Debates of June 17th, 2019

The House resumed consideration of the motion in relation to the amendments made by the Senate to 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

Criminal Code

[Colin Fraser, Liberal, West Nova, NS]

Mr. Speaker, I am pleased to join the debate considering the Senate amendments to 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.

Bill C-75 represents the government's legislative response to reduce delays, modernize the criminal justice system and facilitate the administration of justice by the provinces and territories.

The Senate proposed amendments to the bail, reclassification of offences, victim surcharge and preliminary inquiries provisions of the bill.

I would like to focus my remarks tonight on some of the amendments relating to the reclassification of offences, or hybridization as it is sometimes called.

The reclassification amendments are a key part of the legislative reforms identified by federal, provincial and territorial ministers of justice to reduce delays in the criminal justice system. They would also modernize and streamline the scheme for classifying offences in the Criminal Code.

There are two types of offences in the Criminal Code, those that proceed by summary conviction or by indictment. Some offences can be either. Summary conviction offences deal with less serious conduct, for example, causing a disturbance or trespassing at night, for which the current maximum penalty is normally up to six months imprisonment and/or a $5,000 fine. Indictable offences tend to be for more serious actions, for example, aggravated assault, robbery or murder for which maximum penalties range from two years to life imprisonment.

I failed to inform you, Mr. Speaker, that I will be splitting my time with the member for Mount Royal.

A hybrid offence allows the Crown to choose whether to proceed by indictment or summary conviction, recognizing that the severity of the conduct covered by the offence can vary greatly depending on the circumstances, for example, uttering threats, assault, dangerous operation of a motor vehicle.

Bill C-75 would hybridize 118 straight indictable offences that currently would be punishable by maximum penalties of two, five and 10 years imprisonment. It would also amend the Criminal Code to increase the maximum penalty for most criminal offences with a summary conviction penalty to two years less a day. The maximum penalties are being increased for summary conviction offences. The bill would also increase the current limitation period for all summary conviction offences from six to 12 months.

Indictable offences are often heard in Superior Court and generally take longer to process because of their associated procedural requirements, such as jury trials and preliminary inquiries, which can significantly lengthen the time it takes to complete a case. The reason for the availability of more procedural safeguards for indictable offences is that they carry the risk of much lengthier periods of incarceration.

However, there continues to be many straight indictable offences for which, depending on the circumstances, sentences in the summary conviction range are often appropriate and are in fact being imposed.

Cases involving straight indictable offences where the Crown is seeking sentences in the summary conviction range add unnecessary strain to Superior Courts because though they end up with a summary range sentence, they have been eligible for and have used complicated and time consuming processes to get there.

When an offence is hybrid, the prosecutor can elect to have the case heard either by summary conviction or indictment, based on the severity of the case, the circumstances of the offender and the best resources that fit that case. For this reason, provinces and territories have asked for many more straight indictable offences to be hybridized.

More cases being heard in provincial court would leave Superior Courts with more resources to consider more serious cases, thus speeding up the processing times.

Also, other proposed reforms in Bill C-75, such as restricting the availability of preliminary inquiries to only the most serious offences, will offset any additional workload on provincial courts that might result.

These proposals are not about downloading to the provinces and territories, as some have suggested. They are about providing provinces and territories with the additional flexibility they have asked for so Crown attorneys can choose the process that best aligns with the facts and circumstances of each case.

Some have claimed that changing the classification of offences will change how seriously these crimes will be taken by the system. This is simply not true.

The best indicia of the seriousness of an offence is its maximum available penalty. The hybridization amendments would not change any of the maximum penalties on indictment.

It is already a 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. They can already ask for fines and low or no jail time for most of the indictable offences that Bill C-75 proposes to hybridize. As I have already explained, they often avail themselves of summary range sentences.

I have full faith in our prosecutors to continue to seek appropriate sentences. At the end of the day, it will be the judge who decides. Nothing in Bill C-75 proposes to lower the sentences that would be imposed under the law as it is now. These reforms will not change the fundamental principles of sentencing outlined in section 718 of the Criminal Code, which requires proportionality.

