get to the bottom of exactly what happened in this case?

[David Lametti, Liberal, LaSalle—Émard—Verdun, QC]

Mr. Chair, I was referring to a briefing earlier on, and I want to correct the record, as it is being misconstrued in this regard.

As I have said a number of times, this was an extraordinarily complex set of third-party documents that was requested, a large number, many of which would be covered by different kinds of privilege. We set up a process that would work, and we did a great deal of work within six months. We did better than in many private litigation cases that can go on for years.

I am quite happy with the performance of the Department of Justice in this matter. It put together a process that was fair and a process that worked, and indeed, the judge complimented us at the end of the case.