Proceedings of the Standing Senate Committee on
Legal and Constitutional Affairs
Issue No. 60 - Evidence - May 1, 2019
OTTAWA, Wednesday, May 1, 2019
The Senate Standing Committee on Legal and Constitutional Affairs, 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, met this day at 3:32 p.m. to give consideration to the bill.
Senator Serge Joyal (Chair) in the chair.
[Translation]
The Chair: Honourable senators, I welcome you to this session of the committee.
[English]
It is my pleasure this afternoon to welcome the Minister of Justice and Attorney General of Canada, the Honourable David Lametti.
[Translation]
Welcome, minister. You are accompanied by Mr. François A. Daigle, Associate Deputy Minister, who we have previously had the pleasure of receiving in this committee, and Ms. Laurie Wright.
Mr. Minister, you know the topic of our study today, Bill C-75, which amends several provisions of the Criminal Code of Canada following various decisions by Canadian courts. We look forward to hearing from you.
[English]
The floor is yours, minister.
[Translation]
Hon. David Lametti, P.C., M.P., Minister of Justice and Attorney General of Canada: Good afternoon, Mr. Chair. I am pleased to be here today with my colleagues as this committee begins its study of Bill C-75.
I would first like to thank the committee for the important role that it plays in studying the problem of delays in the criminal justice system. Your report on this matter contained timely information and gave an overview of the causes of these delays and possible solutions. The 138 testimonies representing the various perspectives of the criminal justice system were also of great value.
Since the Supreme Court decision in Jordan, we have a new framework for determining when there has been infringement of a Charter right to be tried within a reasonable time. Since then, all professionals in the criminal justice system carefully examine their role in reducing delays.
As the government mentioned in its response to your report, the provinces and territories, which are responsible for the administration of justice, continue to examine and implement measures to further improve efficiency.
For its part, the federal government continues to apply a multi-faceted strategy that includes the following elements:
First is the reform of the law. Secondly, we are investing in programs that help reduce delays in the criminal justice system, such as legal aid and the Indigenous Courtwork Program. Thirdly, we are establishing federal-provincial-territorial collaboration to address factors contributing to court delays. Fourthly, we created new positions and appointed more than 290 people to the judiciary.
Bill C-75 is directly related to the priority areas of legislative reform approved by all federal-provincial-territorial justice ministers to address court delays. It is a major bill, and I would like to note a few important provisions.
As this committee recommended, the bill would modernize and simplify the conditional release system in several ways.
It would adopt a “principle of restraint” for police and the courts, to ensure that they give preference to release as soon as possible rather than detention when reasonable to do so, and so only conditions that are reasonable and necessary under the circumstances are imposed on those who are granted bail.
It would also codify a requirement that police and the courts must consider the unique circumstances of Indigenous accused and those from vulnerable populations when they are granted bail. This would respond to recommendations 31 and 34 from this committee’s report. The bill would also strengthen the protections for victims of domestic violence in the provisions regarding bail.
Since the adoption of this new system by the House, the Supreme Court has rendered a decision relevant to this issue.
[English]
InMyers, the Supreme Court considered when the detention status of accused persons being held in pretrial custody should be revisited. It concluded that it is not necessary to establish that an unreasonable delay has occurred in the case in order to trigger a review. Rather, each case must be revisited after the expiry of a specified number of days.
[Translation]
I assure you that Bill C-75 complies with that decision. That said, we are consulting with our provincial and territorial counterparts and with stakeholders to determine whether minor amendments still need to be made.
The bill would improve the approach currently used for administration of justice offences, including for youth, by creating a new tool for cases in which the alleged offence did not cause any bodily, moral or economic harm to the victim.
It would thus respond to recommendation 33 by the committee, which is one of the priority recommendations.
[English]
The bill also proposes to restrict the availability of preliminary inquiries to offences with penalties of life imprisonment. This is consistent with recommendation 7 to eliminate or limit the use of preliminary inquiries, which was also a priority recommendation.
We are also reclassifying offences to give prosecutors the discretion they need to elect the most efficient mode of prosecution, evaluated on a case-by-case basis.
This reform has been strongly supported by the provinces and territories, as it is one of the bold reforms that we expect will have a fundamental, cumulative impact on delays in the criminal justice system. But let me be perfectly clear: This is not about lowering or lightening sentences. Serious conduct will continue to be treated seriously by the courts. The maximum penalty on indictment will not change.
Consistent with your recommendations, Bill C-75 also improves the jury selection process to eliminate discriminatory practices and make it more transparent, promote fairness and impartiality and improve the overall efficiency of our jury trials.
Following the thorough study of this bill in the other place, a number of amendments were adopted that improve upon the bill’s objectives.
Notably, while the committee generally agreed with the reclassification of offences, it heard compelling testimony by witnesses on the need for special treatment for offences related to terrorism and advocating genocide. These are very serious offences, as they are crimes against humanity. As such, the committee decided that they should remain straight indictable offences. We agree.
Similarly, though the routine police evidence provision had a laudable intention of reducing court delay, it became clear through witness testimony that the scheme, as proposed, could have had some undesirable unintended consequences, particularly for the unrepresented accused.
Other amendments involved the repeal of unconstitutional provisions, including the bawdy house and vagrancy offences, which had been used discriminatorily against the LGBTQ2 community, for example, by targeting gay bathhouses or swingers clubs.
I am also pleased that an amendment was made to reduce any unintentional impact on agent representation for summary conviction matters.
The chosen approach of giving provinces and territories the additional ability to establish criteria setting out who can appear as an agent on summary conviction matters, and enabling agents to appear for adjournments, respects jurisdictional responsibilities and provides for flexibility to recognize diversity in how legal representation is regulated across Canada.
I would like to focus the rest of my remarks on the victim surcharge regime. While the bill proposes important amendments to this regime to align it with previous court decisions, it was struck down in its entirety just after the bill’s introduction in the Senate.
In Boudreault, the Supreme Court found it violated section 12 of the Charter because it could result in grossly disproportionate punishment, including for vulnerable or marginalized offenders.
As a result, the federal victim surcharge, which is used by provinces and territories to partially fund victim services, has not been imposed at sentencing since December 14, 2018.
Given the important role that the surcharge plays in making offenders accountable to victims, we need to fix this situation.
After consulting with provinces, territories, the Federal Ombudsman for Victims of Crime and stakeholders, we have found a path forward. To that end, we will be proposing amendments 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.
Bill C-75 proposes many changes that cumulatively set the stage for promoting a meaningful shift in how cases proceed through our system. Individually and collectively, all of these changes will serve to make much-needed and effective measures to reduce court delays.
Thank you. Meegwetch.
[Translation]
The Chair: Thank you very much, minister.
[English]
We’ll have questions for you. I have some myself, but I usually come last.
[Translation]
I am pleased to invite Senator Dupuis, Deputy Chair of the committee, to begin the debate this afternoon.
Senator Dupuis: Thank you, minister, for being with us today.
As you said, this bill covers several different topics. In fact, several previous bills have been combined into one, Bill C-75, which is before us.
You referred to hybrid offences. You are creating more hybrid offences, which will give the prosecution the discretion to choose one mode of prosecution over another and one is seen as lighter. What factors led you to give that discretion? Apart from the issue of delays, you emphasized the need to expedite justice. What factors led you to make that choice?
Mr. Lametti: First, I must note that the perception is wrong, in that we are not touching sentences. Offences remain offences. if, based on the facts, the offence is serious, it will be treated seriously by prosecutors and by the courts.
More flexibility was in fact given to prosecutors to increase the efficiency of the system. Sometimes, an offence may not be as serious and it is best to proceed by way of summary conviction. In other cases, when the offence is more serious, the best way to proceed is by indictment. We have only added hybrid offences to make the system more efficient and give prosecutors the possibility of considering the facts in any given situation.
Senator Dupuis: As well, regarding vulnerable persons, the bill adds that the decision to be rendered by a judge, under section 493.2, if the accused is an Indigenous person is considered to be a vulnerable person... There is a choice to not define... In fact, it is not very clear. It is generally said that the legislator does not speak for the sake of speaking. What led you to choose this wording? Two factors seem to be given. If you are vulnerable because you are overrepresented in the criminal justice system or you are disadvantaged in obtaining release, are these two factors that judges must consider, along with other factors that are at their discretion? Or are they limited to these two factors in determining whether a person is considered vulnerable? A definition is not necessarily given, but two criteria. What should be understood from the wording that was chosen?
Mr. Lametti: The challenge with a definition is that it may be too broad or too narrow. Here, as must be done in the criminal justice system with decisions such as Gladue, judges are given the discretion to consider and define the context. It is truly a conversation between participants in the criminal justice system. It is up to the judges and prosecutors to determine who is vulnerable. It is up to the judges to determine how to treat and evaluate the fact that the accused is part of a vulnerable population.
Senator Boisvenu: Thank you, minister. I also welcome your colleagues.
Bill C-75 is a monumental document. About 116 offences will be revised downward, which is nonetheless major in the exercise that you are proposing. I have looked at the bill as a representative of victims and one part of it surprised me. You are increasing the sentences for some offences to two years less a day, such as paragraph 445(2)(b), which refers, for example, to injuring an animal. However, you are maintaining the sentence of 18 months imposed for an offence of sexual assault against a person aged 16. I am trying to understand the logic. We would be less strict in a case of sexual assault than the injury of an animal, for which the sentence would be two years less a day. If increasing the sentence to two years less a day for some offences, why not increase them all, especially cases of sexual assault?
Mr. Lametti: I do not agree with your statement that we have reduced sentences for some offences. It is true that we have created some hybrid offences. However, as I just explained to your colleague, it is a way of giving discretion.
Senator Boisvenu: Minister, I have the table in front of me. I do not want to have a debate with you. Some sentences that were previously subject to a maximum sentence of ten years or five years are now subject to two years less a day. I therefore consider that reduced.
Mr. Lametti: The maximum sentences still exist. However, the facts are such that, sometimes, some cases should be treated differently. Our goal is to make the system fairer, more transparent and more efficient, to give discretion to the prosecution service so they can take the necessary measures. The maximum sentences still exist. When the facts show that they are serious offences...
Senator Boisvenu: However, you have brought the sentences to the minimum. For instance, in the case of an abduction of a child aged 14 or under, a choice must be made between a fine and a prison sentence.
Mr. Lametti: In effect, you have given a good example, because...
Senator Boisvenu: I just want to state my question. Someone who kidnaps a child and who receives a fine instead of a prison sentence, for the victims or the families, for the parents, that is a step backward.
Mr. Lametti: In some cases. It may be an abduction by mistake. As I just explained, in some cases, an abduction occurs because of a family conflict. Several factors contribute to determining the seriousness of an abduction, namely whether the person involved must receive a maximum sentence. In other circumstances, it would be unfair and too much for the justice system to impose overly severe sentences.
It is a matter of giving the prosecution the power to determine the necessary measures. So it is not true that it is less serious. It adds a certain flexibility and that is very important, in our opinion.
Senator Boisvenu: The perception for the victim, if you give a fine rather than a prison sentence for this type of offence, is obviously that the defence will always ask for the minimum. I have another question...
