Murray Rankin

[Criminal Code, June 17th, 2019]

Mr. Speaker, I would like to thank my friend for West Nova, who has been an excellent member of the justice committee and with whom I have enjoyed working a great deal.

I have been told more than once that hybridization was sought by the provinces. That might be the old adage of be careful what you wish for, because while I completely agree that the reforms to administration of justice matters and bail will help a great deal, I think we need to do root and branch work if we are ever going to address the burden the Jordan case will impose on provincial governments. I mentioned, for example, drug courts. I mentioned some of the more positive reforms that are taking place in some jurisdictions, British Columbia and Quebec among them. However, unless we do that, it is just impossible for me to understand, when we add all the additional offences that will be dealt with at the provincial court level, how this additional burden will not clog the system.

I would be interested to know what the provincial ministers with whom the member has been speaking have to say, because those with whom I have spoken are very concerned.

[Criminal Code, June 17th, 2019]

Mr. Speaker, when the government speaks to this, it claims it has had conversations at federal, provincial and territorial meetings with their counterparts in the provinces and territories. The people I talked to were very worried about the downloading. The claim is that is not an issue, but I cannot see why it would not be when so many of these offences are being hybridized and then, of course, will be dealt with in provincial courts.

The problem is that not only are 95% of criminal cases in provincial courts, but the people are often unrepresented, whom the courts bend over backward to help. They have mental health issues frequently and are involved in the drug world and that is what clogs the courts. We are not doing much about that and there is a crisis in legal aid. Everyone knows we do not fund legal aid enough, the federal or provincial governments, so there are unrepresented litigants who are themselves taking a great deal of time.

Thankfully, there are some reforms in places like British Columbia drug courts and the like that deal with these things in a much more focused way, which hopefully will make a difference, but the problem of downloading has to be taken seriously. I just hope at the next federal-provincial-territorial meetings we can address this issue more specifically.

[Criminal Code, June 17th, 2019]

Mr. Speaker, I acknowledge the member for Richmond Centre's advocacy on behalf of seniors and the elder abuse issue. I am very familiar with it in my riding of Victoria, as members might imagine.

The possibilities of fitting the punishment to the crime have to be taken seriously. It was the Conservatives, sadly, who visited upon Canadians the mandatory minimums, which took away the discretion courts would have to do just that. However, the possibilities in this bill, through better administration of justice reforms, better bail provisions and, interestingly, contrary to the Conservatives' analysis, allowing more hybrid offences to go to the provincial court on summary conviction would encourage more prosecutors to go forward with cases. They might have been hesitant in the past to do that because they were serious indictable assaults and the like and now perhaps they would be more willing to do so when they are preceded by a summary conviction. That can be a positive step in the right direction as well.

[Criminal Code, June 17th, 2019]

Mr. Speaker, I would like to thank the parliamentary secretary for his thoughtful question.

I agree with him that we have to find a better way to get more discretion to judges. Again, that was the thrust of my comments about mandatory minimums. It is sad that we do not have the opportunity for judges to look at aboriginal offenders as people rather than simply checking a box, saying that this is the penalty for that offence and that is the end of the story.

However, I do agree with the parliamentary secretary that it is refreshing and positive that Judge Buller was able to talk to the Senate. We did not have that opportunity at the justice committee. To have the Senate instantly put into this bill some of the insights that the commissioner generated, I think is very positive. Whether they will go as far as we would like in dealing with the outrageous overrepresentation of indigenous women in our prisons, I do not think so, but it certainly is a positive step.

[Criminal Code, June 17th, 2019]

Mr. Speaker, I was just making the point that the Criminal Lawyers' Association has made, about why mandatory minimum sentences are important. It is because if a criminal lawyer has the possibility, a zero-sum gain, that his or her client will get the minimum sentence that is there with no discretion of the judges to forge a penalty that is appropriate in the circumstances, the lawyer is not going to cut any deals. There will be no plea bargaining. There will be no efficiency. Therefore, the greatest single efficiency gain would have been what the Prime Minister promised us would happen, which is that mandatory minimum sentences, the way the Conservatives did it, would be eliminated. That was the promise that Canadians received over and over again, only to be completely thrown out in this bill.

It is a gigantic reform initiative. To be fair, it is all pertaining to criminal law but is a gigantic effort with this gigantic problem completely ignored. It is not a problem that I alone identify as an obstacle to efficiency gains and to addressing the crisis that Jordan represents, of people walking free from very serious crimes because we cannot get a trial in a reasonable amount of time. For reasons that escape me, the Liberals completely ignored that and did a number of other things, some of which are commendable but do not do what the objective of the bill was to be, which was to address the issue of inefficiency. That is the problem that the Criminal Lawyers' Association pointed out.