The Senate made three types of amendments to address concerns about possible unintended consequences of the reclassification proposals. One of these further amended section 802.1, to also allow agent representation as authorized by the law of the province. However, this is problematic because we do not have any information about how this amendment would operate with existing provincial and territorial laws. As a result, I am not comfortable supporting this amendment.

I am satisfied that the amendment this chamber supported last December to address this issue gives the provinces and territories sufficient flexibility to quickly address any consequences of the reclassification scheme on agents.

I am pleased to be able to support the other two amendments that the Senate made to the reclassification provisions. These are technical and would amount to maintaining the status quo for the collection of DNA samples of convicted offenders and of fingerprints of accused persons. Discretionary DNA orders are currently available for Criminal Code offences with maximum penalties of five years or more when the Crown proceeds by indictment.

Police have expressed concerns that fewer DNA samples will be collected once the reclassification amendments of Bill C-75 come into force. Senate amendment 1 will maintain the availability of DNA orders for those five- and 10-year indictable offences that Bill C-75 proposes to hybridize.

A similar amendment was moved when the bill was before the justice committee, however, that proposal had been much broader and would have expanded the current availability of DNA orders. Senate amendments 11, 13 and 14 respond to police concerns that the hybridization in Bill C-75 will result in police being able to collect fewer fingerprints.

These amendments change the Identification of Criminals Act, to clarify that fingerprints can be taken for an accused who has been charged with a hybrid offence, even where the Crown has elected to proceed by summary conviction. As we can see, Bill C-75 includes many significant tools to reduce delays in the criminal justice system and to better equip its stakeholders and participants to meet the Jordan time frame.

I support the majority of the Senate amendments and I urge my colleagues to support the government's proposed approach to ensure that this much needed bill is passed before the summer recess.

[David Anderson, Conservative, Cypress Hills—Grasslands, SK]

Mr. Speaker, I am not sure I will be getting up again in Parliament. We are coming to the end of this time and I will not be back in the fall, so I want to take a moment to recognize the staff members who spend so much of their time trying to get us ready so that we can come into the House and do our job. I want to particularly acknowledge my present staff, Anita Hindley, Anna-Marie Young, Joycelin Ng and Tristan McLaughlin, for the work that they do.

In the House we often find ourselves at odds in terms of perspectives on issues and certainly that has been the case with the bill. Liberals have failed in so many areas in terms of justice bills. I think of Bill C-45, when they were told they were going to end up in court over their drunk driving provisions. That certainly is happening.

This bill lessens sentences for dozens of different offences in spite of what the Liberals are saying tonight. I am wondering if the member opposite could tell us why all of their conversation about justice issues is focused basically on giving criminals a break and so little of it is focused on protecting the public and victims of those crimes.

[Colin Fraser, Liberal, West Nova, NS]

Mr. Speaker, although I must reject the premise of the question, I can say a couple of things.

The member mentioned Bill C-45, and Bill C-46 being the companion piece, dealing with impaired driving. Earlier today, a Conservative member talked about MADD Canada. In fact, it supported Bill C-46 and the impaired driving regime that was put in place as a result of Bill C-45 coming into force. Giving police officers the tools they need to keep our roads safe was important. That is why MADD Canada supported this government's proposal in Bill C-46.

As it relates to other initiatives dealing with the criminal justice system, there is a fundamental misunderstanding on the part of those who suggest that, as I dealt with in my speech, giving the Crown more flexibility in determining which procedure to use somehow minimizes the impact of the penalties that would be imposed by the courts. That is simply not true. It is a fundamental misunderstanding of the criminal justice system. I invite my friend to read section 718 of the Criminal Code, which clearly identifies the principles of sentencing, based on the circumstances of the offence and of the offender.

