Tuesday, June 4, 2019

The Standing Senate Committee on Legal and Constitutional Affairs has the honour to present its

THIRTY-SECOND REPORT

Your committee, to which was referred 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, has, in obedience to the order of reference of April 4, 2019, examined the said bill and now reports the same with the following amendments:

1. New clause 196.1, page 62: Add the following after line 21:

“196.1 (1) Subparagraph (c)(i) of the definition secondary designated offence in section 487.04 of the Act is replaced by the following:

(i) subsection 52(1) (sabotage),

(i.001) subsection 57(3) (possession of a forged passport),

(i.002) section 62 (offences in relation to military forces),

(i.003) subsection 65(2) (riot — concealing identity),

(i.004) subsection 70(3) (contravening order made by governor in council),

(i.005) subsection 82(1) (explosives, possession without lawful excuse),

(i.006) subsection 121(1) (frauds on the government),

(i.007) subsection 121(2) (contractor subscribing to election fund),

(i.008) section 122 (breach of trust by public officer),

(i.009) subsection 123(1) (municipal corruption),

(i.01) subsection 123(2) (influencing municipal official),

(i.011) section 124 (selling or purchasing office),

(i.012) section 125 (influencing or negotiating appointments or dealings in offices),

(i.013) subsection 139(2) (obstructing justice),

(i.014) section 142 (corruptly taking reward for recovery of goods), 

(i.015) section 144 (prison breach),

(i.016) section 145 (escape and being at large without excuse),

(2) Subparagraph (c)(iv) of the definition secondary designated offence in section 487.04 of the Act is replaced by the following:

(iv) section 182 (dead body — neglect to perform duty, improper or indecent interference with),

(iv.1) section 184 (interception of private communication),

(iv.2) section 184.5 (interception of radio-based telephone communications),

(iv.3) section 221 (cause bodily harm by criminal negligence),

(iv.4) section 237 (infanticide),

(iv.5) section 242 (neglect to obtain assistance in child-birth),

(iv.6) subsection 247(1) (traps likely to cause bodily harm),

(iv.7) subsection 247(2) (traps — causing bodily harm),

(iv.8) subsection 247(3) (traps — in a place kept or used for committing other indictable offence),

(iv.9) section 262 (impeding attempt to save life),

(3) Paragraph (c) of the definition secondary designated offence in section 487.04 of the Act is amended by adding the following after subparagraph (viii):

(viii.01) section 280 (abduction of person under 16),

(viii.02) section 281 (abduction of person under 14),

(4) Paragraph (c) of the definition secondary designated offence in section 487.04 of the Act is amended by adding the following after subparagraph (viii.1):

(viii.11) section 291 (bigamy),

(viii.12) section 292 (procuring feigned marriage),

(viii.13) section 293 (polygamy),

(viii.14) section 293.1 (forced marriage),

(viii.15) section 293.2 (marriage under age of 16 years),

(viii.16) section 300 (publishing defamatory libel known to be false),

(viii.17) section 302 (extortion by libel),

(5) Paragraph (c) of the definition secondary designated offence in section 487.04 of the Act is amended by adding the following after subparagraph (viii.2):

(viii.21) paragraph 334(a) (theft over $5,000 or testamentary instrument),

(viii.22) section 338 (fraudulently taking cattle or defacing brand),

(viii.23) subsection 339(1) (take possession of drift timber, etc.),

(viii.24) section 340 (destroying documents of title),

(6) Paragraph (c) of the definition secondary designated offence in section 487.04 of the Act is amended by adding the following after subparagraph (x):

(x.1) subsection 351(2) (disguise with intent),

(x.11) paragraph 355(a) (possession of property over $5,000 or testamentary instrument),

(x.12) section 357 (bring into Canada property obtained by crime),

(x.13) paragraph 362(2)(a) (false pretence, property over $5,000 or testamentary instrument),