Mr. Lametti: I do not agree with you.
Senator Boisvenu: I would like to raise a point about the perception of victims regarding the justice system. They always have the impression that the justice system is objective. We recently learned that political grids are being used to appoint judges. That surprised me because I thought that judges were appointed objectively. I am very familiar with the appointment process for judges. First, there are the regional committees — including those in Quebec, which are made up of residents — and there is the short list and, at that point, there are so-called “political” criteria. Are the public and the police who are appointed to the regional committees examined based on a political grid?
Mr. Lametti: I can tell you that the appointments that have been made were of very high quality. I did not appoint people who were witnesses at my wedding. I can tell you that.
We set up committees and it works extremely well. We appointed experienced judges and we were congratulated on this initiative across the country, even in Quebec.
It is true, these elements of information help us do the checks needed for each candidate. Lawyers have the right to make donations to political parties and they have the right to submit their candidacy even if they make donations to a given political party. I can tell you that I appointed people who made donations to several political parties across Canada.
Senator Boisvenu: You understand, given the perspective of victims of criminal acts, who should be at the heart of the legal system, that what victims want more than anything else is the independence of the courts. What we hear most often is that that independence is relatively marred by so-called “political” criteria. I understand that very competent judges can be appointed, but it still raises questions.
Mr. Lametti: It is not a criterion. It does not favour or exclude anyone. The evaluation committees across Canada work with very clear criteria and they do exemplary work.
Senator, I would not hesitate, at any time, to compare the record of our government regarding appointments to that of Mr. Harper’s former government.
Senator Boisvenu: We will have to see.
Senator Carignan: You will find it strange, minister, but my question is about the bill number.
Let me explain. Bill C-74 was tabled on March 27, 2018. It was an omnibus budget bill that, in section 20, contained provisions regarding the remediation agreements that SNC-Lavalin still wants to use.
Bill C-75 was tabled two days later, on March 29, 2018... It is quite a comprehensive reform, as we are looking at 400 sections of the Criminal Code.
Why were remediation agreements not included in Bill C-75?
Mr. Lametti: The main theme of Bill C-75 is quite coherent, senator. The objective is to reduce delays in the criminal justice system. We consulted with the provinces, the territories and experts and we worked with this committee and other committees.
Senator Carignan: Remediation agreements are also part of the objective.
Mr. Lametti: It is not the same objective.
Senator Carignan: There were long, complicated trials that included financial aspects and that lasted months or years. It was felt that it was best to void the trials in order to not overload the courts and enter into remediation agreements. That is exactly the same philosophy as you are trying to sell us with Bill C-75.
Mr. Lametti: With due respect, I do not share your opinion. Remediation agreements have other objectives that have nothing to do with delays in the criminal justice system. Here, we have a very coherent bill produced from consultations held across the country.
Senator Carignan: What provision did you slip into Bill C-75 somewhere that we should be careful about, that will jump out at us in a year?
Mr. Lametti: In our opinion, the entire bill is very positive and makes major improvements. Obviously, there are several parts. It is the federal government’s response to the challenge of delays in the justice system. We are working with the provinces and territories to reduce those delays. If a provision needs to be amended a year from now, we will do that. For now, we believe that we have reached the right conclusion.
Senator Carignan: I have no other questions.
[English]
Senator McIntyre: Thank you for your presentation, minister.
Bill C-75 creates a consecutive sentencing regime for the trafficking in persons. As you know, the Charter statement raised concerns about the constitutionality of the proposed regime, which would come into force at a date fixed by order of the Governor-in-Council.
As you know, former Bill C-452 received Royal Assent in June 2015 but was never put into force by an order of the federal government.
My question is this: Why delay putting into force these provisions on trafficking in persons?
Mr. Lametti: My understanding of this is that, again, it allows the system a certain discretion to prepare itself for the entry into force of that particular provision. There is flexibility there. Perhaps Ms. Wright would add more detail to that if the senator would like.
Laurie Wright, Senior Assistant Deputy Minister, Department of Justice Canada: Just to make sure I understand the question, it’s the delay in the coming into force that you’re concerned about?
Senator McIntyre: Yes. As you recall, Bill C-452, which was brought in by a former member of Parliament, received Royal Assent in June 2015, four years ago, but it was never put into force by an order of the federal government. That bill was a very important bill and it had to do with the consecutive sentencing regime.
Ms. Wright: The incorporation into Bill C-75 will bring into force some provisions at the same time the rest of the bill comes into force in the human trafficking regime.
The former bill’s proposal to require mandatory consecutive sentencing will not be brought into force, given the government’s position, which, as you noted, was set out in the Charter statement, that it has the potential to unjustifiably limit the right to be free from cruel or unusual punishment or treatment under section 12 of the Charter.
Senator McIntyre: Minister or officials of the Department of Justice, could you explain why the maximum sentence for two summary conviction offences are not amended? These are the offences of exposure involving a person under the age of 16 years, paragraph 173(2)(b) of the code, and sexual assault against a person who is 16 years or older, subsection 271(b) of the code. I have a hard time understanding that. These offences provide for maximum sentences of six months and 18 months, respectively, but with Bill C-75, summary conviction offences will be increased to two years less a day.
Why were these two summary conviction offences not amended?
Ms. Wright: I will have to undertake to come back to the committee with an answer to that one.
Senator McIntyre: Please do.
Ms. Wright: As you know, the bill is a large and technical one. We want to be able to answer every question as specifically as we can, so I will reply as soon as I’m able to.
The Chair: Can you reply within the next day, if possible, Ms. Wright?
Ms. Wright: Of course.
The Chair: This committee is concerned with deadlines, also.
Ms. Wright: Of course. It would be as soon as possible — possibly before the end of the meeting.
The Chair: You’re very kind. Thank you.
Senator Batters: Minister, regarding your government’s proposal in Bill C-75 to do away with peremptory challenges for jurors, how do you respond to the significant concerns raised by experienced defence counsel that eliminating peremptory challenges will actually hurt Indigenous accused? Also, I do note that this particular portion of Bill C-75 was included only 48 days after the Boushie trial in Saskatchewan. That begs the question as to whether enough due diligence and consultation on this issue were done.
I refer you to a quote from lawyer Geoffrey Cowper of Fasken Martineau DuMoulin LLP at the House of Commons Justice Committee:
If we eliminate peremptory challenges, the challenges for cause become much more popular elsewhere. That has been done in other systems. We know that challenges for cause can increase astronomically, because it has happened in jurisdictions in the United States. Those can end up being much more conducive to delay and loss of efficiency, and I think that’s a very legitimate concern.
You spoke of the Supreme Court of Canada’s Jordan decision in your opening statement, and in response just a couple of questions ago, you said that this bill is the federal response to Jordan. So why are you making this particular Criminal Code change that will actually worsen Canada’s court delay crisis?
Senator Sinclair: Mr. Chair, on a point of order, I want to raise something. Actually, the reference by the senator to the Boushie trial is erroneous. It is not the Boushie trial; it is the Stanley trial.
Senator Batters: Of course, yes.
Senator Sinclair: So I think she needs to correct that.
Senator Batters: No problem. Yes, absolutely.
Mr. Lametti: Thank you for your question, and thank you, Senator Sinclair, for your clarification and correction.
Concerns with peremptory challenges are not new. They were there long before the Stanley trial. I cite Senator Sinclair’s work. I can cite the Honourable Justice Frank Iacobucci’s work. Both called for the elimination of peremptory challenges because of their potential impact on juries, and the potential, in particular, where if one had cases of visible minorities, one could easily exclude any visible minority representation on juries.
Again, I go back to the fact that this bill is the fruit of long collaboration with provinces, territories and experts. There are a number of different reports in 1991, 2013 and 2009.
We feel this is the right way to move forward. It eliminates the possibility to exclude a juror simply on a potentially discriminatory basis, while giving a judge the ability, where it looks like the random selection of jurors is leading to a potentially discriminatory jury — a uniform jury, we can say — to then use his or her discretion to make sure that doesn’t continue.
We think this will generate a better set of results and more representative juries moving forward.
Senator Batters: But how do you respond to that criticism from people who represent large numbers of Indigenous accused who have found that peremptory challenges have actually been positive things in assisting them in representing those Indigenous accused when dealing with potential jurors?
Mr. Lametti: We have certainly heard those commentaries throughout. The preponderance of evidence in our view goes the other way. Most people who are criticizing this move tend to be criminal defence lawyers and so do have an advantageous stake, I suppose, in terms of the way they see they ought to be practising law. That’s fine. It’s a legitimate opinion, but we feel, on the weight of the evidence, studies and expertise, that the preponderance of it goes in our direction.
Senator Batters: What about the delay argument? Many criminal defence lawyers have said that if this happens, they will then instead use many more challenge-for-cause applications, which will significantly draw out trials in many of these instances.
Mr. Lametti: To some extent, we hope that doesn’t happen, but we also have given the judge in any particular case the power to deal with those challenges for cause. Again, it will now be under the discretion of the judge. Again, we feel that this strikes the right balance moving forward, and this should reduce the time that it takes moving through the system.
Senator Batters: Given that very short 48-day timeframe, though, what sort of consultation was done on this particular portion of the bill?
Mr. Lametti: Again, they didn’t start out with the Stanley case; the discussion of peremptory challenges began years ago. In this particular case, it began with the legislative process for Bill C-75.
Senator Batters: So was this particular aspect of the bill something that was determined prior to that particular element coming into effect, or has the government changed its view at that point?
Mr. Lametti: I was not the minister at the time when this evolution happened —
Senator Batters: No, but you had access to the whole department.
Mr. Lametti: But it was an evolution; the bill developed over time.
I can say with certainty that the actual elimination of peremptory challenges was conceived of — it may not have been finalized in terms of final text of the bill — but it was conceived of long before the Stanley case.
Senator Batters: Okay.
Senator Lankin: I have a number of questions. Minister, welcome to you and your officials. We appreciate your appearance here.
Let me begin by saying there are a lot of positive things in this bill. Of course, we are going to focus on the areas of concern and seek to get greater understanding of the government’s intent.
Let me begin with a big one for me, which is what is not in the bill: the issue of mandatory minimums. I hear from a lot of legal experts that they think that’s one of most effective ways to try and eliminate backlogs — or at least one of the causes that may contribute to finding appropriate plea bargains, et cetera. It has been in the mandate letters for AGs, and it’s something that people are disappointed is not in this bill. Why is it not in this bill, and how will you address the issue?
Mr. Lametti: I cannot answer the first part in the sense that I was not the Attorney General at the time. I can speak to the complexity of the issue. I have publicly stated, both as a member of Parliament and subsequent to my naming as Minister of Justice, that I am committed to reducing the number of minimum mandatory penalties and doing that when I have a legislative runway to do so.
It is a commitment that I would make for the next mandate. I share the concerns that I believe you are raising. I have said so publicly. It is a complex issue and it may very well have been the complexity of shepherding those kinds of changes through the legislative process that is the reason why they are not here.