[Arif Virani, Liberal, Parliamentary Secretary to the Minister of Justice and Attorney General of Canada and to the Minister of Democratic Institutions]

Mr. Speaker, I want to compliment the member for West Nova for his work in contributing today and his contributions at the justice committee, which we will significantly miss as he goes back to practice in the fall. However, I want to draw on that legal experience and ask the member two questions that relate to the same feature. He talked about hybridization in his speech. I want to know if the member for West Nova could elaborate on the extent of hybridization currently under the Criminal Code. Also, could he elaborate a bit about the fact that he articulated support at committee for ensuring that, as an exception, terrorism and genocide would remain as straight indictable offences? What qualitatively distinguishes those two types of offences in this discussion?

[Colin Fraser, Liberal, West Nova, NS]

Mr. Speaker, when we are talking about the category of offences, there are already many hybrid offences in the Criminal Code, including things that can be done in various circumstances, from the less serious up to the most serious. We are talking about offences such as sexual assault. That does not impact at all on the sentencing. They are still dealt with in the same way, with the same principles of sentencing, whether or not the Crown proceeds by indictment or summary conviction. The Crown attorneys use this every day. We trust them to make those decisions based on the circumstances of the offence and of the offender.

With respect to the terrorism-related offences and those advocating genocide, which initially were contemplated to possibly be hybridized, at committee, and after hearing from community groups and organizations that could be impacted by this, our committee advanced that those be taken out. They are distinct from the other types of offences that were being hybridized, because they constitute offences against a community. It was felt that it was extremely unlikely that they would ever proceed by way of summary indictment in any event, so they were removed.

[The Deputy Speaker, Bruce Stanton]

Before we go to resuming debate and the hon. member for Mount Royal, I will let him know that we do not have quite enough time for his 10 minutes, but we probably have around eight minutes. Of course, he will have his remaining time when the House next gets back to debate on the question.

The hon. member for Mount Royal.

[Anthony Housefather, Liberal, Mount Royal, QC]

Mr. Speaker, it is an honour and a pleasure to follow the remarks from the hon. member for Victoria and the hon. member for West Nova, both of whom have been outstanding members of the justice committee and will be missed in this place for their wisdom, sincerity, honesty and integrity. I will very much miss both of my colleagues.

I am pleased to rise to talk about the amendments adopted by the Senate at third reading on June 13, 2019.

First and foremost, I would like to thank all members of the other place for their thoughtful consideration of Bill C-75. In particular, I want to thank the Senate Standing Committee on Legal and Constitutional Affairs for its diligent and comprehensive examination of the bill.

This bill proposes major reforms to reduce delays by modernizing the criminal justice system and enhancing the effectiveness and efficiency of procedures, while ensuring the safety of Canadians and seeking to reduce the overrepresentation of indigenous people in the system.

The provinces and territories, along with many members and many stakeholders in the criminal justice system, are looking forward to the enactment of this legislation.

Bill C-75 introduced reforms in seven key areas: modernizing and streamlining bail; enhancing the existing approach to administration of justice offences, including for youth; restricting the availability of preliminary inquiries to offences with penalties of life imprisonment; reclassifying offences; strengthening judicial case management; improving the jury selection process; and implementing other additional efficiencies.

The other place has proposed amendments to the bill related to bail, reclassification of offences, the victim surcharge and preliminary inquiries.

Although the focus of my remarks will be on the other place's amendments related to the preliminary inquiry provisions of the bill, I would like to preface these by highlighting a few other areas that, cumulatively, will improve efficiencies and reduce delays.

Bill C-75 includes widely supported changes to bail provisions. They seek to enact a principle of restraint for the police and the courts to ensure that the earliest possible release of the accused is favoured over detention, while providing additional guidance to the police on how to impose the appropriate conditions.

The bill would improve the approach used for administration of justice offences, such as breach of bail conditions.

These offences represent a significant volume of Canadian criminal court processing. The creation of a judicial referral hearing would result in fewer charges for these offences being laid, given that the hearing would serve as an alternative for bail breaches and failures to attend court in cases where there has been no physical, emotional or financial harm to a victim.