The courts have been reduced to simply being, as some people call them, slot machines of justice. They have no discretion at all. If the facts are made out, the penalty is there. It is push a button. Some judges have complained to me privately that they feel like they are simply automatons. That is not what judges historically have done. The Conservatives rendered them in this position that is invidious and, frankly, embarrassing to many judges. What they thought they had the power to do, which was to render an appropriate sentence to fit the crime, was thrown out the window when mandatory minimums were imposed on so many of the sentences in the Criminal Code.

We also have a crisis in Canada with the overrepresentation of indigenous women in particular. To his credit, the Minister of Justice referred to this problem. We all are aware of it. It is another national disgrace. Jonathan Rudin testified to the justice committee. He is a very memorable witness. He is a lawyer with the Aboriginal Legal Services in Toronto. He highlighted the government's inaction with regard to abolishing mandatory minimum sentences and its particular effect on indigenous women. Here is what he said:

...we have to look at the fact that there are still mandatory minimum sentences that take away from judges the ability to sentence indigenous women the way [judges] would like [them] to be sentenced. There are still provisions that restrict judges from using conditional sentences, which can keep women out of prison.

The first thing he urged the committee to recommend was to bring into legislation that judges have sentencing discretion, which the Liberals promised to do and did not.

I suspect the problem is much worse now, but in 2015 the proportion of indigenous adults in custody relative to their percentage of the population was eight times higher for indigenous men and a staggering 12 times higher for indigenous women. Any measure that could address this problem head-on has to be looked at seriously. The government's failure to address what the mandate letter from the Prime Minister told us it would do is a serious missed opportunity.

I would like to turn to preliminary inquiries, which the minister also referred to and was the subject of some of the reform proposals that the Senate brought forward. The Senate legal and constitutional affairs committee passed an amendment to Bill C-75 that would bring back the option for preliminary inquiries for hundreds of criminal offences. Since Bill C-75 was first introduced in the House, the NDP has been advocating that preliminary hearings be retained in criminal proceedings. The Senate is attempting to reverse the government's move to eliminate preliminary inquiries for all offences, except for offences carrying a sentence of life imprisonment.

Senator Pierre Dalphond, a former judge, passed an amendment to bring back the option of preliminary inquiries for most indictable offences, as long as the judge ensures that the impact on complainants is mitigated.

The Liberals argue that this will cost court time, but we heard at the justice committee over and over again testimony that, if we got rid of preliminary inquiries, time saving would actually be marginal and the potential for miscarriage of justice would be great.

While the government has accepted many of the Senate amendments, it is using its motion to continue to severely limit the use of preliminary hearings. We have opposed this measure since Bill C-75 was brought to the House, and our stance, I am confident, remains the correct one.

The Liberals at the House justice committee voted to allow preliminary inquiries only when the maximum sentence is life imprisonment. The other place amended this provision to allow far more judicial discretion, increasing the number of offences that could have a preliminary inquiry from 70 to 463. The minister pointed out that they tried to find some middle ground on this issue.

Overwhelmingly, we heard from witnesses at the justice committee that restricting the use of preliminary inquiries will not address court delays sufficiently and will sacrifice or could sacrifice the rights of the accused. For example, Ottawa criminal defence lawyer Michael Spratt said at the committee that preliminary inquiries occupy a very small percentage of court time but “deliver huge savings to the system. Preliminary inquiries deliver these efficiencies in a number of different ways.” They focus issues for trial, reducing trial length; they identify evidentiary or legal problems in a case at an early stage so the parties can ensure that these problems don't arise during the trial; and they can facilitate the resolution of charges.

He was not alone. Time does not allow me to list all the people who agreed with Mr. Spratt, but they include the Canadian Bar Association; the Criminal Lawyers' Association; the Alberta Crown Attorneys' Association, the prosecution side; various defence lawyers, such as Sarah Leamon, a criminal lawyer; Professor Lisa Silver of the University of Calgary, and on and on, yet the government did not want to go there. I cannot, for the life of me, understand why.

There is also a huge possibility that with taking preliminary inquiries away, there could be a risk that people will be wrongfully convicted. That is what Bill Trudell, the chair of the Canadian Council of Criminal Defence Lawyers, said. The government says we do not need them because we now have what are called Stinchcombe disclosure provisions, Stinchcombe being a famous case requiring the Crown to provide all the evidence available to the defence witnesses. The government says that, as a result, we do not need preliminary inquiries. That certainly is not what these people have said, and on a risk-benefit analysis they think it is just not right. The possibility of a wrongful conviction seems to be something we should all be worried about.

I know that time is running out quickly, but I said I would comment on some of the positive things in the bill, and I would like to do so.

