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.