I would now like to turn to the amendments proposed by the other place to the preliminary inquiry reforms in Bill C-75.

As introduced, the bill would have restricted the availability of preliminary inquiries to adults accused of the 70 offences in the Criminal Code for which they could be liable to life imprisonment. The government's objective has been clear from the beginning on this matter: to reduce the number of preliminary inquiries held in Canada to create efficiencies and limit the impact on those who would have to testify twice. In the jurisdictions that hold the majority of these hearings, the improved efficiencies in the criminal justice process could be significant.

Our committee, the House of Commons Standing Committee on Justice and Human Rights, and the Senate Standing Committee on Legal and Constitutional Affairs heard from many stakeholders from the legal community, including the defence bar and Crown attorney associations, such as the Canadian Bar Association and the Barreau du Québec, that opposed such a significant restriction on the availability of preliminary inquiries, arguing that they are vital in providing important evidence to the accused of the case against them.

As a result of these concerns, the committee in the other place moved an amendment that would expand the availability of preliminary inquiries, on a discretionary basis, to all other indictable offences, an additional 393 offences, in two situations. The first would be where one or both parties requested one and a justice was satisfied that appropriate measures were taken to mitigate the impact on victims. The second situation would be where only one party requested a preliminary inquiry, a justice was satisfied that it was in the best interest of the administration of justice that one be held and appropriate measures were taken to mitigate the impact on victims.

As proposed, the amendment would add a step in the criminal justice process to justify holding a preliminary inquiry. It could generate uncertainty for the parties as to whether a preliminary inquiry would be held and would likely result in litigation on the interpretation of the new complex criteria, ultimately leading to additional delays.

Even witnesses who came before our committee who believed that the proposals contained in Bill C-75 were too restrictive agreed that they could add to delays. For example, in her testimony before the Standing Committee on Justice and Human Rights, one of our most incredible witnesses, lawyer Sarah Leamon, from British Columbia, stated:

Now, we know that when a person does decide to go ahead with a preliminary inquiry, the matter will take significantly longer to conclude and is likely to use more judicial resources. That is supported by statistics from Statistics Canada, as well as The Canadian Bar Association....

Given that the amendment was driven by concerns, which were also echoed by members across party lines in this chamber, that the availability of preliminary inquiries was being too severely curtailed by Bill C-75, and I must note that there were many members of our committee who wanted to try to find a way to amend the bill to expand the scope of preliminary inquiries, I am very pleased that the Senate proposed something. The government, in response, is offering a constructive alternative approach. This would involve making preliminary inquiries available for offences carrying a maximum penalty of 14 years or more of imprisonment.

Although this would expand the availability of preliminary inquiries to an additional 86 offences, it would be consistent with the objective of Bill C-75 as introduced as well as with the 2017 federal-provincial consensus to restrict them to offences carrying the most serious terms of imprisonment. This approach would be palatable to jurisdictions that would have further restricted their availability to the most serious offences in the Criminal Code, such as murder and high treason. It would also provide certainty as to which offences would be eligible for a preliminary inquiry and would avoid the risk of litigation inherent in the Senate amendment.

This proposal strikes an artful compromise and a good balance, and I strongly support it.

Overall, this important bill responds to the systemic problem of delays in the criminal justice system, while introducing innovative measures for driving a shift in culture, as noted by the Supreme Court in Jordan.

I ask all my colleagues to support this very good bill and the constructive approach of the government and the Minister of Justice, who I strongly support, to the amendments from the Senate.

[The Deputy Speaker, Bruce Stanton]

The hon. member for Mount Royal will have two minutes remaining for his remarks when the House next gets back to debate on the question, and the usual five minutes for questions and comments following that.

It being 12 a.m., pursuant to an order made on Tuesday, May 28, the House stands adjourned until later this day at 10 a.m pursuant to Standing Order 24(1).

(The House adjourned at 12 a.m.)