(x.14) subsection 362(3) (obtain credit, etc. by false pretence),

(x.15) section 363 (obtain execution of valuable security by fraud),

(x.16) subsection 377(1) (damaging documents),

(x.17) section 378 (offences in relation to registers),

(x.18) section 382 (manipulation of stock exchange),

(x.19) subsection 382.1(1) (prohibited insider trading),

(x.2) section 383 (gaming in stocks or merchandise),

(x.21) section 384 (broker reducing stock by selling his own account),

(x.22) section 386 (fraudulent registration of title),

(x.23) section 394 (fraud in relation to minerals),

(x.24) section 394.1 (possession of stolen minerals),

(x.25) section 396 (offences in relation to mines),

(x.26) section 397 (falsification of books and documents),

(x.27) section 399 (false return by public officer),

(x.28) section 400 (false prospectus),

(x.29) section 405 (acknowledging instrument in false name),

(7) Paragraph (c) of the definition secondary designated offence in section 487.04 of the Act is amended by adding the following after subparagraph (xi):

(xi.1) section 424 (threat against an internationally protected person),

(xi.11) section 424.1 (threat against United Nations or associated personnel),

(xi.12) section 426 (secret commissions),

(xi.13) section 435 (arson for fraudulent purpose),

(xi.14) section 436 (arson by negligence),

(xi.15) section 436.1 (possession incendiary material),

(xi.16) subsection 438(1) (interfering with saving of a wrecked vessel),

(xi.17) subsection 439(2) (interfering with a marine signal),

(xi.18) section 441 (occupant injuring building),

(xi.19) section 443 (interfering with international boundary marks, etc.),

(xi.2) section 451 (having clippings, etc.),

(xi.21) section 460 (advertising and dealing in counterfeit money),

(xi.22) subparagraphs 465(1)(b)(i) and (ii) (conspiracy to prosecute),

(xi.23) section 753.3 (breach of long-term supervision).”.

2. Clause 235, page 88: Add the following after line 11:

“(7) In this section, judge, in the Province of Quebec,

(a) in the case where the order that the accused be detained in custody has been made by a judge of the superior court of criminal jurisdiction of the Province of Quebec, has the same meaning as in paragraph (b) of the definition judge in section 493; and

(b) in any other case, means a judge of the superior court of criminal jurisdiction of the province, a judge of the Court of Quebec or three judges of the Court of Quebec.”.

3. Clause 239, pages 90 and 91:

(a) On page 90, replace line 28 with the following:

“a court composed of a judge and jury. If you elect to be tried by a judge without a jury or by a court composed of a judge and jury or if you are deemed to have elected to be tried by a court composed of a judge and jury, you will have a preliminary inquiry only if you or the prosecutor — or both — request one and that request is authorized by the justice. How do you elect to be tried?”; and

(b) on page 91, add the following after line 5:

“(4.01) If an accused referred to in subsection (2.1) elects to be tried by a judge without a jury or by a court composed of a judge and jury, if an accused does not elect when put to the election or is deemed under paragraph 565(1)(a) to have elected to be tried by a court composed of a judge and jury, or if an accused is charged with an offence listed in section 469 that is not punishable by imprisonment for life, the justice shall, on the joint request of the accused and the prosecutor that is made at that time or within the period fixed by rules of the court made under section 482 or 482.1 — or, if there are no such rules, by the justice — hold a preliminary inquiry into the charge, if the justice is satisfied that appropriate measures have been taken to mitigate the impacts on any witness likely to provide evidence at the inquiry, including the complainant.

(4.02) If an accused referred to in subsection (2.1) elects to be tried by a judge without a jury or by a court composed of a judge and jury, if an accused does not elect when put to the election or is deemed under paragraph 565(1)(a) to have elected to be tried by a court composed of a judge and jury, or if an accused is charged with an offence listed in section 469 that is not punishable by imprisonment for life, the justice may, subject to section 577, on the request of the accused or the prosecutor that is made at that time or within the period fixed by rules of the court made under section 482 or 482.1 — or, if there are no such rules, by the justice — hold a preliminary inquiry into the charge, if the justice is satisfied that it is in the best interests of the administration of justice to hold one and that appropriate measures have been taken to mitigate the impacts on any witness likely to provide evidence at the inquiry, including the complainant.”.