I certainly am committed to studying the issue carefully. I share your concerns and your sentiments about minimum mandatory sentences both in regard to their constitutionality and their ability to reduce backlogs and have a more efficient and fair system that puts appropriate discretion where it should be, in the hands of a trial judge who is apprised of all the facts and is able to evaluate all the witnesses and the accused in any particular case.
But it is not here. I hope that at some point in the future that I am Minister of Justice and I can work with you in order to achieve that goal.
Senator Lankin: Thank you. Let me turn to hybridization of many offences and the stated goal around efficiency and potential reduction of backlogs. I was a member of the Ontario Legislature in government and opposition in the Askov days. I saw government as part of the deal try to deal, and subsequent governments, and a lot of progress was made in Ontario. There are a number of provinces who profoundly believe that the implementation of this hybridization may address federal backlogs but may increase provincial backlogs. Can you address that and assure us that is not going to be the outcome?
Mr. Lametti: The answer is the global answer which is there are many moving pieces. We are working closely with the provinces in terms of trying to reduce backlogs in the system. We think that in creating a more flexible system of hybrid offences it’s true that more offences will be able to be dealt with by provincial courts. We think that in the grand scheme of things that will help reduce delays across the system, because we are also giving additional flexibility in terms of the way cases are heard. Serious cases will still be able to be heard by the superior court when it is determined that the alleged offence is serious and that it ought to be heard by a superior court judge as opposed to a provincial court judge. It is a matter of trying to balance a number of different parts of this system and we will work with the provinces moving forward to make sure that we do this better.
Senator Lankin: I want to turn to the issue of domestic violence and the fact that there is not a gendered lens. I’m sure you have heard this criticism, the issue of male violence against women. In particular, I would like to raise the question of the gender-based analysis that was done. It is somewhat frustrating to often not be able to get access to these. Are you able to give a commitment that you will provide us with the GBA for this bill?
Mr. Lametti: I’m not sure that I can. I will undertake to find out. It is my understanding it is confidential, but I will come back to you with a more definitive answer.
That being said, I know that it was done. There are provisions in here, for example, on intimate partner violence in terms of bail, which we feel represents a major step forward for victims.
Senator Lankin: You do realize, of course, that those provisions are being used more and more by male perpetrators who are alleging that they are also victims of counter assault and that many women are finding themselves in front of bail courts and facing charges without the financial resources and, potentially, access to legal aid through a number of changes. Could you tell us what the gender-based analysis of that provision is and why your government did not include a gendered lens?
Mr. Lametti: My understanding is that the gendered lens is there and it is meant to protect people who are in a vulnerable position in a relationship. Primarily women, and in particular with respect to intimate partner violence. It affects the way police officers act, it affects the way judges act in trial and on bail, but I can’t, at this point, give you a more definite answer than that without making sure I have the coverage to do so.
Senator Dyck: Welcome, minister. I have two questions on the provisions on intimate partner violence. Senator Lankin, thank you for asking the question on gender-based analysis.
When I looked at these provisions, I didn’t perceive an analysis of the bill from an Indigenous woman’s perspective. As you know, it is well documented that compared to non-Indigenous women, Indigenous women are more likely to be victims of intimate partner violence.
To make matters worse, compared to non-Indigenous women, Indigenous women are more likely to be under-protected in the judicial system because of systemic gendered racism because they are Indigenous and female. Indigenous women are most likely to have an intimate partner who is an Indigenous person. Violence against non-Indigenous women is going down, but for Indigenous women it is not.
As you know, we have a national inquiry now on missing and murdered Indigenous women. Not all women, Indigenous women.
Given the facts and characteristics of violence against Indigenous women, do you think that Bill C-75 has taken that into account and, with the provisions on new intimate partner violence, will it adequately protect Indigenous women? Because they are more vulnerable and overrepresented as victims of intimate partner violence.
Mr. Lametti: First, as you know because of prior conversations that we have had I share your concerns. I believe that it has to be one of the goals of what we do to help better protect Indigenous women from intimate partner violence and with respect to other aspects of the penal system.
I think this bill helps. It helps with respect to intimate partner violence, I don’t think there is any question about that. Not only in the formal provisions, but also in the way we are trying to improve the various aspects of the criminal justice system. That being said, I’m always open to further discussions in good faith about how we might improve.
Senator Dyck: As I mentioned before, Indigenous women are most likely to have an intimate partner who is also Indigenous. As you know, section 718.2(e) of the Criminal Code has sentencing guidelines that gives particular consideration to Aboriginal offenders. Do you anticipate a conflict for victims of intimate partner violence that are Indigenous women with section 718.2(e)? Essentially, using 718.2(e)could offer lesser or different types of sentencing other than incarceration, and if the offender is also Indigenous then it’s quite possible that two types of sentencing might occur depending on whether the offender is Indigenous.
Mr. Lametti: We certainly, as part of the system — the Gladue case, for example, is something that forces participants in our criminal justice system to take the Indigenous context of an offender into account.
In these changes, by giving additional discretion to prosecutors in choosing how they are going to proceed, I think we are trying to take into account both the protection and needs of victims, particularly in this case Indigenous women, as well as also trying to have a fair system for the accused.
And in this particular case, in the example that you used, both raise complex challenges that force us — as participants in the system or as people trying to improve the system — to think through how we can try to make the system better.
We think with this legislation we are moving it to a better place. Obviously we are going to continue to watch and be open to suggestions that could improve it further.
Senator Dyck: Nowhere is the word “Indigenous female” in the intimate partner provisions. So I don’t believe that it will offer any specific protection unless they are specifically mentioned.
[Translation]
Senator Dalphond: Minister, my question is rather technical. You may therefore need to reserve judgment on it. It is related to Part XIV of the Criminal Code, following the decision in Myers, release and periodic review of individuals in detention, particularly those who are fragile or underprivileged who are kept in detention as though they were forgotten. Now, they must be brought before a judge.
Section 493 of the Criminal Code states that, in principle, in the province of Quebec, “judge” means a judge of a superior court of criminal jurisdiction of the province or three judges of the Court of Quebec. I was wondering if that would not present a difficulty, because most criminal offences in Quebec are handled by the Court of Quebec, not the Superior Court, except trials by jury, which must be held before the Superior Court, and certain offences. Appeals of summary convictions can be before the Superior Court. However, the first level of jurisdiction is, in principle, the Court of Quebec. We want people to appear quickly before a judge, and we are talking about 30 days for summary proceedings, but before three judges. The process thus becomes quite cumbersome.
Would it not be a good idea to see if cases should be heard before a single judge rather than before three judges? After 30 days, do all these people need to be brought before the Superior Court rather than three judges of the Court of Quebec? Will the judge of Superior Court who hears these cases be asked to make the appropriate orders to expedite the proceedings that neither he nor the court manages and for which he might not even be familiar with how the Court of Quebec operates? I was wondering if that difficulty was considered when preparing this bill.
Mr. Lametti: The decision in Myers is fairly recent. Like you, I am a jurist from Quebec. The question was raised by our counterparts in Quebec and we are in the process of considering it. We are aware of the challenges and are evaluating the suggestions at this time.
Senator Dalphond: I understand that you will inform the committee before it completes its work on Bill C-75 and, if necessary, you will propose an amendment.
Mr. Lametti: If necessary, yes.
Senator Dalphond: Our timeline is tight. We only have two weeks.
Mr. Lametti: I understand.
Senator Dalphond: Thank you.
[English]
Senator Gold: Welcome, minister. I apologize for arriving late.
On the subject of hybrid offences in the proposals here, critics will say that it fails to treat certain crimes properly, seriously enough. And ultimately I wanted to ask you if you have some empirical data of average sentences, whether proceeded with by indictment or otherwise, or even within the category of hybrid offences that currently exist so we can understand better the impact that this might have in the actual sentencing patterns that exist and how they might change or not change.
I think it would be helpful to understand the impact of this, quite apart from the issues of delay and some of the questions that have been raised. How significant a change will this be, given what the actual sentences are across a range of offences? If you have any of that information in a digestible fashion, it would certainly help us understand the impact of this change.
Mr. Lametti: We can certainly undertake to do that. The high level answer I would give you, Senator Gold, is that we haven’t changed the offences, we haven’t changed the penalties. Within the definition of any offence, there is a range of activity that falls within that offence, which can be either very serious in terms of the actions and the damages or the harm to the victim, and other activities which still fall within the offence but perhaps did not result in the same amount of harm to the victim or damage.
The hybridization is meant to give discretion to the participants in the system but, in particular, the prosecutor, to say we are going to go by way of summary offence because on the facts of the case it didn’t have as serious an impact as perhaps other instances of the same offence.
Whereas in serious cases, the prosecutor will seek the maximum penalties and go by way of indictment simply because in that particular case, harm to the victim was very serious and whatever other criteria there are for the particular offence.
At the highest level, it doesn’t change the offence or the component parts of the offence, and that doesn’t change the possibility of penalties but rather situates the discretion of the prosecutor in pursuing one means or another.
Senator Gold: Thank you. That’s understood. But it would be interesting to know if, for example, for offence X that is currently an indictable offence, given the range of circumstances, the range of severity, if it turns out that 80 per cent of the sentences imposed in a jurisdiction over a period of time fall within this range as opposed to maximum range, that would be helpful at least to understand that, in this case, discretion or the judgment of judges suggest that the change will perhaps be rather modest in terms of the impact on the more serious offenders or on the less serious offenders.
Mr. Lametti: We will come back to you with anything we have, but the general hope is when the facts aren’t as serious, going by way of summary offence means a faster, fairer set of proceedings that are better for everyone, including victims. The better the system works, the more efficiently the system works. I was at the Supreme Court when Justice Cory wrote Askov and I was one of clerks. One of the things that motivated him at that time was that having a system that worked more quickly was better for victims as well, as the accused in the system too. That was the hope, and hopefully we will achieve that with this piece of legislation.
Senator Sinclair: I was a judge for 28 years and presided over numerous jury trials, and I almost laughed out loud to hear the suggestion that lawyers think that peremptory challenges benefit Indigenous accused. I have never seen that happen in the course of my experience. In 1988, England abolished peremptory challenges. In the 31 years since then, has the justice system in England collapsed?
Mr. Lametti: To my understanding it has not, sir.
Senator Sinclair: Do you know of any other Commonwealth country that has abolished peremptory challenges?
Mr. Lametti: There are others. Perhaps Ms. Wright can help me, but the abolition of peremptory challenges is not new. It has been recommended for Canada.
England, Scotland and Northern Ireland have all abolished peremptory challenges. England and Northern Ireland are common law systems; Scotland is somewhat similar. But you are correct, thank you.
[Translation]
Senator Pratte: Good afternoon, minister. I also apologize for having been delayed. I am a bit concerned about the radical nature, if I can say so, of abolishing preliminary hearings, except in cases that can lead to life sentences. I know that the attorneys general in some provinces have been seeking that for some time. I wonder what you relied on to think that abolishing preliminary hearings could reduce delays. There does not seem to be any clear data in this regard.
What was the basis for you to make such a radical decision?