First, there is the elimination of what are called “zombie” provisions of the Criminal Code, which criminalize things that are no longer illegal. These provisions have been found to be unconstitutional and have no place in the Criminal Code.

The bill would restore the discretion of judges to impose fewer victim fine surcharges or not impose them at all. I commend the government for that step as well.

I said in my question for the Minister of Justice earlier that I commend the government for broadening the definition of intimate partner violence. That is a good step. Creating an alternative process for dealing with breaches of bail is another good step. Codifying the so-called ladder principle, which requires that the least onerous form of release be imposed, is a good thing as well.

I agree with the government, and I confess not everybody does, that abolishing peremptory challenges is a positive step. Also, the routine police evidence provision has been amended for the good.

For the LGBTQ2+ community, the vagrancy and bawdy house provisions that were often used in the past to criminalize gay men have been rightly repealed. I am proud of the role that I played at the justice committee in moving those amendments, and I commend the government for finally repealing these discriminatory provisions.

I wish to be on record as saying that there is much in this bill that is commendable. It is the fact of the missed opportunity that is so disturbing.

I still have concerns about the many hybrid offences created in Bill C-75, because contrary to what the hon. Conservative member for Sarnia—Lambton said earlier, all this does is to push them down to the already overburdened criminal courts at the provincial level. The more hybrid offences, which proceed by way of summary rather than indictment, go to the provincial courts, where 95% of all criminal matters already take place. I have talked to people in my province of British Columbia who are very concerned about the impact of this on the administration of justice in that province. Jordan is perhaps not as much of a problem in the superior courts, but is a bigger problem in the provincial courts. Surely, that was not the intent.

I know that I have little time left, but I want to complete the point I made earlier about Madam Justice Marion Buller, the chief commissioner for the National Inquiry into Missing and Murdered Indigenous Women and Girls. She had the opportunity to go to the Senate committee with her report. A number of suggestions were made for reform in the other place and are now in the amendments before this House. I am very happy that that has happened. However, there are still serious problems with some of the legacies of residential schools and the sixties scoop that still need to be addressed.

I believe my time is almost at an end, so let me just say this. I wish we could support this bill. There is much in it that is worthwhile, but the failure to do what the Prime Minister told us they would do, deal with the mandatory minimums, and the inability to address the preliminary inquiries in a more manageable way, are the reasons we must respectfully oppose this bill.

[Criminal Code, June 17th, 2019]

Mr. Speaker, it is a pleasure to rise, albeit at this hour, to discuss Bill C-75 and the Senate amendments that have been brought to this place from there.

I agree with the thrust of the Senate amendments on behalf of the New Democratic Party, which supports the thrust of those amendments, but reluctantly have to say that, as amended, we must oppose this bill for the reasons I will describe.

I agree with the Minister of Justice, who spoke earlier, about some of the positive changes in this initiative. The bail reform provisions are exemplary. The intimate partner violence provisions are also very good. I am pleased that the Senate had the opportunity to deal with some of the recommendations by Judge Marion Buller, who, of course, chaired the inquiry into murdered and missing indigenous women and girls. She had the benefit of testifying before the Senate committee and, in turn, it had the ability to reflect her wisdom. That finds its way into the amendments before us tonight.

This improves the bill quite significantly, as I will describe, but there are some very significant issues that remain. I want to commend our colleagues in the other place for the work they have done to improve this flawed bill. We need to thank them for some of the work they had the opportunity to do.

We too, on the NDP side, have done an enormous amount of research and consultation, with people from the criminal defence bar, academics, prosecutors, former deputy attorneys general and others. We have done our homework on Bill C-75. After all, it is a mammoth initiative, the most significant criminal justice reform bill in a very long time. Regrettably, as a result of those consultations, we concluded that we must continue to oppose the bill, for reasons I will describe in a moment.

To be clear, we are in support of the amendments made by the Senate, yet decry the government's inadequate response to those amendments and ultimately have to therefore oppose the final bill as amended.

To begin with, why was Bill C-75 initiated? The Minister of Justice was clear about that in his remarks earlier. He alluded to the Askov case in the Supreme Court of Canada, and then, of course, the Jordan decision. The court said that there has to be a trial within a timely period, and it set down very specific limits for both indictable and summary conviction cases.

The objective was one of efficiency. It was to try to make our courts more efficient to deal with the enormous and, quite frankly, embarrassing backlog we have with our court cases, and to deal with the consequence of the Jordan case. As we know, often people who are guilty of offences walk free because the courts are not able to give them a trial within a reasonable period. That has to be an embarrassment to all Canadians.

Efficiency was the goal of this bill. However, after the consultation I just described, the debate in the House, and the work I was part of on the justice committee, where we heard a great variety of presentations, we concluded it is simply not an adequate response to the Jordan problem.