4. Clause 240, pages 92 and 93:

(a) On page 92, replace line 34 with the following:

“of a judge and jury. If you elect to be tried by a judge without a jury or by a court composed of a judge and jury or if you are deemed to have elected to be tried by a court composed of a judge and jury, you will have a preliminary inquiry only if you or the prosecutor — or both — request one and that request is authorized by the justice. How do you elect to be tried?”; and

(b)  on page 93, add the following after line 4:

“(3.1) If an accused referred to in subsection (2.1) elects to be tried by a judge without a jury or by a court composed of a judge and jury, if an accused does not elect when put to the election or is deemed under paragraph 565(1)(a) to have elected to be tried by a court composed of a judge and jury, or if an accused is charged with an offence listed in section 469 that is not punishable by imprisonment for life, the justice shall, on the joint request of the accused and the prosecutor that is made at that time or within the period fixed by rules of the court made under section 482 or 482.1 — or, if there are no such rules, by the justice — hold a preliminary inquiry into the charge, if the justice is satisfied that appropriate measures have been taken to mitigate the impacts on any witness likely to provide evidence at the inquiry, including the complainant.

(3.2) If an accused referred to in subsection (2.1) elects to be tried by a judge without a jury or by a court composed of a judge and jury, if an accused does not elect when put to the election or is deemed under paragraph 565(1)(a) to have elected to be tried by a court composed of a judge and jury, or if an accused is charged with an offence listed in section 469 that is not punishable by imprisonment for life, the justice may, subject to section 577, on the request of the accused or the prosecutor that is made at that time or within the period fixed by rules of the court made under section 482 or 482.1 — or, if there are no such rules, by the justice — hold a preliminary inquiry into the charge, if the justice is satisfied that it is in the best interests of the administration of justice to hold one and that appropriate measures have been taken to mitigate the impacts on any witness likely to provide evidence at the inquiry, including the complainant.”.

5. Clause 278, page 113: Replace lines 9 and 10 with the following:

“261 or 462.37, subsection 491.1(2), 730(1) or 737(2.1) or (3) or section 738, 739, 742.1, 742.3, 743.6, 745.4”.

6. New clause 292.1, page 123: Add the following after line 5:

“292.1 The Act is amended by adding the following after section 718.03:

718.04 When a court imposes a sentence for an offence that involved the abuse of an intimate partner — and, in particular, a partner who is vulnerable on the basis of sex or is an Aboriginal person — the court shall give primary consideration to the objectives of denunciation and deterrence of the conduct that forms the basis of the offence.”.

7. Clause 293, page 123: Replace line 9 with the following:

“offence, abused the offender’s intimate partner or a member of the victim or the offender’s family,

293.1 The Act is amended by adding the following after section 718.2:

718.201 A court that imposes a sentence in respect of an offence that involved the abuse of an intimate partner shall consider the increased vulnerability of female persons who are victims, giving particular attention to the circumstances of Aboriginal female victims.”.

8. Clause 301, pages 126 and 127:

(a)  On page 126, replace lines 1 to 36 with the following:

“301 Section 737 of the Act is replaced by the following:

737 (1) An offender who is convicted, or discharged under section 730, of an offence under this Act, the Controlled Drugs and Substances Act or the Cannabis Act shall pay a victim surcharge for each offence, in addition to any other punishment imposed on the offender.

(2) Subject to subsections (2.1) and (3), the amount of the victim surcharge in respect of an offence is

(a) 30% of any fine that is imposed on the offender for the offence; or

(b) if no fine is imposed on the offender for the offence,

(i) $100 in the case of an offence punishable by summary conviction, and

(ii) $200 in the case of an offence punishable by indictment.

(2.1) Despite subsection (1), the court may, on application of the offender or on its own motion, order an offender to pay no victim surcharge, or to pay a reduced amount, if it is satisfied that the victim surcharge

(a) would cause undue hardship to the offender; or

(b) would not cause undue hardship to the offender but would be disproportionate to the gravity of the offence or the degree of responsibility of the offender.

(2.2) For the purposes of subsection (2.1), undue hardship means the offender is unable to pay a victim surcharge on account of the offender’s precarious financial circumstances, including because of their unemployment, homelessness, lack of assets or significant financial obligations towards their dependants.

(2.3) For greater certainty, for the purposes of subsection (2.2), the imprisonment of the offender alone does not constitute undue hardship.

(2.4) When the court makes an order under subsection (2.1), the court shall state its reasons in the record of the proceedings.