Mr. Lametti: A preliminary hearing requires a lot of resources. If a victim has to testify twice, that can double the trauma. Most cases in the system do not require a preliminary hearing. We are making the system more efficient, without excluding the possibility of using a preliminary hearing in serious cases in which it would be useful. We want to ensure that it is not used just to delay the proceedings.
Senator Pratte: To the contrary, several people in the legal sector think that, in some cases, the preliminary hearing expedites the proceedings, for instance by ensuring that, if the Crown realizes that its case is too weak, it abandons it or reduces the charges. On the other hand, the defence may realize that the case is difficult, that their client is in deep trouble and therefore opt for negotiations.
The Canadian Bar Association proposes a compromise solution. They say that, at the very least, other than cases leading to life sentences, there should still be the possibility of holding preliminary hearings in other cases when both parties agree, the Crown and the defence, or when the judge feels it is in the interest of justice to do so based on certain criteria.
Would this proposal interest you?
Mr. Lametti: I do not want to create expectations. We will consider all suggestions or amendments. The responsible thing is for us to look at everything you propose in this regard.
I mentioned earlier the decision in Jordan, which changed things. We must therefore make every effort to try to reduce delays, but without weakening justice in dealing with cases. Preliminary hearings are one of the largest factors that contribute to extending the length of a case. As I said in my opening remarks, we consulted with the provinces and territories. We sincerely believe that, with this bill, we have found a way to proceed that is not only fair, but is balanced and focused on justice.
That said, we will study what you have to propose.
Senator Pratte: I am not a lawyer, so I am on unfamiliar ground and must consult several people. I do not find the evidence that preliminary hearings cause undue delays entirely convincing. Could there be other factors, in addition to what you mentioned?
Mr. Lametti: A recent analysis by the Department of Justice noted that 19 per cent of cases in which a preliminary hearing was scheduled or held did not meet the ceiling of 30 months under Jordan. That is already a criterion that motivates us.
Senator Pratte: I am not sure that it is clearly demonstrated. We could think that those cases may simply have been more complex. Regardless, thank you very much, minister.
Senator Dupuis: I would like to draw your attention to the provisions referring to an intimate partner — an intimate partner was defined in the bill as a “dating partner” in the English version and a “partenaire amoureux” in the French version. There seems to be a problem regarding the correlation between the two versions. I understand that there is no literal translation from one version to another. However, to say the least, a “dating partner” is not necessarily a “partenaire amoureux”. You can date someone for all kinds of reasons other than love. This may be a matter of semantics, but more importantly, it introduces a legal concept here. I invite you to help us resolve this enigma.
To get back to the gender-based analysis, it is important for the committee to be clear. Just as the government now shares its assessment of whether a bill complies with the Charter of Rights, the issue of gender-based analysis has been introduced because certain rights were not being respected. There was therefore discrimination against women. On reading this bill, it is not clear that this aspect was fully understood and considered. That is what we would decisions on. In other words, we already know the responses from the Privy Council and the Treasury Board, that they are documents that are part of the Memorandum to Cabinet and are confidential. What we want to know is what you can do, as minister, to reassure us that there was an analysis of discrimination against women in preparing this bill.
Mr. Lametti: A gender-based analysis was conducted. I can assure you that it is part of the memorandum presented to Cabinet. I cannot share that information, but I will see, following the question from your colleague, if some information could be disclosed.
Thank you for your comments on terminology, because it is not a translation.
Senator Dupuis: It is two official linguistic versions.
Mr. Lametti: We will look at the terminology.
Senator Boisvenu: Minister, you will understand that my questions are related to victims of criminal acts. Victims groups have identified three contradictions in Bill C-75. The first is the victim surcharge, which you leave to the discretion of judges. Even though, in Boudreault last December, the Supreme Court ruled that the surcharges were unconstitutional, you maintain the judges’ discretion, which seems to be a contradiction.
Another contradiction is that the former Bill C-452 provided for consecutive sentences for procuring. Your government referred to those sentences as unconstitutional. However, you have maintained them in Bill C-75.
Finally, judges were required to enter the names of those who committed serious crimes in the sex offender or genetic data registry. In cases involving the abduction of a 14-year-old child, if summary proceedings were followed rather than criminal charges, the judge would not be required to add that person to the registry.
These contradictions tell me that the government did not reflect much in preparing this bill if we know that the surcharge could again be challenged before the courts, you said at the time that Bill C-452 was unconstitutional, but you nonetheless maintained the consecutive sentences. So a 14-year-old child could be abducted and no summary conviction or addition to the DNA registry would be required.
Mr. Lametti: As for the decision in Boudreault, which was rendered in December, we are taking steps accordingly. We are in discussions with our counterparts across Canada in the interest of compliance and clarity in the context of that decision by the Supreme Court of Canada.
We will be maintaining the surcharge and its application will be left to the discretion of judges. That will remain in the bill.
Senator Boisvenu: Even though it is unconstitutional?
Mr. Lametti: At the judge’s discretion... In the initial bill, it applied automatically, but that is no longer the case. Depending on the circumstances, a judge may decide whether or not it is fair, based on the nature of the offence or the accused’s circumstances.
Because we understand the importance...
Senator Boisvenu: As for the former Bill C-452, in relation to procuring, you stated that those sentences were unconstitutional. Yet you maintain consecutive sentences in Bill C-75.
Mr. Lametti: If I understand correctly, that will not take effect.
Senator Boisvenu: Why did you maintain them if that is the case?
Mr. Lametti: I can get back to you with a more precise answer in the next few days.
Senator Boisvenu: No, but...
The Chair: Thank you. I apologize for interrupting, Senator, but the Minister has exceeded his speaking time.
Senator Boisvenu: Thank you, Minister.
[English]
Senator Lankin: In your opening comments, minister, you made reference to the provisions with respect to agents who represent offenders. We know that often is done by paralegals and legal aid, and you said that you’re leaving it to the provinces to address that.
I have a basic concern, and I need to understand how this is going to work. In the region that I represent, there have been recent reductions in funding to legal aid. There have been provisions that remove the ability, for example, to work with immigrants with respect to their citizenship cases and a range of things. We know that the population most often served by these agents is, in fact, the poorest, who can’t afford other resources and don’t have access to them.
I would like to understand how this provincial discretion will work. My fear is that by not amending the provisions to give them a broader range in terms of summary offences above six months, you are going to leave people hanging without sufficient representation.
Mr. Lametti: The challenge we have is that legal systems are different across Canada, so the ability to be a paralegal in Ontario does not exist in Quebec.
We need to be sensitive to that in working with our provincial counterparts. We will, and we will work to find the appropriate structural solutions in each case.
With respect to legal aid, I share the concerns that you raise about cuts in legal aid in your province.
With respect to immigration, we’re looking to see what an appropriate federal response would be with regard to those people who are helped in the legal aid system and in the immigration process.
Senator Lankin: You don’t think fixing the provision here to ensure —
Mr. Lametti: We will work with Ontario to fix the provision, but we can’t impose a blanket solution across the country because the country has different legal systems.
Senator McIntyre: Minister, other than the bill, what other initiatives could the federal government implement to respond to the Supreme Court of Canada decisions in R. v. Jordan and R. v. Cody, for example? Do you believe that a national law reform commission with a mandate to study legislative reforms and making recommendations to the government should be reinstated?
And are there other changes to the Criminal Code that could be made to improve case management, which, incidentally, is a big issue in the area of court delays?
Mr. Lametti: Case management is a part of Bill C-75. I would say, in principle, yes, anything we could do to continue to improve case management would be helpful.
I can’t speak to a government position with respect to a recreation of the Law Reform Commission of Canada. Suffice it to say that one of my mentors was Rod Macdonald, who was one of the presidents of the former Law Commission of Canada, so I think my own personal view would be obvious, based on that.
The Chair: I would like to ask you a quick question in relation to judicial appointments which, of course, is of concern on all sides of this table.
Mr. Lametti: Yes.
The Chair: Would it not be possible to think of a system to check the political involvement of candidates to a judgeship without having to resort to partisan information that might create the impression in the public that there is a bias in choosing a candidate? I understand the responsibility of the Minister of Justice to make sure there is a check made so that in the future you will answer, generally, to the impartiality of the justice system in Canada.
Would it not be possible to think of a way to check the background of candidates without having to go into the documentation maintained by various political parties in relation to people who have been involved, either financially or politically or through volunteer work, in a political party?
Mr. Lametti: As I have said publicly on a number of occasions, it is a data point so that we know everything about the candidate. It does not help or hinder the candidacy of any particular person within the system.
If a person self-declares in his or her personal statements, it may very well be considered by the judicial committee at step one, but it is simply a data point so that we know everything about the candidate in case, as I’ve said publicly, we have to answer any questions about the candidate. It does not help or hinder the candidate in the process. Candidates from all political stripes have been named to the bench over the past few years.
It’s a merit-based process. We have put into place a process that’s transparent, based on merit, and I think the judicial community across Canada is very happy with the quality of the appointments. Again, I’ve heard this across the country since I’ve become Justice Minister. It is not a determinative factor within the system.
The Chair: We understand that and we understand your responsibility. You have to answer for the appointments that the government makes.
My preoccupation is that that objective, which is sound, could be, in my opinion, served without having to resort to looking into partisan documents that create the impression with the public that a certain kind of candidate could be favoured over another one.
I think there is a way to do that without creating the impression that we see now being spread in the media.
Mr. Lametti: As I have said on a number of different occasions to different questions, I’m always open to suggestions that could make any system or any law, for that matter, better. I’m open to any suggestions that you have.
I want to assure you that it is a merit-based system, and the impression that may exist in certain aspects of the media is incorrect.
The Chair: I’m sorry to interrupt, Mr. Minister. My last question is related to the appointment of a future member of the Supreme Court of Canada.
Which initiative did you take in your department to make sure that there won’t be any leak in terms of confidential information that will be shared during the process of selecting the future member of the Supreme Court so that we avoid the kind of situation we have seen in relation to previous appointments to the court? This has created, as you know, uneasiness in terms of trust of the system and the confidentiality that must be maintained in the process of selecting a candidate.
Mr. Lametti: I have said publicly with respect to the previous leak that I am certain it did not come from either my ministry, my political office or my department.
We have taken steps. We have discussed and are planning to implement steps within the ministry with respect to this process. I’m not going to say what those steps are at this stage. The process will be announced in the next few days, to the best of my understanding.
The Chair: I will close our meeting this afternoon with just one thought for you: I have seen the exemplary career of former Justice Beverley McLachlin. She was appointed first by Brian Mulroney, and promoted by Jean Chrétien. She was a stellar justice in Canada. She’s an example for anyone who wants to have a career in law.
I am a bit uncomfortable, Mr. Minister, when we start comparing appointments by a Prime Minister, because there are so many examples of successful stories. Once a judge is appointed, he or she is impartial. It’s a very serious obligation. You yourself are the watchdog of making sure the system remains impartial and independent.
I think we have been generally well served by all the appointments that have been made in Canada, and the appointment of Justice McLachlin is a convincing example of that.
Mr. Lametti: It is a very good one. Thank you.