As I alluded to earlier, there are some good things in this bill, which I will also refer to later. However, sadly some of the deeply problematic things continue in the bill. I want to talk, by way of giving illustrations, of the general concerns that the criminal justice bar has had with this bill. I will start Ms. Sayeh Hassan, who is a Toronto-based criminal defence lawyer. By way of summary, she said, “While there are parts of Bill C-75 that have the potential for improving the criminal justice system, many other parts will not only be unhelpful when it comes to reducing delay but will also wipe out numerous rights currently afforded to an accused person.”

The big ugly elephant in the room is the fact that the government chose to completely ignore what so many people have talked about, which is the need to get rid of mandatory minimum sentencing. We had a reasonable hope that it would do so. After all, the Prime Minister told the former minister of justice that it was part of her mandate. Nothing happened.

Sean Fine, of the Globe and Mail, wrote:

As far back as October, 2016, the [former attorney general] told the Criminal Lawyers' Association in a speech that she would change the minimum sentencing laws “in the near future.” Days later, she told The Globe that new legislation would be coming soon, “certainly in the early part of next year.”

It never happened.

Our colleagues in the other place made a similar observation. It is the fourth item on their list of formal observations. I think it is worth repeating what they summarized. Under “Mandatory Minimum Sentences”, it says:

In its Delaying Justice is Denying Justice report, the Committee recommended that the Minister of Justice undertake a thorough review of existing mandatory minimum sentences in order to: ensure a reasonable, evidence-based approach to when they are appropriate; and consider whether persons with mental health issues should be considered for alternative sentencing options or treatment when faced with mandatory minimum sentences.

During its study of Bill C-75, some witnesses expressed significant disappointment that it does not include any reforms to the mandatory minimum sentencing provisions in the Criminal Code. In the Mandate Letter to the Minister of Justice...of 12 November 2015, [the Prime Minister] stated that the Minister...was to “conduct a review of the changes in our criminal justice system and sentencing reforms over the past decade.” In the Minister’s letter to the Chair of the committee, he stated that the Government “is committed to advancing sentencing reform” and that it is “committed to reviewing the mandatory minimum penalties in the Criminal Code with an eye to eliminating many of them and restoring judicial discretion.”

The committee [of the Senate] observes that the Government of Canada has had four years to bring forward amendments to these provisions in the Criminal Code and that, to date, no legislative action has been taken.

I join with my colleagues in the other place in noting that the government's failure to address the often unconstitutional mandatory minimums cannot be understated. It is a serious problem.

This led the Criminal Lawyers' Association to write in its position paper that “Mandatory minimum sentences frustrate the process of resolving cases by limiting the Crown’s discretion to offer a penalty that will limit the crowns ability”—

[Criminal Code, June 17th, 2019]

Mr. Speaker, I would like to congratulate the minister on his speech. I agree, on behalf of the NDP, with the thrust of his remarks with respect to the Senate amendments made to Bill C-75, certainly with respect to intimate partner violence and the bail reform provisions and, in particular, the section 802.1 where law students and agents will again be able to represent people fully in summary conviction matters. I think these are all really important matters and I agree with him.

However, surely, if the issue is about the Askov and Jordan delay principles, the elephant in the room would be the fact that the government has failed to follow up on the Prime Minister's commitment to address to the minister, in the mandate letter, the minimum mandatory sentences provisions. I agree with him that we have a crisis in the over-incarceration of indigenous people, eight times as many indigenous men per capita, 12 times as many women.

Jonathan Rudin and others who work with Aboriginal Legal Services, say that there has to be a change in the mandatory minimum provisions if we are going to change that. Why does the government not get that?

[Questions Passed as Orders for Returns, June 17th, 2019]

With regard to the case of Abousfian Abdelrazik and his claims that Canada violated his rights under the Canadian Charter of Rights and Freedoms, since June 1, 2018: how much has it cost the government to litigate the case, broken down by (i) the value of all legal services, (ii) disbursements and costs awards for Federal Court file numbers T-727-08 and T-1580-09?

[Petitions, June 14th, 2019]

Mr. Speaker, the second petition concerns the housing crisis in our country.

Currently, over a quarter of a million Canadians experience homelessness every year and 90% of the funding for the government's so-called national housing strategy will only flow after the next election.

The petitioners call on the government to bring forward 50% of the strategy's funding before the next election.

[Petitions, June 14th, 2019]

Mr. Speaker, I have two petitions to present to the House today.

The first petition is an e-petition from Mr. Roger Clark of Ottawa calling on the government to appoint an independent commissioner to conduct a public inquiry into the circumstances regarding Dr. Hassan Diab's extradition.