(3) The court may order an offender to pay a victim surcharge in an amount exceeding that set out in subsection (2) if the court considers it appropriate in the circumstances and is satisfied that the offender is able to pay the higher amount

(4) The victim surcharge imposed in respect of an offence is payable within the time established by the lieutenant governor in council of the province in which the surcharge is imposed. If no time has been so established, the surcharge is payable within a reasonable time after its imposition.

(5) A victim surcharge shall be applied for the purposes of providing such assistance to victims of offences as the lieutenant governor in council of the province in which the surcharge is imposed may direct from time to time.

(6) The court shall cause to be given to the offender a written notice setting out

(a) the amount of the victim surcharge;

(b) the manner in which the victim surcharge is to be paid;

(c) the time by which the victim surcharge must be paid; and

(d) the procedure for applying for a change in any terms referred to in paragraphs (b) and (c) in accordance with section 734.3.

(7) Subsections 734(3) to (7) and sections 734.3, 734.5, 734.7, 734.8 and 736 apply, with any modifications that the circumstances require, in respect of a victim surcharge imposed under this section and, in particular,

(a) a reference in any of those provisions to “fine”, other than in subsection 734.8(5), must be read as if it were a reference to “victim surcharge”; and

(b) the notice provided under subsection (6) is deemed to be an order made under section 734.1.

(8) Subsections (2.1) to (2.4) apply to any offender who is sentenced for an offence under this Act, the Controlled Drugs and Substances Act or the Cannabis Act that was committed after the day on which those subsections come into force.”; and

(b) on page 127, delete lines 1 to 18.

9. Clause 314, page 134: Replace lines 14 and 15 with the following:

“section 259 or 261, subsection 730(1) or 737(2.1) or (3) or section 738, 739, 742.1 or 742.3,”.

10. Clause 317.1, page 135: Replace line 25 with the following:

“(c) the agent is authorized to do so under

(i) the law of the province; or

(ii) a program”.

11. Clause 388, page 183: Replace lines 6 and 7 with the following:

“388 (1) Paragraph 2(1)(a) of the Identification of Criminals Act is amended by striking out “or” at the end of subparagraph (i), by adding “or” at the end of subparagraph (ii) and by adding the following after subparagraph (ii):

(iii) an offence punishable on summary conviction if that offence may also be prosecuted as an indictable offence described in subparagraph (i);

(2) Paragraph 2(1)(c) of the Act is replaced by the following:”.

12. Clause 401, page 187:

(a) Replace line 15 with the following:

“401 (1) Subsections (2) and (3) apply in Bill C-45, in-”; and

(b) delete lines 27 to 36.

13. Clause 406, page 197: Replace lines 27 and 28 with the following:

“to 353, subsection 370(1), sections 376 to 379, 382 and 385, subsection 388(1) and sections 399 and 400.1 come into force on the 90th”.

14. Clause 407, page 197: Replace line 42 with the following:

“370(2), sections 371 to 375, 380, 381 and 387, subsection 388(2) and sections 389 to 393, 396 to”.

Your committee has also made certain observations, which are appended to this report.

Respectfully submitted,

Observations

to the Thirty-Second Report of the Standing Senate Committee on Legal and Constitutional Affairs (Bill C-75)

Observation 1

General Observation

The committee appreciates that Bill C-75 responds in part to the 50 recommendations contained in its final report on delays in criminal proceedings, published in June 2017 and entitled Delaying Justice is Denying Justice: An Urgent Need to Address Lengthy Court Delays in Canada. The committee notes, however, that much remains to be done to modernize and improve the efficiency and fairness of the criminal justice system. Urgent action must still be taken to address the committee’s recommendations that are not addressed in Bill C-75.

Observation 2

Criminal Code reform

The committee recalls its fifth recommendation contained in its Delaying Justice is Denying Justice report:

The committee recommends that the Government of Canada establish an independent body of experts with a mandate to undertake a comprehensive and impartial review of the Criminal Code and provide recommendations for the modernization and reform of this law.

The committee believes that such an independent body of experts is still very much required, and its mandate should address the issues raised in this present report on Bill C-75.

Observation 3

Women and the Justice System

Parliament has a duty to ensure the justice system protects women. The committee heard evidence of how the criminal justice system is failing all women, with differential impacts on women of colour, newcomer women and Indigenous women. The committee is also concerned that the use of neutral legal language in Bill C-75 means that the systemic discrimination against women, found throughout the criminal justice system, will go unnoticed.