The Chair: Thank you very much, Mr. Minister. Thank you for having made yourself available this afternoon. We will certainly pay due diligence to Bill C-75. We will wait for the additional information that will be provided to us.
Mr. Lametti: Thank you in advance for all your work.
[Translation]
The Chair: Thank you, Minister.
We will now continue our study of Bill C-75 with our next group of witnesses this afternoon. We see some familiar faces. We welcome Ms. Carole Morency, Director General and Senior General Counsel with the Department of Justice. She is accompanied by Ms. Shannon Davis-Ermuth, Senior Counsel, and Mr. Matthias Villetorte, Counsel and Team Lead, and Ms. Paulette Corriveau, also a Counsel with the Department of Justice. Welcome to all of you.
You know the procedure, unless you have an opening statement or points that you would like to raise to the Senators, in light of the questions that were asked to the Minister of Justice.
[English]
Unless you want to add additional information to the answer that has been given by the Minister of Justice when he appeared earlier on, I will invite honourable senators to ask their questions.
[Translation]
Ms. Morency, are there any points that you would like to raise regarding the questions asked previously?
[English]
Carole Morency, Director General and Senior General Counsel, Department of Justice Canada: I can respond to one of the questions from Senator Boisvenu. If I understand it correctly, the question was this: Why is the maximum penalty on summary conviction not being increased for a couple of the offences relative to the others as part of the hybridization approach?
I believe the example given was to section 173(2)(b), which is the indecent acts. The other one was on section 271(b), sexual assault.
The community may know, if you’ve reviewed testimony before the Justice Committee, that I had spoken to this issue at that time as well. At the time, the issue was that the minister had been asked why were there no MMP reforms being proposed in Bill C-75. The response had been that that raised an issue of broader concerns including sensing writ large and that MMPs were part of that, and as a result this broader review was ongoing.
As a result, in formulating the bill that is before this committee, reforms that would have involved opening up a provision to increase the maximum penalty to two years less a day, for example, that would have involved repealing an existing MMP and then re-enacting it as part of increasing the maximum, those offences were not reopened for that reason, because it reflects the drafting convention that you can’t just change part of a subclause like that. You repeal and re-enact it all. That was the reason for the difference.
[Translation]
Senator Dupuis: Thank you, Ms. Morency, and your colleagues, for being with us. I would like to come back to the provisions of this bill that refer to an accused who has previously been convicted of an offence involving violence, attempted violence or a threat of violence against an intimate partner. If I understand correctly, this is a reversal of the onus of proof in bail hearings. I would like you to help me understand the reasons that led you, in preparing this part of the procedure, to introduce this reversal.
[English]
Shannon Davis-Ermuth, Senior Counsel, Department of Justice Canada: I can answer that. I will answer in English just to make sure I answer accurately.
So the reverse onus in relation to intimate partner violence, it’s a proposal designed to target repeat offenders who have not been deterred by existing convictions for intimate partner violence. This was a commitment of the government to increase protections for victims of intimate partner violence. Imposing a reverse onus at bail specifically targets offenders who have existing convictions for intimate partner violence.
The reason that that’s been imposed in this area is due to the nature of intimate partner violence and the knowledge that victims of intimate partner violence are at an increased danger because there is an alleged perpetrator who is targeting a specific person. Some people who may be charged with violence offences, if it is not an intimate partner — it could be a stranger — there is not necessarily a concern that when they are released they will go back after that same victim again. But in the case of intimate partner violence, especially where you have somebody who already has existing convictions, there is a chance that that pattern of violence will continue, so they are at increased risk in that type of case.
[Translation]
Senator Dupuis: So, if I understand correctly, according to statistics, women who suffer domestic violence are more likely to be killed once they are separated because their former partner will follow them, even after they are separated, and that is what you specifically want to address in this type of situation.
[English]
Ms. Davis-Ermuth: Yes, and also from the statistics that you have indicated there is also an indication that at times where violence is occurring or separation that they are at an increased risk. But something like an arrest can also trigger increased danger as well, so that this time right after arrest when they are being detained for bail could also be a time of greater danger.
[Translation]
Senator Dupuis: I would like to return to the issue of vulnerable persons. I wondered if we have the data used by the police or judges who will need to determine if a person is part of a group that is overrepresented in the criminal justice system, or has been disadvantaged regarding the possibility of release. Does the Department have access to data, apart from the discretion of the police and judges, on which they could base this type of decision?
[English]
Ms. Davis-Ermuth: To make sure I understand the question correctly, are you asking about the data in terms of the types of groups that were found to be vulnerable in these types of circumstances?
[Translation]
Senator Dupuis: In fact, I am trying to understand, based on the response by the Minister regarding this provision, which states that the police or justice of the peace must consider a person to be vulnerable—if the person is part of a group that is overrepresented in the criminal justice system or is disadvantaged in obtaining release—, what that decision would be based on. Is there data that leads you to choose these two factors over any other?
[English]
Ms. Davis-Ermuth: So this particular criteria that’s used is built on the case law that’s developed around the Gladue factors in the sentencing part of the code. What this looks to here — and this will partially be addressed through training that would occur prior to implementation. If you look at the coming into force provisions of the bill, you will see these bill provisions come into force a little later than some of the other provisions. They come into force after 180 days.
What this is looking at is individuals who are — there are links to their vulnerability. So there are factors such as possible socio-economic status or other factors that might make them less likely to get bail, so it’s not getting bail because you are poor or certain factors that are not related to their offending or their offence. Bail criteria and the granting of bail should be related to the offending and the bail factors such as ensuring that they will show up in court, public safety, those types of factors.
It’s trying to make sure that some of the traditional systemic barriers that have disadvantaged some individuals and made it less likely for them to get bail, it allows considerations of those types of factors. And there are reports that talk about how some individuals are disadvantaged in the bail system.
[Translation]
Senator Boisvenu: Welcome to our witnesses. My question is general in nature: Did the Department study the legal impact of Bill C-75?
The Chair: Ms. Morency?
[English]
Ms. Morency: I would say that in a general sense the discussions that occurred at the federal-provincial-territorial level that led to support by federal-provincial-territorial ministers for many of the reforms that you will see in Bill C-75 have very much informed that broader package that is before you. In terms of some of the issues, for example, about judicial case management that the bill is seeking to promote, also responds to, for example, signals by the Supreme Court of Canada in its decision in Jordan to say all players in the criminal justice system have a role to play in contributing to decreasing delays in the system, including by judges. So in that general sense I would say those factors have informed Bill C-75 that’s before you.
[Translation]
Senator Boisvenu: I would appreciate a shorter answer. I simply asked, yes or no, whether there was a study. My question, if you did do studies, or at least an analysis, wsa to find out the estimated number of inmates, because we are now increasing the number of summary prosecutions or hybrid prosecutions. This means that a lot more people could be serving sentences under two years, and therefore in provincial prisons. At this time, do you know the number of inmates who would be transferred, over the coming years, to prisons instead of penitentiaries? That is my first question.
My second question is this: Do you have data regarding the economic losses that the provinces will incur because of the abolition of the surcharge? Those were amounts that the provinces received for victim support programs.
This is my third question: From a statistical standpoint, what impact will Bill C-75 have on provincial courts? As there will be a lot of prosecutions by so-called summary conviction, it is clearly the provincial courts that will oversee them, not superior courts. However, provincial courts are already overloaded.
So I would like to know if you have statistics regarding the number of cases that will be transferred to provincial courts, the impact of the number of inmates transferred to prisons rather than penitentiaries and, finally, the financial impact on the provinces in terms of the amounts that they received from the surcharge.
Matthias Villetorte, Counsel and Team Lead, Department of Justice Canada: Senator Boisvenu, I thank you for your three questions, which I will try to answer in the order you asked them.
What is proposed in Bill C-75 is procedural in nature. Although it is almost impossible to determine the impact of the recommendation to make some offences hybrid, we believe that the impact will not be significant. Why? Because making some offences subject to a procedure by indictment provides flexibility to prosecutors. When they analyze a case, they examine the facts and the circumstances in which the offence was committed, including the sentence to be sought by the Crown. Even if it is an offence for which there is procedure by indictment, the Crown can seek a sentence of less than two years to be served in a penitentiary.
It is for this type of case that Bill C-75 proposes giving flexibility to the Crown proceed summarily. The proposed amendment is really procedural in nature. In no way does it change the framework for sentencing, which is to impose a sentence that is proportional to the offender’s responsibility and the seriousness of the offence.
Currently, a sentence issued for an offence by indictment is less than two years, and that type of sentence is expected to be issued in the future as well.
As for your second question regarding the surcharge and the financial losses to the provinces and territories, as you know, the federal surcharge represents a portion of the surcharges added to the Victims Fund for the provinces, which also consist of surcharges imposed by the provinces.
Since the decision in Boudreault, it is clear that the federal surcharges cannot be imposed. However, we are in discussions with our provincial and territorial partners to determine the impact of Boudreault on federal surcharges and the repercussions for the Victims Fund for the provinces.
Your final question is related to the impact on the provincial courts of the amendments to make some offences hybrid. As you know, summary offences are heard in provincial court, and most offences by indictment are heard in Superior Court. The vast majority of cases are heard in provincial court. If I rely on Juristat from Statistics Canada, of 1.2 million charges in 2015-2016, approximately 13,000 were heard in Superior Court. Not all of the 13,000 cases will go to provincial court. There will certainly be more cases heard in provincial court, but that will free up time for superior court judges to hear more serious cases, while resulting in savings for the system.
Senator Boisvenu: Do you foresee compensation for the provinces for financial losses? Because, instead of serving a sentence, people will be issued a fine. Have you estimated whether the provinces will receive compensation for the growing number of people who will be issued a fine?
Mr. Villetorte: Once again, it is very hard to foresee the repercussions of the fines set out in Bill C-75. However, I must note that, in sentencing—and this is where it needs to be very clear—, it is more of a procedural issue than a sentencing issue in terms of the principles.
A fine could very well be imposed when an offence is punishable by way of indictment. That is why it is very hard to estimate the variations. Once again, the fundamental principles of sentencing are not changed, and we expect a sentence that is proportional today to still be so following the amendments set out in Bill C-75.
[English]
Senator McIntyre: My question has to do with offences against an intimate partner. In answer to a question raised by Senator Dupuis, Ms. Davis-Ermuth, are we to understand that those accused and previously convicted of an offence committed against an intimate partner before the entry into force of the new definition will be considered to have reoffended? Is that the case?
Ms. Davis-Ermuth: Sorry, I’m not sure that I understood your question.
Senator McIntyre: Let me get back on track. I draw your attention to section 515 of the code and to clauses 225(3) and (6), which we find on pages 78 and 79 of the bill. Now, those clauses, 225(3) and 225(6) amend section 515 of the code by introducing a reversal of the burden of proof during an application for judicial interim release where an accused is charged with offence against an intimate partner and they have been previously convicted of another offence against an intimate partner.
That said, as the definition of “intimate partner” is new, will those accused and previously convicted of an offence committed against an intimate partner before the entry into force of a new definition be considered to have reoffended?
Ms. Davis-Ermuth: Yes, they would be. There is not something in the Criminal Code, we don’t have an intimate partner offence currently and that will not be the case afterwards. It already occurs right now that courts might identify certain types of offences for different purposes, whether it’s violence against a child or intimate partner. In some jurisdictions, there are courts that deal with these particular cases.
The addition of the definition to the definition section of the Criminal Code in section 2 does not create a new offence, so any previous offence that occurred prior to the coming into force of the definition would still be of the same nature and character.
Senator McIntyre: In other words, there will be retroactive effect of this amendment?
Ms. Morency: If I may, when a Crown is at a bail hearing and they are leading evidence about perhaps the prior convictions of the accused before the court, the Crown would also have the same type of information today as they would after Bill C-75 in the sense they would be able to say, for example, “This person has a conviction for assault.” And they will typically be able to say if it was against a spouse or somebody. And the court, after Bill C-75, would be aware that that constituted a previous conviction for a type of intimate partner violence. For a court in that situation, the applicable test would be a reverse onus in that situation.
Ms. Davis-Ermuth: I will add that the Criminal Code already recognizes these types of offences as well. There is an aggravating factor in section 718.2 of the Criminal Code. Although it doesn’t use that specific language language right now, it does capture the same types of offences, but this language exists in the code under sections 109 and 110 of the Criminal Code. It specifically uses the terminology in relation to intimate partners and weapons prohibitions in those types of cases, so it is not a new concept being brought into the code, either.
Senator McIntyre: My next question has to do with victim surcharge. As I understand it, section 785 of the code defines the word “sentence.” Bill C-75 would add subsection 737(1.1) and subsection (5); in other words, the judicial discretionary provisions to the interpretive definition of a sentence under section 785 of the code.
In your view, what is the purpose of this amendment? Could this be interpreted to mean that if a victim surcharge were to be imposed by a court pursuant to subsection 737(1.1) and subsection (5) then it would be considered a sentence under section 785 of the code? I’m apparently mixing things up here. In your opinion, would this create the possibility of an appeal mechanism? If you don’t have the answer today, you can always come back.
Mr. Villetorte: We can undertake to come back to you. I want to understand your question, because I think I’m missing the gist of it. There is the definition of sentence —
Senator McIntyre: Yes, which is found under section 785. And then the bill adds new subsections 737(1.1) and (5) to the interpretive definition of a sentence under section 785 of the code. What is the purpose of this amendment? If a victim surcharge were to be imposed by a court under the subsections that I mentioned, would this be considered a sentence under section 785 of the code? That would be like two sentences.
Ms. Morency: The disadvantage I have right now is I don’t have a copy of the bill as introduced in the house. In that bill, you will see the actual changes being added but I think the change that the senator is referring to is the new provisions to add the victim surcharge that Bill C-75, as introduced, was proposing to address. It is adding the new sections about the undue hardship clause, but we will confirm that afterwards.
Senator McIntyre: The bottom line is that the bill is adding two new subsections to the definition of sentence under section 785.
Ms. Morency: Correct, to include the new provisions that C-75 was proposing for the exception of giving the court the discretion to exempt an accused or an offender who has the inability to pay due to undue hardship. That’s my understanding, and if it’s otherwise we will confirm with the committee.
[Translation]
Senator Pratte: I would like to come back to the issue of preliminary hearings and the government’s choice to limit them to charges that can have major consequences, such as a life sentence. I would like to read a passage from the brief by the Canadian Bar Association that I find interesting in this regard.
[English]
I’m reading from the brief of the Canadian Bar Association:
Offences punishable by life imprisonment with no minimum sentence often do not mean serious jeopardy or lengthy incarceration. Someone who passes along a few grams of cocaine, or robs someone of their smartphone would be entitled to a preliminary hearing under Bill C-75, but someone charged with an offence carrying a mandatory minimum sentence (for example, trafficking in firearms) would not.
These are just examples, but there appears to be something arbitrary in limiting preliminary hearings only to charges that could lead to life imprisonment, because sometimes they would not be the most serious crimes in many cases.
Paulette Corriveau, Counsel, Department of Justice Canada: It’s important to note that preliminary inquiries have been an issue of debate for many years. There were witnesses before the Senate on both sides of the question. The Senate recommended the elimination or strong restriction. Jordan also said to review whether or not preliminary inquiries are serving their purpose.
Although there are offences that have mandatory minimums, we still have to bear in mind that life imprisonment is still the most severe punishment that is available. There are various mandatory minimums of a much lower concern or jeopardy to an accused.
During our extensive consultations with our FPT colleagues, there were diverse views, as there were in front of the house committee, and the position that was taken in Bill C-75 was to strike an appropriate balance between the various views. We heard from a number of witnesses on both sides. Victims are pleased to see the restriction due to the revictimization of having to testify twice, whereas others, defence counsel in particular, see it as a useful tool. We were mindful and took into consideration all stakeholder views and the decision to go on that front and choose life imprisonment was made.
The only other thing I will suggest is that there were other jurisdictions that wanted to go further and restrict it to section 469 offences. It was finding the equilibrium between the various positions and we felt that this struck the appropriate balance.
Senator Pratte: By still allowing preliminary inquiries for charges that could lead to life imprisonment, isn’t there, in some way, a recognition that these inquiries are useful because you will keep them for the most serious crimes?
Ms. Corriveau: Yes. Certainly, case law has indicated there is a discovery or screening function that maintains some utility, but the judicial interpretation has gone on both sides. Some have advocated in their decisions that it’s an antiquated procedure and should be eliminated, so finding a juste milieu between everyone’s position is tricky, and we believe we struck that with Bill C-75.
Senator Lankin: I’d like to return to the issue of intimate partner violence. In particular, I’m looking for background information, trends and statistics, if you have them, with respect to the anecdotal evidence that we are provided from a number of legal aid clinics dealing with women’s issues and shelter supports, et cetera. For a number of years now, the anecdotal evidence shows that there has been an increase in counter-charging of women, and in particular immigrant women.
I don’t have access to numbers to know whether that’s true. Is it true at the charging, at bail or in terms of proceeding to trial? I would appreciate it if you could undertake to see what might be available and what informed some of the government’s decision-making around these provisions.
Ms. Davis-Ermuth: There are some statistics on intimate partner violence in the legislative backgrounder for the bill. That’s where most of the statistics available on a national scale are contained.
In terms of statistics about the dual charging phenomenon that you referred to, there’s some belief that in the early stages of the mandatory charging policies, that discretion wasn’t being applied and that people who were victims in some cases were being charged of offences as well. We don’t have any data on that.
Before I get to the mandatory charging leading to that, I will say that most jurisdictions in Canada are starting to follow a primary aggressor policy, where the policy is to charge the person who was the primarily aggressive person in the situation as opposed to someone who might have been using violence to defend themselves.
We don’t have data on how often the wrong person would be charged, because that would be either an error in charging or an error in conviction. Some of the concerns raised are that people are being improperly charged and in some cases improperly convicted. That’s where those concerns would arise.
We don’t have specific data on that, but the way to address that would be through operational policies. Because it’s not the law itself that leads to those results; it would be the improper application of the law.
Ms. Morency: We will take a look at whether or not there is anything more recent that might speak to the specific point you’ve raised.
As my colleague noted, it is an issue that was specifically addressed, for example, in a report that was done through FPT fora, which looked at spousal abuse charging policies and prosecution policies. Even in that report, which is now over 15 years old, it noted, for example, that Indigenous women are overrepresented throughout every aspect of spousal intimate partner violence. Even in those days there were concerns about dual charging for a woman who is defending herself.
We can definitely provide some information and context. My colleague has referred to the legislative overview that provides more information — and there may be other information — and we’ll do our best to provide that to you.
Senator Lankin: I’d appreciate that. Thank you very much.
[Translation]
Senator Carignan: My question is related to the coordinating amendments. Several coordinating amendments are set out, based in particular on the coming into effect of Bill C-45, the Cannabis Act. I am trying to follow, but it is extremely complex and difficult. Should the Department not do some cleanup or, to use a common expression, some tidying up in the coordinating amendments, given that the Act has come into effect? There are a lot of provisions that state that, if the other act comes into effect, this will apply; if the other act does not come into effect, this will apply. In other situations, it says that, when both laws have come into effect, this will apply. It is to complex. Have you considered doing such a clean-up?
[English]
Ms. Morency: One thing I would suggest to the committee is that the clause-by-clause binder that is provided to the committee seeks to help unpack and explain. It is very complicated; I absolutely acknowledge that. Number one, it’s a large bill, and it involved amendments to some provisions that were being amended by other bills that were currently before Parliament. It is complicated, absolutely. There’s a lot of sequencing playing out there.
The other thing that compounds it further is that we, as non-legislative drafters, would think it’s obvious you don’t need to do this. However, in terms of drafting convention — and Canada has, I would say, one of the best sets of legislative drafters — they do follow rules and practices.
As a general rule, if two bills are before Parliament at the same time and they’re both amending the same provision, they will automatically require a coordinating amendment so that, at the end of the day — and we explain the intention, hopefully, in the clause-by-clause binder — whichever one gets passed first, ultimately the intention is to have this as the final state of the law on that provision.
I take your comment, senator; it is complicated. Perhaps, if there’s a specific question about any of those clauses afterwards, and if we can be of assistance, we’re happy to do that.
[Translation]
Senator Carignan: It is hard to understand the intent of the legislator. An example is impaired driving. If Bill C-75 comes into effect, wold we be less severe in cases of impaired driving, because we could consider the possibility of a summary offence under paragraph 253(1)(b)?
[English]
Ms. Morency: Bill C-46, the proposed amendments to the impaired driving provisions and transportation provisions, you had coordinating amendments here in Bill C-75 on the hybridization, and similarly in Bill C-46. At the end of the day, the intention was to have what is now in force in Bill C-46 to be the case.
For example, the offence of causing bodily harm was hybridized. Impaired driving causing bodily harm was hybridized to recognize that there may be a range of cases. Of course, impaired driving is a serious offence, no matter. However, there may be some cases where the impact, the harm to the victim, is less, for example, a broken arm versus impaired driving causing severe, permanent bodily harm. That was the intention of that one.
[Translation]
Senator Carignan: So, the Crown prosecutor will have the possibility of summary proceedings, which will allow for a less severe sentence for cases of impaired driving causing bodily harm?
Mr. Villetorte: It comes down to considering the intent of making offences set out in Bill C-75 hybrid and increasing maximum sentences for those offences to two years less a day. As I explained in response to the question from Senator Boisvenu, these amendments will not change the fundamental principle of sentencing. A sentence that was proportional before Bill C-46 will still be proportional after.
Senator Carignan: I understand, but we are in the same Parliament, we have the same government, the same members and almost the same senators. In this Parliament, we are adopting a law that substantially amends another law regarding impaired driving, particularly in relation to the severity of the sentences in cases of impaired driving causing bodily harm.
[English]
Ms. Davis-Ermuth: In response to that, Carole was explaining that Bill C-46 itself already created these as hybrid offences. Bill C-75 would not result in any further hybridization of the offences that were created or amended by Bill C-46.