Women account for the vast majority of victims of criminal assault, whether of a sexual nature or not, and they do not receive the services they need to ensure they can denounce their assailant. This is a particularly pressing concern for Indigenous women, who are disproportionately affected. Women are often left to their own devices when they are in what could be an extremely vulnerable situation, including at the time when:

• a report of the incident is made to the police;

• the investigation is underway;

• preparations are made for the trial, in the very few situations where the decision is made to proceed;

• they must get on with their lives where the decision is made not to proceed;

• the trial is held;

• a judgement is rendered or an acquittal or a stay of proceedings is ordered; and

• they must get on with their lives when the proceedings are over.

Witnesses suggested an open and ongoing examination of certain key issues pertaining to violence against women, such as: dual-charging in cases of intimate partner violence; establishing civilian oversight of police investigations in cases of sexual assault; criminal law reform to bring increased clarity to sexual assault provisions; implementing a practice of conducting and publishing an Indigenous Women Impact Analysis on all criminal justice reform bills; and, exploring solutions to the devastating frequency with which Crown prosecutors elect to stay, withdraw, or not proceed with charges in cases of male violence against women, whether it be sexual assault, intimate partner violence or sexual exploitation.

In his letter of 10 May 2019 addressed to the Chair of the committee, the Minister of Justice provided data used for the gender-based analysis plus (GBA+) that was prepared for Bill C-75. The content of this submission was in keeping with other evidence provided to the committee, all of which confirms that many of these concerns require further action.

Accordingly, the committee calls on the Minister of Justice to:

• explore and undertake broader, systemic reforms to strengthen the delivery of justice for women;

• closely study and take action on the report of the National Inquiry into Missing and Murdered Indigenous Women and Girls published on 3 June 2019; and

• immediately make the necessary amendments to the Criminal Code to incorporate the findings from the Bill C-75 GBA+ analysis, while acknowledging the importance of an intersectional analysis that examines how different identity factors shape individuals’ experiences of gender-based violence against women.

Observation 4

Mandatory Minimum Sentences

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 and Attorney General of Canada of 12 November 2015, it was clearly stated that the Minister of Justice 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 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.

Observation 5

Unintended risk of deportation for non-citizens

The committee notes that increasing maximum sentences for summary conviction offences may expose permanent residents and foreign nationals to deportation proceedings under the Immigration and Refugee Protection Act, since they can be deported without a right of appeal before the Immigration Appeal Division if convicted of an offence and sentenced to a term of imprisonment of six months or more. This increase in the maximum sentence for summary conviction offences should not reflect an intent to treat these offences more punitively, nor should it reflect an intent that offenders be “doubly-punished” by being deported after serving their sentence. The unintended consequence of increasing the number of individuals facing deportation would contravene the spirit of Bill C-75 and likely further aggravate court delays.

The mandate of the independent body of experts mentioned above in the second observation should include a review of how the Immigration and Refugee Protection Act is impacted by increased sentences for summary convictions in the Criminal Code.

Observation 6

Resources for federal prosecutors

The Committee notes that while Bill C-75 could help reduce delays within the criminal justice system, it does not provide a complete solution to the problem.

To make the criminal justice system more efficient, the bill must come with greater resources for the criminal justice system. The committee recalls the conclusion of its report Delaying Justice is Denying Justice that a lack of resources and insufficient funding has been contributing to court delays and that “underfunding has been particularly challenging for many Crown prosecutors across Canada” (at page 34).

In this regard, the Committee is particularly concerned about the lack of adequate funding within the Public Prosecution Service of Canada (PPSC). The Committee believes that the lack of adequate funding within the PPSC will undermine the bill’s ability to reduce court delays.

Observation 7

Victim Surcharge

The committee heard from Department of Justice officials that in light of the Supreme Court of Canada’s decision in R. v. Boudreault, 2018 SCC 58 (which dealt with the constitutionality of the current victim surcharge provisions), it has been in dialogue with the Public Prosecution Service of Canada (PPSC) and provincial governments with regard to the collection of unpaid victim surcharges imposed between 2013 and 2018. The committee was informed that the PPSC has decided not to collect these unpaid victim surcharges. The committee invites provincial fine collection authorities to do the same.