Ms. Morency: Again, to come back to what is the drafting convention, two bills amending the same provision to the same effect: hybridize what was previously a straight indictable offence. Bill C-75 proposed that, even though it’s introduced after Bill C-46, because it was still before Parliament.
At the end of the day, the intention was to hybridize that offence and, consistent with the objectives for both bills — which was on the hybridization side of Bill C-75, as we’ve been explaining — not to change the sentencing principles.
In the impaired driving context, the same thing. The most serious case is still going to be treated seriously. In fact, the maximum was increased on indictment for that. But recognize that you may have a range of circumstances in a given case where it may be appropriate for a Crown — in all of the circumstances, recognizing the gravity of the offence and the degree of the responsibility of the offender, the usual sentencing principles — from a procedural perspective, more effective and efficient to proceed through a summary conviction process where the case law in that area suggests that’s where the sentencing range would be, consistent for both bills.
[Translation]
Senator Dalphond: I would like to come back to preliminary hearings. This is a subject that garners a lot of interest. Do we have statistics regarding the number of preliminary hearings in the current system as a percentage of cases? Secondly, the purpose of these preliminary hearings is to find out whether or not to go to trial. With a threshold that is not very high, is there enough evidence for a properly instructed jury to make a finding regarding guilt?
Do we have statistics regarding the number of preliminary hearings that did not result in the case being brought to trial?
If there were a lot, that could be useful, but if it almost never happened, that could make the process useless. Do we have statistics regarding the time spent by courts on preliminary hearings? Since Jordan, the Court of Quebec has continued to use the preliminary hearings set out in the Criminal Code. However, the judge can ask that examinations be conducted outside the court in a witness room, without the judge being present, so he can do other duties. He then asks the counsel to return at the end for the motions or committals for the trial, as applicable. In the current system, the nature of preliminary hearing is changing, at least in the Quebec system. Are there any statistics regarding my three questions?
Ms. Corriveau: Yes, I believe that I have seen what you are asking. First, I can tell you that the 2018 survey entitled “Adult criminal court procesing times, Canada” — “Temps de traitement des tribunaux de juridiction criminelle pour adultes au Canada” in French — is based on statistics from 2015-2016 and can be found online.
That survey is based on statistics regarding charges, but it nonetheless provides the number of cases. During that period, 2015-2016, there were 8,047 cases before the provincial court that were the subject of a preliminary hearing.
Senator Dalphond: Across Canada?
Ms. Corriveau: Yes, in provincial court. That figure has decreased over about 10 years.
Senator Dalphond: Did it fall from 20,000 to 8,000 or from 12,000 to 8,000 cases?
Ms. Corriveau: If I remember correctly, there were approximately 12,000 preliminary hearings.
I would remind you that amendments were adopted in 2004 regarding preliminary hearings. They were no longer held automatically. A request had to be made. Twenty-nine percent of charges are related to violent offences, such as aggravated assault and sexual offences. The time for rendering a final decision is longer, at 433 days compared to 106 days when there is no preliminary hearing.
Even if there are not a lot of preliminary hearings across Canada, decisions regarding cases subject to a preliminary hearing take longer and require more appearances before the court, 13 instead of 6. There is also a longer period, 38 days, between the appearance that probably takes place after the preliminary hearing and the trial, instead of 27 days. This refers to provincial court.
Senator Dalphond: Clearly, the case is not ready until the preliminary hearing is complete, meaning that the case is constantly postponed in the system. No trial date is set because it is not known if it will be brought to trial.
Ms. Corriveau: Yes, but we must remember that there is no preliminary hearing in the vast majority of cases. There are even offences that do not have access to it at this time, offences that are the exclusive jurisdiction of the provincial court.
I have here data from certain superior courts, from about five jurisdictions. We hear 6,467 cases — these are charges —, including 1,674 in Superior Court that were the subject of a preliminary hearing. This represents 49 per cent of all cases heard in Superior Court. Depending on whether or not a case is the subject of a preliminary hearing, we are talking about 576 days instead of 290 days. In Superior Court, we need about 400 more days. That means more appearances, 11 instead of 7, and the number of days between appearances is 58 instead of 35.
Even if we say that 75 per cent of cases took over 30 months, more than the standard set by Jordan, about half — or 45 per cent of cases before the Superior Court — that were the subject of a preliminary hearing are below the standard set by Jordan. So it is not necessarily definitive in that regard.
I also have data from 2014-2015 from the same survey that I mentioned earlier. Even in 2014, we see that there were 9,179... However, that is provincial court and Superior Court.
Senator Dalphond: Are there statistics regarding the number of cases brought to trial that were not the result of a preliminary hearing?
Ms. Corriveau: Unfortunately, that data is not gathered at this time by Statistics Canada. They have revised the survey.
Senator Dalphond: That does not allow us to know if they all went to trial. I believe that the vast majority of cases go to trial. I would not get into the statistics. It would be really useful to know if half the cases do not go to trial. That avoids a longer trial and allows for a shorter preliminary hearing. However, if they all go to trial, there is a needless disclosure stage, as all evidence must now be shared.
Ms. Corriveau: It would undoubtedly be important to note that practices vary from one province to another, because British Columbia, Quebec and New Brunswick have “precharge screening”, meaning that the statistics could be different for cases brought to trial, as the prosecutors bring the charges, not the police. Thus, it may be that, in cases of “non-precharge screening”...
Senator Dalphond: In some provinces, the policy bring the charges, and the Crown takes over the case.
Ms. Corriveau: The way preliminary hearings are held is very different from one province to another. Quebec and Ontario often use this system, while other jurisdictions do not.
Senator Pratte: I have an additional question about the statistics that you cited, Ms. Corriveau. When referring to the length of a case, the statistics that you cited clearly show that cases in which there is a preliminary hearing take much longer before a final decision is rendered. Do we know how much the preliminary hearing contributes to that length? Because we can also imagine that they are more complex cases and the consequences for the accused are therefore more serious. So, regardless, those cases take longer. Do the statistics show that, of the 400 days, the preliminary hearing accounted for this many days and that is what caused the delay?
Ms. Corriveau: Unfortunately, we do not have those statistics at the national level. The provinces and courts may have the statistics for each stage of the process.
Senator Pratte: Thank you.
The Chair: Very quickly, Senator McIntyre, because we have another witness who has already been waiting a half hour.
[English]
Senator McIntyre: Thank you, Ms. Davis-Ermuth. My question is this: What approach did the department take with regard to hybridization? Did it take an entire category of offences, looking at them offence by offence and hybridize everything that currently has an indictable penalty with a maximum imprisonment of 10 years or less? What was the general approach?
Ms. Davis-Ermuth: You’re correct, the general approach was to do it by category. Instead of looking at the specific offences, it was looking at the procedural impact and trying to increase the number of cases where the conduct was less severe for those particular cases for the prosecution to have the discretion to proceed with the cases where lower sentences were more likely to proceed with those in provincial court where it’s known that matters proceed more quickly.
Senator McIntyre: Thank you.
The Chair: Thank you very much.
Ms. Morency: I can answer the question that was raised about Bill C-452, the private member’s bill and what’s in Bill C-75. I think the question was why would the provision that requires mandatory consecutive sentences not come into force upon Bill C-75 coming into force. The reason is that when that private member’s bill, Bill C-452, went through Parliament, it was considered as a PMB, independent and separate from other legislation that was before Parliament that had an impact on that mandatory consecutive sentencing. It is what was then Bill C-36 that addressed prostitution offences following the Supreme Court decision in Bedford.
In Bill C-36, a number of additional mandatory minimum penalties were added to the prostitution offences. As a result, once that bill was passed and became law, when the two sets of offences come together, offences that have mandatory minimum penalties and which may also be charged in the same cases involving human trafficking, where you would have as well mandatory consecutive sentences, together the Charter impact was to raise a significant concern.
That was the rationale for why that particular provision would not come into force on Royal Assent but would remain open for order by the Governor-in-Council, for example, if there was a change in the mandatory minimum penalties.
That was the rationale.
The Chair: Thank you very much, Ms. Morency, Ms. Davis-Ermuth, Mr. Villetorte and Ms. Corriveau.
I will invite our next witness Mr. Don Beardall, General Counsel, Public Prosecution of Canada.
If you could come forward, Mr. Beardall, so we have the opportunity to at least have part of our session this afternoon with you.
I think, Mr. Beardall, you have been a witness to the discussion that took place this afternoon with the minister and with your colleagues from the Department of Justice. You are certainly familiar with the procedure.
Do you have any opening remarks to share with us? Or would you accept questions immediately?
Don Beardall, General Counsel, Public Prosecution Service of Canada: I have no opening remarks, senator. I’m simply here to assist senators with any questions they may have.
The Chair: Thank you.
[Translation]
Senator Dupuis: Good afternoon, Mr. Beardall. Welcome to the committee. Thank you for being here.
Based on your experience, I would like to come back to the hybrid offences and the fact that several have been created by way of Bill C-75. What factors should the Crown consider in deciding to prosecute someone by way of indictment or by way of these hybrid offences?
[English]
Mr. Beardall: Thank you for that question. There is not a simple answer to the question because many different factors may come into play. But I would say that the primary considerations would be the seriousness of the circumstances of the particular offence because, as has been said by others, the range of seriousness in any particular category of offence can vary greatly.
The seriousness of the circumstances is probably the primary consideration but as well, the background of the accused and in particular their criminal record, and in particular their record for offences of a similar nature would certainly come into play.
I think in this era of Jordan, some consideration might be given as well to what is the most expeditious method of getting a matter to trial, particularly in view of any particular backlogs in the different levels of court in the particular jurisdiction, which may vary greatly from one jurisdiction to another.
And there might be some ancillary considerations that might also come into play, for example, potential immigration consequences, perhaps, the ability to secure certain kinds of ancillary orders, such as, in some cases, DNA orders or in some circumstances, the ability to obtain fingerprints.
[Translation]
Senator Boisvenu: Welcome, Mr. Beardall.
Section 493.2 refers to “vulnerable persons” in relation to bail. The concept of vulnerable person is not defined. If there is no definition of the concept of vulnerable person, does this not risk opening the door to situations in which individuals are released when they should not be?
[English]
Mr. Beardall: First, I note that the fact of a vulnerable population is a factor for a judge to consider on a bail hearing but does not necessarily determine the outcome.
[Translation]
Senator Boisvenu: If there is no definition of the concept of vulnerable person, it could be very relative from one judge to another. We risk having very subjective decisions that are not based on concepts of dangerousness.
[English]
Mr. Beardall: I suppose we will have to see how it plays out in practice, but certainly there are vulnerable populations which, everybody is well aware, as a matter of notoriety, are vulnerable and overrepresented in the justice system. So there will be clear cases.
If there are, perhaps, questionable cases where a defence counsel argues that their client is a left-handed redhead with a moustache is a member of a vulnerable population, well then perhaps there will be a requirement for some evidence to be led to establish that such a group is indeed overrepresented or otherwise disadvantaged.
I would not expect that the existence of this factor as one consideration to be considered on a bail application was likely to result in a great number of evidentiary hearings to determine whether that group is a vulnerable population. It may arise on occasion, but I would not expect it to be a big issue.
[Translation]
Senator Boisvenu: Bill C-75 will result in people who breach conditions not being arrested. Will this situation not hinder the work of the police, particularly regarding fingerprinting for checks of individuals?
[English]
Mr. Beardall: My understanding of what Bill C-75 does is that it gives a discretion to the police officer to not arrest for breach of a bail, but it maintains the officer’s discretion to arrest in those circumstances where it is appropriate, for example, in order to effect a search or to obtain fingerprints.
Senator McIntyre: Mr. Beardall, you are an extremely brave man. You are alone here today representing the Public Prosecution Service of Canada, facing 10 senators.
Mr. Beardall: And I feel alone, thank you senator.
Senator McIntyre: I have a short question for you. The bill creates alternative procedures for handling certain administration of justice offences, such as judicial referral hearings. How do you anticipate the discretion that will be given to police, the prosecution and judges, and how will this play out in practice?
Mr. Beardall: Well, that’s very difficult to say, senator, with any degree of clarity. Again, as has been mentioned by other witnesses, we have 13 different judicial jurisdictions in this country in which the legal cultures can vary greatly. We already have a range of practices in other areas across the country, and I would expect that this too may play out differently depending on where you are.
Senator McIntyre: Let me say that the judge, for example, will have the authority to consider various responses whether or not charges are laid, but in order to proceed with a hearing, the Crown prosecutor, as I understand, must seek a decision under this section, so it will be a bit difficult for the Crown.
Mr. Beardall: I’m not certain of the point that you are raising. A charge can be laid and it can proceed in the ordinary fashion, but if a prosecutor is of the view that it should be dealt with by way of a referral hearing rather than a charge, then, yes, they must seek a referral hearing and a decision under those provisions.
I don’t believe that the bill sets out any particular procedure by which that is done, so I would expect that to be addressed on a jurisdiction-by-jurisdiction basis.
One concern that I would mention, perhaps, is that one of the biggest factors considered by prosecutors and, indeed police, when an accused is taken into custody, when considering whether or not that person should be granted bail and on what conditions, is that person’s prior history. Under the current regime, prosecutors are generally provided with a CPIC printout that will tell us what prior convictions that person may have, including previous breaches of bail orders.
So far as I’m aware, however, if these matters are sent to a referral hearing instead, unless a mechanism is put in place for a record of those referrals to be kept and made available, then the prosecutor in future cases may not have a complete picture of the accused’s previous bail history. I mention that in passing.
The Chair: If a police officer decides not to arrest someone who is in breach of his conditions, there should certainly be a means for that police officer to report that the person is in breach of conditions so that the overall picture in relation to that person is kept in the system for a future evaluation of impact in another decision. Am I right?
Mr. Beardall: I believe you used the word “should,” and I would agree with that, but if a police officer decides not to arrest a person, they can refer them to a judicial hearing so the matter can be dealt with, and, of course, they can file reports in their police files.
However, I don’t believe that there is any mechanism for inputting that into a national police database. So, for instance, for instance, the Winnipeg police may keep a record on this particular individual. They may not have a system whereby they keep that kind of individualized record in the absence of charges and convictions, but if they do, they may be in a position, if that person is picked up again in the future, to provide a prosecutor in Winnipeg with the fact that this person has been through three previous referral hearings.
But what if that person gets picked up in the future in Edmonton? Would the Edmonton police or the Edmonton Crown have access to that information?
All I’m saying is that, so far as I’m aware, there has been no real attention paid to the setting up of a record-keeping system for these matters. That’s not to say it could not be done.
The Chair: Even in this day and age of the Internet?
Mr. Beardall: All I am saying is that in this day of computerized systems, I’m not sure the Internet would be the appropriate venue for this kind of thing. But in this age of computerized systems, I suspect that something could be devised to address that need. To the best of my knowledge, no such system currently exists.
The Chair: Thank you.
Senator Lankin: Thank you, Mr. Beardall. It’s great to have the perspective of the operational side and application from a prosecutorial point of view.
You mentioned in one of your responses in terms of criteria that might be examined to determine whether to proceed with indictable or summary charges, you mention one might take into account immigration status. I want you to correct me if I’m wrong, but I’m assuming that if someone would face a situation where there was a hybrid offence and the option of indictable might cause them, if convicted at that level, to face deportation, that might be taken into account. Is that what you intended by that?
Mr. Beardall: Yes, it is, although I emphasize it was a very off-the-top-of-my-head example meant to be exemplary of the range of the totality of the circumstances that might be considered. It could be considered and it may weigh one way or the other in the balance.
Senator Lankin: I understand. If there are previous offences, it may lead toward someone considering deportation as an appropriate response.
The concern I have in terms of the application of this, and again, correct me if I’m wrong, is that when some of the non-hybridized summary offences that someone might be charged with under the current system become hybridized, there are, for some of them, an increase in penalties. If the penalty is increased above six months, then that person automatically would face, if convicted obviously, and then penalized with more than six months, would automatically face deportation.
While you could take into consideration as a mitigating factor, let’s say, to lower to a summary, the nature of the offence and the penalties there might, in fact, under today’s situation, not create a deportation situation but, after this bill is enacted, would. Am I correct in my understanding of that?
Mr. Beardall: I think there are two possible scenarios. I’m not sure if you’re contemplating both of them or only one.
One scenario is that because the summary conviction maximum penalty has now been increased to two years less a day, that person might now, proceeded against by summary conviction, receive a sentence — the actual sentence imposed that renders them liable to deportation.
I don’t have the Immigration Act before me and I have not cross-referenced, so I don’t know whether or not there are any provisions that would be triggered by the increase from six months to two years less a day.
In any event, if we are talking about the actual sentence, I emphasize what my colleagues from the Department of Justice also tried to convey, which is that, barring some misstep, the hybridization ought to have zero effect on sentences imposed. If the appropriate sentence would have been 18 months, under the current law, the appropriate sentence would continue to be 18 months under Bill C-75.
To get that 18 months, under current law, the Crown, if they assess that 18 months would be the appropriate sentence, would need to proceed by indictment. Or, if the offence is currently only by indictment, the sentence would still be 18 months. However, under the hybridization model, we would have the option of proceeding by summary conviction and still seeking that 18 months.
To take a hypothetical immigration impact, if it’s triggered by the actual sentence imposed, the hybridization should not make any difference. If, on the other hand, there were provisions — whether it’s immigration or something else — that were triggered by the mere fact that the offence is punishable by a sentence of two years less a day, rather than six months, then that might have an impact. However, off the top of my head, I’m not aware of any provision that would have that, in fact.
The Chair: I would like to check the immigration legislation. We had a previous concern around the table about the impact, in relation to immigration, of somebody who is, by the mere fact of being accused of an offence that is punishable by, as you say, two years less a day, that person is automatically on a list of losing his or her status.
On the issue of immigration, I would suggest that we check that. I’m not disputing that you might be right, but off the top of my head I remember that issue being raised. I think it was Senator Jaffer who raised that issue before. We should maybe check that aspect, especially in relation to immigration legislation.
Mr. Beardall: I certainly didn’t mean to open a can of worms, but I understand your concern. I simply don’t know if, in fact, this would have any impact on immigration outcomes.
Senator Lankin: A number of the responses from Justice and from yourself talked about the current differences that exist jurisdiction to jurisdiction, province to province, et cetera. I have a concern when I think about vulnerable persons and about the application of this. I will give the example of someone with mental health issues, because it’s pressing in my mind right now because of other bills coming forward.
Discretion is important, but the differential application from jurisdiction to jurisdiction can raise equality concerns in terms of treatment under the law. I may be really off base. I’m not a lawyer; it’s probably clear from my questions. I’m wondering if you can address that. Or if I’m not making any sense to you, I will go and do more work and pose the question another way in the future.
Mr. Beardall: I’m not sure I do understand the question, but I’m fairly certain that I would not feel qualified to answer it in any event.
Senator Lankin: I will pursue that another way. Thank you very much.
Senator Gold: One of the ways to minimize delay in trials is not to have a trial and for people to plead guilty. But we do know that people sometimes feel pressured or constrained to plead guilty under circumstances where they might be factually innocent.
In the report of the Federal/Provincial/Territorial Heads of Prosecutions Subcommittee on the Prevention of Wrongful Convictions in 2018, there was a chapter and some discussion devoted to addressing the problem of false guilty pleas. It also notes the overrepresentation of Indigenous Canadians in the system, which also might put pressure on such detained persons to plead guilty under circumstances when they really are not.
My question is this: Bill C-75 adds to the current plea inquiry process a requirement that the court be satisfied that the facts support the charge before the court accepts a guilty plea. I would like to hear from you in terms of whether you think this adequately addresses or takes a step in the direction of addressing the problem of factually innocent persons motivated, for whatever reasons, to plead guilty.
Mr. Beardall: I honestly don’t know what the rationale behind that particular amendment was. I have not discussed that with my Justice colleagues.
The most I will say is that it certainly doesn’t hurt. However, I really am at a loss to see how it substantively adds anything to the existing obligations of a judge. They have always been under an obligation to ensure that the admitted facts on a guilty plea are sufficient to legally support the charge. So while this statutorily and explicitly codifies that obligation, it does not, in my view, create any new obligation that did not exist before.
Senator Gold: Thank you for that. It is presented, at least in the legislative background material we got, as actually adding something new.
Mr. Beardall: It certainly does to the legislation.
Senator Gold: To the legislation; I see. Thank you for that clarification.
Senator Sinclair: I wonder if I might add, at the request of Senator Omidvar and in the course of my presentation on second reading of the bill and I did some preliminary research. You can, of course, have this verified, but my understanding from the research we did was that once you are charged with an offence that is indictable up to 10 years’ sentence, immigration officials have to be notified, and you will be deported for an indictable offence up to 10 years if you get a sentence of six months or more. That’s my understanding of the law.
The Chair: It’s section 36(1)(a). I have it in front of me here. The library analysts were keen and quick enough to bring it to my attention. It is under the heading of “Serious criminality.” That’s why the issue of hybridization has an important impact in terms of immigration, I would think. That’s part of our reflection in relation to this bill.
Senator Sinclair: Again I will point out that what is not clear is whether that continues to be automatic even though the Crown elects, at a later point in time, to proceed by summary conviction and not by indictment.
The Chair: That’s exactly the point I had in mind when the question of Senator Lankin was raised. I was remembering the discussion that took place and, as I said, I think it was Senator Jaffer at the time who raised this issue because, of course, she has a personal concern with immigration. But the law as it is written in section 36 is pretty clear. It’s the way you state it. But what is not clear is what hybridization would mean in relation to this.
Thank you so much, Mr. Beardall. As you see, what we think is simple becomes complex when the devil is in the details, always. Thank you very much. We are honoured to have heard from you and I hope you will continue to be part of the discussion of this important legislation.
Mr. Beardall: Thank you, senator.
(The committee adjourned.)